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FOIL Appeal Determination for 07-45-6A ( Peggy Mousaw)

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.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

December 12, 2007

Ms. Peggy Mousaw
45 Pine Road
Coulton, NY 13625

Re: Freedom of Information Law (FOIL) Appeal No. 07-45-6A
Request for Complaints

Dear Ms. Mousaw:

Pursuant to the New York State Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]), you submitted a request to Region 6 of the New York State Department of Environmental Conservation ("DEC") for copies of any complaints against you or the property located at 45 Pine Road or on the corner of Gulf and Pine Road in Colton, New York over the last five years. DEC Region 6 staff, by letter dated November 20, 2007, withheld three records on the basis of POL § 87(2)(e)(iii).

Following the receipt of your appeal, this office requested and received copies of the withheld records from DEC Region 6 staff. The three withheld records include a one-page compilation of photographs, a three-page complaint form, and a one-page complaint letter. Upon reviewing these records, I have determined that the page of photographs may be released in toto, the complaint form may be released with certain redactions, and the complaint letter shall continue to be withheld in its entirety.

With respect to the complaint form, the form is being released except for the contents of the narrative on page three of the form. The narrative is being redacted pursuant to POL §§ 87(2)(e)(i) and 87(2)(g). POL § 87(2)(e)(i) provides that an agency may deny access to records or portions thereof that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations." In this instance, the narrative portion describes aspects of the ongoing investigation, the release of which might interfere with the investigation, and is being withheld on that basis. In addition, the narrative also is being withheld, 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. Please note that the original complaint form does not contain any information on the second page.

With respect to the complaint letter, the letter is being withheld pursuant to POL § 87(2)(e)(i) (see Pride International Realty, LLC v. Daniels, 4 Misc 3d 1005(A) [Sup Ct, NY Cty, 2004] [allowing for the withholding of a complaint during the pendency of an investigation]). In addition, one sentence and a portion of another sentence are also being withheld in accordance with POL § 87(2)(b). Pursuant to POL § 87(2)(b), portions of a complaint that contain identifying information of the complainant, in addition to name and address, may be redacted on the ground that disclosure would result in an unwarranted invasion of personal privacy (see, e.g., Advisory Opinion 15301 of the New York State Department of State Committee on Open Government, May 17, 2005; see also Pennington v. Clark, 16 AD3d 1049 [4th Dept], leave denied, 5 NY3d 712][2005]). Although, as you indicate, the letter was submitted anonymously, the letter contains certain information that might otherwise identify the letter's author and, accordingly, POL § 87(2)(b) serves as a further basis to withhold those portions of the letter.

Copies of the released records are being forwarded under cover of this letter. The applicable photocopying fee is waived. As noted previously, by letter dated December 5, 2007, your questions regarding enforcement procedures were being referred to Region 6.

This letter is the 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 Public Officers Law § 89(4)(b). In any future contact with this office regarding this appeal, please reference the FOIL Appeal Number noted above.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosures

cc: Robert Freeman, Executive Director, Committee on Open Government-
Ruth L. Earl, DEC Records Access Officer
Judy Drabicki, Regional Director, Region 6
John Moesel, Region 6 Administrative Assistant

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