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FOIL Appeal Determination for 04-01-6A (Frank Montecalvo)

April 19, 2004

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 FAX: (518) 402-8541
Website: www.dec.state.ny.us

April 19, 2004

Frank Montecalvo, Esq.
202 Comenale Crescent
New York Mills, New York 13417

Re: Mohawk Valley Water Authority
FOIL Appeal No. 04-01-6A

Dear Mr. Montecalvo:

This office has completed its review of the documents that staff withheld in response to your Freedom of Information Law (FOIL) request of October 30, 2003. Of the 40 documents that were withheld and provided to this office in February 2004, we have determined that nineteen are releaseable in their entirety.

Of the remaining twenty-one documents, eight are releaseable in part, and eleven are exempt from FOIL. Two documents are duplicates. The nineteen documents that are exempt from FOIL, in whole or in part, are being withheld pursuant to Public Officers Law (POL) § 87(2)(g) because they contain intra- and/or inter-agency deliberative communications which are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy or determinations, or external audits. We have redacted the exempt portions from the eight documents that are releaseable in part.

These documents comprised the records that staff made available to Assistant Regional Attorney Randall Young at the time of your original request. Since that time staff has identified and received additional documents germane to your request and has also reviewed these records to assess their status pursuant to FOIL. Staff has informed this office that it has contacted you to afford you the opportunity to review many of these documents.

In addition, staff sent the OHMS copies of twelve documents that were withheld out of this latter category. Of these twelve documents, we have determined the following:

- three of these documents are exempt from disclosure because they are inter- or intra-agency communications reflecting staff's deliberations. POL § 87(2)(g);
- one document is withheld because it is an attorney-client communication. POL § 87(2)(a);
- two documents are exempt from disclosure pursuant to POL § 87(2)(f) as their release could endanger the life or safety of a person;
- two documents are releaseable in part but we are redacting sections because they contain inter- or intra-agency non-final deliberations. POL 87(2)(g);
- two documents were duplicates; and
- the remaining two documents of this group can be released to you in their totality.

Staff represents to this office that it has thoroughly searched its files and produced all the records that are responsive to your request with the exception of the noted withheld items. Because this is an active matter, documents continue to be generated that may also be responsive to your request. The regional staff in Utica has created a repository of documents that will be routinely updated.

Based on our review, a total of 65 pages of the withheld records are releaseable. If you wish copies of the releaseable records, please send a check to the Office of Hearings and Mediation Services for $16.25 (.25/page) made payable to the New York State Department of Environmental Conservation. If you would rather review the documents in our office, please contact Ms. Deborah Vachon at the above-referenced phone number to make arrangements.

Please reference FOIL Appeal No. 04-01-6A in any communications with our office. If you have not contacted our office or submitted payment within 30 days of the date of this letter, we will conclude that you do not wish to receive or review the documents and they will be returned to the files.

This letter constitutes the final determination of the Department on your FOIL appeal of January 11, 2004. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). Thank you for your patience and cooperation.

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Randall C. Young, Assistant Regional Attorney
Ruth Earl, DEC Records Access Officer
Robert Freeman, Committee on Open Government

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