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FOIL Appeal Determination for 04-11-3A (Charles J. Spiegel, Jr.)

May 17, 2004

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

May 17, 2004

Charles J. Spiegel, Jr., Esq.
33 Fort Hill Road
Yonkers, New York 10710

RE: FOIL Request No. 200-3/04
FOIL Appeal No. 04-11-3A
Fallsburg Fishing and Boating Club

Dear Mr. Spiegel:

This letter is in response to your Freedom of Information Law (FOIL) appeal dated April 16, 2004. With respect to your request for records concerning the Fallsburg Fishing and Boating Club, Region 3 Staff from the Department of Environmental Conservation responded by three letters dated March 4, 10 and 12, 2004. Because all three letters were sent to an address in the Bronx, copies of these letters are enclosed with this determination. By letter dated March 4, 2004, Department Staff from the Division of Environmental Permits provided you access to records at the Region 3 office for review and copying. With a letter dated March 10, 2004, Joyce E. Jiudice, Esq., Assistant Regional Attorney, enclosed documents responsive to your request, and stated that other documents were withheld pursuant to Public Officers Law § 87(2)(a) and § 87(2)(g). In a letter dated March 12, 2004, Department Staff stated that the Region 3 Habitat Protection Program did not have any documents responsive to your request.

In your letter dated February 25, 2004 to Regional Attorney Vincent Altieri, you acknowledged receiving a copy of an Order on Consent, but state in your April 16, 2004 FOIL appeal letter that you did not receive a copy of an Order on Consent. With respect to the captioned matter, only one Order on Consent has been executed between the Fallsburg Fishing and Boating Club and the DEC. A representative of the Fallsburg Fishing and Boating Club signed the Order on Consent on August 12, 2003 and the Region 3 Director signed it on August 18, 2003. With a letter dated March 26, 2004, the Regional Director modified the compliance schedule of the August 2003 Order on Consent. Enclosed are copies of the August 2003 Order on Consent and the March 26, 2004 letter from the Regional Director.

With respect to your April 16, 2004 FOIL appeal, we have reviewed the withheld documents identified in Attorney Jiudice's March 10, 2004 letter. Twenty-eight documents were withheld. Except as identified below, the withheld documents are exempt from disclosure pursuant to Public Officers Law § 87(2)(a) and § 87(2)(g). The withheld documents are exempt from FOIL because they are attorney work product, attorney-client communications, and/or intra-agency deliberative materials.

Upon review, it has been determined that two documents may be released. The first is a three page fax transmission dated March 2, 2004 from Paul C. Rizzo Associates, Inc., Engineers & Consultants. A copy is enclosed. The second is a letter dated July 23, 2003 from Deputy Regional Attorney Jonah Triebwasser. This letter served as a cover letter to the August 2003 Order on Consent. A copy is also enclosed.

When Department Staff was preparing to forward the file for review, two additional documents were found that are responsive to your request, and which are to be released pursuant to FOIL. The first document is a copy of a domestic return receipt from mail sent by Department Staff. The US Postal Service returned the receipt to Region 3 on September 9, 2003. The second document is a copy of an envelope returned to Region 3 on July 28, 2003. Copies of these documents are enclosed. The duplication costs for the copies that are provided under cover of this letter are waived.

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). In any further contact with this office, please reference the above FOIL appeal number 04-11-3A.

Thank you for your patience.

Sincerely yours,


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


/s/
By: Daniel P. O'Connell
Administrative Law Judge

Enclosures

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC FOIL Coordinator

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