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FOIL Appeal Determination for 05-01-2A (Robert McErlean)

November 9, 2005

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

November 9, 2005

Mr. Robert McErlean
P.O. Box 120126
Staten Island, New York 10312

Re: Freedom of Information Law ("FOIL") Appeal 05-01-2A

Dear Mr. McErlean:

Staff of the Region 2 office of the Department of Environmental Conservation ("DEC" or "Department") have forwarded to us the records that they have identified as being the subject of your FOIL appeal. Also, we have received copies of correspondence between you and the DEC Region 2 Assistant Regional Attorney, Udo Drescher, regarding both your initial FOIL request and some additional requests you have made since that time.

Enclosed is a chart that lists the records that were withheld by the DEC Region 2 office in response to your FOIL requests, the basis on which the DEC regional staff relied for withholding these records, and the FOIL appeal decision that the Office of Hearings and Mediation Services ("OHMS") has made with respect to each record. In summary, based on OHMS' review of the twenty-six (26) records withheld, seven (7) records are being released in their entirety and two (2) records are being released in part.

The remaining records are being withheld pursuant to the FOIL exemptions that appear in POL § 87(2)(a) and/or POL § 87(2)(g). POL § 87(2)(a) provides an exemption for records that are "specifically exempted from disclosure by state or federal statute." In the FOIL appeal before us, certain of the records represent communications from attorneys and, accordingly, are subject to the attorney-client privilege (see CPLR 4503[a]) or constitute attorney work product (see CPLR 3101[c]). Such records are exempted from FOIL (see also Matter of Orange County Publications, Inc. v. County of Orange, 168 Misc.2d 346, 352 [Orange Cty Sup Ct 1995]).

In addition, POL § 87(2)(g) authorizes the denial of access to records or portions thereof that are intra-agency or inter-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits (see POL § 87[2][g][i]-[iv]). Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempted 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 (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]; see also New York Times Co. v. City of New York Fire Department, 4 NY3d 477, 488 [2005] ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]). A number of the records involve internal communications among Department staff, Department staff notes, and other materials that are subject to the intra-agency/inter-agency exemption.

The records being released contain a total of seventeen (17) pages. If you wish to be provided with copies of the documents, please send a check for $ 4.25 to the Office of Hearings and Mediation Services (Attn: Kimberly Sarbo) within 30 days of the date of this letter to cover copying costs (17 pages at $.25/page). The check should be made payable to the New York State Department of Environmental Conservation. If you wish to review these records in our office, please contact Kimberly Sarbo at (518) 402-8537 within this same 30 day period. After that time, if you have not contacted Ms. Sarbo or submitted your payment, the records will be returned to their respective custodians in the agency.

By letter dated June 6, 2005 ("June Letter") you inquired about certain records that were either not located by DEC staff or were released to you but about which you still had questions. OHMS received a letter dated June 27, 2005 from Assistant Regional Attorney Udo Drescher, on which you were copied, that provided further information in response to your questions. You provided a further response by letter dated July 27, 2005. In the following paragraphs, we have addressed your questions using the item headings from your previous letters.

Item 1: Order on Consent/File R2-0334-86-05. The order on consent sent to you is the only copy in Department staff's possession. Mr. Drescher will certify the copy he previously sent.

As to your question about file R2-0334-86-05, Mr. Drescher indicated that he has released all records with respect thereto (see Mr. Drescher's letter dated June 27, 2005). The records were apparently maintained by the Department under two (2) files numbers. We have been advised that the records that you received were records included under file number R2-0335 and file number R2-0334-86-05.

Item 2. Enforcement Notices/Violations. Please see various of the records being released on this appeal, as listed on the enclosed chart.

Item 2.1: Mike Nagey Document. You had inquired concerning a letter by Mr. Nagey dated October 7, 1988. Please note Mr. Drescher's response from his June 27, 2005 letter:

"The letter from Mike Nagey dated October 7, 1988, does not specify what particular documents it referred to. Insofar, I am unable to determine if 15 years ago Mr. Nagey had access to documents other than the ones that we could identify and locate in connection with this FOIL request and appeal."

Item 2.2: Tax Map - Block 3711. You requested a copy of a tax map that showed all of block 3711 (the map that you received from the Department contained only of a portion of block 3711). We sent the map that you received to Mr. Drescher who has confirmed that it is a true and accurate copy of the map in the Department's files. A copy of Mr. Drescher's letter and the map are enclosed.

Item 2.3: DEC File R204-89-06. Mr. Drescher has advised that a diligent search was conducted of the Region 2 files but that DEC File R204-809-06 could not be located.

Item 3. Enforcement Guidances. You had inquired about obtaining various wetland enforcement guidances. Mr. Drescher has advised you regarding availability of various enforcement guidances on the Department's public website. I understand that you were previously provided a copy of the Freshwater Wetlands Enforcement Guidance Memorandum by the Department's wetlands program this past summer. I also understand that the program also sent certain other guidance documents to you, including Freshwater Wetlands Guidelines on Compensatory Mitigation, the Freshwater Wetlands Applicant's Guide and the Freshwater Wetlands Delineation Manual (see also Item 8 below). In addition, the Department's enforcement orders on matters that were subject to hearings before OHMS and that were issued from mid-1992 to the present are on the Department's public website.

Item 4: Meeting Documents. Department staff have advised that all items have either been released or have been identified by Department staff in the chart of withheld documents.

Item 5: Information on Five Houses on Block 3711. Mr. Drescher has indicated that several files are listed on the DEC database and he has released all responsive documents that are not subject to a FOIL exemption.

Item 6: 1981 Tentative Map. Mr. Drescher has indicated that the drawing that you requested on the tentative mapping was inadvertently omitted from the records previously sent to you. That drawing was forwarded to you under cover of Mr. Drescher's letter dated June 27, 2005.

Item 7: Jurisdictional Determination Letters. Department staff advise that, other than the jurisdictional determination referenced in your letter which you have received, the letters can not be located. Please note that determination letters are logged in by Region 2 by date received, and are not by block/lot number. This information is also not entered into a computer and, therefore, Region 2 does not have any computerized search ability with respect to the determination letters.

Item 8. Other Wetland Guidances. You had specifically inquired about the RGM guidances which do not presently appear on the website. For your information, the RGM guidances include the following:

#93-01 Public Hearings on Permit Applications
#94-01 Electric and Magnetic Fields (EMF)
#94-02 Guidelines for Granting Emergency Authorizations under the Uniform Procedures Act
#94-03 Jurisdiction and Review of Electric and Gas Interconnections to Cogeneration and Power Production Facilities
#94-04 Role of Project Manager
#95-01 Multiple Notices of Incomplete Application and Dismissal of Chronically Incomplete Applications

I understand that you have seen or have copies of #94-04 and #95-01. If you are interested in obtaining any of the other RGMs, you may submit a FOIL request to DEC's central office (Attn: Ruth L. Earl). Please also note that the hearing decisions on freshwater wetlands permit applications that were issued since mid-1992 are on the Department's public website.

To the extent that you believe that certain of the documents that you are seeking are held by the Freshwater Wetlands Appeals Board, which is independent from the DEC, you should contact that board directly.

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). In any further contact with OHMS, please refer to FOIL Appeal No. 05-01-2A.

Thank you.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner for Hearings and Mediation Services

Molly T. McBride
Administrative Law Judge


cc: Robert Freeman, Executive Director
Committee on Open Government (w/enclosures)
Freshwater Wetlands Appeals Board

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