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FOIL Appeal Determination for 07-12-9A (Anthony DiFilippo)

April 17, 2007


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: http://www.dec.state.ny.us/

April 17, 2007

Anthony DiFilippo IV, Esq.
Bennett, DiFilippo & Kurtzhalts, LLP
681 Main Street
East Aurora, New York 14052

Re: Freedom of Information Law ("FOIL") Appeal No. 07-12-9A

Dear Mr. DiFilippo:

We have received a complete copy of the report that is the subject of your FOIL appeal. We have concluded that the information that was not released, namely the identity of the complainant and other identifying information, was properly withheld pursuant to Public Officers Law § 87(2)(b) which reads, in relevant part: "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."

We have determined that disclosure of the name of the complainant and other identifying information would constitute such an unwarranted invasion of personal privacy. See New York Department of State Committee on Open Government Advisory Opinion, FOIL AO-13971, dated March 27, 2003 (opining that a complainant's identifying information may be withheld "on the ground that disclosure would result in an unwarranted invasion of personal privacy pursuant to [Public Officers Law] §§ 87[2] and 89[2][b]"); see also Pennington v. Clark, 16 AD3d 1049 (4th Dept), leave denied, 5 NY3d 712 (2005)(access to records may be redacted to prevent disclosure of confidential information or identification of confidential sources).

This letter is the final determination of the New York State 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. 07-12-9A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

/s/

By: Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth Earl, Records Access Officer

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