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FOIL Appeal Determination for 06-10-0A (Christopher Amato)

May 12, 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 12, 2006

Christopher A. Amato, Esq.
Dreyer Boyajian LLP
75 Columbia Street
Albany, New York 12210

Re: Freedom of Information Law (FOIL) Appeal No. 06-10-0A
FOIL Request No. 06-735

Dear Mr. Amato:

We received your May 9, 2006 appeal in which you asserted that the Department of Environmental Conservation (Department or DEC) had constructively denied your request for records concerning stormwater discharges from the Oneida-Herkimer Solid Waste Management Authority's landfill located in the Town of Ava. The appeal concerns a Freedom of Information Law (FOIL) request for these records that you made by letter dated April 28, 2006, on behalf of the Adirondack Communities Advisory League (ACAL).

Your appeal notes a May 4, 2006 letter you received from Pedro J. Gonzalez, of the Department's Division of Solid and Hazardous Materials, in which Mr. Gonzalez stated that that Division, in the Department's central office, does not maintain records responsive to your request. Based upon that letter, and upon not having received another written response from the Department as of May 9, 2006, you state that DEC has denied ACAL's request, has failed to acknowledge the request, has failed to provide documents that ACAL knows are in the possession of the Department, and has violated FOIL and the Department's regulations implementing this law.

Upon being assigned to review your appeal, Administrative Law Judge Susan J. DuBois contacted Ruth Earl, the Department's Records Access Officer. Ms. Earl received your April 28, 2006 letter on May 1, 2006. Ms. Earl provided us with a copy of the May 8, 2006 letter she sent to you, in which she acknowledged your FOIL request, stated that she had referred it to the records custodians in the Department's Division of Water and in the DEC Region 6 office, and notified you that you may expect a response to your request by June 6, 2006. Ms. Earl also informed us that she has contacted other units within the Department that might have records responsive to your request.

Ms. Earl provided a written acknowledgment of your request within 5 business days of receipt of the request, as required by 6 NYCRR 616.5 and Public Officers Law (POL) § 89(3).

The regulation quoted in your letter has been amended, effective December 7, 2005. Section 616.5(d) of 6 NYCRR now states:

"If the department does not provide or deny access to the record sought within five business days of receipt of a request, the department shall furnish a written acknowledgment of receipt and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when the request will be granted or denied . . . . If the department determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within 20 business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within 20 business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. The department's failure to conform to these provisions shall constitute a denial of access to records subject to administrative appeal pursuant to section 616.8 of this Part."

This amended section includes the same time periods and procedures as those found in POL § 89(3), as amended effective May 3, 2005 (L. 2005, c. 22).

Ms. Earl's May 8, 2006 letter stated that you may expect a response to your request by June 6, 2006. This date is 20 business days after the Department's acknowledgment of receipt of the request. Mr. Gonzalez's letter was a partial response, provided to you earlier than June 6, 2006, and the remainder of the Department's response is still being prepared. As of today, the Department has not denied access to any records responsive to your request.

Thus, the Department has timely acknowledged your FOIL request. The expected date of the Department's response to your FOIL request has not yet arrived, and consequently an appeal based upon constructive denial is premature. Accordingly, your May 9, 2006 appeal is denied.

If, however, the Department denies access to records when it completes its response to your request, you may appeal such denial, pursuant to 6 NYCRR 616.8, as a new appeal. This letter is the final determination of the Department of Environmental Conservation regarding your May 9, 2006 appeal.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

Susan J. DuBois
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government - w/copy of appeal

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