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FOIL Appeal Determination for 08-21-3A (Kim Weissman, August 1, 2008)

August 1, 2008

New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
FAX: (518) 402-9018 or (518) 402-9019
Website: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

August 1, 2008

Kim Weissmann
Lily Residential Construction/Pelligrino Development Corp.
31 Apple Street
Sloatsburg, New York 10974

Re: Freedom of Information Law ("FOIL") Appeal No. 08-21-3A
FOIL Request No. 147-3/08
41, 38, 43, 47 Johnsontown Road, Sloatsburg

Dear Ms. Weissmann:

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 determination to redact portions of two (2) records identified as responsive to your FOIL Request No. 147-3/08 (seeking any and all communications, files, logs, tapes, phone messages concerning 41, 38, 43, 47 Johnsontown Road, Sloatsburg and certain individuals).

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were redacted by the Department's Region 3 office. These records were referenced in Department staff's letter to you dated June 19, 2008. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On February 14, 2008 the Department received your FOIL request. By letter dated February 15, 2008, the Region 3 Records Access Office acknowledged receipt of your FOIL request. On June 19, 2008 Captain Richard Martin released all records, consisting of two records, in redacted form. The records were redacted pursuant to the following provisions:

- POL §87(2)(b), which exempts records which would result in an unwarranted invasion of personal privacy; and
- POL §87(2)(e), which exempts records which are compiled for law enforcement purposes.

By letter dated July 6, 2008, received on July 29, 2008, you filed this appeal from the denial of access to the redacted portions of the records referenced in Captain Martin's June 19, 2008 letter to you with the Department's Office of Hearings and Mediation Services. My July 30, 2008 letter to you advised you that the Office of Hearings and Mediation Services was no longer hearing FOIL Appeals as I have been delegated the authority as the new FOIL Appeals Officer for the New York State Department of Environmental Conservation.

Please be advised that your appeal was not timely filed. The regulations of the New York State Department of Environmental Conservation require that an appeal be filed within thirty days of the denial (see section 616.8(d) of title 6 of the Official Compilation of Codes, Rules and Regulations of New York State). Captain Martin's denial letter was dated June 19, 2008, and, as he advised in his letter, any appeal had to be filed within 30 days. Even though your appeal letter is dated July 6, 2008, it was not received by our office until approximately three and a half weeks later and ten days after the 30 day period. Although the late filing of your appeal would be a basis to deny your appeal, I have exercised my discretion and hereby consider your appeal on the merits. Thus, my de novo review of the records follows:

RECORDS REVIEWED

On this appeal, I have reviewed 2 records, consisting of 4 pages, that were provided to me by Department staff. I contacted the Department's Region 3 staff who informed me that no records were withheld from disclosure in their entirety. Based upon my review of the two (2) redacted records, I have determined that the records were properly redacted and I will not be releasing any further information contained within the records. Below is the reasoning for my decision.

Public Officers Law §87(2)(b)

POL § 87(2)(b) authorizes withholding information where the release of that information "would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §89(2)(b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: . . . (iv.) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it." While the substance of the complaint was clearly relevant to the work of the agency and specifically, to the Environmental Conservation Officers (ECOs) that followed up on the information, the identity of the person(s) reporting is not (See, e.g., Advisory Opinion No. 9214, dated January 2, 1996, Committee on Open Government, New York State Department of State (identifying details pertaining to a complainant may be deleted pursuant to POL § 87 (2)(b)). 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, e.g., Pennington v. Clark, 16 AD3d 1049 (4th Dept. 2005); Advisory Opinion No. 10982 of the New York State Commission on Open Government, August 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)).

Public Officers Law §87(2)(e)

POL §87(2)(e) provides that records that are compiled for law enforcement purposes and which if disclosed would (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of a right to a fair trial or impartial adjudication; (iii) identify a confidential source(s) or disclose confidential information relative to a criminal investigation; or (iv) reveal criminal investigation techniques or procedures, except routine techniques or procedures, can be exempt from disclosure. This agency routinely denies access to the identities of complainants as to do otherwise would likely result in loss of vital information regarding environmental violations. Similarly, judicial decisions have upheld the withholding of information contained in complaints pursuant to POL §§ 87(2)(e)(i) and 87(2)(e)(iii). (See Pride International Reality v. Daniels, 4 Misc3d 1005(A)(Sup Ct NY Co 2004) (holding that POL § 87(2)(e)(i) exemption is not limited to criminal law enforcement agencies and that name of complainant in a departmental agency investigation may be withheld); see also Advisory Opinion No. 13971 of the New York State Commission on Open Government, March 27, 2003 (POL § 87(2)(e) (iii) potentially relevant with respect to complaints to law enforcement agency).

My review finds that Captain Martin properly applied the two FOIL exemptions in redacting the name of the complainant (in addition to other identifying details) from the record furnished to you. Accordingly, your appeal is denied.

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 further correspondence relating to this appeal, please refer to FOIL Appeal No. 08-21-3A.

Sincerely yours,


/s/
Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Captain Martin, Region 3

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