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FOIL Appeal Determination for 08-29-5A (Nick and Carol Bruno, October 31, 2008)

October 31, 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


October 31, 2008

Nick and Carol Bruno
19 Sunset Blvd.
Waterford, New York 12188

Re: Freedom of Information Law ("FOIL") Appeal No. 08-29-5A
FOIL Request No. 08-282
Complaints regarding boating activity on Lake Eaton, Hamilton County

Dear Mr. and Mrs. Bruno:

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 of Region 5 staff to redact portions of one (1) record identified as responsive to your FOIL Request No. 08-282 (seeking "complaints filed and subsequent DEC investigations concerning boating activity on Lake Eaton, Hamilton County").

In accordance with the Department's FOIL appeal procedures, I requested the record that was redacted by the Department's Region 5 staff. This record was referenced in Department staff's letter to you dated October 24, 2008. On this appeal, I conducted a de novo review of that record.

On September 3, 2008 the Department received your FOIL request. On October 24, 2008 Region 5's FOIL Coordinator released all responsive records, consisting of one record, in redacted form with the assertion that the redacted portion of the record is exempt from disclosure pursuant to POL §87(2)(b), which exempts records which would result in an unwarranted invasion of personal privacy. By letter dated October 27, 2008, received on the same date, you filed this appeal with my office from the denial of access to the redacted portions of the record.

Public Officers Law §87(2)(b)

POL §87(2)(b) authorizes withholding information where the release "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; (v.) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." 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)), see also, Advisory Opinion, AO-13971, dated March 27, 2003, Committee on Open Government, New York Department of State (opining that a complainant's identifying information may be withheld "on the ground that disclosure would result in an unwarranted invasion of personal privacy pursuant to POL §§87(2) and 89(2)(b)")). 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).

I must note that Region 5 staff, within their October 24, 2008 letter to you, only claimed the personal privacy exemption, pursuant to POL §87(2)(b). After review of the record and the applicable POL provisions, I believe the redacted portions of the record may also be exempt from disclosure pursuant to POL §87(2)(e). My review of that statute and my decision in regards to this exemption follows.

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, . . . "(iii) identify a confidential source(s) or disclose confidential information relative to a criminal investigation", may 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, in that citizens of New York would no longer report environmental violations in fear of their personal information would be released to the public and/or reprisal for their actions. 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).

My review of the record finds that DEC Region 5 staff properly redacted the record furnished to you. Furthermore, based on my review of the record Department staff could have redacted additional information, if so chosen to do so, pursuant to the statutory sections discussed in this decision. Nevertheless, the information that was redacted includes personal information that is not relevant to the work of DEC, and that if released to the public may cause a hardship to the subject of such information. Contact or personal information of a complainant will not be released to the public as the complainant's privacy would be compromised. 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. 08-29-5A.

Sincerely yours,

Dena N. Putnick, Esq.
FOIL Appeals Officer

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

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