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FOIL Appeal Determination for 06-05-2A (Robert McErlean)

February 28, 2007

New York State Department of Environmental ConservationAssistant 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: http://www.dec.state.ny.us/

February 28, 2007

Mr. Robert McErlean
P.O. Box 120126
Staten Island, New York 10312

Re: Freedom of Information Law ("FOIL") Appeal No. 06-05-2A (FOIL Request No. R2-05-1915) and FOIL Appeal No. 07-01-2A (FOIL Request No. R2-06-1106)

Dear Mr. McErlean:

This letter is our decision on the two above-captioned FOIL appeals that you filed pursuant to section 89(4)(a) of article 6 of the Public Officers Law. Each of the appeals is addressed individually, below.

FOIL Appeal No. 06-05-2A

You had originally filed an appeal by letter dated January 31, 2006 which was designated by the Office of Hearings and Mediation Services as FOIL Appeal No. 06-05-2A. Subsequently this appeal was suspended pending further discussions between you and staff of the New York State Department of Environmental Conservation ("Department" or "DEC")'s Region 2 office (see, e.g., letters dated June 2, 2006 and June 28, 2006 from Administrative Law Judge ("ALJ") P. Nicholas Garlick to you, and letter dated August 4, 2006 from DEC Assistant Regional Attorney Udo M. Drescher to you).

By letter dated August 14, 2006, you advised ALJ Garlick that the only remaining item that you were seeking was "a copy of the solid waste management permit, and a copy of the permit terms." By letter dated December 21, 2006 you advised ALJ Garlick that the appeal should no longer be considered suspended and that you were requesting, with respect to your appeal, a copy of a solid waste management permit you believe was issued to Abalon Homes Corp. (#24304-0118 or #X43DO2) in 1978 (see also letter dated January 3, 2007 from ALJ Garlick to you regarding your request for the solid waste management permit).

We have subsequently been advised by Region 2 staff that it has searched the appropriate files in Region 2 and no copy of this permit can be located. Accordingly, this appeal is moot. FOIL Appeal No. 07-01-2A

While FOIL Appeal No. 06-05-2A was pending, you submitted a further FOIL request (R2-06-1106) dated August 16, 2006, in which you made eight separate, numbered requests for records. You subsequently filed a FOIL appeal with respect to this further FOIL request. The appeal was also assigned to ALJ Garlick and designated as FOIL Appeal No. 07-01-2A. By letter dated January 15, 2007 to ALJ Garlick you provided additional information regarding the status of the eight numbered requests that were listed in your August 16, 2006 correspondence. By letter dated February 2, 2007, a copy of which is attached, DEC Region 2 staff provided a reply to each of the requested items.

Request #1

Your first request reads: "[a]ll material for the Commissioner's Study section 24-0301(1) ECL and 24-301(6) (boundary map maintenance) access to inspect the entire contents of this file for Freshwater Wetlands NA-9, Staten Island, NY."

According to DEC Staff, you have been provided with "full and complete access" to the files on this matter at the Region 2 office and to all documents that exist in these files. Department staff reports that on December 4, 2006, you visited the Region 2 office and reviewed numerous documents and made copies of 160 pages. This material included documents relating to the 1981 tentative wetland mapping and the 1986 and 1987 wetland mapping. Department staff advises that no other responsive records were located.

Request #2

Your second request reads "NYS DEC Mapping file, NA-9 (containing filed notes, draft maps, landowner names, air photos, hearing comments, Commissioner Order, etc.)." Department staff responds that you have been given access to the entire mapping file for freshwater wetland NA-9 and that no records were withheld.

Request #3

Your third request reads "in 1986 NYSDEC Region 2 . . . to identify and respond to FOIL requests for documents pertaining to the different Staten Island Freshwater Wetlands bodies. I request access to all of the identified files in exhibit 1 that pertain to what is presently known as Freshwater Wetlands Body NA-9 Staten Island."

The exhibit 1 you reference is the first page of a July 2, 1986 letter to a Mr. Frank X. Beraud which lists six categories of records that were compiled for the wetlands on Staten Island. According to DEC Staff, the first and third categories in that exhibit 1 are general files that do not pertain to an individual wetland. Department staff advised that, "[t]o the extent records falling within one of the other, specific categories exist and pertain to freshwater wetland NA-9, [you] were provided with access to those records."

Request #4

Your fourth request reads "(Filing and indexing information) Pertaining to Staten Island Freshwater Wetlands I request a copy of all information DEC has that would identify how Region 2 maintains catalogues, files, arranges, indexes, identifies, names and numbers the various freshwater wetlands documents and information, including violation and legal files."

Department staff indicates that with respect to this item, after a diligent search, no records could be located.

Request #5

Your fifth request reads "Sometime around 1981, DEC Region 2 produced and filed the first Staten Island tentative freshwater wetlands maps showing the wetlands boundary line. I request a copy showing the wetlands boundary line (on the New York City Tax map scale) of all maps showing the wetlands line as it passes through or closest to tax blocks 3711 and 3713, Staten Island, NY. This map would show and identify the difference if any, between the first 1981 tentative map and the second tentative and final map. (See exhibit 2 which is 2 copies of the type of map I am requesting.) Also, I am requesting any and all other information that would show, explain, or identify, what difference existed between the 1981 tentative line and the 1986 tentative and final wetlands line for the above two tax blocks which are part of the wetlands body NA-9 Staten Island, NY. NOTE: I am only seeking copies on the New York City Tax map scale."

Department staff responds that all responsive documents in Region 2's files that were located were made available to you.

Request #6

Your sixth request reads "I request a copy of [the entire 1986 public mapping] file/record, including and especially all inspection reports and comments from DEC staff that were forwarded to administrative law judge Robert Drew. And I also request a copy of the report from Robert W. Johnson submitted with the November 14, 1986 letter of objection to designation."

Department staff has advised ALJ Garlick that you have been provided with all available documents responsive to this request.

Request #7

Your seventh request reads "At some point in time, NYSDEC conducted or had conducted a phase II Environmental Assessment. That document had an addendum which identified Staten Island tax block 3711 and some others as containing fill material. The source of this information is an investigation report done for the city of New York. The report was prepared by Metcalf & Eddy of New York, INC. 1140 Route 22 East, Bridgewater, NJ (See Exhibit 4 consisting of 2 pages)[.] I request a copy of this entire Phase II Environmental Assessment with the complete addendum that identifies block 3711 and others as containing fill material."

Department staff responds that after a diligent search, Department staff has found no such record(s) in the files in Region 2.

Request #8

Your eighth request reads as follows "Pertaining to tax block 3711 and 3713 part of wetlands body NA-9 Staten Island, NY I request copies of all information that would explain or show how NYSDEC identified, mapped, and delineated the wetlands line and the adjacent area line through or closest to the above two tax blocks for the New York State Freshwater Wetlands Act." Department staff responds that you have been provided with access to all files in Region 2's custody that were identified as responsive to this request.

In sum, based upon Department's staff review, no further records (other than those to which you have already been provided access) have been located with respect to the eight items that you identified. Accordingly, no other records are subject to FOIL Appeal No. 07-01-2A and this appeal is moot.

Withheld Record

Department staff has advised our office that only one record was withheld under either of the two FOIL appeals - a draft decision dated June 5, 1978 in the matter of the application of Abalon Homes. This record was withheld pursuant to your first FOIL request and was subject to our review in consideration of FOIL Appeal No. 06-05-2A. As discussed in ALJ Garlick's June 28, 2006 letter, the withheld draft does not contain any discussion of the solid waste management permit you seek and was properly withheld pursuant to POL § 87(2)(g) as a pre-decisional intra-agency record.

This represents the final determination of the Department with respect to both FOIL appeals. 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).

Sincerely,

/s/
Louis A. Alexander
Assistant Commissioner

/s/
P. Nicholas Garlick
Administrative Law Judge

Attachment

cc: Robert J. Freeman, Executive Director,
Committee on Open Government (w/copy of appeal and attachment)
Udo M. Drescher, Esq.
Ruth L. Earl, Records Access Officer

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