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FOIL Appeal Determination for 04-13-8A (Alan Isselhard)

July 6, 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

July 6, 2004

Mr. Alan Isselhard
16336 Church Street, R.D. 1
Holley, New York 14470

Re: Freedom of Information Law Appeal No. 04-13-8A
Freedom of Information Law Request 04-80

Dear Mr. Isselhard:

This is in response to your letter dated May 5, 2004 in which you indicated that the Region 8 office of the Department of Environmental Conservation ("Department") had denied you access to information relating to two "suspected flyash" spills (January 7, 2004 and February 22, 2004).

Region 8 has forwarded its file of documents on this matter to the Office of Hearings and Mediation Services ("Office of Hearings"). Based on the information provided to us, the Office of Hearings understands that you were granted access to certain documents in the file, including the following:

- Request for Analysis Form (this relates to a sample collected on January 7, 2004), 2 pages;
- Property Custody Report dated January 21, 2004, 2 pages;
- New York State DEC Complaint Form 04-000261, 1 page;
- New York State DEC Complaint Form 04-000261, 1 page (contains some information in addition to what is contained in the prior listed complaint form);
- Town of Clarendon Complaint/Concern form dated January 7, 2004 (your filing), 3 pages;
- Town of Clarendon Complaint/Concern form dated February 24, 2004 (your filing), 2 pages;
- Copy of two appearance tickets dated February 27, 2002 and February 28, 2002, 1 page;
- Order on Consent/Stipulation dated April 9, 2002 with Hanson Aggregates GLSC, Inc., 1 page;
- E-mail communication from you to ECO Officer Chris Ward with handwritten note, 1 page;
- New York State DEC Complaint Form 04-003814 relating to a complaint received on February 21, 2004, 1 page; and
- Encon Police Report Form with a closure date of February 23, 2004, 2 pages.

If there are any of the above-listed documents that you have not seen, please contact me and any such documents will be forwarded to you.

There are six other documents in the Region 8 file for which access is being denied under the Freedom of Information Law. The Freedom of Information Law ("FOIL") is codified at sections 84 to 90 of the New York Public Officers Law. Section 87 of the Public Officers Law sets forth categories of records that may be exempt from FOIL.

Of these six other documents in the Region 8 file, three of the six documents are internal communications between Department staff and are exempt, pursuant to section 87(2)(g) of the Public Officers Law, as intra-agency materials that are not statistical or factual tabulations of data, instructions to the staff that affect the public, final agency policy or determinations, or external audits. These three documents are also exempt pursuant to Public Officers Law section 87(2)(e)(i) as they were compiled for law enforcement purposes and which, if disclosed, would interfere with an ongoing law enforcement investigation. The three remaining documents are similarly exempt pursuant to Public Officers Law section 87(2)(e)(i) as they relate to an ongoing law enforcement investigation.

In your appeal letter, you listed three groupings of questions about flyash spills and requested responses to them. Please be advised that, for purposes of a Freedom of Information Law appeal, the review of the Office of Hearings is limited to a review of records and a determination of whether such records may be released. "Record" is defined at section 86(4) of the Public Officers Law to mean "any information kept, held, filed, produced or reproduced by, with or for an agency. . .in any physical form. . . ." (emphasis added). There is no requirement to create a record as, in this case, preparing responses to questions. See Public Officers Law 89(3); see also Advisory Opinion 10422 (November 7, 1997) of the Committee on Open Government (stating that, in response to a FOIL request, an agency is not required to answer questions).

You should direct the flyash spill questions that are listed in your letter to the Region 8 office. I am forwarding a copy of your Freedom of Information appeal letter to Captain Steven R. Gerould in Region 8 and you should contact Captain Gerould directly. Please be advised, however, that Captain Gerould may be limited or otherwise precluded from responding to questions involving ongoing law enforcement investigations or enforcement activities on this matter.

This letter represents the final determination of the Department of Environmental Conservation regarding your May 5, 2004 FOIL appeal. You had inquired as to the procedure to appeal our office's determination with respect to access to Department records. 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).

In any further communication with this office, please reference FOIL Appeal No. 04-13-8A.

Sincerely yours,


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

cc: Robert Freeman, Executive Director, Committee on Open Government
Captain Steven R. Gerould, Region 8 (w/copy of the May 5, 2004 FOIL appeal letter)

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