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FOIL Appeal Determination for 07-17-0A (Mary Jane Watson)

April 19, 2007

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.state.ny.us/

April 19, 2007

Ms. Mary Jane Watson
P.O. Box 387
South Colton, NY 13687

Re: Freedom of Information Law ("FOIL") Appeal No.07-17-0A
FOIL Request No. 07-362

Dear Ms. Watson:

We are responding to your above-captioned FOIL appeal regarding records withheld from disclosure pursuant to Public Officers Law ("POL") § 87(2)(g). Your FOIL request sought "copies of all correspondence in connection with a grant awarded to the Town of Colton by DEC during December 2006." You further stated in your FOIL request that you were "particularly interested in any correspondence or record of phone conversations between members of [the New York State Department of Environmental Conservation ("Department")] and William H. McGahay, Deputy Secretary to the Governor, or between [the Department] and Steve King, Phil Hembdt, or Dow [sic] Dewitt of [the Office of Real Property Services]."

In response to your original FOIL request, you were provided by the Department's Bureau of Contract and Grant Development with copies of two letters and informed that other records were being withheld as inter-agency or intra-agency records which were not statistical or factual tabulations of data, instructions to staff that affect the public, or final agency policy or determinations.

We have reviewed the records withheld. In addition, we contacted the Department's Region 6 office, the Department's Division of Legal Affairs, and the Department's Division of Lands & Forests to determine if any other records existed that would be subject to your FOIL request. Both the Division of Lands & Forests and the Division of Legal Affairs have advised that they have no records subject to this FOIL request. Region 6 has provided us with correspondence that is subject to your FOIL request, in addition to related background materials, which we are releasing in their entirety.

We have also reviewed the material that was withheld by the Bureau of Contract and Grant Development in the context of POL § 87(2)(g) which allows intra-agency and inter-agency records or portions thereof to be withheld under FOIL. The exemption is intended to allow individuals within an agency to exchange opinions, advice and criticism freely and frankly (see The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005]). Based on our review, we have determined that two intra-agency communications should continue to be withheld, one intra-agency communication should be released in redacted form, and the remainder of the records are to be released in their entirety.

Pursuant to your appeal, we inquired about any correspondence or records of phone conversations in the Department's files with the Office of Real Property Services or William H. McGahay that would be subject to your FOIL request. We were advised that no such correspondence or records were found in the Department's files.

In your appeal, you requested information beyond that which was included in your initial FOIL request. Please note that such a request for other information cannot be considered on an appeal but must be directed to Ms. Ruth Earl, the Department's Records Access Officer.

The records that are being released are enclosed under cover of this letter. The photocopying charges are being waived.

This letter constitutes the final determination of the Department of Environmental Conservation regarding your FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules and POL § 89(4)(b).

Sincerely yours,


Louis A. Alexander
Assistant Commissioner


P. Nicholas Garlick
Administrative Law Judge


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

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