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FOIL Appeal Determination for 04-20-2A (Richard Rosenzweig)

August 18, 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 18, 2004

Richard A. Rosenzweig, Esq.
Menicucci Villa & Associates PLLC
2040 Victory Boulevard
Staten Island, New York 10314

Re: Freedom of Information Law ("FOIL") Appeal No. 04-20-2A
FOIL Request No. R2-04-290

Dear Mr. Rosenzweig:

This is in response to your FOIL appeal dated August 10, 2004. You indicated that three records (memoranda) had been withheld in response to your initial FOIL request dated May 20, 2004 and that these records may have a bearing on a current administrative proceeding involving one of your clients. You requested that, in light of the foregoing, our office promptly attend to this appeal, and our office has directed immediate attention to the matter.

Based on my review of the three records that were withheld, I have determined that these records are exempt from FOIL pursuant to Public Officers Law § 87(2)(g) because they are intra-agency deliberative communications which are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy or determinations, or external audits.

Each of the three records is a memorandum between Department of Environmental Conservation staff. The records constitute predecisional material that reflect opinions, advice and recommendations that are protected from disclosure. See Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132, 490 NYS2d 488, 490 (1985)(opinions and recommendations exempt from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549, 442 NYS2d 130)").

This letter constitutes the 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). In any further communication with our office, please refer to the above FOIL appeal number.


Louis A. Alexander
Assistant Commissioner
Office of Hearings and
Mediation Services

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

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