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FOIL Appeal Determination for 05-13-1A (Charles Witek, III)

February 23, 2006

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) 402-9037
Website: www.dec.state.ny.us

February 23, 2006

Mr. Charles A. Witek, III
Chair, Fisheries Committee
Coastal Conservation Association
P.O. Box 1118
West Babylon, New York 11704

Re: Freedom of Information Law ("FOIL") Appeal No.05-13-1A
FOIL Request No. 05-1208

Dear Mr. Witek:

This is in response to your appeal of the denial of records pursuant to your FOIL request concerning the adoption of emergency regulations issued by the Department of the New York State Environmental Conservation ("Department") on April 8, 2005 relating to striped bass and bluefish. Department staff provided our office with copies of the records that are the subject of your FOIL appeal. Department staff withheld seven records, in whole or in part. After reviewing the records, we have concluded that they were properly withheld.

In your appeal letter, you questioned whether Department staff had reviewed all records that were subject to your FOIL request. Pursuant to your letter, we inquired of Department staff whether any other records existed that may not have been initially considered. Department staff identified two additional records, other than those that were withheld or previously released to you, which are subject to your FOIL request.

Exemptions for disclosure from FOIL are set forth in § 87(2) of the Public Officers Law ("POL"). Based on our review of the records, we have determined that two FOIL exemptions, which are contained in POL § 87(2)(a) and POL § 87(2)(g), are applicable here.

POL § 87(2)(a) exempts those records that are specifically exempted from disclosure by state or federal statute. Certain of the records subject to this FOIL appeal represent communications and analysis by Department attorneys and are subject to the attorney-client privilege (see CPLR 4503[a]) and/or constitute attorney work product (see CPLR 3101[c]), and are therefore exempt from disclosure.

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 (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, including but not limited to audits performed by the comptroller and the federal government (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"]).

Of the seven records that were withheld, two of the records are exempt in their entirety pursuant to POL § 87(2)(g). Three records (copies of a communication from Department staff to an outside party in January 2003, a letter to Department staff dated January 24, 2003, and a July 19, 2004 e-mail from ASMFC) were previously released but with margin notes written by Department staff redacted. Those redactions were appropriately made pursuant to POL § 87(2)(g).

The remaining two records are entitled to be withheld pursuant to POL § 87(2)(a)(internal attorney communications and attorney work product) and POL § 87(2)(g). Please note that each of these two records, in fact, comprise four separate documents apiece. Although the initial FOIL response did not reference the exemption in POL § 87(2)(a), our review indicates that this exemption provides a further basis for withholding portions of these two records, in addition to POL § 87(2)(g) which provides a basis for withholding these two records in their entirety.

With respect to the two additional records that were subsequently identified, both are intra-agency materials which are exempt pursuant to POL § 87(2)(g).

This letter is the final determination of the Department of Environmental Conservation. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 05-13-1A.

Sincerely yours,


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


/s/
Molly T. McBride
Administrative Law Judge

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

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