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FOIL Appeal Determination for 06-30-5A (Marino Cosenza)

December 6, 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: http://www.dec.state.ny.us/

December 6, 2006

Marino Cosenza, P.E.
603 Old Tilton Road
Pleasantville, New Jersey 08232

Re: Freedom of Information Law ("FOIL") Appeal No. 06-30-5A

Dear Mr. Cosenza:

We have received the record that was responsive to your FOIL request. The record is a two-page report prepared by Officer Louis Gerrain in response to a complaint called in to the Department. We have concluded that this report should be released to you, but in redacted form only. A copy of the redacted record is enclosed.

The name and address of the complainant, in addition to other identifying information, is being redacted to protect the privacy of that person pursuant to section 87(2)(b) of the Public Officers Law (POL). POL § 87(2)(b) 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 of the complainant and other identifying information would constitute such an unwarranted invasion of personal privacy. The Committee on Open Government of the New York Department of State, which issues advisory opinions on FOIL, has concluded that identifying details pertaining to a complainant may be redacted pursuant to POL § 87(2)(b). See, e.g., Advisory Opinion of the Committee on Open Government, FOIL AO-13971, dated March 27, 2003.

In addition, the last sentence (on page 2 of the enclosed record) of the section entitled "Narrative" is being redacted pursuant to POL § 87(2)(g) as intra-agency material which is not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits.. This letter is the final determination of the 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 Public Officers Law § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 06-30-5A.

Sincerely yours,

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, Records Access Officer

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