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FOIL Appeal Determination for 04-15-0A (Cheryl Roberts)

July 13, 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 13, 2004

Cheryl A. Roberts, Esq.
The Law Offices of Marc S. Gerstman
313 Hamilton Street
Albany, New York 12210

Re: Freedom of Information Law Appeal No. 04-15-0A
FOIL Request 04-480

Dear Ms. Roberts:

Following our receipt of your appeal dated June 24, 2004, we commenced our review of the records to which the Department's Records Access Officer denied access on May 21, 2004. The denial of access was based on the records being exempt from the New York Freedom of Information Law ("FOIL") pursuant to Public Officers Law ("POL") § 87(2)(g)(inter-agency or intra-agency records that are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policies or determinations, or external audits).

In your initial FOIL request dated March 24, 2004, your office requested the opportunity to inspect and copy the following records relating to the Belleayre Mountain Ski Center:

"1. Unit Management Plans for and related to the Belleayre Mountain Ski Center;
2. Records regarding any proposed expansion or expansions of the Belleayre Mountain Ski Center from 1990 to present including any reports by Sno Engineering;
3. Water use and withdrawal records. . . ; and
4. Reports relating to the quality and quantity of ground and/or surface water in the vicinity of, and on, Belleayre Mountain Ski Center."

At this time, we have reviewed records relating to items #3 and #4 as described in your original FOIL request. Of the 216 records that were withheld in whole or in part with respect to those two items, we have determined that:

- 185 records are exempt pursuant to POL § 87(2)(g) (inter-agency or intra-agency records that are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policies or determinations, or external audits). Please note that more than one-quarter of these records are sheets that consist solely of handwritten notes of Department staff;
- 15 records are exempt pursuant to POL § 87(2)(g) and POL § 87(2)(a)(records that are specifically exempted from disclosure by state or federal statute. The 15 records include attorney work product and/or attorney-client communications);
- 2 records are exempt pursuant to POL § 87(2)(g) and POL § 87(2)(b)(records that, if disclosed, would constitute an unwarranted invasion of personal privacy. The 2 records contain individual home addresses);
- 8 records that were withheld are releaseable in their entirety; and
- 6 records that were withheld are releaseable in part, upon the redaction of either handwritten notes or removal of intra-agency attachments in accordance with POL § 87(2)(g).

Based on our review, a total of 30 pages are releaseable. If you wish copies of the releaseable records, please send a check to the Office of Hearings and Mediation Services for $7.50 ($0.25/page) made payable to the New York State Department of Environmental Conservation. If you would rather review the documents in our office, please contact me at 402-8537 to make arrangements.

If you have not contacted our office or submitted payment within 30 days of the date of this letter, we will conclude that you do not wish to receive or review the records and they will be returned to their original files. As noted, this letter responds to part of your appeal. We shall be addressing the remainder of your FOIL appeal in subsequent correspondence. In any further communication with this office, please reference FOIL Appeal No. 04-15-0A. If you have any questions, please contact me.

Sincerely yours,


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

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer

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