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FOIL Appeal Determination for 07-08-2A (David Lenefsky)

February 26, 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 26, 2007


David Lenefsky, Esq.
One Columbus Place
Suite S48C
New York, New York 10019

Re: Freedom of Information Law Appeal No. 07-08-2A

Dear Mr. Lenefsky:

I have received your appeal pursuant to the Freedom of Information Law ("FOIL") with respect to ten pages in the possession of the New York State Department of Environmental Conservation ("Department" or "DEC") that are from the nutrient management plan of the Hudson Valley Foie Gras facility.

According to your correspondence dated February 8, 2007, you filed the appeal in light of the facility's uncertainty as to which of the ten pages Department staff was proposing to release to the Humane Society of the United States. You stated that the facility did not object to the release of the five pages of aerial photographs or to the two pages of sketched notations that you attached to your correspondence as B1 and B2, but that the facility would object to any release of the three pages of schematics marked A1, A2, and A3 and attached to your correspondence.

I have been advised by Department attorney Robyn Adair that Department staff was only proposing to release the five pages of aerial photographs and the two pages of sketched notations that you marked as B1 and B2. Department staff has withheld the two schematics that you marked as A1 and A2 pursuant to section 87(2)(d) of the Public Officers Law. Please note that the schematic that you marked as A3 was a page from the nutrient management plan that the Department previously did not have in its possession. However, Department staff has advised me that it would withhold A3 on the same ground that schematics A1 and A2 were withheld.
In addition, Department staff withheld copies of two photographs of the facility pursuant to POL § 87(2)(d).

In light of the foregoing, no dispute exists between the facility and Department staff and this appeal is moot. However, please be advised that the Humane Society of the United States is not precluded from filing an appeal to me as the Department's FOIL Appeals Officer, with respect to the records that Department staff has withheld.

If you have any questions, please feel free to contact me.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth Earl, DEC Records Access Officer
Robyn Adair, Esq., DEC Division of Environmental Enforcement
Sarah Uhlemann, Humane Society of the United States


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