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FOIL Appeal Determination for 05-08-0A (David M. Klein)

September 16, 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

September 16, 2005

David M. Klein, P.E.
P.O. Box 121
Kattskill Bay, New York 12844

Re: FOIL Request 05-1321, FOIL Appeal No. 05-08-0A

Dear Mr. Klein:

We have received your letter of September 6, 2005 ("September 6 Letter"), in which you express your concerns regarding the alleged delays of the New York State Department of Environmental Conservation (the "Department") in providing information responsive to your July 20, 2005 Freedom of Information Law ("FOIL") request. In the September 6 Letter, you stated that you were "appeal[ing] the delays that have occurred."

By your FOIL request of July 20, 2005, which you made on behalf of North Country Engineering, P.C. of Glens Falls, New York, you requested an opportunity to inspect certain records relating "to the Hadlock Pond Dam replacement project." Specifically, you listed the following records:

1. Contract Documents (Plans and Specifications)
2. Record or As-Built drawings
3. Bid(s) received for the project
4. Any change orders
5. Any inspection or test reports
6. Proposals from Engineering Firms
7. Agreement(s) with Engineering Firm
8. Agreement(s) with Law Firm
9. Consent Order
10. Permit(s)
11. Correspondence (Prior to 7/2/05) between Law Firm and:
A. Engineer
B. Contractor
C. Town of Fort Ann
D. DEC
E. Inspection Firm
12. Proposal(s) and agreements(s) with testing firm

By letter dated July 27, 2005, the Department's Records Access Officer Ruth Earl acknowledged receipt of your FOIL request. Ms. Earl advised that your FOIL request had been referred to the appropriate divisions of the Department for any responsive records and that you could expect a response from the Department by August 24, 2005.

In a followup letter dated August 17, 2005, Ms. Earl informed you as follows:

Department staff are actively working to identify documents responsive to your request. Be advised that the large volume of documents relative to the dam are subject to review to determine which records are responsive to your request, and to ascertain if any legal privileges may apply. The review will preclude staff from meeting the anticipated August 24, 2005 response date. Consequently, I expect to make the documents available to you for inspection by October 7, 2005.

As you may know, the Freedom of Information Law is codified in the New York Public Officers Law ("POL"). Section 89(3) of the POL provides that where an agency cannot make a requested record available for inspection within five business days of the request, it shall:

furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied. . . . If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending upon the circumstances, when the request will be granted in whole or in part.

The above-referenced statutory language includes the amendments to POL § 89(3) that were enacted earlier this year. Notwithstanding the recent revisions to the statutory language, in our judgment an earlier advisory opinion of the Executive Director of the Committee on Open Government that references various factors affecting the time needed to compile records remains relevant. The advisory opinion noted that the time needed "may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like." N.Y. State Committee on Open Government, Advisory Opinion 11079 (1998).

In this matter, the Records Access Officer specifically referenced in her August 17, 2005 letter the "large volume of documents" subject to review and the need to ascertain the applicability of any legal privileges or exemptions. In view of these circumstances, the October 7, 2005 response date established by the Records Access Officer is reasonable and fully comports with POL § 89(3).

Accordingly, no basis exists at this time to support a FOIL appeal, and any appeal is premature. However, if the Department in its response to your FOIL request denies access to any records, you would then be entitled to appeal any such denial.

Thank you for providing us with your concerns and we trust this information is helpful to you.

Sincerely,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth L. Earl, Records Access Officer
Stacey Rowland, AAG, Department of Law

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