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FOIL Appeal Determination for 10-07-5B (Stephen Orr, 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.ny.gov

April 7, 2010

Stephen H. Orr, Jr., Esq.
Galvin and Morgan
217 Delaware Avenue
Delmar, New York 12054

Re: Freedom of Information Law ("FOIL") Appeal No. 10-07-5B
Region 5 FOIL request #10-081
Complaints/offenses/violations regarding Francis Smith

Dear Mr. Orr:

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 redact portions of a complaint form which was responsive to your request.

Under POL §87(2)(b) agencies can withhold information when 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) says that an agency cannot release personal information that would result in economic or personal hardship to the subject or such information is not relevant to the work of the agency.

Personal information of the person(s) reporting or assisting with an investigation is not relevant to the allegations of an environmental violation (see, Advisory Opinion AO-9214 [January 2, 1996], New York State Department of State, Committee on Open Government [identifying details pertaining to a complainant may be deleted pursuant to POL § 87(2)(b)]). Portions of a complaint or 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, Pennington v. Clark, 16 AD3d 1049 [4th Dept. 2005]; Advisory Opinion AO-10982 [August 4, 1998], New York State Department of State, Committee on Open Government (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)).

Personal information of a complainant or of an individual spoken to by Department staff during an investigation, was redacted. A complainant's name, home address, telephone number and any identifying information of the complainant are not relevant to the work of DEC and if released to the public could cause economic harm to that individual, thus is protected under POL §87(2)(b).

Also, three types of personal information were redacted on the complaint form pertaining to the possible responsible party, such as a date of birth, address and cell phone number. Personal information can only be released to the individual whose information is being withheld, as release to all others could result in economic or personal hardship and such information is not relevant to the work of DEC (POL §89(2)(c)). Therefore, your client's information can only be released to your client and not to their representative.

Finally, the courts have provided direction concerning FOIL as opposed to the use of discovery under the Civil Practice Law and Rules (CPLR) in civil proceedings, and discovery in criminal proceedings under the Criminal Procedure Law (CPL). The principle is that FOIL is a vehicle that confers rights of access upon the public generally, while the disclosure provisions of the CPLR or the CPL, for example, are separate vehicles that may require or authorize disclosure of records due to one's status as a litigant or defendant.

Similarly, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" (Matter of John P. v. Whalen, 54 NY 2d 89, 99 [1980]). Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.
Based on the above, Department staff properly redacted the complaint forms you requested. Identifying information of a complainant and personal information of any other in the report were properly redacted pursuant to POL §87(2)(b). Factual and statistical information was properly released pursuant to POL §87(2)(g)(i).
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 POL §89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL No. 10-07-5B.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Committee on Open Government
Ruth Earl, Records Access Officer
Sheryl Quinn, Region 5 FOIL Coordinator
Lawrence DiDonato, Captain, Region 5

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