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FOIL Appeal Determination for 04-10-0A (Dora Schomberg)

May 10, 2004

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor, Albany, New York 12233-1550
Phone: (518) 402-9003 FAX: (518) 402-9037
Website: www.dec.state.ny.us

May 10, 2004

Dora Schomberg
New York State Coordinator
The Fund For Animals
P.O. Box 9029
Albany, New York 12209

Re: Freedom of Information Law ("FOIL") Appeal No. 04-10-0A
FOIL Request No. 04-53
The Fund For Animals

Dear Ms. Schomberg:

This letter responds to your correspondence of April 7, 2004, appealing the determination made by the Office of Media Relations of the New York State Department of Environmental Conservation ("NYSDEC" or the "Department") denying your request pursuant to the New York State Freedom of Information Law ("FOIL") for certain documents pertaining to the hunting season for crows. For the reasons set forth herein, the determination of the Office of Media Relations is affirmed, except as noted below.

As discussed more specifically in this correspondence, certain of the withheld documents are exempt from FOIL because they are intra-agency materials which do not meet any of the standards for disclosure under Public Officers Law ("POL") section 87(2)(g)(i) through (iv). In addition, two of the documents (telephone message slips) were released to you with the telephone numbers of the callers redacted. This information was appropriately withheld, pursuant to section 87(2)(b) of the POL, because release of that information would constitute an unwarranted invasion of personal privacy.

Procedural and Factual History

By letter dated March 18, 2004, Ruth L. Earl, Records Access Officer, advised you that records sought in your letter of January 9, 2004 were available for inspection and copying. That letter also indicated that 26 documents had been withheld in their entirety, and that handwritten notes had been removed from some of the responsive documents provided to you, in accordance with POL section 87.2(g). On April 9, 2004, the Office of Hearings and Mediation Services received your letter dated April 7, 2004, appealing the denial.

The issue on appeal is whether the Department correctly decided that the requested records are exempt from disclosure under FOIL. We have completed our review of the withheld documents, and have determined that one document may be released. The remaining documents were properly withheld.

Discussion

Agencies have a broad duty of disclosure under FOIL, and there is a presumption that agency records will be made available to the public, unless they fall within one of several categories of statutory exemptions that allows the agency to withhold certain records. See Matter of Hanig v. State Dep't. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 (1992); Matter of Spencer v. Lombardi, 267 A.D.2d 13, 14, 699 N.Y.S.2d 47 (1st Dept. 1999).

The documents sought in your request are exempt because they constitute intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. See Public Officers Law Section 87(2)(g)(i) through (iv). Copies of certain documents with handwritten notations were withheld (although redacted copies of those documents were released to you), because those notations were intra-agency communications that do not fall within the categories enumerated above. Additional documents were withheld in their entirety on the same grounds.

These documents reflect opinions, advice, and recommendations, and are protected from disclosure. See Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132, 490 N.Y.S.2d 488, 480 N.E.2d 74 (1985) (opinions and recommendations exempt from FOIL "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") (citation omitted); David, et al. v. Lewisohn, 142 A.D.2d 305, 308, 535 N.Y.S.2d 793 (3rd Dept., 1988), lv. denied, 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868 (1989) (reasoning behind protecting opinions from disclosure "is that the inherent dangers involved in releasing nonfinal recommendations which may be based on reasoning rejected, or never adopted, by the final decision maker will not only impinge on the agency's predecisional process, but mislead the public."), citing McAulay v. Bd. of Educ. of City of New York, 61 A.D.2d 1048, 403 N.Y.S.2d 116 (2nd Dept. 1978), aff'd, 48 N.Y.2d 659, 421 N.Y.S.2d 560, 396 N.E.2d 1033 (1979). Finally, two telephone message slips were redacted to remove the callers' telephone numbers. Release of this information would constitute an unwarranted invasion of personal privacy, and the information is, therefore, exempt under FOIL. See POL Section 87(2)(b).

One of the withheld documents was an e-mail with an attached news article. Upon review, the document is being released to you in part, with the e-mail message redacted as an intra-agency document. The news article is attached. In addition, your appeal requested that this agency provide you with a subject matter list, pursuant to POL Section 87(3)(c) and 6 NYCRR 616.6(a), that applies to the records you have requested. The subject matter lists applicable to the records you requested are attached.

Your appeal also requested a list of the documents withheld. There is no provision of the Public Officers Law that would require preparation of any such list or index identifying each record withheld. See Advisory Opinion AO-11591, NYS Department of State Committee on Open Government (July 27, 1999) (preparation of index identifying each record withheld, and justification therefor, not required under New York Freedom of Information Law).

Conclusion

The Department's denial of access to the requested materials under FOIL is affirmed, except as set forth above.

This letter constitutes the final determination of the Agency in this matter. As provided in section 616.28(c)(2) of title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York, you have the right to seek judicial review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and Public Officers Law section 89(4)(b).

Sincerely,


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


/s/
By: Maria E. Villa
Administrative Law Judge

Attachments

cc: Robert Freeman, Committee on Open Government
James T. McClymonds, Chief Administrative Law Judge
Ruth Earl, DEC Records Access Officer

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