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FOIL Appeal Determination for 07-48-3A (Lee Smassanow)

December 31, 2007

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.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

December 31, 2007

Mr. Lee Smassanow
40 Forest Road
Woodbourne, New York 12788

Re: Freedom of Information Law Appeal No. 07-48-3A
Freedom of Information Law Request No. 891-3/06
Appeal Determination

Dear Mr. Smassanow:

This is in response to your appeal, pursuant to the Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]) from the denial of access to certain portions of a DEC complaint form entitled "Fallsburgh Open Burn." In accordance with the FOIL procedures of the Department of Environmental Conservation ("Department"), I have requested a copy of the record, portions of which were redacted prior to its release, and have conducted a de novo review.

Based upon my review, I have determined that the exemptions applied by Department staff, and the redactions made pursuant to those exemptions, were appropriate. Accordingly, your appeal is denied.

Specifically, Department staff relied on two exemptions in support of the redactions. 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 facts and information provided by complainant (and which are set forth on the complaint form) relate to an open investigation. Accordingly, the redactions were properly made on that basis (see Pride v. Daniels, 4 Misc3d 1005[A][Sup Ct NY Cty 2004]).

Furthermore, the redactions are also supported by the personal privacy exemption set forth in POL § 87(2)(b). Pursuant to POL § 87(2)(b), portions of a complaint that contain identifying information on a 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., New York State Department of State Committee on Open Government, Advisory Opinion 15301 dated May 17, 2005; Advisory Opinion dated July 2, 1996 [Duncan T. Osborne][portion of complaint identifying complainant may be deleted on ground that disclosure would result in an unwarranted invasion of personal privacy]; see also Pennington v. Clark, 16 AD3d 1049 [4th Dept], leave denied, 5 NY3d 712 [2005][records may be redacted to prevent disclosure of confidential information or identification of confidential sources]; POL § 89[2][b][iv] & [v]). With respect to the record, the complainant made references to an unrelated third party, which reference was
also properly redacted on personal privacy grounds.

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.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner

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

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