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FOIL Appeal Determination for 05-19-5A (David H. Gibson)

May 31, 2006

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

May 31, 2006

Mr. David H. Gibson, Executive Director
Association for the Protection
of the Adirondacks
897 St. David's Lane
Niskayuna, New York 12309

Re: Freedom of Information Law (FOIL) Appeal No. 05-19-5A

Dear Mr. Gibson:

This is in response to your appeal from the denial by the Department of Environmental Conservation ("Department" or "DEC") of access to records concerning "actions and decisions that permitted the contract and tree cutting on the NYS Forest Preserve along State Route 3 in the Adirondack Park" and the response to the tree cutting. The request for access to these records was made pursuant to the Freedom of Information Law (Public Officers Law ["POL"] §§ 84 through 90).

The Department's Region 5 office provided you with a copy of a November 10, 2005 letter from DEC to the New York State Department of Transportation ("DOT") but denied access to other records on this subject, as stated in the November 17, 2005 letter from Regional Attorney Christopher A. Lacombe to you. The records were withheld on the basis of POL § 87(2)(e) (records which, if disclosed, would interfere with law enforcement investigations and judicial proceedings) and POL § 87(2)(g) (inter-agency or intra-agency records).

We obtained and reviewed the 130 records that were withheld. Based upon this review, twenty-four (24) records are being released in their entirety. An additional ten (10) records are being released in redacted form, with redactions made pursuant to POL § 87(2)(g) (intra-agency materials that do not fall within any of the exceptions listed in that section).(1) A redacted portion of one of these ten (10) records is subject to attorney-client privilege (see § 4503[a] of the Civil Practice Law and Rules ["CPLR"]). Accordingly, it is being withheld because it is specifically exempted from disclosure by state or federal statute (POL § 87[2][a]).

The records to which access is granted include two groups of photographs that were transmitted by electronic mail among DEC staff. (One group appears twice in the records we received.) It is unclear which photographs accompanied which electronic mail transmittal. Accordingly, the two groups of photographs are being released as separate documents.

The remaining ninety-six (96) records are exempt from access under FOIL because they are inter-agency or intra-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; (iv) external audits, including but not limited to audits performed by the comptroller and the federal government (POL § 87[2][g]).

Of these ninety-six (96) records, forty-six (46) records also are agency communications to and/or analysis by DEC attorneys which are subject to the attorney-client privilege (CPLR § 4503[a]). Twenty-two (22) of these ninety-six (96) records constitute attorney work product (see CPLR § 3101[c]). (Twenty [20] of the records are both privileged attorney-client communications and attorney work product.) These categories of records are exempt from FOIL pursuant to POL § 87(2)(a), in addition to POL § 87(2)(g).

Two of the records discussed in the paragraph above are inter-agency communications between DEC and the Adirondack Park Agency, transmitting and commenting on draft documents prepared by a DEC attorney. These drafts constitute attorney work product. Although they were provided to Adirondack Park Agency staff involved in the response to the tree cutting, the two agencies have a common legal interest in this matter and consequently the attorney work product privilege was not waived (General Electric Co. v. Department of Environmental Conservation, Supreme Court, Albany County, Index No. 2648-00 [2000]). These two records are exempt from FOIL access based upon both POL § 87(2)(a) and POL § 87(2)(g).

Certain of the records that were determined to be releaseable had been previously provided to DEC by the New York State Department of Transportation.

The records to which access is being granted by this decision consist of 291 pages (with the subtraction of the one-page duplicate e-mail record). If you wish to be provided with copies of the records released by this decision, please send a check in the amount of $72.75 (291 pages at $0.25 per page), payable to the New York State Department of Environmental Conservation.(2) Please forward the check to the Office of Hearings and Mediation Services (attn: Kimberly Sarbo) within thirty days of the date of this letter. If the Office of Hearings and Mediation Services does not hear from you within thirty days of the date of this letter, the records shall be returned to their respective files.

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 CPLR and POL § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 05-19-5A.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director,
Committee on Open Government

1. Two of the ten redacted documents (each of which is one page) are recipient copies of the same e-mail and are duplicative.

2. The base map of one of the records was copyrighted by the New York State Department of Transportation. Any subsequent use of copyrighted material obtained through FOIL must comply with federal copyright law (see, e.g., County of Suffolk, New York v.First American Real Estate Solutions, 261 F3d 179, 192 [2d Cir 2001][FOIL does not abrogate a copyright or preclude enforcement of a copyright)].

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