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FOIL Appeal Determination for 08-07-7A (Roger Scott, March 17, 2008)

March 17, 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

March 17, 2008

Mr. Roger Scott
116 East Main Street
Elbridge, New York 13060

Re: Freedom of Information Law ("FOIL") Appeal No. 08-07-7A
Appeal Determination

Dear Mr. Scott:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL", codified at §§ 84-90 of the Public Officers Law ["POL"]), from the denial of access to certain records pertaining to reports related to incidents of open burning on Main Street in Elbridge, New York, within the geographical jurisdiction of the Department's Region 7 office.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from disclosure by the Department's Region 7 office. These records were referenced in Department staff's letter to you dated January 18, 2008. On this appeal, we have conducted a de novo review of those records. A brief review of your FOIL request, and Department staff's response thereto, follows.

BACKGROUND

In an electronic mail message to the Department's FOIL mailbox dated November 14, 2007, you requested as follows:

"All documents concerning burning at 116 E. Main St., Elbridge
NY, including, but not limited to the issuance of appearance
ticket EC269597 6 on 11-09-07 for a claimed violation of sec
215.2 sub (d) of 6NYCRR by Officer Neilsen Badge/shield 401,
including the reporting of such incident, and all records of any
prior incidents of the same nature at the same address, and records
of any other agencies from which information of this or prior
incidents was obtained, together with transcripts of any notes,
memorandum, telephone or computer logs and any records of
any nature, including electronic communications."

By letter dated November 23, 2007, the Department's Records Access Officer, Ruth L. Earl, advised you that your electronic FOIL request had been referred to the Department's Region 7 office, and that a response could be expected by December 21, 2007.

By letter dated December 26, 2007, Kim L. Wentworth, Administrative Assistant Trainee in Region 7, advised you that the Department's search for records in connection with your FOIL request was completed and enclosed copies of documents responsive to your request. Some of those documents had been subject to redaction.

Thereafter, in a letter to Ms. Wentworth dated December 30, 2007, you acknowledged receipt of documents responsive to your previous FOIL request to the Department and, among other things, objected to the redaction of certain information from those records.

By letter dated January 14, 2008, Margaret A. Sheen, Esq., Assistant Regional Attorney in Region 7, provided you with further information related to your original FOIL request and, with respect to the redacted information, advised you as follows:

"Also, the names of the complainants have been redacted under
the authority of Public Officers Law § 87(2)(b) which 'if disclosed
would constitute an unwarranted invasion of personal privacy
under the provisions of subdivision two of section eighty-nine of
this article'."

By letter dated February 21, 2008, Ms. Sheen provided the Department's Office of Hearings and Mediation Services with an appeal on your behalf regarding the redaction of information from the Department's records previously provided to you. Ms. Sheen's letter indicated that you had verbally requested this appeal on January 28, 2008.

RECORDS REVIEWED

On this appeal, we have reviewed the records that were provided to us by Department staff, which consist of records arising out of two separate incidents of open burning, on August 1, 2007 and November 9, 2007, on Main Street in Elbridge, New York. This includes the two records which Region 7 staff determined should be disclosed to you, but in redacted form based on the personal privacy exemption of POL § 87(2)(b).

Based upon our review of the records provided to us by staff on this appeal, we have determined that Department staff properly redacted the records in accordance with POL
§ 87(2)(b).

Typically, the name and address of a complainant, in addition to other identifying information, is redacted to protect the privacy of that person pursuant to POL § 87(2)(b) which reads, in relevant part, as follows: "Each agency shall . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: . . . (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article."

It has long been held that portions of a complaint that identify a complainant by name or provide other identifying details may be redacted because disclosure would result in an unwarranted invasion of personal privacy (see Pennington v. Clark, 16 AD3d 1049 [4th Dept. 2005] [access to records may be denied or records redacted to prevent disclosure of confidential sources, including sources interviewed by law enforcement]; and Advisory Opinion No. 10982 of the New York State Committee on Open Government, Aug. 4, 1998 [portions of a complaint that identify a complainant by name or provide other identifying details may be deleted because disclosure would result in an unwarranted invasion of personal privacy]).

Consequently, based on the foregoing, the name and address of the complainant and other identifying information in the Department's records responsive to your FOIL request, would constitute such an unwarranted invasion of personal privacy and, as such, were properly redacted by staff.

This letter is the final determination of the 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. 08-07-7A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner


/s/

By:

Mark D. Sanza
Administrative Law Judge

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


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