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FOIL Appeal Determination for 10-08-2A (Lori Barrett, April 9, 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


February 5, 2009

Lori Barrett
883 Franklin Avenue #5B
Brooklyn, New York 11225

Re: Freedom of Information Law ("FOIL") Appeal No. 10-08-2A
FOIL Request No. R2-10-376
ECL provisions violated by Isaac Gonzalez

Dear Ms. Barrett:

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 by Department staff to your request.

On this appeal, I have reviewed four (4) records that are responsive to your request. One record is a complaint form detailing the complaint that was received and the steps taken by the Environmental Conservation Officers (ECOs). The other three records are copies of the arrest records associated with Isaac Gonzalez. I have determined that the records should be redacted prior to release to protect from an unwarranted invasion of personal privacy. Below is the reasoning for my decision.

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." While the substance of the complaint is clearly relevant to the work of the agency and specifically, to the ECOs or Forest Rangers that followed up on the information, the personal information of the person(s) reporting is not (See, e.g., Advisory Opinion No. 9214, dated January 2, 1996, Committee on Open Government, New York State Department of State (identifying details pertaining to a complainant may be deleted pursuant to POL § 87(2)(b)). It has long been held that portions of a complaint/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, e.g., Pennington v. Clark, 16 AD3d 1049 (4th Dept. 2005); Advisory Opinion No. 10982 of the New York State Commission on Open Government, August 4, 1998 (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)).

The information that has been redacted from the complaint form includes personal information of complainants that is not relevant to the work of DEC, and that if released to the public would cause a hardship to the subject of such information. Contact or personal information of a complainant will not be released to the public as the complainant's privacy would be compromised.

Your request also sought the case number in criminal court to which Mr. Gonzalez was convicted of violating the Environmental Conservation Law. The Department, after a diligent search, could not locate records that could satisfy this request. However, you may use the numbers associated with the tickets issued to Mr. Gonzalez and locate the conviction records at the court.

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. 10-08-2A.

Sincerely yours,


Dena N. Putnick, Esq.
FOIL Appeals Officer


cc: Robert Freeman, Executive Director, without enclosures
Committee on Open Government
Ruth Earl, Records Access Officer, without enclosures
Fawzy Abdelsadek, Ph.D., P.E., Region 2 FOIL Coordinator, without enclosures

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