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FOIL Appeal Determination for 06-13-3A (Laurie B. Hannon)

July 25, 2006

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone:(518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

July 25, 2006

Laurie B. Hannon
PAJO Enterprises, Inc.
5084 Route 17M
P.O. Box 150
New Hampton, New York 10958

Re: Freedom of Information Law ("FOIL") Appeal No. 06-13-3A

Dear Ms. Hannon:

We have received and reviewed the records that are the subject of your FOIL appeal dated June 27, 2006.

Your initial FOIL request to the Department requested a copy of the complaint of the Town of Wawayanda that was made on October 29, 2004 and the decision of Officer Michael Bello after he inspected the premises at 5084 Route 17M, New Hampton, New York (the "property"). Under cover of a letter dated June 21, 2006 from Captain Scott Florence, you were provided with a copy of the complaint record (Complaint Record #04-024351) regarding the property. The complaint record contained Officer Bello's narrative stating, among other things, that there was no wetland in the area and that the case had been closed. The name and personal identifying information about the complainant in the complaint record was redacted from the copy provided to you.

In your FOIL appeal, you stated that you were appealing the determination to deny access to the name and address of the complainant. The information about the complainant was withheld based upon section 87(2)(b) of the Public Officers Law ("POL") which reads, in relevant part, as follows: "Each agency shall . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that . . . (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." Captain Scott Florence concluded that the release of the redacted information would constitute such an unwarranted invasion of personal privacy and, based on our review on this appeal, we concur that the information was properly withheld.

The Committee on Open Government of the New York State Department of State, which issues advisory opinions on FOIL, has similarly concluded that the name and identifying details of a complainant may be redacted pursuant to POL § 87(2)(b)(see, e.g., Advisory Opinion No. 13971 dated March 27, 2003; Advisory Opinion dated August 4, 1998 to the League of Women Voters; see also Pennington v. Clark, 16 AD3d 1049 (4th Dept), motion for leave denied, 5 NY3d 712 (2005)(records may be redacted to prevent identification of confidential sources)).

Captain Florence did not designate that the information was redacted based upon POL § 87(2)(e) which exempts from disclosure information that was compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of a right to a fair trial or impartial adjudication; (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures. Based on court decisions, opinions of the Committee on Open Government, and Department policy, POL 87(2)(e)(i) and (iii) also support withholding information relating to a complainant, in addition to personal privacy protections of POL § 87(2)(b) (see Pride International Reality v. Daniels, 4 Misc3d 1005(A)(Sup Ct NY Co 2004)(holding that the POL § 87(2)(e)(i) exemption is not limited to criminal law enforcement agencies and that the name of complainant in a departmental agency investigation may be withheld); see also Advisory Opinion No. 13971 of the Committee on Open Government, March 27, 2003 (POL § 87(2)(e)(iii) potentially relevant with respect to complaints to law enforcement agency)).

This letter is the final determination of the Department of Environmental Conservation. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 06-13-3A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/
By: Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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