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FOIL Appeal Determination for 09-06-0B (Frank Palladino, February 5, 2009)

February 5, 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/


February 5, 2009

Frank Palladino
3649 Apulia Road
Jamesville, New York 13078

Re: Freedom of Information Law ("FOIL") Appeal No. 09-06-0B
FOIL Request No. 09-0013
Affidavits associated with ticket number BA52142363

Dear Mr. Palladino:

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 records identified as responsive to your FOIL Request No. 09-0013 (seeking all affidavits provide to DEC regarding ticket number BA5214263).

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were redacted by the Department's Central Office. These records were referenced in Department staff's letter to you dated January 16, 2009. On this appeal, I conducted a de novo review of those records.

On January 5, 2009 the Department received your FOIL request. By letter dated January 12, 2009, DEC's Records Access Officer acknowledged receipt of your FOIL request. On January 16, 2009 Colonel Andrew Jacob released all records in redacted form. The records were redacted pursuant to POL §87(2)(b), which exempts records which would result in an unwarranted invasion of personal privacy. By letter dated January 25, 2009, received on January 29, 2009, you filed this appeal from the denial of access to the redacted portions of the records referenced in DEC's January 16, 2009 letter.

On this appeal, I have reviewed seven (7) pages of records that were provided to me by Department staff. Based upon my review of the seven (7) pages of 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) or Forest Rangers that followed up on the information, the personal information 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/affidavit 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)).

My review finds that DEC staff properly applied the FOIL exemption in redacting the records. The information that was redacted from the records includes personal information that is not relevant to the work of DEC, and that if released to the public would 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. 09-06-0B.

Sincerely yours,


Dena N. Putnick, Esq.
FOIL Appeals Officer

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

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