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FOIL Appeal Determination for 04-06-0A (Stephanie Couhig)

May 13, 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

May 13, 2004

Ms. Stephanie S. Couhig
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190

Re: FOIL Appeal #04-06-0A
Request of Jones Day (S. Couhig)
1900 North Street, Endicott, New York

Dear Ms. Couhig:

With respect to your request for records relating to 1900 North Street, the staff of the Department of Environmental Conservation, by letter dated March 4, 2004, denied access to certain documents. This denial was based on the exemptions contained in the New York Freedom of Information Law (FOIL), which is codified in the New York State Public Officers Law.

Pursuant to the appeal of the denial, we have completed our review of the thirteen records to which Department Staff denied you access, and have determined that all of the withheld records are exempt from disclosure.

The withheld records are exempt from FOIL because they are intra-agency or inter-agency materials that are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits.

These records are either opinions, recommendations or policy formulations that fall within the narrow exemption of intra- or inter-agency materials under Public Officers Law section 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 (1985)(quoting Matter of Sea Crest Construction Corp. v Stubing, 82 AD2d 546, 549). Of the thirteen records withheld, twelve are intra-agency records and one is an inter-agency record.

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 section 89(4)(b). In any further contact with this office, please reference the above FOIL appeal number.

Thank you for your patience.

Sincerely yours,


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


/s/
By: Kevin J. Casutto
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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