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FOIL Appeal Determination for 07-10-3A (Patrick Nelligan)

March 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/

March 26, 2007

Mr. Patrick Nelligan
Weeping Spruce Preserve
P.O. Box 401
Wassaic, New York 12592

Re: Freedom of Information Law ("FOIL") Appeal No. 07-10-3A

Dear Mr. Nelligan:

In response to your FOIL request dated January 7, 2007 relating to the Amenia Water District, Region 3 staff of the Department of Environmental Conservation ("Department") made certain records available to you for review, but withheld access to 34 records. On February 5, 2007 you reviewed the records that were made available and, at your request, copies of some of these records were made and provided to you. Subsequently, under cover letter dated February 13, 2007, Region 3 staff provided additional records to you, thereby reducing the number of records withheld to 32.

On March 1, 2007, this office received your letters dated February 27 and 28, 2007, appealing the determination by Region 3 staff to deny access to 34 records (as previously noted, additional records were made available to you, reducing the number of withheld records to 32). By your appeal, you have requested this office review the withheld records and determine whether any should be released for your review.

Region 3 Environmental Permits and Habitat Protection staff provided us with the 32 records that were withheld. Region 3 Legal Affairs staff indicated that it has no additional responsive records. Staff withheld all 32 records on the basis of Public Officers Law § 87(2)(g). Pursuant thereto, an agency may except from disclosure records or portions thereof that are inter-agency or intra-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. In your February 27, 2007 letter, you state that "it is precisely the intra-office documents that have been excepted that would shed light on the decision making processes occurring in the current Application Process."

We have reviewed the 32 records withheld and determined that four (4) of these records should have been released in response to your FOIL request. Specifically, the following records are hereby released and attached for your use:

- a Short Environmental Assessment Form relating to a sanitary design, signed by Department staff on September 11, 2000 (2 pages);
- a fax cover sheet dated February 2, 2001 (1 page);
- an e-mail dated January 29, 2001 (1 page); and
- an e-mail dated November 21, 2006 (1 page).

The copying fee for these records is waived.

The remaining 28 records subject to your appeal are being withheld in their entirety. All 28 records, 17 from Environmental Permits and 11 from Habitat Protection, fall within the scope of the intra-agency/inter-agency exemption in Public Officers Law § 87(2)(g). This exception is intended "to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure (citation omitted)." The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 (2005). Although we understand that you desire to obtain information on the "decision making process," your request must be denied where it conflicts with the need to foster the free and open exchange of opinions among Department staff. Furthermore, we find that four (4) of the 28 withheld records are also subject to attorney-client privilege (see Civil Practice Law and Rules § 4503[a]) and, therefore, are exempt from disclosure by state statute in accordance with Public Officers Law § 87(2)(a).

Finally, we note that three (3) of the 28 withheld records include previously released or otherwise public records that contain annotations or marginalia by Department staff. Specifically, a copy of the Freshwater Wetlands Appeal Board Decision and Order (FWAB No. 05-02) and two copies of your letter to the FWAB, dated April 11, 2006, have been withheld because the annotations fall within the intra-office exception of Public Officers Law § 87(2)(g). However, if you would like to obtain copies of these records, subject to the redaction of the annotations or marginalia, please advise us and we will forward the records so redacted to you.

This is the final determination of the Department 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 Public Officers Law § 89(4)(b). In any further contact with this office related to this appeal, please refer to FOIL Appeal No. 07-10-3A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By: Richard A. Sherman
Administrative Law Judge

Attachments

cc: Robert Freeman, Executive Director
Committee on Open Government (w/o attachments)
Ruth Earl, DEC, Records Access Officer (w/o attachments)
Michael Knipfing, Region 3 Citizen Participation Specialist (w/attachments)

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