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FOIL Appeal Determination for 07-04-5A (John J. Jordan)

February 2, 2007

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: http://www.dec.state.ny.us/


February 2, 2007

Mr. John J. Jordan
744 Military Road - DAY
Hadley, New York 12835

Re: Freedom of Information Law ("FOIL") Appeal No. 07-04-5A
Appeal Determination

Dear Mr. Jordan:

This is in 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 Rick Carbone's stump dump and sewage lagoon located on Military Road in the Town of Day, Saratoga County, New York.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from the Department's Region 5 office. On this appeal, a de novo review of the thirty-six (36) records withheld has been conducted. Based upon this review, we have determined that twenty-nine (29) of the records were properly withheld in their entirety pursuant to one or more FOIL exemptions, specifically, POL § 87(2)(e)(i) and POL § 87(2)(g).

POL § 87(2)(e)(i) authorizes the denial of records compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc 3d 1005[A][Sup Ct, New York County 2004][holding that POL § 87(2)(e)(i) applies to agency investigations of violations of the law]; see also Matter of Westchester Rockland Newspapers, Inc. v. Moszcydlowski, 58 AD2d 234, 238 [2d Dept 1977]; City of New York v. BusTop Shelters, Inc., 104 Misc 2d 702, 711 [Sup Ct, New York County 1980]).

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 (see POL § 87[2][g][i]-[iv]).

Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempted from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]; see also New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005]["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]).

Accordingly, consistent with the foregoing, various of the Department records subject to your FOIL request (including but not limited to e-mails and other communications, memoranda and notes) are exempt from disclosure pursuant to the law enforcement and intra-agency/inter-agency exemptions.

Furthermore, although portions of certain records may be releaseable, other portions of those same records may be exempt pursuant to FOIL. In this matter, one of the records which we have determined to be releaseable is a portion of a two-page report prepared by the Division of Law Enforcement in response to a complaint called in to the Department. We have concluded that this report should be released to you, but in redacted form only.

Typically, the name and address of a complainant, in addition to other identifying information, is redacted to protect the privacy of that person pursuant to POL § 87(2)(b) which reads, in relevant part, as follows: "Each agency shall ... make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: ... (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article."

While the release of the name of the complainant and other identifying information would ordinarily constitute such an unwarranted invasion of personal privacy, because you were the actual complainant in this instance, we have not redacted your identifying details from this record. However, the last section of the two-page complaint report form entitled "Narrative" is being redacted in its entirety pursuant to POL § 87(2)(e)(i) and POL § 87(2)(g) as containing information pertaining to those sections as previously described above.

As indicated, Department staff has provided us with thirty-six (36) records from the Department's Region 5 office files that were withheld. Based on the review on this appeal, we have determined that six (6) of those records should be released in their entirety, including the following:

- Part 364 Waste Transporter Permit No. 5A-591 dated November 1, 2002 (2 pages);
- Department staff letter dated November 9, 2005 (1 page);
- five notices of violation dated November 21, 2005 (3 pages);
- Department staff letter dated April 10, 2006 (1 page);
- twenty photographs, undated (20 pages); and
- one map entitled "Map of Lands of John J. Jordan, L 1701 P 421 Situate at Military Road, Town of Day, Saratoga County, NY" prepared by Thompson/Fleming Land Surveyors, P.C. (one page).

As previously noted, we have determined that one (1) other record should be released but in redacted form:

- New York State Environmental Conservation Police Complaint Form No. 05-017233 dated November 21, 2005 (redactions pursuant to POL § 87[2][e][i] and POL § 87[2][g]) (two pages).

We have determined that the remaining twenty-nine (29) records were appropriately withheld in accordance with the following FOIL exemptions:

- POL § 87(2)(g) - eight (8) records; and
- POL § 87(2)(e)(i) and POL § 87(2)(g) - twenty-one (21) records.

We have been advised that the map of your lands referenced above (and included in the tally of records initially withheld) was provided to you when you were notified that certain records were available to you for copying by letter from Sheryl L. Quinn (Region 5 FOIL Coordinator) dated January 5, 2007.

The records or portions of records that are being released pursuant to this appeal consist of twenty-nine (29) 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 $7.25 (29 pages at $0.25 per page), within thirty (30) days of the date of this letter. Alternatively, if you would like to review these documents at our office, please contact Kimberly Sarbo at (518) 402-8537 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 is 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. 07-04-5A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

By: /s/

Mark D. Sanza
Administrative Law Judge

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



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