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FOIL Appeal Determination for 08-31-5B (Mayor John Sherman, November 12, 2008)

November 12, 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


November 12, 2008

Mayor John Sherman
Village of Schuylerville
P.O. Box 56
35 Spring Street
Schuylerville, New York 12871

Re: Freedom of Information Law ("FOIL") Appeal No. 08-31-5B
FOIL Request No. 08-319
Petition signed by residents of Schuylerville regarding the sewer treatment plant

Dear Mayor Sherman:

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 withhold a record identified as responsive to your FOIL Request No. 08-319. On September 23, 2008 you requested a petition signed by residents of Schuylerville regarding the village sewer treatment plant. Region 5 staff withheld the record claiming that release would be an unwarranted invasion of personal privacy. By letter dated October 30, 2008, received on November 3, 2008, you filed this appeal with my office from the denial of access to the withheld record.

On this appeal, I have reviewed one (1) record consisting of three (3) pages. Based on my review of the record, I have determined to release the subject record with minor redactions. 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 §87(2)(b) 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." 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."

The record at issue consists of a letter submitted to DEC along with a petition that was circulated amongst community members. On the petition, an individual had typed up the names, addresses and phone numbers of most of the individuals that had signed the petition. When the petition was circulated amongst the signatories, they were presented with the typed and handwritten personal information of the others on the list. The signatories were aware the petition would be in front of other citizens of their community and presented to the Department; thus with such knowledge they have would no expectation of privacy.

Furthermore, the issue that was presented within the petition and cover letter was previously discussed at a board meeting with town officials and citizens of the town. The citizens had some expectation that they would be contacted by the Department and/or the town to adequately address their concern. The balancing of competing interests of public access versus an individual's privacy is calculated by the citizen's willingness to place their personal information on a publically circulated petition to be submitted to the Department versus their interest in the petition's concerns and an eventual discussion and possible solution. Based on the above analysis, I have determined to release the record. However, I have redacted the email address on the cover letter, in that release of such information could cause economic and personal hardship to that individual of the community.

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. 08-31-5B.

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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