FOIL Appeal Determination for 08-02-1A (Phillip Busardo, February 7, 2008)
February 7, 2008
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED & TELECOPY
February 7, 2008
Mr. Philip Busardo
300 Farnham Avenue
Lodi, New Jersey 07644
Re: Freedom of Information Law ("FOIL") Appeal No. 08-02-1A
FOIL Request No. 07-2133
Supplemental FOIL Appeal Determination
Dear Mr. Busardo:
On January 14, 2008, a determination was issued on your FOIL appeal with respect to records relating to Partnership Seafood Corp. Specifically, your original FOIL request sought records relating to "permits, any changes in permits, ownership of permits, VTR reports, and legal changes" for Partnership Seafood Corp. The January 14, 2008 FOIL appeal determination concluded that thirty (30) pages of records were releaseable.
Following issuance of that determination, you contacted me to discuss the scope of your original FOIL request. Based on that conversation, and the clarifications that you provided, I contacted staff of the Department of Environmental Conservation to further review its files. Pursuant to that review, Department staff provided me with copies of sixteen (16) additional records. I have determined that five of those additional sixteen records are releaseable, including:
- application for striped bass tags dated 6/19/07 and an acknowledgment of receipt of striped bass tags dated 7/2/07 (both the application and acknowledgment are on the same page);
- application for striped bass tags dated 6/21/06;
- application for striped bass tags dated 6/13/05;
- acknowledgment of receipt of striped bass tags dated 7/1/04; and
- application for striped bass tags dated 6/24/04.
Copies of the above-listed records are being forwarded under cover of this letter. Photocopying costs are being waived.
The remaining eleven (11) records are being withheld pursuant to sections 87(2)(a) and 87(2)(d) of the Public Officers Law ("POL"). These include weekly catch reports of striped bass for 2007 (1 record), weekly catch reports for 2006 (2 records), weekly catch reports for 2005 (2 records), weekly catch reports for 2004 (5 records), and one (1) spreadsheet relating to tag usage by Partnership Seafood Corp. for the period 2000-2007.
POL § 87(2)(a) provides that an agency may deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute." Pursuant to section 40.4 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"), "[f]isheries data, statistics, or other information collected from individual permit or license holders by the department . . . shall be confidential and shall not be disclosed except to an authorized user or when required under court order . . . ." In accordance with the foregoing, we have determined that the eleven records may be withheld pursuant to POL § 87(2)(a).
In addition, POL § 87(2)(d) provides that an agency may deny access to records or portions thereof that "are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise." Information regarding the number of tags that are used pursuant to a commercial striped bass permit, the weight of the fish tagged, the type of gear used, the area fished, the name of the person or company to which the striped bass were sold or shipped constitutes such confidential business information. For example, disclosure of this information would reveal successful fishing grounds for striped bass, the quality of the catch, and the companies with which business is conducted for the sale or shipping of the catch, and if revealed would result in substantial injury to the competitive position of the company or individual who holds the fishing license. Accordingly, the eleven additional records are also being withheld pursuant to POL § 87(2)(d).
Please be advised that 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 correspondence relating to this appeal, please refer to FOIL Appeal No. 08-02-1A.
Very truly yours,
Louis A. Alexander
cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC Records Access Officer
James McClymonds, Chief Administrative Law Judge