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FOIL Appeal Determination for 09-04-4A (Adam Schultz, February 4, 2009)

February 4, 2009

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: http://www.dec.ny.gov/

Certified Mail, Return Receipt Requested

February 4, 2009

Adam J. Schultz
Gilberti, Stinziano, Heintz & Smith, P.C.
555 East Genesee Street
Syracuse, New York 13202-2159

Re: Freedom of Information Law ("FOIL") Appeal No. 09-04-4A
FOIL Request No. 09-50
Nuisance Complaint Logs, Forms and records between NYSDEC and SOS

Dear Mr. Schultz:

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 4 staff to redact portions of records identified as responsive to your FOIL Request No. 09-50 (seeking copies of the "nuisance complaint form" provided to Save Our Schoharie ("SOS"), copies of records between and among DEC and between DEC and SOS, copies of a nuisance complaint log, whether blank or wholly or partially completed, and all correspondence and documents regarding the above).

In accordance with the New York State Department of Environmental Conservation's (hereinafter "DEC" or "Department") FOIL appeal procedures, I requested the records that was redacted by the Department's Region 4 staff. On this appeal, I conducted a de novo review of the records provided.

On January 6, 2009 you submitted one FOIL request to the Department's central office Records Access Officer and an identical FOIL request to the Department's Region 4 FOIL Coordinator. On January 15, 2009 the Department's Records Access Officer acknowledged receipt of your requests and stated that you should expect a response by February 13, 2009. On January 12, 2009 the Department's Region 4 FOIL coordinator released all responsive records to you, however redacted certain portions of two of the three released records. On January 13, 2009 Central Office responded to your request and released all responsive records to you on that date. By letter dated January 28, 2009 you filed this appeal with my office from the denial of access to the redacted portions of the records and claimed that you did not receive all responsive records.

Based upon your accusations within your letter of January 28, 2009 I have had multiple conversations with both Central Office staff and Region 4 staff regarding this request. After having those conversations, I have been presented with no additional records. On this appeal I have received the redacted records from Region 4 and I have conducted a de novo review of those records.

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." An unwarranted invasion of personal privacy "is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities . . . . This determination requires balancing the competing interests of public access and individual privacy" (Empire Realty Corp. v. New York State Division of the Lottery, 230 AD2d 270, 273 (3d Dept 1997) (quoting Dobranski v. Houper, 154 AD2d 736, 737 (3d Dept 1989))).

While the substance of a complaint is clearly relevant to the work of the Department and to those that follow 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). In addition, there is case law that supports withholding such personal information of non-complainants (see, e.g., Investigation Technologies, LLC v. Horn, 4 Misc3d 1023 (New York Co. Sup Ct 2004) (dates of birth); and Beyah v. Goord, 209 AD2d 1049, 1050 (3d Dept 2003) (home addresses and dates of birth).

After review of the redacted records, I have determined that the redactions were appropriate and justified. The September 26, 2008 e-mail from Marcia Ellis is an e-mail that was sent to the public citizens who submitted complaints to the Department which initiated the creation of the nuisance log that you have sought. In addition, the completed nuisance log that was sent to the Department by a citizen was properly redacted. The name, address and telephone number of a complainant, if released may result in an unwarranted invasion of personal privacy or hardship to the individuals making the complaint to the Department. The substance of the complaint has been released to you as such information is relevant to the work of the Department, but the complainant personal information is not, thus redaction of such was appropriate. Accordingly, your appeal is denied.

Furthermore, your appeal consisted of multiple requests. You are seeking the remainder of the recipient list to the September 22, 2008 email from Marcia Ellis. Enclosed please find the properties of said email as the recipients are listed. I am unable to answer the remaining queries as they are outside the scope of the appeal. However, I have had conversations with Department staff who again reiterate that they have no other responsive records to your specific request.

The requests under section 1 subdivisions b, c and d are part of this appeal. Please see the discussion above.

In regards to request 2 subdivision a, I am unable to give a certification as you have requested. Such request for certification would have to come from the individuals who conducted the search for responsive records. Again, since such a certification process is outside an appeal in regards to withheld records or portions thereof, I am unable to fulfill this request.

Finally, as to your last request, number 2 subdivision b of your appeal, you requested that a privilege log be provided. Such a requirement has been imposed under the federal Freedom of Information Act ("FOIA"), which may involve the preparation of a so-called "Vaughn index" (see Vaughn v. Rosen, 484 F.2d 820 (1973)). There is no requirement under New York State FOIL that requires preparation of any list or index identifying the record or records withheld (see Advisory Opinions AO-14311 (October 27, 2003) and AO-12587 (March 19, 2001), New York State Department of State, Committee on Open Government). Based on the above and that only two portions of two records were withheld from disclosure, and discussed above, I will not be issuing a privilege log of the portion of records withheld.

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. 09-04-4A.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Attachment

Cc: Robert Freeman, Committee on Open Government
Ruth Earl, Records Access Officer
Christopher McKelvey, Mined Land Reclamation Specialist 2
Charles Gilchrist, Mineral Resources
Toni Mauceri, Region 4 FOIL Coordinator
Marcia Ellis, Region 4 Enforcement Coordinator

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