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FOIL Appeal Determination for 06-04-1A (David N. Yaffe)

May 1, 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

May 1, 2006

David N. Yaffe, Esq.
Hamburger, Maxson, Yaffe, Wishod,
Knauer & Rothberg, LLP
225 Broadhollow Road, Suite 301E
Melville, New York 11747

Re: Freedom of Information Law Appeal 06-04-1A
Your file No. 1792.10

Dear Mr. Yaffe:

This is in response to your February 2, 2006 appeal regarding the denial by the Department of Environmental Conservation (DEC) of access to three appraisals with respect to the Chandler Estate in the Town of Brookhaven between 1998 and 1999. The request and the appeal were made pursuant to the Freedom of Information Law (FOIL, Public Officers Law [POL] §§ 84 through 90). On January 10, 2006, the records were withheld on the basis that they were inter- or intra-agency materials that were not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits (POL § 87[2][g]).

The appeal identified the withheld records as appraisals from the firms of "Rogers & Taylor" and "R.J. Matuza", and an appraisal from the DEC itself. We obtained the withheld records and reviewed them with regard to the provisions of POL § 87(2)(g). The record that you identified as an appraisal by DEC is actually two appraisal review forms completed by two DEC Staff members, rather than being an appraisal of the kind prepared by the two aforementioned firms.

In addition to the appeal, your firm submitted a letter dated February 21, 2006 that presented legal arguments in support of the appeal which we have also considered. In that letter it was argued that either the exception in POL § 87(2)(g) would not apply and the records should be released or if it did apply, it would not support excluding all portions of the appraisal reports.

With respect to the two DEC appraisal review forms, our review indicates that they are comprised entirely of intra-agency material, and are not subject to any of the exceptions stated in POL § 87(2)(g). The forms provide DEC staff opinions about how the two firm's appraisals evaluated the site and include DEC staff recommendations. Accordingly, these shall continue to be withheld.

With respect to the appraisal reports prepared by Rogers & Taylor Appraisers, Inc. and R.J. Matuza & Associates, Inc., we note that both appraisal firms served as consultants to the agency. The New York State Court of Appeals has considered the availability under FOIL of real estate appraisal reports prepared for a government agency by a consultant (Xerox Corporation v Town of Webster, 65 NY2d 131, 490 NYS2d 488 [1985]). The court held that the reports may be considered "'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process" (id. at 133, 490 NYS2d at 490). The Court of Appeals remitted the matter to Supreme Court, Monroe County to determine whether the reports fell wholly within the "intra-agency" exemption from FOIL or should be made available in a redacted form.

A subsequent case, in Supreme Court, St. Lawrence County, involved deciding what portions of appraisal reports are exempt from access under FOIL (General Motors Corp., GM Powertrain Div. v Town of Massena, 180 Misc 2d 682, 693 NYS2d 870 [1999]). The court stated that:

"The specific comparable sales used by an appraiser in the formulation of his opinion of value do not fit into the statistical or factual data exception because they are not a mere recitation of readily available numbers or items. To prepare a real estate appraisal the professional appraiser must necessarily cull through public real estate transaction records from many sources to find properties which he or she, subjectively, deems similar enough to the subject property to warrant further analysis. This is much different, for example, from an appraisal that lists all the sales of commercial properties within a Town for a certain period or all the transactions within the state with sales prices in excess of ten million dollars. Choosing any particular comparable property involves a thought process and professional judgment which cannot be classified as mere data gathering" (id. at 684, 693 NYS2d at 872).

The appraisal reports from the two firms that DEC Staff withheld consist partly of factual and statistical material describing the subject property and the area in which it is located. We have determined that this factual and statistical material is accessible under FOIL. For each appraisal, the pages or portions of pages that contain this factual and statistical material are being released.

The appraisal reports, however, also contain the appraisers' opinions about conditions that may affect the value of the subject property and information about comparable sales of land. This information is being withheld pursuant to POL § 87(2)(g).

Because the State of New York is no longer seeking to purchase the Chandler Estate, we do not have to consider, in this appeal, the applicability of the FOIL exemption for records that, if disclosed, would impair present or imminent contract awards (POL § 87[2][c]).

The records to which access is being granted by this decision consist of 117 pages, some of which are being released in redacted form. If you wish to be provided with copies of the records released by this decision, please send a check in the amount of $29.25 (117 pages at $0.25 per page), payable to the New York State Department of Environmental Conservation. 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 Civil Practice Law and Rules and POL § 89(4)(b). In any further contact with this office, please refer to FOIL appeal No. 06-04-1A.

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services


/s/
Susan J. DuBois
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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