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FOIL Appeal Determination for 08-02-1A (Philip Busardo, March 20, 2008)

March 20, 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/

BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED

March 20, 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
Reconsideration of FOIL Appeal Determination

Dear Mr. Busardo:

The Department of Environmental Conservation ("Department") has reconsidered its FOIL Appeal Determination dated February 7, 2008, by which eleven (11) records relating to weekly catch reports of striped bass were withheld in accordance with Public Officers Law
§ 87(2)(a).

The Department reconsidered its prior determination in light of the additional information that you provided under cover of your letter dated February 21, 2008, which the Department received on February 26, 2008. The additional information related to your shareholder and ownership interest in Partnership Seafood, Inc., together with a printout from the DOC/NOAA/NMFS Systems Management and Development Section regarding vessel trips for the "F/V Partnership #213229" by all operators. You indicated that, based on the submitted information, the weekly catch reports that were submitted by Tom Jordan to the Department, on behalf of Partnership Seafood, Inc., and which the Department previously withheld, should be released to you as a major shareholder of that business entity.

As referenced in the Department's earlier determination, section 40.4 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") provides that "[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. . . ." An authorized user is defined as:

"any person that is employed by or under contract to the department
or who is employed by or is under contract to the National Marine
Fisheries Service, the U.S. Fish and Wildlife Service, the Mid-Atlantic
Fishery Management Council, the New England Fishery Management
Council, the South Atlantic Fishery Management Council, or the states
of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut,
New Jersey, Pennsylvania, Maryland, Delaware, Virginia, North
Carolina, South Carolina, Georgia or Florida, and who has been
designated by such agency or state, under the auspices of the Atlantic
coastal cooperative statistics program, to require confidential data as a
means to fulfill their job and their job is related to fisheries management
and conservation" (see 6 NYCRR 40.4).

Although the information you recently submitted to this office indicates that you are a one-third shareholder in Partnership Seafood, Inc., the Department has not read 6 NYCRR 40.4 to authorize release of the records requested to a shareholder of a corporation absent a written authorization from the corporation. In addition, whether related records may be available from another governmental entity is not dispositive of whether the Department is obligated to release those records pursuant to FOIL.

Based on the review of your submission and 6 NYCRR 40.4, upon reconsideration it has been determined that, absent written authorization from the corporation or court order, the Department is not authorized to release the weekly catch reports to you that Tom Jordan submitted to the Department.

Please be advised that this letter is the final determination of the Department with respect to your appeal and request for reconsideration. 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).

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

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

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