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FOIL Appeal Determination for 04-04-3A (Kenneth Gobetz)

March 17, 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 17, 2004

Kenneth Gobetz, Esq.
Wichler & Gobetz, P.C.
400 Rella Boulevard, Suite 213
Suffern, New York 10901

Re: Freedom of Information Law ("FOIL") Appeal No. 04-04-3A

Dear Mr. Gobetz:

We have received and reviewed the documents that are the subject of your FOIL appeal and have determined that certain of the documents that were withheld may be released.

Nine documents were withheld. Based upon our review, four were properly withheld pursuant to Public Officers Law § 87(2)(a) as documents exempt from disclosure by state or federal statute, and Public Officers Law § 87(2)(e)(i) as documents compiled for law enforcement purposes and which if disclosed would interfere with law enforcement investigations. Of these four documents, two were prepared by a Department attorney and are exempt pursuant to CPLR 3101(c) (attorney work product), and two documents are exempt because they are records relating to a Department of Environmental Conservation enforcement investigation. See also CPLR 3101(d).

In addition, the other two withheld documents are draft orders of consent. These, however, were previously transmitted directly to your clients (transmittals to Morgan Fuel & Heating Co., Inc. and New Hamburg Terminal Corp., both dated October 9, 2003).

We have determined that the remaining three documents are releaseable. Department Staff have also concurred that the documents may be released. These include one document containing National Response Center Incident Reports #636199 and #636201 and an attached fax cover sheet; and two letters from the New York State Department of Health to private individuals, together with attachments. The individuals' names and addresses in the two Department of Health letters are being redacted to protect against an unwarranted invasion of personal privacy in accordance with Public Officers Law § 87(2)(b).

The documents being released total 19 pages. If you wish to be provided with copies of the documents, please send a check for $4.75 to this office within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (19 pages at $.25/page). If you wish to review these documents in our office, please contact Deborah Vachon at (518) 402-9003 within this time frame. After the 30 days have elapsed, if you have not contacted Ms. Vachon or submitted your payment, the documents will be returned to their respective custodians in the agency.

This letter is a final determination of the Department. 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).

In any further communication with this office, please reference the above FOIL appeal number.

Sincerely yours,

/s/
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/
By: Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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