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FOIL Appeal Determination for 06-17-0A (Justine Lorentzson)

November 30, 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

November 30, 2006

Justine Lorentzson, P.E.
Environmental Engineer, LIFTA
6 Cheshire Street
Huntington Station, New York 11746

Re: Freedom of Information Law Appeal No. 06-17-0A
Tiger Salamander Presence - Gravel Pit Ponds

Dear Ms. Lorentzson:

This is in response to your appeal, pursuant to the Freedom of Information Law ("FOIL"), of the decision of staff of the Department of Environmental Conservation ("Department") to deny you access to survey data related to the presence of Tiger Salamanders in the Gravel Pit Ponds on Long Island.

In addition to your appeal letter, I have also taken into consideration our discussion of November 21, 2006 in which you provided background on the development of the ponds and your organization's past and present use of the ponds for dog training.

Department staff provided me with copies of the records from the Department's files and the New York Natural Heritage Program files that were withheld pursuant to FOIL. These records include the following:

- 1987 Site Survey Summary (4 pages, covering site visits on March 13, March 30 and April 10, 1987);

- 1987 Special Animal Survey Form (2 pages, covering site visits on March 13, March 30 and April 10, 1987);

- 1984/1985 surveys (14 pages, covering site visits on June 24, 1984, June 6, 1985, July 9, 1985 and September 20, 1985);

- various 1987, 1989, and 1990 surveys (stapled together, covering site visits on June 15, 1987, August 8, 1987, August 10, 1987, September 22, 1987, October 19, 1987, June 19, 1989, May 14, 1990, and June 23, 1990) (12 pages);

- July 7, 2005 Site Inventory Report - Botany (1 page), with attached one-page map;

- September 13, 2005 Site Inventory Report - Botany (1 page);

- July 7, 2005 Rare Plant Survey Form (5 pages);

- September 13, 2005 Rare Plant Survey Form (5 pages);

- Community Distribution Report (3 pages);

- October 19, 1987 Element Occurrence Record (4 pages)

- June 24, 1984 Element Occurrence Record (5 pages); ;

- September 13, 2005 Element Occurrence Report (marked "Update") (12 pages);

- July 7, 2005 Element Occurrence Report (7 pages);

- July 9, 1985 Element Occurrence Record (9 pages);

- March 7, 2004 Element Occurrence Report (marked "Update")(22 pages);

- various breeding pond surveys: March 21, 1990, March 26, 1991, February 17, 1992, March 6, 1993, July 13, 1993, March 22, 1994, April 11, 1994, March 2, 1995, March 14, 1995, June 28, 1995, January 28, 1996, March 18, 1996, March 19, 1996, February 22, 1997, March 19, 1997, July 11, 1997, February 18, 1998 (6 survey forms), March 2, 1998 (2 survey times), March 17, 1998 (12 separate survey forms), 1998 survey summary sheet (covering February 19, March 2 and March 17, 1998 surveys, with map), January 24, 1999, February 2, 1999, February 3, 1999, February 5, 1999, February 12, 1999 (2 survey times on that date), March 3, 1999, March 22, 1999, March 30, 1999, February 27, 2000, March 10, 2000, July 18, 2000, March 12, 2001 (4 survey times on that date), March 17, 2001, March 6, 2002, March 7, 2002, March 17/20, 2003, and March 7, 2004, and related memoranda/communications (February 28, 1980 memorandum, January 22,1990 telephone message, June 12, 1995 memorandum, and March 23, 1998 letter) (total of 83 pages);

- Sandpit ponds survey summaries (2 pages, noting surveyors and survey results from 1986 to 2006);

- August 13, 1990 Element Occurrence Report (7 pages);

- 7 intra-agency memoranda (9 pages total)/4 e-mails (5 pages total) (total of 14 pages); and

- other surveys (March 22, 1994, different time than March 22, 1994 survey previously referenced; January 28, 1996, different time than January 28, 1996 survey previously referenced; February 22, 1997 survey; July 18, 2000, different time from the survey previously referenced; March 30, 1999 survey; March 13, 2005 survey; February 3, 2006 survey; March 19, 2006 survey; and survey of an uncertain date [appears to be from 1998]), 1996 Joseph Jannsen notes, March 14, 1995 memorandum, July 16, 1999 intra-agency communication, chart of results from calendar year 2000 surveys, two intra-agency e-mails (dated August 13, 2002 and March 8, 2004), March 27, 1995 letter, and two pages of copies of photographs from 1990's and one page of copies of photographs from 1996 (34 pages).

The records had been withheld by Department staff on the basis of the following two exemptions in FOIL:

(1) POL § 87(2)(a) which authorizes an agency to deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute." Section 3-0301(2)(r) of the Environmental Conservation Law ("ECL") provides that "[n]otwithstanding [FOIL]," access may be denied "to inspection of records which identify locations of habitats of species designated endangered. . ., protected. . . or any other species or unique combination of species of flora or fauna where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive. . . ." Similarly, ECL § 11-0539 provides that, "[n]otwithstanding [FOIL], the department may deny access to inspection of records, data or information collected or maintained by the New York natural heritage program that identify locations or habitats of rare, threatened or endangered species of wildlife or rare, threatened or endangered species of plants . . .;" and

(2) POL § 87(2)(g) which authorizes an agency to deny access to records or portions thereof that are inter-agency or 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.

As you know, the tiger salamander (Ambystoma tigrinum) is currently designated as an endangered species in New York State (see section 182.6[a][4][i] of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York) and has a very limited habitat in this State. In your appeal, you indicated that the presence of the tiger salamander in the Gravel Pit Ponds is referenced in the Unit Management Plan for the Peconic Headwaters Natural Resources Management Area ("UMP") and that "since the location of this species is already disclosed, there is no basis for denying . . . access to records documenting the presence of the Tiger Salamander in the gravel pit ponds." Although the location (that is, the Gravel Pit Ponds) is referenced in the UMP, my review of the withheld records indicates that most of those records contain more specific details regarding the presence and location of tiger salamanders than what is presented in the UMP. In your appeal letter, you state:

"I hereby make a new FOIL request to obtain documentation showing the surveyed numbers of Tiger Salamanders and their egg masses in the Gravel Pit Ponds from the 1978 survey up to the most recent survey conducted on Tiger Salamanders in the Gravel Pit Ponds. This exact location of the Tiger Salamander is already disclosed to the public, in the Unit Management Plan, and the ponds are located in the area identified as Area D . . . . If the records requested information other than surveys of the Tiger Salamander in the Gravel Pit ponds that cannot be released under FOIL, please provide a summary list of what years the Gravel Pit Pond Tiger salamanders were surveyed starting from 1978 to the present and the corresponding number of adults and egg masses observed for each survey year."

Although it is not generally appropriate to make a new FOIL request at the appeal stage, in this instance the revised request would involve records that are now under review in this appeal and, for purposes of administrative efficiency, I shall consider your new request at this time. The records that were withheld will be evaluated based upon the scope of your new request. Please note that certain records initially withheld (such as generalized location maps and photographs of the Gravel Pit Pond area) would not be subject to the new request.

Based on my review of the records, I have determined that the withholding of the records relative to the locations of habitat of the tiger salamander was, based on the above-referenced exemptions from FOIL, warranted and appropriate. Furthermore, my review of the records indicates that the information on the surveyed numbers of adults and egg masses is clearly connected to location and habitat and, pursuant to POL § 87(2)(a), is entitled to be withheld.

With respect to your request for a summary list of surveys, please be advised that FOIL pertains to existing records, and the Public Officers Law states that an agency is not required to create a record in response to a FOIL request (see Public Officers Law § 89[3]). However, in this matter, two survey summaries exist and will be released in part. The first summary references surveys in calendar year 2000. The second summary is for the years 1978 to 2006 and includes the years and specific dates when surveys were conducted, the name of the individual(s) conducting the survey, and the results (that is, the numbers of adult tiger salamanders and egg masses found). A copy of each survey, after redacting the results (numbers of adults and egg masses) in accordance with POL § 87(2)(a), is being released and is being forwarded to you under cover of this letter. Please note that, although there is no requirement to do so, I have also referenced specific survey dates in the above-referenced list of records withheld. All other records that would be subject to your new request are being withheld pursuant to POL § 87(2)(a) and POL § 87(2)(g).

In our recent conversation you referenced your organization's frustration regarding a "lack of communication" between it and Department staff on the use of the ponds for dog training, particularly during the recent development of the UMP. Although those concerns are not factors that can be considered in determining the applicability of exemptions under FOIL, this is to advise that I shall be contacting the Region 1 Director to convey the concerns that you expressed in our recent conversation. Your organization may also wish to further communicate directly with the Region 1 Director with respect to these concerns.

This letter is a final determination of the Department with respect to your appeal and new request. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 06-17-0A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosures

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

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