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FOIL Appeal Determination for 06-29-0A (Alice Weber)

November 15, 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

November 15, 2006

Alice Weber
8 Coach Road
East Setauket, New York 11733

Re: Freedom of Information Law ("FOIL") Appeal No.06-29-0A

Dear Ms. Weber:

We have received the documents that were responsive to your FOIL request. We also were provided with an explanation from Department Staff detailing their position on the response that was provided to you.

You have made two requests in your FOIL appeal. The first is a repeat of part of your initial FOIL request where you asked for information regarding any canvass that took place for the position. Department Staff's response to your FOIL request stated that no canvass was conducted. You were provided with a copy of a declination letter (with the name redacted).

Pursuant to New York State Executive Order No. 6, Equal Employment Opportunity and Affirmative Action, the Department must ensure that equal opportunities are given to "protected class citizens." One candidate who was in the top three on the civil service list is a "protected class citizen" and was therefore verbally advised of the position. When that person indicated that he/she was not going to apply for the position, a declination letter was generated. I have reviewed portions of the Civil Service Law and have found no authority for your argument that a canvass must be conducted, nor did you cite any legal authority for your argument. Department personnel have confirmed that they did not conduct a canvass for the position and therefore there are no records responsive to your request.

Second, you have asked for an unredacted copy of the declination letter. The portion redacted was the name and address of the person who declined interest in the position. We conclude that the information redacted was properly withheld based upon Public Officers Law § 87(2)(b) 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." The release of the name would constitute such an unwarranted invasion of personal privacy.

For your information, the Department has consulted with the Committee on Open Government (which provides guidance with respect to FOIL and FOIL requests) and has been advised that the name does not have to be released.

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. No.06-29-0A.

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services


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

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

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