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FOIL Appeal Determination for 06-02-7A (Thane Joyal)

December 4, 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

December 4, 2006

Thane Joyal, Esq.
716 East Washington Street
Suite 104
Syracuse, New York 13210-1502

Re: Freedom of Information Law ("FOIL") Appeal No. 06-02-7A
SPDES #NY 002 7081; Midland Regional Treatment Facility

Dear Ms. Joyal:

This letter is in response to your clarification letter of June 22, 2006 in which you explained that you had decided to withdraw your appeal with respect to Item #1 in your original FOIL request based upon materials that had been provided to you. You also explained that your request with respect to Item #2 remained outstanding. Based upon this understanding, Department staff provided 133 responsive records, of which three (3) were found on inspection to be duplicates.

We have completed our review and have determined that 32 records can be released in their entirety. In addition, another 32 records may be released to you in part; however, portions of these records are redacted because they contain material prepared for litigation, attorney work product, attorney-client communications, settlement-related material or intra- or inter-agency non-final deliberative communications which are exempt from release pursuant to Public Officers Law ("POL") §§ 87(2)(a) and (g). The remaining records are exempt in their entirety because they contain intra- or inter-agency non-final deliberative communications, material prepared for litigation, attorney work product, attorney-client communications or settlement-related material.

POL § 87(2)(a) exempts those records that are specifically exempted from disclosure by state or federal statute. Records, or portions thereof, that contain attorney-client communications, attorney work product and material prepared for litigation are exempt pursuant to sections 4503(a), 3101(c) and 3101(d) of the Civil Practice Law and Rules. In addition, courts have determined that documents containing settlement discussions may also be withheld from disclosure based upon the public interest in fostering negotiations between litigants without the potential for public disclosure. See United States of America and the State of New York v. Town of Moreau, et al., 979 F. Supp. 129 (N.D.N.Y. 1997), aff'd, 160 F.2d 853 (2d Cir. 1998).

POL § 87(2)(g) exempts intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff from release "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 decisionmakers (citation omitted)." Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985).

If you wish to receive copies of the records that are releaseable, please send a check in the amount of $98.50 (.25/page x 394/pages) made payable to the New York State Department of Environmental Conservation to Ms. Kimberly Sarbo at the following address: Office of Hearings and Mediation Services, New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010. Alternatively, if you prefer to review these records, please contact Ms. Sarbo at (518) 402-8537.

This is a final determination of the Department of Environmental Conservation on the above-referenced appeal. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules and POL § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 06-02-7A. If you have any questions, please feel free to contact me.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner

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

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