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FOIL Appeal Determination for 05-15-4A (Edward A. Stein)

February 10, 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 10, 2006

Edward A. Stein, Esq.
2 University Plaza, Suite 202
Hackensack, New Jersey 07601

Re: Freedom of Information Law ("FOIL") Appeal No. 05-15-4A FOIL Request No. 05-1295

Dear Mr. Stein:

We have received and reviewed the records regarding the City of Albany Landfill that are the subject of your FOIL appeal dated November 15, 2005. In your FOIL appeal, you state that you had not received "identification of any documents that have been withheld from production and the grounds therefor."

We have assumed, for purposes of your appeal, that you are appealing all determinations made by Department staff that would withhold records. Based upon our review of Department staff's basis for withholding these records, we have concluded that the majority of the records were properly withheld in accordance with exemptions provided for by FOIL (as codified in the New York Public Officers Law ["POL"]).

Enclosed are three indices created by the Department's Region 4 office and our central office that identify the withheld records and Department staff's rationale for not releasing them. Specifically these include the following:

Index I (Central Office) 273 documents

Index II (Regional Office) 330 documents

Index III (Central Office) 17 documents

We have added a final column to these three indices entitled "Decision" which sets forth our appeal determination for each record.

The records that are being withheld are exempt from disclosure pursuant to POL § 87(2)(a) and/or POL § 87(2)(g). 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 between Department staff and 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"]). The majority of records listed on the three indices are exempt pursuant to POL § 87(2)(g). However, as noted, several records are exempt pursuant to both POL § 87(2)(a) and POL § 87(2)(g).

The records that we have determined on appeal to release are enclosed herein. We are furnishing these documents at no charge.

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. 05-15-4A.

Sincerely yours,

Louis A. Alexander Assistant Commissioner
for Hearings and Mediation Services

By: /s/
Molly T. McBride
Administrative Law Judge


cc: Robert Freeman, Executive Director
Committee on Open Government

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