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FOIL Appeal Determination 3 for 05-17-0A (John P. Whitton)

January 18, 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

January 18, 2006

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

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

Dear Mr. Whitton:

This is in response to your inquiry concerning field inspection reports "created by the wetlands group and biologist when such inspections are performed" with respect to the above-referenced appeal. No such reports appeared in the withheld records that were provided to me for consideration in the appeal. However, as indicated in my letter dated December 28, 2005, pursuant to your inquiry I contacted Region 5 to determine if any such reports exist.

Following a further review of regional files, three additional records were located by Regional staff that were also subject to your FOIL request. These include the following:

- site visit notes dated 9/1/05;
- Department staff notes dated 4/22/05; and
- Department staff site notes/sketch dated 12/17/04.

Upon review of these records, I have determined that the site visit notes dated 9/1/05 are to be withheld pursuant to Public Officers Law § 87(2)(e)(i)(which provides for the withholding of records that are compiled for law enforcement purposes and which if disclosed would interfere with law enforcement investigations) and Public Officers Law § 87(2)(g)(which provides for the withholding of records that are 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). The other two records are withheld pursuant to Public Officers Law § 87(2)(g) only.

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,


/s/
Louis A. Alexander
Assistant Commissioner

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

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