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FOIL Appeal Determination 2 for 04-15-0A (Cheryl Roberts)

August 19, 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

August 19, 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:

As you know, 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, you 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. . . .;
4. Reports relating to the quality and quantity of ground and/or surface water in the vicinity of, and on, Belleayre Mountain Ski Center."

By letter dated July 13, 2004, we responded, in part, to your request. Specifically, at that time, we had reviewed records relating to items #3 and #4 and had determined that 30 pages of documents initially withheld were releaseable. By letter dated July 20, 2004, those documents were forwarded to you.

At this time, we have reviewed records relating to items #1 and #2 as described in your FOIL request. Our review indicates that 101 records were withheld. Of these records, we have determined as follows:

- 88 of the records were properly withheld in their entirety pursuant to Public Officers Law § 87(2)(g) (as intra-agency material);

- 4 were properly withheld in their entirety pursuant to Public Officers Law § 87(2)(g) (as intra-agency material) and were also entitled to be withheld pursuant to Public Officers Law § 87(2)(a) (as attorney-client communications and/or attorney work product);

- 5 that were withheld pursuant to Public Officers Law § 87(2)(g) contain attachments that are releaseable;

- 2 that were withheld pursuant to Public Officers Law § 87(2)(g) (as intra-agency material) and were also entitled to be withheld pursuant to Public Officers Law § 87(2)(a) (as attorney-client communications and/or attorney work product) contain attachments that are releaseable;

- 1 that was withheld pursuant to Public Officers Law § 87(2)(g)(as intra-agency material) contains, in part, statistical or factual tabulations of data that are releaseable; and

- 1 that was withheld pursuant to Public Officers Law § 87(2)(g)(as intra-agency material) is releaseable in its entirety.

Based on our review, a total of thirty-nine (39) pages are releaseable. Normally this would require a payment of $9.75. However, in this instance, we are waiving the fee and are enclosing the pages under copy of this letter.

During the course of our review, we identified one (1) page from the Catskill Park State Land Master Plan (Draft Revision dated August 2003) that contains information that might be subject to your original request and a copy of that page is also enclosed.

This is the final determination of the Department of Environmental Conservation regarding your June 24, 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 Public Officers Law § 89(4)(b).

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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