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FOIL Appeal Determination for 04-26-7A (Richard P. DePaolo)

November 24, 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 24, 2004

Mr. Richard P. DePaolo
P.O. Box 294
Ithaca, New York 14851

Re: Freedom of Information Law ("FOIL") Appeal No. 04-26-7A;
FOIL Request No. 04-938

Dear Mr. DePaolo:

We have received and reviewed the three records that are the subject of your FOIL appeal. The three records consist of memoranda between Department of Environmental Conservation engineers on Cornell University's Lake Source Cooling Facility and total eleven pages.

Based on our review of these records and the applicable FOIL standards set forth in the New York State Public Officers Law, we agree with the Department's initial determination to withhold two of the memoranda in their entirety. With respect to the third memorandum, two of the five pages present graphs under the heading "Chlorophyll a Time Series." We have determined that these two pages are statistical in nature and subject to release. We are enclosing the two pages at no charge.

The two memoranda that are being withheld in their entirety and the portion of the third memoranda that is being withheld in part consist of intra-agency materials. These pre-decisional deliberative materials, which contain comments, analysis and opinions of Department staff, are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. See Public Officers Law § 87(2)(g); see also Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (1985)(opinions and recommendations exempt from FOIL "'to protect the deliberative process of the government'", quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549 (2d Dept 1981)).

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

Sincerely yours,

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

By: Molly T. McBride
Administrative Law Judge


cc: Robert Freeman, Executive Director
Committee on Open Government
(w/o enclosures)

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