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FOIL Appeal Determination for 04-28-3A (James Ryan)

January 13, 2005

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor Albany, NY 12233-1550
Phone: 518-402-9003 Fax: 518-402-9037
Website: www.dec.state.ny.us

January 13, 2005

James Ryan
23 Heathbrook Drive
Poughkeepsie, New York 12603

Re: Freedom of Information Law ("FOIL") Appeal No. 04-28-3A

Dear Mr. Ryan:

We have received the records related to your request for "All records including permits, hard copy documents, electronic documents, etc. pertaining to Red Oaks Mill Farm located on Red Oaks Mill Road in the Town of Lagrange, Dutchess County". Your appeal is based upon a constructive denial. You had made a request for the records and filed the appeal when the records were not received after 10 days.

A search has been made of the Department records and the following documents have been located that are responsive to your request:

1) Permit to Take or Harass Nuisance or Destructive Wildlife, issued to Red Oaks Mill Farm on 1/1/2004 and expired on 9/30/2004;

2) Permit to Take or Harass Nuisance or Destructive Wildlife, issued to Red Oaks Mill Farm in 2003 and expired on 9/30/2003;

3) Permit to Take or Harass Nuisance or Destructive Wildlife, issued to Red Oaks Mill Farm on 4/1/2002 and expired on 10/14/2002;

4) handwritten letter from Robert Bagnall to Tom Rafaldi requesting additional hunters be added to permit, dated July 20, 2001 (names of hunters have been redacted);

5) undated handwritten letter of Robert Bagnall to Tom Rafaldi requesting additional hunters be added to permit (names of hunters have been redacted);

6) Complaint Record and Permit Form of Robert Bagnall, Red Oaks Mill Farm, received 6/14/01 (agent information redacted) with 3 sheets attached, two sheets dated 7/17/01 and one dated 7/24/01 (with agents' names redacted);

7) handwritten letter of Robert Bagnall to Tom Rafaldi requesting 2 additional hunters be added to permit, dated June 12, 2001 (names of hunters and telephone numbers redacted);

8) Complaint Record and Permit Form of Robert Bagnall, Red Oaks Mill Farm, received 5/6/00 (agent information redacted) with 4 attachments dated 6/21/00, 6/6/00, 5/31/00 and 5/14/00 (with agents' names redacted);

9) your letter of 4/23/04 to Senator Saland and Assemblyman Miller (handwritten marginalia redacted);

10) Region 3 Director Marc Moran letter to you dated March 12, 2004;

11) your letter of 2/23/04 to Marc Moran (4 copies submitted at various times by you) with Permit Summary Report dated 9/30/03 (hunter information on attachment redacted and handwritten marginalia redacted);

12) your letter of 2/9/04 to DEC Commissioner Erin M. Crotty;

13) Regional Director Marc Moran letter to you dated 8/18/03 (intra-agency communication redacted);

14) your 7/11/03 letter to Regional Director Marc Moran (handwritten marginalia redacted);

15) your 7/14/03 letter to DEC Commissioner Erin M. Crotty (3 copies sent at various times);

16) Director Lawrence E. Johnson letter to you dated 7/9/03;

17) Region 3 Records Access Office letter to you dated 7/8/03;

18) Regional Director Marc Moran letter to you dated 6/18/03;

19) your 6/11/03 letter to DEC Commissioner Erin M. Crotty;

20) your 5/11/03 letter to Regional Director Marc Moran (handwritten marginalia redacted);

21) Regional Director Marc Moran letter to you dated 8/23/02; and

22) your 8/6/02 letter to Regional Director Marc Moran.

Ten of the 22 documents that we are releasing have certain information redacted, as noted after each document description. Public Officers Law ("POL") §87(2)(b) exempts from disclosure documents that would, if disclosed, constitute an unwarranted invasion of personal privacy. The redacted information, other than the handwritten marginalia noted, includes names, telephone numbers and other personal information that would, in our judgment, violate the privacy of the persons involved if released.

With respect to the redacted handwritten marginalia, these are not subject to release pursuant to POL §87(2)(g) as they are intra-agency materials which are not (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits. In addition, one letter had an intra-agency communication that was redacted. Also, we are withholding in their entirety 4 pages of documents that are email transmissions between department staff. Finally, we have withheld 5 correspondence transmittal sheets that are also intra-agency materials that do not meet the criteria for release under POL §87(2)(g). These one page forms are used to direct correspondence through the department.

The documents being released contain a total of 53 pages. If you wish to be provided with copies of the documents, please send a check for $13.25 to this office within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (53 pages at $.25/page). Because many of the documents are already in your possession, you may wish to review them and decide if you would like copies of any of the documents. If you wish to review these documents in our office, please contact Deborah Vachon at (518) 402-9003 within 30 days of this letter. If you would like to review these documents at the Region 3 office, please contact us and we will forward them to that office for your review. If after 30 days, you have not reviewed the documents, or made arrangements to review them, or submitted your payment, the documents will be returned to their respective custodians in the agency.

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 POL §89(4)(b).

Sincerely yours,


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

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

Enc.

cc: Robert Freeman, Executive Director
Committee on Open Government - w/copy of appeal

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