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FOIL Appeal Determination for 06-01-3A (John Bosco)

January 19, 2006

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

January 19, 2006

John Bosco, Esq.
Bosco, Bisignano & Mascolo, Esqs., L.L.P.
857 Forest Avenue
Staten Island, New York 10310

Re: FOIL Request 1030-3/05
FOIL Appeal No. 06-01-3A

Dear Mr. Bosco:

I am in receipt of the following: your November 18, 2005 letter to the Region 3 office of the New York State Department of Environmental Conservation ("DEC" or "Department") by which you requested, pursuant to the New York State Freedom of Information Law ("FOIL"), certain documents relating to a November 2004 hunting shooting incident; the December 27, 2005 determination of DEC Region 3; and your January 6, 2006 FOIL appeal of that determination.

In your FOIL appeal, you objected to the redaction of the home address and date of birth of Mr. Herbert Adams from a Revocation Order, and requested an unredacted copy of that order. DEC Region 3 redacted the information in accordance with § 87(2)(b) of the Public Officers Law ("POL"), which permits the withholding of records or portions thereof where the release would result in an unwarranted invasion of personal privacy. Case law supports withholding such personal information (see, e.g., Investigation Technologies, LLC v. Horn, 4 Misc3d 1023 [New York Co. Sup Ct 2004][dates of birth]; Beyah v. Goord, 209 AD2d 1049, 1050 [3d Dept 2003][home addresses and dates of birth).

The Committee on Open Government of the New York Department of State has also issued a number of advisory opinions which the Department believes further supports withholding home addresses and dates of birth (see, e.g., Advisory Opinion ["AO"] 13878, February 12, 2003 [opining that "home address. . .could. . . justifiably be withheld as an unwarranted invasion of personal privacy"], AO-9816 [Valentino], December 27, 1996 [disclosure of "details that would enable the public to know of one's age would constitute an unwarranted invasion of personal privacy"]).

You have, however, contended in your appeal that, as you obtained this information from other sources, no expectation of privacy exists in the redacted information and the Revocation Order should be released in unredacted form.

The Department disagrees. The fact that personal information may be available to you from other sources does not override the exceptions to FOIL contained in the Public Officers Law or the Department's consideration of those exemptions with respect to personal information contained in its records. With respect to the Revocation Order, the redacting of information was appropriate pursuant to POL § 87(2)(b)(see also POL § 89[2][b]). Accordingly, Region 3's determination is affirmed and an unredacted copy of the Revocation Order will not be provided.

In your appeal, you additionally requested that the Department provide a certified copy of the minutes of Mr. Adams' revocation hearing. It is my understanding that the Department's Division of Law Enforcement mailed a tape of the hearing to you on January 9, 2006.

This letter constitutes the final determination of the Department of Environmental Conservation regarding your FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules and POL § 89(4)(b).

Sincerely,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director
Committee on Open Government
(w/copy of appeal)
Ruth Earl, Records Access Officer
Michael Knipfing, Region 3
Lieutenant Michael R. O'Hara, Law Enforcement

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