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FOIL Appeal Determination for 05-07-5A (Beatrice Havranek)

July 29, 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

July 29, 2005

Beatrice Havranek, Esq.
Post Office Box 48
782 Route 213
Rosendale, New York 12472

Re: Shaker Mountain Wild Forest/Northville Boat Launch
Freedom of Information Law ("FOIL") Appeal No. 05-07-5A

Dear Ms. Havranek:

This letter addresses your June 16, 2005 appeal of the May 23, 2005 determination of Ms. Linda Branch, FOIL Coordinator for the Region 5 office of the New York State Department of Environmental Conservation (Department). By that May 23, 2005 determination, you were denied access to certain records relating to your initial FOIL request of April 21, 2005.

The Office of Hearings and Mediation Services has completed its review of 59 records that were either (a) withheld by Department staff during its review of your initial FOIL request or (b) further identified by Department staff during the pendency of your appeal. Of the 59 records provided to this office by Region 5 staff, five (5) were duplicates. Omitting the five (5) duplicates, I reviewed the 54 remaining records and have determined that 12 should be released in their entirety, 18 should be released in part and 24 withheld.1

Of the 18 records that are being released in part, I have redacted certain portions of those records because they contain intra-agency or inter-agency nonfinal deliberative information. See Public Officers Law (POL) § 87(2)(g) (authorizing 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). Intra-agency materials that consist of opinions and recommendations of agency staff are 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 (citation omitted)." Matter of Xerox Corp. v. Town of Webster, 65 NY 2d 131, 132 (1985).

Of the 24 records being withheld in their entirety, 21 are being withheld pursuant to POL § 87(2)(g), and 3 are being withheld pursuant to both POL § 87(2)(g) (as intra-agency or inter-agency nonfinal deliberative information) and POL § 87(2)(a) (as attorney-client communications between Department attorneys and Department staff; see CPLR 4503(a)) .

In addition to these records, Region 5 staff have advised that one record, which consisted of a list of individuals attending an April 14, 2005 public information meeting at the Town of Caroga Town Hall on the Shaker Mountain Wild Forest Draft Unit Management Plan, was provided to you in redacted form. POL § 87(2)(b) allows for the denial of access to records that would constitute an unwarranted invasion of personal privacy. Department staff redacted the residential addresses from the attendance list on that ground, and that redaction is affirmed.

In your appeal, you referenced a tape recording that Department staff made at the April 14, 2005 meeting in the Town of Caroga. Region 5 staff have advised that a tape was made of the meeting but that the tape cannot be located at this time. It is not known if the tape was misfiled or misplaced, or has been reused to record another meeting.

In your April 21, 2005 letter you described your initial FOIL request as an "ongoing request." Please be advised that the Department considers your request as applying only to records that were prepared, otherwise generated or received up to the date of the Department's receipt of your initial request. Any request for records prepared, otherwise generated or received subsequent to such date requires that a new and separate FOIL request be submitted. See Advisory Opinion 13290, New York State Department of State, Committee on Open Government, April 3, 2002 (an agency is "not required to honor an ongoing or prospective request for records").

The records or portions of records that are being made available, and that were not already provided by Region 5, consist of 72 pages (two of the pages are somewhat oversized maps). If you wish to be provided with copies, please send a check to Deborah Vachon of this office in the amount of $18.00, made payable to the New York State Department of Environmental Conservation (72 pages at $0.25 per page), within 30 days of the date of this letter. Please note that of the 72 pages, five pages are from an August 30, 2002 letter that you sent to the Commissioner of the Department and one page is from an October 7, 2002 letter sent to you by Richard Fenton. If you do not wish to receive those six pages, please remit a check in the amount of $16.50 to the Department (66 pages at $0.25 per page).

Alternatively, if you would prefer to review these documents at our office, please contact Deborah Vachon at (518) 402-9003 within the 30 day timeframe. In any further communication with this office, please reference FOIL appeal number 05-07-5A.. This letter constitutes the final determination of the New York State Department of Environmental Conservation in this matter. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and POL § 89(4)(b).

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director,
Committee on Open Government

1To facilitate the review of the records subject to the appeal, the records have been numbered in the lower right hand corner.

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