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FOIL Appeal Determination for 04-32-3A (Eric Bashford)

December 31, 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

December 31, 2004

Mr. Eric Bashford
19 Pocantico River Road
Pleasantville, New York 10570

Re: Freedom of Information Law ("FOIL") Request # 1067-3/04
FOIL Appeal No. 04-32-3A

Dear Mr. Bashford:

This is to acknowledge receipt of your letter dated December 21, 2004 to Commissioner Erin M. Crotty by which you indicated that you were appealing the "effective denial" of FOIL Request # 1067-3/04.

Attached to your December 21, 2004 letter was a November 23, 2004 communication from you to the Regional Director for the Region 3 office of the Department of Environmental Conservation ("DEC") in which you requested certain records relating to the Pocantico River Road Compost facility ("facility"). The November 23, 2004 letter has been designated as FOIL Request # 1067-3/04. Also attached was a December 15, 2004 communication from the Region 3 Solid Waste Program which indicated that the solid waste program files for the facility were in the possession and custody of the Office of the New York State Attorney General ("AG's office"). That communication referred you to Assistant Attorney General John Gibson for access to those records. It is not clear from your letter whether you contacted Mr. Gibson, although I understand that earlier this year you submitted a FOIL request to the AG's office for various records concerning the facility.

Pursuant to New York Public Officers Law § 89(4), any person denied access to a record may, within thirty days, appeal that denial in writing. In this matter, the DEC has not denied you access to any records, but has simply notified you of the appropriate agency to which you should direct your FOIL request for solid waste program files for the facility. In light of the foregoing, there is no basis to treat your December 21, 2004 letter as an appeal (cf. New York Department of State, Committee on Open Government, Advisory Opinion 13083, December 20, 2001 (a response informing requestor that an office does not maintain certain records does not constitute a denial of access)). Furthermore, if you object to any denial of access to the records located at the AG's office, your appeal should be directed to that agency.

I note also that DEC's Region 3 Environmental Permits office, by letter dated December 28, 2004, notified you that it had identified certain records responsive to your FOIL request and that these records were available for review and/or copying. Accordingly, to the extent that your December 21, 2004 letter could be construed as an appeal of denial of access to records maintained in the Region 3 Environmental Permits office, it is dismissed as moot.

Sincerely,


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

cc: Robert Freeman, Executive Director, Committee on Open
Government (w/copy of December 15 and December 21, 2004 letters)
John Gibson, Assistant Attorney General
Region 3 Records Access Office
Vincent Altieri, Esq.
Laurie Lawrence, Environmental Permits, Region 3
Lee E. Reiff, Solid Waste Program, Region 3

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