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FOIL Appeal Determination for 07-19-0A (Charles A. Abbott)

May 9, 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/

May 9, 2007


Mr. Charles A. Abbott
47 Valley Farm Road
Millbrook, New York 12545

Re: Freedom of Information Law ("FOIL") Appeal No. 07-19-0A
Appeal Determination

Dear Mr. Abbott:

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 four (4) records that were withheld in their entirety by the Department's Central Office. These records, which were referenced in Joanne C. Parker's letter to you dated March 30, 2007, pertain to the Dieterich Pond Dam located in the Village of Millbrook, Town of Washington, Dutchess County, New York.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the four (4) records that were withheld in their entirety. There was a fifth record, the May 27, 1916 Dam Report, which was redacted prior to its release to you. As you did not appeal the redaction, that record is not subject to our review.

On this appeal, a de novo review of the four records withheld has been conducted. Based upon our review, we have concluded that one of the records can be released in its entirety, while the remaining three records can be released in redacted form. The redactions have been made in accordance with the FOIL exemptions contained in POL §§ 87(2)(f) and 87(2) (g).

A review of these exemptions follows. The first exemption, POL § 87(2)(f), authorizes the denial of access to records or portions thereof that "if disclosed would endanger the life or safety of any person." As you know, the Department examines the information it holds to ensure that its release would not impair public safety. With respect to dams, the information that the Department possesses is evaluated to determine the extent to which it constitutes critical infrastructure and would be exempt on public safety grounds.

The second exemption, 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, although portions of certain records may be releaseable, other portions of those same records may be exempt pursuant to FOIL. For example, one of the four Department records subject to your FOIL appeal which we have determined to be releaseable is a March 28, 2002 Engineering Report prepared by Eric M. Holt, P.E. We have concluded that this report should be released to you, but in redacted form only as it contains critical infrastructure information exempt from disclosure by POL § 87(2)(f). In addition, another one of the four Department records subject to your FOIL appeal which we have determined to be releasable is a March 2002 site plan of the dam prepared by D.T. Mance & Associates, Inc. We have concluded that this site plan should be released to you, but in redacted form only as it contains information exempt from disclosure by both POL §§ 87(2)(f) and (g).

In response to a previous FOIL request and subsequent appeal (see FOIL Request No. 06-1346; FOIL Appeal No. 06-27-0A; and FOIL Appeal Determination dated November 13, 2006), you were furnished with records entitled "Dam Break Analysis" (dated January 2005) and "Dam Break Analysis Addendum No. 1" (dated March 2005). Please be advised that one of the four records subject to the present appeal which we have determined to be releaseable, with staff comments redacted pursuant to POL § 87(2)(g), is a draft version of the dam break analysis. This draft version was prepared and revised in 2004. It is our understanding that the 2004 version of the dam break analysis was replaced by the "Dam Break Analysis" and the "Dam Break Analysis Addendum No. 1" that you have already received. In light of the foregoing, and in order to save you photocopying expense, we have not included the draft version in our calculation of photocopying expenses. If you would like a copy, please contact Louis Alexander at (518) 402-8537.

The records or portions of records that are being released pursuant to this appeal consist of twenty-eight (28) pages, including one oversized site plan. 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 $7.00 (28 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, the records will be returned to their respective files and the FOIL appeal file will be closed.

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. 07-19-0A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By:
Mark D. Sanza
Administrative Law Judge

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


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