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FOIL Appeal Determination for 07-26-0A (Dilip K. Banerjee)

July 6, 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) 402-8537FAX: (518) 402-9037
Website:www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

July 6, 2007

Mr. Dilip K. Banerjee
140-23 Cherry Avenue
Flushing, NY 11355

Re: Freedom of Information Law Appeal No. 07-26-0A

Dear Mr. Banerjee:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]), from the denial of access to the names of candidates that the New York State Department of Environmental Conservation ("Department") interviewed for the position of Environmental Engineer 3 (Item #39777).

You had submitted a FOIL request dated May 21, 2007 seeking records relating to the hiring process for the referenced Environmental Engineer 3 position. By letter dated June 11, 2007, the FOIL Coordinator for Fiscal Management responded, and provided various of the requested records. However, personal information on the candidates was redacted. In addition, other information relating to the candidates that were not selected for the position was withheld.

The information was redacted or withheld pursuant to POL § 87(2)(b) which allows for the denial of access to records or portions thereof which "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of [POL § 89(2)(b)]." POL § 89(2)(b) provides that an unwarranted invasion of personal privacy includes, but is not limited to, disclosure of employment, medical or credit histories or personal references of applicants for employment. In addition, POL § 89(7) expressly provides that the names and addresses of applicants for public employment need not be disclosed (POL § 89(7) states, in pertinent part, "nor shall anything . . . require the disclosure of the name or home address . . . of an applicant for appointment to public employment").

In your appeal, you requested that the Department release "all the names of the candidates interviewed for this position [Item #39777]." However, you indicated that personal information "such as phone number, social security number etc can be blacked out." In that regard, you attached to your appeal a copy of the redacted Job Applicant Log that had been previously furnished to you.

Based upon my review, I have determined that the names of the other unsuccessful candidates were properly withheld. As you may know, the Executive Director of the New York Department of State Committee on Open Government issues advisory opinions with respect to FOIL. Several advisory opinions have addressed the issue of releasing applicant information. In an advisory opinion dated March 10, 1997 (to Raymond R. Swanno), it was stated:

"there is a distinction between the extent to which records must be disclosed pertaining to applicants who were hired, as opposed to those who were not. In the case of those who were not hired, I believe that the names and other identifying details pertaining to them may be justifiably . . . withheld."

See also Advisory Opinion dated October 21, 2002 (FOIL-AO-13671)(with respect to applicants for employment, an agency may delete any details which, if disclosed, would permit the identity of the subject of the record to become known). Accordingly, the information on the unsuccessful applicants was properly withheld pursuant to POL §§ 87(2)(b) and 89(7).

This is a final determination of the New York State 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 POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-26-0A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

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

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