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FOIL Appeal Determination for 06-20-5A (Erick Titrud)

August 18, 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

August 18, 2006

Erick Titrud, Esq.
Assistant Attorney General
Office of the Attorney General
State of Vermont
109 State Street
Montpelier, Vermont 05609-1001

Re: Freedom of Information Law Appeal No. 06-20-5A
Records relating to International Paper Company

Dear Mr. Titrud:

This is in response to your letter dated August 14, 2006 ("August Letter") in which you appeal the denial of access to two pages of records pertaining to International Paper Company - Ticonderoga Mill.

In the August Letter, you indicate that the New York State Department of Environmental Conservation ("Department") "has made available for review and photocopying voluminous responsive documents." However, you note that, with respect to two records, the Department, after granting access to them, subsequently declined to provide copies. This was based on a redetermination that the two records constituted intra-agency or inter-agency materials that were exempt from release pursuant to section 87(2)(g) of the Public Authorities Law ("POL"). You were advised that the two records were being withheld by letter dated July 14, 2006 ("Department denial letter").

The Department's Region 5 office has provided me with the two records referenced in the Department denial letter. The records include an internal Department e-mail communication and a document entitled "Notification of Availability for Review" (the "Notification").

POL § 87(2)(g) authorizes the denial of access to records or portions thereof that are intra-agency or inter-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, or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government. Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempted from FOIL to protect the deliberative process (see Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]).

Based on my review of the internal Department e-mail communication, I affirm the determination that it is deliberative in nature. Accordingly, it is exempt from FOIL pursuant to POL § 87(2)(g). However, with respect to the Notification which is a draft document, I determine, based on the examination of the information contained therein, that neither the intra-agency/inter-agency nor other FOIL exemption would apply. Accordingly, it shall be released. As the Notification consists of only one page, the photocopying fee for this record is waived and a copy is being provided to you under cover of this letter.

This letter is the 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. 06-20-5A. If you have any questions, please feel free to contact me.

Sincerely,


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

Enclosure

cc: Robert Freeman, Executive Director,
Committee on Open Government (w/copy of the appeal)
Ruth Earl, Records Access Officer

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