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FOIL Appeal Determination for 06-14-3A (James A. Geller)

July 14, 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 14, 2006

James A. Geller, Esq.
31 River Road
Ulster Park, New York 12487

Re: Freedom of Information ("FOIL") Appeal No. 06-14-3A
Region 3 FOIL #579-3/06

Dear Mr. Geller:

On July 6, 2006, our office received your FOIL appeal dated June 30, 2006 concerning the denial by Region 3 staff of the Department of Environmental Conservation ("Department") of access to the identity of a complainant. The complainant had alleged a possible stormwater control violation with respect to the construction of a residence at 31 River Road, Ulster Park, New York. As a result of the complaint, a Department employee conducted an investigation of the property on June 22, 2006.

In response to your FOIL request dated June 22, 2006, the Department'ss Region 3 staff, by letter dated June 29, 2006, provided you with several records. With respect to two of the records, the identity and other personal identifying information of the complainant was redacted.

It is the policy of this Department to withhold the identity of complainants based upon Public Officers Law §§ 87(2)(b) and (2)(e)(i), (iii). To reveal the sources of information related to alleged violations of the Environmental Conservation Law would constitute an unwarranted invasion of personal privacy and would interfere with law enforcement investigations by identifying confidential sources. It is likely that, if the identities of complainants were revealed, a source of information vital to this Department'ss protection of the environment would be eliminated. Thus, the public interest in encouraging citizens to report possible environmental violations to the Department supports our decision to withhold the complainant'ss name and other identifying personal information. Accordingly, the determination of Region 3 staff to redact the name and other identifying information of the complainant is affirmed.

Similarly, the Committee on Open Government of the New York State Department of State, which issues advisory opinions on FOIL, has concluded that the name and identifying details of a complainant may be redacted pursuant to Public Officers Law § 87(2)(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)).

This is the final determination of the Department on the above referenced appeal. 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 related to this appeal, please refer to FOIL Appeal No. 06-14-3A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

By: Helene G. Goldberger
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government w/copy of appeal
Ruth Earl, DEC, Records Access Officer
Beth Zicca, Region 3
Michael Knipfing, Region 3 Citizen Participation Specialist

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