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FOIL Appeal Determination for 04-19-0A (Victor Alexander)

July 30, 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 30, 2004

Mr. Victor Alexander
DIN #03A3641
Oneida Correctional Facility
P.O. Box 4580
Rome, NY 13442-4580

Re: Victor Alexander
FOIL Appeal No. 04-19-0A

Dear Mr. Alexander:

This office has received your July 16, 2004 appeal of the July 14, 2004 determination of Ms. Ruth Earl, the Records Access Officer of the Department of Environmental Conservation (Department), with respect to your Freedom of Information Law (FOIL) request of July 1, 2004. In the July 14, 2004 determination, Ms. Earl advised you that FOIL is not the appropriate mechanism to seek information through questions and that any FOIL request must reasonably describe the records sought. We affirm that determination.

Most of your FOIL request was directed to asking certain questions of the Department. FOIL is designed for the public to access existing records. The Department, however, is not obligated to respond to requests in the form of questions or to create new records. Public Officers Law § 89(3)("[n]othing in [FOIL] shall be construed to require any entity to prepare any record not possessed or maintained by such entity"); see also N.Y. State Committee on Open Government, Advisory Opinion 11543 (June 29, 1999)(no requirement to create record or to provide information in response to questions) & Advisory Opinion 11066 (September 17, 1998)(no requirement to create record in response to a FOIL request).

In addition, as Ms. Earl explained, requestors are required to reasonably describe the records sought. Public Officers Law § 89(3); see, Bader v. Bove, 273 AD2d 466, 710 NYS2d 379 (2d Dep't 2000), lv to app den, 95 NY2d 764 (2000)(property owners seeking access to village records failed to reasonably describe documents sought). Your FOIL request was insufficient to enable the Department to locate and identify the specific records sought. Furthermore, we note that the description in your appeal of the records that were denied is different from the description in your FOIL request of the records being sought.

It appears from your FOIL request and appeal that you may be looking for documents that are within the possession of New York City and/or the United States Environmental Protection Agency. We note that Ms. Earl provided you with the United States Environmental Protection Agency website address which should give you a means to access some of the information which you are seeking.

This letter is a final determination of the Department on your FOIL appeal. 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).

Very truly yours,

Louis A. Alexander
Assistant Commissioner
Office of Hearings and Mediation

Helene G. Goldberger
Administrative Law Judge

cc: Ruth Earl, DEC Records Access Officer
Robert Freeman, Executive Director
Committee on Open Government (w/copy of appeal)

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