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FOIL Appeal Determination for 07-47-0A (Dale F. Jeffers)

January 3, 2008

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

January 3, 2008


Dale F. Jeffers, Esq.
Lombardi, Walsh, Wakeman, Harrison, Amodeo & Davenport, P.C.
111 Winners Circle
Albany, New York 12205

Re: Freedom of Information Law Request No. 07-2162
Freedom of Information Law Appeal No. 07-47-0A
Appeal Determination

Dear Mr. Jeffers:

This is in response to your appeal dated December 5, 2007, 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 information on a camping permit for the West Canada Lake Wilderness Area. Subsequently, by letter dated December 13, 2007, you appealed the denial of access to certain information on camping permits for the "Lows Lake complex." Your requests for these permits both are for the period from January 1, 2007 through August 31, 2007. Please be advised that your two appeals have been consolidated under FOIL Appeal No. 07-47-0A, and are both addressed by this determination letter.

In accordance with the FOIL procedures of the Department of Environmental Conservation ("Department"), I requested a copy of the records that were redacted and have conducted a de novo review. Based upon that review, I have determined that the redactions were made in accordance with the personal privacy exemption contained in POL § 87(2)(b) and, accordingly, the appeals are denied.

A review of the records indicates that the information redacted included the names of individuals, and their license numbers, addresses, telephone numbers and dates of birth. Department staff redacted that information pursuant to POL § 87(2)(b) which authorizes an agency to deny access to records or portions thereof which "if disclosed would constitute an unwarranted invasion of personal privacy under the provision of subdivision two of section eighty nine" of the POL. That subdivision sets forth a non-exclusive list of six examples of what constitutes an "unwarranted invasion of personal privacy" (see POL § 89[2][b][i]-[vi]). In addition, the State's Personal Privacy Protection Law recognizes the government's legitimate obligation to keep certain information confidential (see, e.g., POL §§ 94 & 96).

Your appeal letters indicate that you are only appealing the redaction of the names of the group or lead individuals from the camping permits, but not the other redacted information. It is significant that the redacted information relates to and arises from a voluntary recreational activity, and not from the permitting, licensing or operation of a regulated business or commercial activity. Furthermore, the information redacted does not relate to governmental decision making or policy-making.

What constitutes an unwarranted invasion of personal privacy "is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities . . . . This determination requires balancing the competing interests of public access and individual privacy" (Empire Realty Corp. v. New York State Division of the Lottery, 230 AD2d 270, 273 [3d Dept 1997][quoting Dobranski v. Houper, 154 AD2d 736, 737 [3d Dept 1989]). The Department does not view that it is within the general expectation of those camping on State lands that the information they provide on permits relating to this recreational activity would be distributed or otherwise shared by the Department with outside sources. Releasing the names of campers or other recreational users could, for example, subject such individuals to solicitation or other contacts that would constitute an invasion of personal privacy.

The Department has sought to ensure an appropriate balance between the public's right to access governmental records and the privacy rights of individuals whose information is contained in the Department's various databases. The appropriateness of withholding access to personal information, including names of individuals involved in a recreational activity, has been recognized in a prior court decision (see Goyer v. Department of Environmental Conservation, 12 Misc3d 261 [Sup Ct Albany Cty 2005][upholding determination to withhold, pursuant to POL § 87[2][b], information relating to licenses for a recreational activity]). Similarly, decisions interpreting the federal Freedom of Information Act have also recognized the privacy interest associated with personal information (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]).

A review of the redactions indicates that the name redacted on the West Canada Lake Wilderness Area permit is that of an individual. Similarly, the names redacted on the "Lows Lake complex" permits are all individuals. None of the individuals are designated as obtaining permits in a representative capacity for any organization or association. Based upon a review of the information being requested, it is the Department's conclusion that, in the circumstances relating to these permits, personal privacy considerations are paramount. Accordingly, the names of the camping registrants shall continue to be withheld.1

Please be advised that this letter is the final determination of the Department of Environmental Conservation regarding your FOIL appeals. 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,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director, Committee on Open Government
(w/copy of December 5 and 13, 2007 appeal letters)
Ruth L. Earl, Records Access Officer

1 You noted in your December 5, 2007 appeal letter that you had received eighteen other permits for the West Canada Lake Wilderness Area that did not have such identifying information redacted. My review of those permits indicates that certain of that information should have been redacted but, in light of its prior release, the extent to which it should have been withheld is now moot as it pertains to this matter.

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