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FOIL Appeal Determination for 07-05-0A (Elizabeth Ganga)

August 1, 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.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

August 1, 2007

Ms. Elizabeth Ganga
The Journal News
One Gannett Drive
White Plains, New York 10604

Re: Freedom of Information Law Appeal No. 07-05-0A
FOIL Request No. 06-2127; Trapping License Information

Dear Ms. Ganga:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at sections 84-90 of the Public Officers Law ["POL"]), from the denial of access to the names, home addresses and dates of birth of residents of Westchester, Rockland and Putnam Counties who hold trapping licenses ("trapper residents").

In your appeal, you indicated that you were withdrawing your request for the dates of birth for the trapper residents "to address the agency's concerns about privacy and identity theft." Accordingly, before the Department of Environmental Conservation ("Department") on your appeal is the request for names and addresses of trapper residents. You further stated in your appeal that even if the Department believes that "a principled reason" exists to withhold addresses, the names of the trapper residents should be provided.

The Department's Records Access Officer denied your request on the ground that disclosure would constitute an unwarranted invasion of personal privacy (see POL § 89[2][b]). In addition, the Department's Records Access Officer concluded that disclosure could endanger the life or safety of any person (and cited the exemption to FOIL at POL § 87[2][f], as well as the decision in Goyer v. DEC, 12 Misc.3d 261 [Albany Co Sup Ct 2005])("Goyer").

This FOIL appeal determination upholds the decision of the Department's Records Access Officer to withhold access to the requested information.1

FOIL recognizes certain grounds on which access to records of an agency may be denied. One of these grounds, as noted, allows for information to be withheld if the release would constitute an unwarranted invasion of personal privacy. Specifically, FOIL provides that an agency may deny access to records or portions of records that "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of (POL 87[2][b])." That subdivision sets forth a non-exclusive list of examples of what constitutes an "unwarranted invasion of personal privacy." The Department, in considering requests for information on such sportsmen and sportswomen recreational licenses, previously determined that the information should be withheld (see determination dated February 11, 2005 - DEC website at www.dec.ny.gov/pubs/12286.html). That determination was subsequently upheld in Goyer.

In your appeal, you seek to distinguish your request from the request at issue in Goyer, on the ground that your request is for only a subset of the information and not for all information held by the Department on the trapper residents. However, the exemptions in FOIL support withholding the subset of the information that you seek.2

Case law and precedent provide a basis to withhold information on home addresses. See, e.g., Beyah v. Goord, 309 AD2d 1049, 1050 (3d Dept 2003)(home address to be redacted); Harris v. City University of New York, 114 AD2d 805 (1st Dept 1985)(allowing for deletion of addresses from curricula vitae); Pasik v. State Board of Law Examiners, 114 Misc2d 397 (New York Co Sup Ct 1982), modified 102 AD2d 395 (1st Dept 1984), appeal withdrawn, 64 NY2d 886 (1985)(home addresses to be redacted); American Broadcasting Companies, Inc. v. Siebert, 110 Misc2d 744 (1981)(home addresses of check cashing business officers to be kept private in light of danger to life and safety).

The Commission on Open Government of the New York State Department of State has reached similar conclusions. See, e.g., Advisory Opinion ("AO") 15951, May 5, 2006 (home addresses in license applications may be withheld); AO-13878, February 12, 2003 (opining that "home address . . . could . . . justifiably be withheld as an unwarranted invasion of personal privacy"); AO-12811, July 17, 2001 ("home addresses of . . . persons who are not public employees . . . may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy"); AO-11570, July 14, 1999 (home addresses may be withheld); and AO-11386, March 22, 1999 (home addresses of non-public employee licensees may be withheld "on the ground that disclosure would constitute an unwarranted invasion of personal privacy").

The Department has also concluded that, in the context of this appeal, the names should also be withheld. The release of the names in a limited geographical context (in this instance, Westchester, Rockland and Putnam Counties) would be generally equivalent to releasing the addresses for many of these individuals. Although you contend that names and addresses are readily available in telephone books and public databases and that, as a result, the release of the requested information should not raise privacy concerns, I disagree. Telephone books and other such information do not denote whether the listed individuals have trapping licenses, and enabling a process that would allow identification of home residences by releasing a list of names of trapper residents is not justified in this matter.

Furthermore, the Court in Goyer drew a critical distinction between professional licenses and those for hunting, fishing or trapping. As stated by the Court:

[T]his Court does not find analogous the disclosure of certain information due to a professional/work related license and that of a license obtained to participate in a recreational activity - such as hunting, fishing, or trapping. Whereas the professional/work-related license signals to society that the person is qualified to participate in the profession for which the license is required, a hunting, fishing, or trapping license, on the other hand, is primarily issued as part of the DEC's obligation to conserve and manage fish and wildlife in the State (see generally Environmental Conservation Law, article 11) (Goyer, at 271)(emphasis added).

The Court's decision recognizes trapping as a recreational activity and provides ample support to deny the release of the names of the affected trappers. Although you contend that trapping is a largely commercial activity engaged in for monetary gain, no support is given for that contention. Although post-trapping sale of fur may occur in a number of situations, this does not, in and of itself, change trapping to a non-recreational activity.

You also argue that withholding the names and addresses on the ground that disclosure would endanger life or safety is not applicable here because trappers, unlike individuals holding hunting licenses, would not have firearms in their homes. Please be advised that trappers may possess firearms either because they are separately engaging in hunting activities or use firearms in the context of their trapping activities. Moreover, by making public the names and addresses of trappers, the potential for acts of physical harassment, recriminations or other hostile acts against trappers cannot be ignored, particularly in light of the strong emotions regarding trapping practices. Consequently, it is not unreasonable to believe that the release of the names and addresses of individual trappers could endanger the lives or safety of trappers or subject them to harassment.

Furthermore, decisions interpreting the federal Freedom of Information Act have also recognized the privacy interest associated with personal information such as names and home addresses. See, e.g., National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (DC Cir 1989)("privacy interest of . . . individual in avoiding . . . unlimited disclosure of . . . name and address is significant"), cert. denied, 494 US 1078 (1990); Forest Guardians v. U.S. Federal Emergency Management Agency, 410 F.3d 1214, 1218 (10th Cir. 2005)(citing decisions noting individual privacy interest in names and home addresses).3

Accordingly, the names and addresses of trappers in Westchester, Putnam and Rockland Counties are not being released on this appeal. Please be advised that this is the final determination of the Department of Environmental Conservation regarding your FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules and POL § 89(4)(b).

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

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

1 Information on trappers (other than for nuisance wildlife control operators) is maintained in the Department's database system referred to as the DEC Automated Licensing System ("DECALS"). It is the Department's understanding that your FOIL request was not meant to cover nuisance wildlife control operators who are granted licenses to take wildlife that becomes a nuisance, destroys property or menaces an individual or domestic animal (see Environmental Conservation Law § 11-0521) and who may have obtained a trapping license to assist in the capture of such nuisance wildlife.

2 Although you indicate that you are withdrawing the request for dates of birth, please note that case law and other precedent clearly provides a basis to withhold dates of birth. See, e.g., Investigation Technologies, LLC v. Horn, 4 Misc3d 1023, WL 2059998 (New York Co. Sup Ct 2004) (denying dissemination of detainees' birth dates); Beyah v. Goord, 309 AD2d 1049, 1050 (3d Dept 2003) (date of birth to be redacted); Pasik v. State Board of Law Examiners, 114 Misc2d 397 (New York Co Sup Ct 1982), modified 102 AD2d 395 (1st Dept 1984), appeal withdrawn, 64 NY2d 886 (1985) (ages of persons who graded examinations questions exempt from disclosure).

The Commission on Open Government of the New York State Department of State has issued a number of advisory opinions which further supports withholding dates of birth. See, e.g., Advisory Opinion ("AO") 15951, May 5, 2006 (dates of birth in license applications may be withheld); AO (Valentino), December 27, 1996 (disclosure of "details that would enable the public to know of one's age would constitute an unwarranted invasion of personal privacy").

3 For your information, the Department includes information on sporting licenses on its website. General information appears at the following website addresses: www.dec.ny.gov/permits/365.html and www.dec.ny.gov/permits/26368.html. Sporting license sales are listed at the following link ftp://ftp.dec.state.ny.us/dfwmr/licsales. This link provides, among other things, information on the number of trapping licenses by County.

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