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FOIL Appeal Determination for 04-14-9A (Marc Gromis)

January 13, 2005

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-9003 FAX: (518) 402-9037

January 13, 2005

Marc Gromis, Esq.
634 Statler Towers
Buffalo, New York 14202

Re: Freedom of Information Law Appeal No. 04-14-9A
(Zoar Valley Multiple Use Area)

Dear Mr. Gromis:

We have completed our review of the documents to which the Department's Region 9 denied you access on May 7, 2004, as described in your appeal dated May 21, 2004. Your April 7, 2004 request sought a complete copy of the Department's entire environmental files as they relate to State Environmental Quality Review or any and all other laws dealing with environmental studies pertaining to the public land at the Zoar Valley Multiple Use Area or any portion thereof. The request was made pursuant to the Freedom of Information Law (FOIL, Public Officers Law (POL) §§84 through 90).

The denial of access was based on the documents being: an inter-agency or intra-agency material (record) which is not statistical or factual tabulations or data, instructions to staff that affect the public, a final agency policy or determinations, or external audit (POL §87(2)(g)(i) - (iv)); records specifically exempt from disclosure by another statute (POL §87(2)(a)); records the release of which would be an unwarranted invasion of personal privacy (POL §§87(2)(b) and 89(2)); or records compiled for law enforcement purposes (POL §87(2)(e)).

Region 9 withheld 400 documents in whole or in part. We obtained and reviewed these documents under the Public Officers Law and other applicable statutes. Most of the documents and portions of documents withheld by Region 9 are exempt from access under FOIL for the reasons stated below. There are, however, 38 documents from which additional material is being made accessible under this FOIL appeal decision, by release of either the entire document or sections of the document.

Of the documents that are not available under FOIL, the majority are intra-agency or inter-agency records that do not fall within any of the exceptions stated in POL §87(2)(g). These documents include internal e-mails among DEC Staff, drafts of letters, routing slips used for distributing correspondence within the Department, drafts of the Unit Management Plan (UMP) or sections of the UMP for the Zoar Valley Multiple Use Area, internal memoranda containing comments, recommendations or questions, notes taken at meetings, and drafts of maps. These documents include correspondence between the Department and the New York State Natural Heritage Program (NHP) concerning work done by NHP for the Department. For the purposes of FOIL, an agency's communications with its consultant are treated as intra-agency materials (Xerox v Town of Webster, 65 NY2d 131, 490 NYS2d 488 [1985]; Matter of Sea Crest Construction Corp. v Stubing, 82 AD2d 546, 442 NYS 2d 130 [2d Dept 1981]).

Five documents, in addition to being exempt under POL §87(2)(g), are also exempt under POL §87(2)(a) and §§3101(b) and 4503(a) of the Civil Practice Law and Rules (CPLR) because they are attorney-client privileged communications. Two of these five documents are also exempt under POL §87(2)(a) and CPLR §3101(c) as attorney work product.

Fifteen documents are exempt or partially exempt under POL §87(2)(a) and Environmental Conservation Law (ECL) §3-0301(2)(r) as records that identify locations of habitats of species designated endangered pursuant to ECL §11-0535, protected pursuant to ECL §9-1503, or other species or unique combinations of species of flora or fauna where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive.

Among the withheld records are multiple drafts of the UMP or sections of it, and copies of drafts that were annotated by individual Department employees. The drafts, and comments written on them, are being withheld under POL §87(2)(g) with the exception of statistical and factual tabulations or data contained in appendices of the drafts. These appendices, which mainly are lists of species, are accessible under FOIL with the exception of material that would identify locations of habitats of the species described in ECL § 3-0301(2)(r), which information is redacted or withheld. Please note that the drafts were prepared at various times in past years and some of the information in the appendices may be out of date or superceded.

There are approximately 15 records that are drafts or partial drafts of the UMP and that contain portions being made available for your review. Most of these portions are lists of species, and the same or similar lists appear in multiple copies of the drafts. There is considerable duplication within the approximately 340 pages that are lists of this kind.

Four documents were withheld by Region 9 on the basis of the law enforcement exception under FOIL (POL §87(2)(e)). As of this date, none of the reasons for withholding documents under that exception continue to exist (for example interference with a law enforcement investigation) and we do not consider POL §87(2)(e) any longer to be a reason for withholding documents you requested. All or portions of these four documents, however, are being withheld under POL §87(2)(g)(intra-agency material) or POL §87(2)(a) (unwarranted invasion of personal privacy).

Social security numbers of individuals were withheld by Region 9 on one document, and we agree that this information should be withheld. Ms. Boice-Green notified Ms. DuBois that this document was already released to you with these numbers redacted. On three of the documents that are being released in redacted form in response to your appeal, names and other personal information are being withheld for the reason that their release would constitute an unwarranted invasion of personal privacy (POL §§87(2)(b) and 89(2)).

One document withheld by Region 9 consists of two computer floppy disks with several electronic documents on them. One of the electronic documents is partially accessible under FOIL. The section that would be redacted is exempt under POL §87(2)(a) and ECL §3-0301(2)(r). With the exception of a few changes in capitalization and indenting, however, this document is identical to a paper document that is being released in redacted form. If you wish to obtain a copy of the electronic document, in addition to the paper copy we are releasing to you, the electronic document could be provided for a cost of 65 cents.

The documents or portions of documents that are being made available, and that were not already provided by DEC Region 9, consist of 474 pages. If you wish to be provided with a copy of these records, please send a check for $118.50 (or $119.15 if requesting the electronic document) to this office within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (474 pages at $0.25 per page). If you would prefer to review these documents at our office, please contact Deborah Vachon at 518-402-9003 within this same time frame. In any further communication with this office, please reference the FOIL appeal number 04-14-9A.

This is the final determination of the Department of Environmental Conservation regarding your May 21, 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 and POL §89(4)(b).

Sincerely yours,

Louis A. Alexander
Assistant Commissioner for
Hearings and Mediation Services


Susan J. DuBois
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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