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FOIL Appeal Determination for 06-09-0A (William Wurster)

May 25, 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

May 25, 2006

Mr. William Wurster
Albany Council Representative
625 Broadway, 11th Floor
Albany, NY 12233-7254

Re: FOIL Appeal No. 06-09-0A; FOIL Request 06-713

Dear Mr. Wurster:

This is in response to your memorandum dated May 5, 2006 which I received on May 9, 2006. By your memorandum, you appealed, pursuant to the New York Freedom of Information Law ("FOIL," Public Officers Law ("POL") 84 to 90), the withholding of certain personnel-related records in your FOIL Request 06-713.

Specifically, you had requested the Job Applicant Log and justification memos for the Business Systems Analyst 3 position in the Division of Information Services (job posting no. 06-56). By letter dated May 4, 2006, the FOIL Coordinator for Fiscal Management provided the requested records, with redactions of the information on candidates' disability and veterans status "as well as all information relative to the non-selected candidates."

The information was redacted pursuant to POL § 87(2)(b) which allows for the denial of access to records or portions thereof which "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of [POL § 89(2)(b)]." POL § 89(2)(b) provides that an unwarranted invasion of personal privacy includes, but is not limited to, disclosure of employment, medical or credit histories or personal references of applicants for employment.

In addition, POL § 89(7) expressly provides that the names and addresses of applicants for public employment need not be disclosed (POL § 89(7) states, in pertinent part, "nor shall anything . . . require the disclosure of the name or home address . . . of an applicant for appointment to public employment").

Based upon a review of the redacted material, I have determined that, except for the information on veterans status, the redacted material was properly withheld. As you know, the Executive Director of the New York Department of State Committee on Open Government issues advisory opinions with respect to FOIL. Several advisory opinions have addressed the issue of releasing applicant information. In an advisory opinion dated March 10, 1997 (to Raymond R. Swanno), it was stated:

"there is a distinction between the extent to which records must be disclosed pertaining to applicants who were hired, as opposed to those who were not. In the case of those who were not hired, I believe that the names and other identifying details pertaining to them may be justifiably . . . withheld."

See also advisory opinion dated October 21, 2002 (FOIL-AO-13671)(with respect to applicants for employment, agency may delete any details which, if disclosed, would permit the identity of the subject of the record to become known).

Accordingly, the information on the unsuccessful applicants was properly withheld pursuant to POL §§ 87 (2)(b) and 89(7).1

In addition, the withholding of disability information on the successful and unsuccessful applicants was also appropriate. An unwarranted invasion of personal privacy has been defined to include the disclosure of medical information (see POL § 89(2)(b)(i)) and thus redacting this information was proper. See also Committee on Open Government Advisory Opinion 11570, July 14, 1999 (medical information may be withheld); cf. Hanig v. State Department of Motor Vehicles, 79 NY2d 106 (1992)(treatment for disabilities falls within FOIL personal privacy exemption).

However, with respect to the veterans status of the successful applicant (that is, the entry on whether the applicant was a Vietnam Veteran), I have determined that the information is releaseable. With respect to veterans status and related information, the Department determines whether the information is releasable on a case-by-case basis. In this matter, I have determined that the veterans status should be disclosed. Accordingly, I have enclosed a copy of the Job Applicant Log with the information on veterans status unredacted for the successful applicant.

I note also that, where an unsuccessful applicant for a position with the Department of Environmental Conservation has requested information from any justification memorandum relating specifically to himself or herself, the Department has provided that information to that applicant in the past (subject to redaction pursuant to any applicable FOIL exemptions). Accordingly, if any of the unsuccessful applicants for this posting are interested in obtaining information on themselves that may appear in the justification memorandum, he or she may submit such a request directly.

This is a final determination of the New York State Department of Environmental Conservation with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 06-09-0A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director
Committee on Open Government (w/copy of appeal)

1I note that, in response to your FOIL request 06-713, you were provided information from the Job Applicant Log on the ethnicity of the applicants who were not ultimately selected for the position. I have determined that staff should have redacted that information. However, because the Job Applicant Log was already furnished to you with that information unredacted, this point is now academic.

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