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FOIL Appeal Determination for 09-18-2A (Karen Graulich, May 22, 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

April 22, 2009

Karen Graulich
46 Hileen Drive
Kings Park, New York 11754

Re: Freedom of Information Law ("FOIL") Appeal No. 09-18-2A
FOIL Request No. 09-691 and R2-09-475
Candidates for position of Supervisor of Natural Resources

Dear Ms. Graulich:

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 staff to withhold and redact records identified as responsive to your FOIL Request No. 09-691, also referred to as Request No. R2-09-475. I requested the records that were withheld and redacted by Department staff and on this appeal, I conducted a review of those records.

By email dated March 21, 2009 you sent a letter dated March 17, 2009 requesting all files or records regarding the hiring, interviewing and the like for the position of Supervisor of Natural Resources in Region 2 of the Department. On April 9, 2009 the Department's Management and Budget Office responded to your request. The Department released forty (40) pages of records and withheld others or portions of records in accordance with POL §87(2)(b), as release is an unwarranted invasion of personal privacy, and §87(2)(g), as intra-agency records.

Furthermore, you requested that the Department "provide a list identifying the records and information that are withheld or redacted, including the date that each record was created; its format; number of pages; author, recorder and recipient; and the reason or justification for withholding." Within your appeal letter you again request this list from the Department on which records were withheld. 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, I will not be issuing a privilege log of the records withheld.

On this appeal, I have reviewed 9 records. Seven (7) records were redacted and two (2) records were withheld from disclosure. Below are the relevant statutory exemptions under FOIL, followed by a breakdown of the records reviewed and my determination on the redacted and withheld records.

RELEVANT STATUTORY EXEMPTIONS

POL §87(2)(b): Unwarranted invasion of personal privacy
POL § 87(2)(b) authorizes withholding information from disclosure 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."

POL §87(2)(g): inter-agency or intra-agency communications exempt from disclosure
POL §87(2)(g), authorizes the denial of access to records or portions thereof that are intra-agency or inter-agency materials which are not: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government (see POL §87(2)(g)(i0-(iv)). Intra-agency and inter-agency materials that consist of opinions, recommendations and the like from agency staff are exempted from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985); see also New York Times Co. v. City of New York Fire Department, 4 N.Y.3d 477, 488 (2005) ("The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly")).

DISCUSSION OF RECORDS

I have reviewed the records that were redacted and those that were withheld from disclosure. Some records were properly redacted, however there were some records that can be released without redaction or to a lesser extent.

I have determined that the names of unsuccessful candidates, except for your own, were properly withheld. Several advisory opinions of the Department of State, Committee on Open Government, have addressed the issue of releasing applicant information. In an advisory opinion dated March 10, 1997 it was stated: "there is a distinction between the extent to which records must be disclosed pertaining to applicants who were hired, as opposed to those who were not. In the case of those who were not hired, I believe that the names and other identifying details pertaining to them may be justifyably...withheld." (Department of State, Committee on Open Government, FOIL-AO-9944 (March 10, 1997); See also, Advisory Opinion FOIL-AO-13671 (October 21, 2002) (with respect to applicants for employment, an agency may delete any details which, if disclosed, would permit the identity of the subject of the record to become known)). POL §89(7) expressly provides that the names and addresses of applicants for public employment need not be disclosed. Accordingly, the information on the unsuccessful applicants was properly withheld pursuant to POL §87(2)(b) and §89(7). However, some redacted records withheld information beyond the personal information of unsuccessful applicants, thus I will release that information on this appeal.

First, I determined that the visitor register that was sent to you with redactions was properly redacted. Your request was for specific dates on the visitor log, to which the remaining dates were redacted as they are non-responsive to your request. Second, the email that was sent January 2, 2008 was redacted. I determined to release the record with less redactions, however, I have upheld the other redactions in that release would constitute an unwarranted invasion of personal privacy (POL §87(2)(b)), disclosure of unsuccessful applicant names. Third, there are two records that are directly related to you. Your resume and your employment application were redacted to not disclose personal information. However, since you are the requester to your own records, I believe that redactions related to you should be released, to you only, under the Personal Privacy Protection Law (PPPL, codified at §§91-99 of the Public Officers Law ["POL"]).

Next, the list candidate information report and attached canvass letters were properly redacted. The records were redacted as release of the redacted information would constitute an unwarranted invasion of personal privacy. The names have not been redacted on the candidate list, in that this list of names is public information. However, the candidates that were actually interviewed and were unsuccessful at obtaining the position are able to be withheld (Committee on Open Government, FOIL-AO-9944 and FOIL-AO-13671). Finally with regard to the redacted records, there was a January 2, 2008 memorandum that set forth the justification for the transfer. It has come to my attention that the wrong redacted record copy was sent to you by accident by Department staff. I have enclosed a copy of the redacted record that should have been sent to you with the correct redactions. The redactions reflect the successful candidates information, along with your personal information. Unsuccessful candidate information has been redacted as such information if released would be an unwarranted invasion of personal privacy.

Finally, I will address the two withheld records. The first withheld record is a internal Department email. The record is an internal discussion on the individuals who were interviewed for the position. The views expressed within the email are not the final agency determination, but the opinions and their deliberation of the candidates. The final determination is represented within the record that was last mentioned above, the January 2, 2008 memorandum. Thus, this record will be withheld from disclosure as intra-agency deliberative communications, pursuant to POL §87(2)(g), also as release of the some of the information would constitute an unwarranted invasion of personal privacy under POL §87(2)(b). The second withheld record are notes of the interviewer during your interview. It appears that the record consists of factual answers that you provided during the interview. Based on this observance I have determined to release this record to you.

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 No. 09-18-2A.

Very truly yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Attch.

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Deborah Christian, OGC
Kathleen Tubiolo, Management and Budget Office
Louis Oliva, Region 2 Attorney

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