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FOIL Appeal Determination for 09-17-5B (Alicia Bodmer, May 13, 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: www.dec.ny.gov


CERTIFIED MAIL, RETURN RECEIPT REQUESTED

May 13, 2009

Alicia Bodmer
236 Keese Mill Road
Paul Smiths, New York 12970

Re: Personal Privacy Protection Law ("PPPL") Appeal No. 09-17-5B
Request to correct or amend a record

Dear Ms. Bodmer:

This is in response to your appeal, pursuant to the New York State Personal Privacy Protection Law ("PPPL", codified at §§91-99 of the Public Officers Law ["POL"]), from your claim that staff denied your request for amendment or correction to a specific record. I obtained the record that was at issue and on this appeal, I conducted a review of the record and your request under the PPPL.

On March 1, 2009 you emailed your request to the Department's Personal Privacy Compliance Officer in an attempt to correct and amend typed notes of Juan Abadia from the Office of Affirmative Action based on an interview conducted on June 27, 2008. On March 5, 2009 the Personal Privacy Compliance Officer informed you that the PPPL was "a mechanism to correct records containing 'personal information.'" You replied to the Personal Privacy Compliance Officer on the same date with a question on how you could appeal the denial of your request.

With your appeal letter, of April 28, 2009, you stated that you are appealing from the Department's failure to respond to your request, which I find to be inaccurate. The Personal Privacy Compliance Officer responded to and stated that your request failed to comply with the PPPL. I have reviewed the record, typed notes of the Office of Affirmative Action interviewer, and your request. My decision is set forth below.

The Personal Privacy Protection Law

"The [PPPL] was enacted to protect against the increasing dangers to personal privacy posed by modern computerized data collection and retrieval systems. Thus, manually compiled paper records, not electronically indexed in any fashion, which do not permit retrieval under an individual's name or other identifier, are not records under the [PPPL]." (N.Y. Jur. 2d, Records and Recording §66). The intent of PPPL is to protect personal information that is compiled within a computerized index of an agency, not manually compiled paper records. The definition of record within the PPPL is an "item, collection, or grouping of personal information about a data subject which is maintained and is retrievable by use of a name or other identifier of the data subject irrespective of the physical form or technology used to maintain such personal information" (POL §92(9)). As you can see this is more in line with the intent of the PPPL as referenced on the previous page of this decision. Indexes, compilations, groupings, mailing lists, and the like, that are electronically compiled, are records under the definition of the PPPL.
The PPPL allows for individuals to request corrections or amendments of personal information, such as home address, social security number, medical records, etc., found within a record as described above, not within records as described within the Freedom of Information Law (hereinafter "FOIL"). I have reviewed your email to the Department's Personal Privacy Compliance Officer to which you have attempted to interpret the Department's Code of Rules and Regulations, specifically Part 616. Please be advised that Part 616.1 through 616.10 relate to Public Access to Records or FOIL and are wholly and distinctly separate from the PPPL unless specifically referenced to be interpreted together. The definition of record within POL §92(9) under the PPPL is controlling in this matter, not the definition of record within FOIL.

Discussion and determination

The PPPL is intended to allow individuals the ability to correct or amend personal information about themselves that is held by a state agency. The PPPL was not intended to determine what was said or not said during conversations between members of the Department. Your request is entirely to amend or correct what was said by the participating parties to a discussion. Such information contained within your request and the record at issue neither fall within the definition of record under the PPPL nor personal information.

Not all records of the Department are subject to the PPPL. Records that contain personal information about a data subject that can only be retrieved by a name or other identifying information of a data subject are records under the PPPL. Interview notes or notes from an internal meeting or discussion are not records pursuant to the PPPL. Typed versions of employee notes are not personal privacy records. The notes that you submitted under cover of your request are not personal privacy records, nor do they contain personal information. The record contains no personal information, but reflects what occurred during a conversation. Such records will not be reviewed pursuant to the PPPL.

Based on the above, the record that you are requesting to correct or amend does not fall within the statutory definition of a record under the PPPL. Furthermore, even though POL §95(4) states that if a request to amend or correct a record is denied you have the right to submit reasons for disagreement with this decision. However, since your request is not a proper request pursuant to the PPPL you would not have the right to submit such a statement.

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 §97. In any further correspondence relating to this appeal, please refer to PPPL No. 09-17-5B.

Very truly yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Deborah Christian, OGC
Juan Abadia, DEC Central Office
Ann Lapinski, DEC Central Office

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