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FOIL Appeal Determination for 04-02-0A (Dora Schomberg)

March 22, 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

March 22, 2004

Ms. Dora Schomberg
N.Y.S. Coordinator
The Fund for Animals
P.O. Box 9029
Albany, New York 12209

Re: Freedom of Information Law (FOIL) Appeal #04-02-0A
Request of Ms. Schomberg/The Fund for Animals

Dear Ms. Schomberg:

By letter dated November 5, 2003 you had submitted a FOIL request for all documents relating to or concerning the 1999 "Ten Year Management Plan for Ring-Necked Pheasants in New York." By letter dated December 24, 2003, you were notified that approximately 1,000 pages of records were being made available for your review at that time, and that some records were being withheld in accordance with the Public Officers Law.

We have completed our review of the 130 records that were withheld, and have determined that 10 of these records, which constitute seventeen pages, may be released.

The records that are being withheld are exempt from FOIL because they are intra-agency deliberative memoranda. These records are either opinions or recommendations that fall within the narrow exemption of intra-agency materials under Public Officers Law § 87(2)(g). The purpose of this exemption is "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers." Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132, quoting Matter of Sea Crest Construction Corp. v Stubing, 82 AD2d 546, 549. None of the withheld intra-agency documents are statistical or factual tabulations of data, instructions to staff that affect the public or final agency policy or determinations.

You have requested, pursuant to Public Officers Law §87(3)(c) and 6 NYCRR 616.6(a), that you be provided with the subject matter list that applies to the records you have requested. The one-page record in the subject matter list relating to the pheasant release program, which is entitled "16654 Wildlife Research - Upland Game Bird Unit", will also be released.

You had also requested a list of the documents withheld. There is no requirement under the Public Officers Law that requires preparation of any such list or index identifying each record that has been withheld. Advisory Opinion AO-11591, July 27, 1999, New York State Department of State, Committee on Open Government.

If you wish to be provided with copies of the disclosable records, please send a check for $4.50 to the Office of Hearings and Mediation Services within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (11 records consisting of 18 pages at $.25/page).

If you wish to review these records in our office, please contact Deborah Vachon at (518)402-9003 within this same time frame. After that time, if you have not contacted Ms. Vachon or submitted your payment, the records will be returned to their respective custodians in the agency. In any further communications with this office, please reference the above FOIL Appeal Number.

This letter is a final determination of the agency. 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.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner
for Hearings and Mediation Services

By: Kevin J. Casutto
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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