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FOIL Appeal Determination for 07-02-2A (Gavin Kearney)

March 29, 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/

March 29, 2007

Gavin Kearney, Esq.
New York Lawyers for the Public Interest, Inc.
151 West 30th Street, 11th Floor
New York, New York 10001-4017

Re: Freedom of Information Law ("FOIL") Appeal No. 07-02-2A
Appeal Determination - Gershow Recycling Corporation

Dear Mr. Kearney:

This completes the Department's response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"], from the denial of access to records pertaining to Gershow Recycling Corporation facilities that are located in Region 1 and Region 2 of the New York State Department of Environmental Conservation ("Department").

You should have previously received our letter dated March 14, 2007 which provided a partial response to your FOIL appeal. As indicated in that prior correspondence, the Department was in the process of reviewing certain additional records that were subject to this FOIL appeal. That review has been completed and our determination follows (for ease of reference, we have assigned a number to each record that was reviewed at this stage1):

- Record 1. Petroleum Bulk Storage Program Facility Information Reports (9 pages). These reports shall be released;
- Record 2. Withheld pursuant to Public Officers Law §§ 87(2)(e)(i) and 87(2)(g);
- Record 3. Withheld in part pursuant to Public Officers Law §§ 87(2)(e)(i) and 87(2)(g), with 11 pages to be released;
- Record 4. Release in its entirety (44 pages);
- Record 5. Withheld in part pursuant to Public Officers Law §§ 87(2)(e)(i) and 87(2)(g), with 54 pages to be released;
- Record 6. Withheld pursuant to Public Officers Law §§ 87(2)(a) and 87(2)(e)(i);
- Record 7. Withheld, in part, pursuant to Public Officers Law §§ 87(2)(a), 87(2)(e)(i) and (87)(2)(g), with 17 pages to be released;
- Record 8. Withhold pursuant to Public Officers Law §§ 87(2)(a) and 87(2)(e)(i);
- Record 9. Withhold pursuant to Public Officers Law §§ 87(2)(a) and (2)(g);
- Record 10. Withhold pursuant to Public Officers Law §§ 87(2)(a) and (2)(g);
- Record 11. Withhold pursuant to Public Officers Law §§ 87(2)(a) and (2)(g);
- Record 12. Release (1 page);
- Record 13. Withhold pursuant to Public Officers Law § 87(2)(a);
- Record 14. Release (1 page);
- Record 15. Withhold pursuant to Public Officers Law § 87(2)(g);
- Record 16. Withhold pursuant to Public Officers Law § 87(2)(g);
- Record 17. Withhold pursuant to Public Officers Law §§ 87(2)(d) and (2)(e)(i);
- Record 18. Withhold pursuant to Public Officers Law §§ 87(2)(d) and (2)(e)(i);
- Record 19. Withhold pursuant to Public Officers Law §§ 87(2)(e)(i) and (2)(g);
- Record 20. Withhold pursuant to Public Officers Law §§ 87(2)(a) and (2)(g);
- Record 21. Withhold pursuant to Public Officers Law §§ 87(2)(e)(i) and 87(2)(g);
- Record 22. Withhold pursuant to Public Officers Law §§ 87(2)(e)(i) and (2)(g);
- Record 23. Withhold, in part, pursuant to Public Officers Law §§ 87(2)(e)(i) and 87(2)(g), with the release of 10 pages in their entirety and the release of 1 page in redacted form (redactions pursuant to Public Officers Law § 87(2)(g));
- Record 24: Release (21 pages);
- Record 25. Release (3 pages);
- Record 26. Release (2 pages);
- Record 27. Release (7 pages);
- Record 28. Release (1 page);
- Record 29. Withhold pursuant to Public Officers Law §§ 87(2)(a) and 87(2)(e)(i); and
- Record 30. Release (3 pages).

The rationale for the exemptions that have been applied - POL §§ 87(2)(a), 87(2)(e)(i) and 87(2)(g) - was set forth in our earlier letter of March 14, 2007 and is incorporated into this letter by reference. With respect to the application of POL § 87(2)(a), we note that in addition to attorney-client privilege and attorney work product, this exemption would also apply to documents that are subject to negotiation with the Department (see United States v. Town of Moreau, 979 F.Supp. 129 (NDNY 1997), aff'd, United States of America v. Glens Falls Newspapers, Inc., 160 F.3d 853 [2d Cir. 1998]; see also CPLR 4547).

The records or portions of records that are being released pursuant to this letter consist of 185 pages. If you wish to be provided with copies, please send a check to Kimberly Sarbo of this office, made payable to the "New York State Department of Environmental Conservation," in the amount of $46.25 (185 pages at $0.25 per page) within thirty (30) days of the date of this letter.

Alternatively, if you would like to review these records at our office, please contact Administrative Law Judge Mark D. Sanza at (518) 402-9003 within thirty (30) days of the date of this letter. If we do not hear from you within thirty (30) days of the date of this letter, the records will be returned to the appropriate agency files. This letter, together with the previous correspondence dated March 14, 2007, represents the final determination of the Department of Environmental Conservation with respect to your appeal. 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. 07-02-2A.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

Mark D. Sanza
Administrative Law Judge

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer

1Duplicate material contained in the records has been excluded.

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