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FOIL Appeal Determination for 09-13-1A (J. Lee Snead, March 31, 2009)

March 31, 2009


New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
PHONE: (518) 402-9522 FAX: (518) 402-9018 or (518) 402-9019
Website: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

March 31, 2009

J. Lee Snead, Esq.
155-C South Country Road
Second Floor
P.O. Box 489
Bellport, New York 11713

Re: Freedom of Information Law ("FOIL") Appeal No. 09-13-1A; FOIL Request No. 09-0016 Appeal Determination

Dear Mr. Snead:

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 constructive denial of access to certain records pertaining to Environmental Conservation Officer ("ECO") tickets and whereabouts of certain ECO's on certain dates specified within your request.

In accordance with the Department of Environmental Conservation's (hereinafter "DEC" or the "Department") FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Region 1 East Setauket Marine Resources office. On this appeal, I conducted a de novo review of those records.

BACKGROUND

By letter dated January 7, 2009 you submitted a request for records to the Department's Region 1 Records Access Officer which sought certain records of the Department relating to tickets issued by ECO Smith and the whereabouts of ECO Smith and Lt. Billotto on certain specified dates.

On January 15, 2009 DEC's Region 1 FOIL Coordinator assigned FOIL No. 09-0016 to your request and projected that you should receive a response by February 11, 2009. By letter dated February 9, 2009 you amended your request in that you discovered a typographical error on your initial request. On March 11, 2009 you filed this appeal because Region 1 had failed to address your FOIL request in the time that they had projected within their January 15, 2009 letter. Through my letter to you, dated March 18, 2009, I acknowledged receipt of your FOIL appeal and stated that I was in the process of obtaining the withheld records from Region 1 staff.

I have received the records withheld by Region 1 staff and I have conducted a de novo review. Following is my determination:

RECORDS REVIEWED

On this appeal, I have reviewed 26 records that were provided to me by Department staff. Based upon my review, I have determined to either release the records in their entirety or to release the records with redactions. The redactions contain information that if released would be an unwarranted invasion of personal privacy, exempt from disclosure pursuant to POL §87(2)(b). Furthermore, one records, consisting of four (4) pages, has one page that will be withheld from disclosure pursuant to POL §87(2)(b) and §87(2)(e) as it was compiled for law enforcement purposes and which if disclosed would interfere with a law enforcement investigation or judicial proceeding and contains personal privacy information exempt from disclosure.

RELEVANT STATUTORY EXEMPTIONS
POL §87(2)(b): Unwarranted invasion of personal privacy
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." The information that has been redacted in the records before me consists of a home or private telephone number of Environmental Conservation Officers or home addresses and dates of birth of private citizens. Such information is exempt from disclosure.

POL §87(2)(e): Compiled for law enforcement purposes
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).

The one page of one record that has been withheld contains both personal privacy information, exempt under POL §87(2)(b), and information that was compiled for law enforcement purposes and which if disclosed would either interfere with a law enforcement investigation or judicial proceeding or would identify a confidential source, exempt pursuant to POL §87(2)(e)(i)-(iv).

The records or portions of records that are being released pursuant to this appeal consist of thirty-eight (38) pages. If you wish to be provided with copies, please send a check made payable to the "New York State Department of Environmental Conservation" to my attention in the amount of $9.50 (38 pages at $0.25 per page), within thirty (30) days of the date of this letter. If I do not hear from you by May 1, 2009, the records will be returned to their respective files and the FOIL appeal file will be closed.

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. 09-13-1A.

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 Dorothy Thumm
ECO Todd J. Smith
Lt. Joseph Billotto
Nancy Pinamonti

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