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FOIL Appeal Determination 2 for 04-08-0A (Christopher Amato)

August 20, 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

BY HAND DELIVERY & FIRST CLASS MAIL

August 20, 2004

Christopher A. Amato, Esq.
79 North Pearl Street
Albany, New York 12207

Re: Freedom of Information Law Appeal No. 04-08-0A
FOIL Request No. 03-1443

Dear Mr. Amato:

We have completed our review of the records that the Records Access Officer of the Department of Environmental Conservation (the "Department") denied you access pursuant to the Freedom of Information Law ("FOIL", New York State Public Officers Law ("POL") sections 84 through 90) by letter dated March 24, 2004.

Your original October 23, 2003 request sought access to, among other information, policies, practices or procedures concerning enforcement of state hunting or fishing regulations against members of Native American tribes. You indicated that the request was being made on behalf of the Haudenosaunee Resource Center.

Following the denial of access, the Office of Hearings and Mediation Services ("OHMS") received your appeal letter (dated March 31, 2004) on April 1, 2004.

The March 24, 2004 letter stated that certain records were being withheld on the basis of various exceptions listed in POL § 87(2). Following receipt of your appeal, OHMS requested from Department staff those records subject to the appeal. We were provided with sixty-three (63) records to which access had been denied in whole or in part. Some of these records appear to consist of one or more documents that had been attached together by the retainer of those documents, presumably on the basis of related subject matter.

In the course of sending the records to OHMS, Department staff advised that, upon further review, three of the documents that had been withheld could be released in their entirety and a fourth was releaseable in part. These records were sent to you under cover of our letter of June 9, 2004 and included:

- 11/26/65 letter from J. L. Sackman to J. M. Hanley (released in its entirety);
- a copy of ECL sections 11-0707 and 11-0709 (released in its entirety);
- a stipulation in a 1989 Western District of Wisconsin case (released in its entirety); and
- five pages of a six page record relating to a fishing license matter. The one page that was withheld is exempt from FOIL under POL § 87.2(a)(attorney-client privilege) and POL § 87.2(g).

With the release of those documents, there were sixty (60) documents to which access was denied in whole or in part. Of these documents, based on our review, it has been determined that two (2) may be released in their entirety and portions of ten (10) documents may be released in part. Accordingly, twenty-four (24) pages are being released which are being transmitted under cover of this letter. Please note that we are waiving the copying charges for these pages. In certain instances, the portion of the record being released is identical to a document that is attached to another record, and only one copy (rather than duplicate copies) is being transmitted.

In light of the foregoing, fifty-eight (58) records are being withheld in whole or in part. Of the records (or portions thereof) which are being withheld, all are exempt pursuant to POL § 87.2(g)(intra-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).

In addition, seventeen (17) of the fifty-eight (58) records are also exempt, in whole or in part, pursuant to POL § 87.2(a) (specifically exempted from disclosure by state or federal statute) in accordance with CPLR 4503(a)(attorney-client communication) and/or CPLR 3101(c)(attorney work product). Two (2) records are subject, in part, to POL § 87.2(b)(unwarranted invasion of personal privacy).

In addition to the records that were the subject of the FOIL appeal, please note that general hunting and fishing requirements appear in two publicly distributed Department brochures ("Hunting & Trapping Regulations Guide 2003-2004" and "Fishing Regulations Guide 2002-2004") and on the Department's website ("Hunting License Information" and "Fishing License Information"). As these materials reference Native American requirements, the two brochures and copies of the website pages are also enclosed. A copy of the recently issued new versions "Hunting & Trapping Regulations Guide 2004-2005" and "Freshwater Fishing Regulations 2004-2006" are also enclosed.

This is the final determination of the Department of Environmental Conservation regarding your March 31, 2004 FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules. In any further contact with OHMS on this appeal, please refer to FOIL Appeal Number 04-08-0A.

Sincerely yours,


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

Enclosures

cc: Robert Freeman, Executive Director
Committee on Open Government (w/o enclosures)
Ruth L. Earl, Records Access Officer (w/o enclosures)

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