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FOIL Appeal Determination for 04-18-3A (John V. Tait)

November 10, 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

November 10, 2004

Mr. John V. Tait
31-23 47th St
Apt. 1G
Astoria, New York 11103

Re: Freedom of Information Law ("FOIL") Appeal No. 04-18-3A

Dear Mr. Tait:

We have had an opportunity to meet with the personnel involved with the Hudson River benthic mapping project and to review the records that are the subject of your appeal. This will confirm that an extensive amount of the project materials has been made available to you through John Ladd, the Benthic Mapping Project Coordinator for the Hudson River National Estuarine Research Reserve Program. We have been advised that the records (~50 gigabytes) have been written to an external disc, copied onto a computer hard drive, and provided to you.

The records that have been withheld in response to your initial FOIL request are those portions that reveal underwater shipwrecks and/or critical infrastructure (such as bridge footings and cable crossings). We have concluded that the materials were properly withheld pursuant to Public Officers Law § 87.

More specifically, those portions of the records related to critical infrastructure were withheld pursuant to Public Officers Law § 87(2)(f) as material that if disclosed "could endanger the life or safety of any person". While we note that your appeal addresses why you believe this is not a proper basis to exclude the records from release, we disagree. The records on critical infrastructure that are being withheld provide more detailed information relating to various aspects (such as physical structure, location, etc.) of these vital transportation and communication links than what is currently available through other means, and, consistent with the Department's responsibility to protect the public security and safety of the state and its residents, this information is not being released. Cf. Matter of Stronza v. Hoke, 148 AD2d 900 (3d Dept), lv denied 74 NY2d 611 (1989); Matter of Flowers v. Sullivan, 149 AD2d 287 (2d Dept 1989), appeal dismissed 75 NY2d 850, 1004 (1990).

As to the information regarding shipwrecks, that data is being withheld under Public Officers Law § 87(2)(a) as information exempt from disclosure pursuant to state and federal statute. As set forth in the State Historic Preservation Act codified in Article 14 of the New York State Parks, Recreation and Historic Preservation Law ("PRHPL"), the State legislature has determined that "the historarchaeologicalogical, architectural and cultural heritage of the state is among the most important environmental assets of the state and it should be preserved." PRHPL § 14.01. It is the public policy of New York State "[t]o promote and encourage the protection, enhancement and perpetuation of such properties. . .which have or represent elements of historical, archaeological, architectural or cultural significance." PRHPL § 14.01(2). It is the obligation of state agencies to adhere to this public policy.

The Parks, Recreation and Historic Preservation Law has recognized the need to protect information on sites that otherwise might be damaged if their location were made known. For example, with respect to the state register of historic places, the law provides that

(f) The commissioner [of parks, recreation and historic preservation] shall, upon request, provide information on the places listed on the state register and on sites included in the statewide inventory maintained by the office pursuant to the provisions of subdivision two of this section to any person making a written request for such information, with the exception of sites that may be damaged by unauthorized investigators if their location be generally publicized.

PHRPL § 14.07(1)(f)(emphasis added). See also 9 NYCRR § 427.8; Environmental Conservation Law § 3-0301 (general functions, powers and duties of the Department and Commissioner). Similar protections are provided in federal law. See, e.g. 16 U.S.C.A. § 470hh (addressing confidentiality regarding the location of archaeological resources); 16 U.S.C.A. § 470w-3 (authority to withhold from disclosure information "about the location, character or ownership of a historic resource"). See generally 16 U.S.C.A. § 470 et seq. (National Historic Preservation Act). Based on our review, the release of these records identifying shipwreck locations would risk damage to these sites by salvagers, scavengers or other unauthorized individuals, risk loss of historic artifacts, objects and information, and jeopardize their historic value. Accordingly, based on these legal authorities and the application of Public Officers Law § 87(2)(a), the records on shipwrecks were properly withheld.

This letter is a final determination of the Department. 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, whether it be by phone or in written correspondence, please reference the above FOIL Appeal Number.

Sincerely yours,

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

/s/
By: Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government
Michael J. Knipfing, FOIL Coordinator, Region 3

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