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FOIL Appeal Determination for 10-06-0B (Susan Kramarsky, April 7, 2010)

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.state.ny.us

April 2, 2010

Susan Kramarsky
Town Clerk/Receiver of Taxes
Town of Brighton
2300 Elmwood Avenue
Rochester, New York 14618

Re: Freedom of Information Law ("FOIL") Appeal No. 10-06-0B
FOIL Request 10-607
Sporting license information

Dear Ms. Kramarsky:

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 Department staff to withhold the names and addresses of those who purchased recreational licenses in the Town of Brighton over the past three years. The Department's Records Access Officer responded to your request by withholding disclosure as release would constitute an unwarranted invasion of personal privacy (POL §89(2) and §87(2)(b)) and disclosure could endanger the life and safety of any person (POL §87(2)(f)).

FOIL provides that an agency may deny access to records or portions of records that "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article" (POL §87(2)(b)). The subdivision sets forth a non-exclusive list of six examples of what constitutes an "unwarranted invasion of personal privacy" (see POL §89(2)(b)(i)-(vi)). It recognizes the government's legitimate need to keep certain information confidential (see also POL §96(1)(c) (establishing, pursuant to New York's Personal Privacy Protection Law, restrictions on the disclosure of records)).

The six examples set forth in the statute do not represent the universe of what constitutes an unwarranted invasion of personal privacy (the preceding statutory language in POL §89(2)(b) reads "includes, but shall not be limited to"). Accordingly, it is incumbent on an agency to comprehensively review all potential implications that the release of records may have on personal privacy, and to protect against an unwarranted invasion of personal privacy in every context.

What constitutes 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. NYS Division of the Lottery, 230 A.D.2d 270, 273 [3d Dept 1997]; quoting Dobranski v. Houper, 154 A.D.2d 736, 737 [3d Dept. 1989]).

The Committee on Open Government ("Committee") of the New York State Department of State is responsible for overseeing and advising with respect to the implementation of FOIL. The Committee has issued a number of advisory opinions which I believe further supports withholding the names and addresses of those who obtained sporting licenses (see Advisory Opinion ("AO") 13878, February 12, 2003 (opining that "home address or home phone number...could...justifiably be withheld as an unwarranted invasion of personal privacy"); AO-12811, July 17, 2001 ("home addresses of...persons who are not public employees...may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy"); AO-11386, March 22, 1999 (home addresses of non-public employee licensees may be withheld "on the ground that disclosure would constitute an unwarranted invasion of personal privacy").

I am also aware of Advisory Opinion 12949, that you quoted within your FOIL Appeal, relating to a request for personal information of a single "furbearer possession tag" holder. The Committee reasoned that release of some information is warranted because historically information pertaining to licensing has been available to ensure the public that the person licensed is qualified to engage in the licensed activities. However, this specific advisory opinion was analyzed within a New York State Supreme Court matter, Goyer v. NYS Dept. of Environmental Conservation (12 Misc.3d 261, 813 N.Y.S.2d 628 (2005)) to which the Court determined that sporting/recreational licenses are not the same as professional/work-related licenses and thus should be afforded more protection (Id. at 636). Furthermore, the balancing of the public interest in the information against the privacy interests must be weighed. Recreational/sporting license holders are not professional licensed individuals that provide a service to the public, thus the balance of interest falls on the side of preventing disclosure of personal information (Id. at 637).

Also, release of names and addresses of those with recreational licenses can also be withheld pursuant to POL §87(3)(f) which allows for a denial of access where a record "if disclosed could endanger the life or safety of any person." Release of personal information of individuals who have obtained a sporting license is an unacceptable security risk to members of the public, in that such persons may retain weapons within their residences (Id.). Therefore, the public interest in the information is outweighed by the licensor privacy (Id.).

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. 10-06-0B.


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

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