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FOIL Appeal Determination for 05-17-0A (John P. Whitton)

December 15, 2005

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

December 15, 2005

Mr. John P. Whitton
206 West Side Drive
Ballston Lake, New York 12019

Re: Freedom of Information ("FOIL") No. 05-185
FOIL Appeal No. 05-17-0A

Dear Mr. Whitton:

This is in response to your letter dated November 2, 2005 requesting copies of the summons or tickets "issued by the Encon Conservation officer, Mr. James Hayes" with respect to the "Brennan Property, Ballston Lake, Saratoga County, Smith Pollard Associates/Ken Meyer Builders, Inc."

It was not clear from your November 2, 2005 letter that you were appealing from an initial FOIL determination of the Region 5 office of the Department of Environmental Conservation ("Department"). That determination withheld certain records relating to a FOIL request that you made by letter dated July 27, 2005. However, my discussion with the Region 5 FOIL Coordinator confirms that your November 2, 2005 letter should be treated as a FOIL appeal.

As you may know, the provisions governing FOIL are codified in New York's Public Officers Law ("POL"). I have been advised that thirty (30) pages of information responsive to your request were determined to be releaseable and were made available to you in August 2005. However, the Region 5 FOIL Coordinator, by letter dated October 27, 2005, denied you access to various other records based on the exemption contained in POL § 87(2)(e) that applies to records which are compiled for law enforcement purposes.

The withheld records comprised eighty-four (84) pages, of which eight (8) would fall within the scope of your FOIL appeal for copies of the "summons or tickets." These eight pages include photocopies (two to a page) of various notices of violation issued to either Ken Meyer Builders, Inc. or Smith-Pollard Architects. Based on my review, I have determined that these eight pages are not subject to a FOIL exemption and may be released.

Although your appeal was limited to summons and tickets, please be advised that I have reviewed the other withheld records and have determined that, with one exception1, they were appropriately withheld pursuant to POL § 87(2)(e). Furthermore, some of these withheld records included internal Department e-mail communications and staff-prepared documents to which the FOIL exemption for intra-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 also applies. This exemption for intra-agency materials constitutes a further basis for withholding records (see POL § 87[2][g]; 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 records being released pursuant to your appeal for "summons or tickets" comprise eight pages. If you wish to be provided with copies of these records, please send a check for $2.00 (8 pages at $0.25 per page), payable to the New York State Department of Environmental Conservation, to the Office of Hearings and Mediation Services (Attn: Kimberly Sarbo) within thirty days of the date of this letter. If you would also like a copy of each of the two two-page redacted complaint forms, please send a check for $3.00(12 pages [eight pages of "summons or tickets" and four pages of complaint forms] at $0.25 per page).

If you would prefer to review these documents at our office, please contact Kimberly Sarbo at (518) 402-8537. If we do not hear from you within thirty (30) days of the date of this letter, we shall return the records to the appropriate staff files. 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 Law Practice and Rules, and POL § 89(4)(b). In any further contact with the Office of Hearings and Mediation Services on this appeal, please reference FOIL Appeal No. 05-17-0A.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Linda Branch, Region 5

1The exception relates to two (two-page) complaint forms which include information relating to a complaint that you made to the Department on March 14, 2005 and July 15, 2005. These two records are also releaseable subject to redaction of certain information pursuant to the FOIL exemptions contained in POL § 87(2)(e) and POL § 87(2)(g).

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