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FOIL Appeal Determination for 10-12-1A (Ed Tory, June 8, 2010)

CERTIFIED MAIL: RETURN RECEIPT REQUESTED

June 8, 2010

Ed Tory
8 Beach Hill Drive
Fort Salonga, NY 11768

Freedom of Information Law appeal # 10-12-1A

Freedom of Information Law request # 10-0375

Dear Mr. Tory:

Background

You made a request for access to "any information (FOIL) regarding a complaint filed against me ... I would like to know who called the DEC" by your e-mail message dated May 12, 2010, regarding a "visit" to you on May 12, 2010 by an Environmental Conservation Officer.

That request was acknowledged by the Regional FOIL Coordinator's letter dated May 20, 2010 to you.

That request was granted in part and denied in part by the Regional FOIL Coordinator's letter dated May 25, 2010 to you: the letter transmits to you a redacted copy of a Complaint Form re # 10-007965, and the partial denial consists of said redaction by the obliteration of the complainant's name, address and home phone.

You made an appeal from that partial denial by your e-mail message dated May 29, 2010: the message recites "I wish to learn the identity of the person who filed a complaint against me case #10-007965 in Region 1, Stony Brook DEC. The foil request I received #10-0375 has everything on it except the name of the complainant".

That appeal was acknowledged by the FOIL Appeals Officer's letter dated June 1, 2010 to you.

Discussion

It is well-established that a portion of a record which contains information identifying a complainant may be redacted, either upon the ground that the identifying information is exempt pursuant to Public Officers Law § 87(2)(b) because its disclosure would constitute an unwarranted invasion of personal privacy, and additionally or alternatively upon the ground that the identifying information is exempt pursuant to Public Officers Law § 87(2)(e)(iii) because it is compiled for law-enforcement purposes and its disclosure would identify a confidential source. See, e.g., Pennington v. Clark, 16 A.D.3d 1049, 791 N.Y.S.2d 774 (4th Dept., 2005), rearg. denied, 19 A.D.3d 1185, 796 N.Y.S.2d 567 (4th Dept., 2005), mot. for lv. to app. denied, 5 N.Y.3d 712, 840 N.E.2d 131, 806 N.Y.S.2d 162 (2005). And see Committee on Open Government advisory opinion FOIL-AO-16679 (July 23, 2007). It is immaterial to the foregoing analysis that you assert that you already know, or believe you know, the identity of the complainant. See Johnson v. New York City Police Department, 257 A.D.2d 343, 694 N.Y.S.2d 14 (1st Dept., 1999), mot. for lv. to app. dismsd., 94 N.Y.2d 791, 722 N.E.2d 502, 700 N.Y.S.2d 422 (1999). In this matter, the redaction consisting of the obliteration of the complainant's name, address and home phone was proper because the complainant's identity is within both cited exemptions, Public Officers Law § 87(2), (b) and (e)(iii).

Determination

The denial from which this appeal was made is affirmed, and access to the withheld portion of the record is denied.

This determination is a final agency action.

Please take notice that, pursuant to Public Officers Law § 89(4)(b), you may obtain review of this determination by bringing a proceeding in court pursuant to Civil Practice Law and Rules Article 78.

Cordially,

/s/

James H. Eckl
FOIL Appeals Officer

Committee on Open Government
Department of State
One Commerce Plaza,
99 Washington Avenue
Albany, NY 12231-0001


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