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FOIL Appeal Determination for 07-21-3A (Barry Goldberg)

June 8, 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/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

June 8, 2007

Mr. Barry Goldberg
139 Massachusetts Avenue
Congers, New York 10920

Re: Freedom of Information Law ("FOIL") Appeal No. 07-21-3A

Dear Mr. Goldberg:

This is in response to your appeal dated May 3, 2007 with respect to records that were withheld by the Solid Waste Program in Region 3 of the New York State Department of Environmental Conservation ("DEC" or "Department"). This FOIL request was preceded by your FOIL requests in January 2005 (FOIL#057-3/05; Albany #05-156) and 2002.

By letter dated April 20, 2007, which Region 3 received on April 24, 2007, you submitted a FOIL request relating to "Barry Goldberg and the properties at 139 Massachusetts Avenue and 141 Massachusetts Avenue, Congers, New York 10920 (also known as Goldberg, lots 52.8-3-53.1 and 52.8-3-53.2, respectively)." Region 3 staff designated this FOIL request as "FOIL #336-3/07." On April 27, 2007, Region 3 responded to your FOIL request ("DEC April 2007 letter").

In your appeal, you pose several questions, not all of which are proper to raise in the context of a FOIL appeal. Several of these pertain to a prior FOIL appeal (relating to a response to your 2002 FOIL requests) where a final determination was issued by the Department on April 9, 2003. Notwithstanding the foregoing, I have considered all of your questions in my review of your current appeal.

By the DEC April 2007 letter, Region 3 Solid Waste Program staff advised you that, since your previous FOIL request of January 2005, the only additional records that the Region 3 Solid Waste Program staff possessed were letters to you dated March 18, 2005, June 9, 2005 and July 15, 2005. By the DEC April 2007 letter, you were offered the opportunity to make an appointment to review those records, copies of which had been previously sent to you.

As further stated in the DEC April 2007 letter, "with the exception of the April 25, 2003 intra-office memorandum referenced in the enclosed letter to you of June 9, 2005 [which responded to your January 2005 FOIL request], the only Solid Materials program documents not made available to you are those adjudicated to have been properly withheld by the Office of Hearings and Mediation Services in their decision of April 9, 2003." In your appeal, you asserted that this quoted statement was "improper and unwarranted." You indicated that no reason was cited for the April 9, 2003 determination, and that the use of the verb "adjudicated" was incorrect. You also indicated that you were not in possession of the April 9, 2003 letter.

Although I agree that a verb other than "adjudicated" should have been used, your characterization of staff's statement as "improper and unwarranted" is rejected. The records that had been withheld (other than the April 25, 2003 intra-office memorandum) were the subject of your earlier appeal. In response to that earlier appeal, a FOIL appeal determination letter was issued on April 9, 2003 which explained relevant exemptions to FOIL, as they applied to the withheld records. The April 9, 2003 FOIL appeal determination letter was mailed to you by the Office of Hearings and Mediation Services in April 2003. In addition, a copy of that determination was subsequently provided to you under cover of a letter dated June 15, 2005 from Region 3. For your convenience, another copy of the April 9, 2003 FOIL appeal determination letter is attached to this letter. To the extent that you disagreed with the determinations set forth in the April 9, 2003 letter, you had the right to seek review pursuant to Article 78 of the Civil Practice Law and Rules and Public Officers Law § 89(4)(b) at that time. That right to seek review was expressly referenced in the April 9, 2003 FOIL appeal determination letter.

You also contest the withholding of the April 25, 2003 intra-office memorandum that was prepared by Region 3 assistant attorney Jonah Triebwasser. With respect to that record, you were notified by letter dated June 9, 2005 from Region 3 that the memorandum was being withheld pursuant to Public Officers Law §§ 87(2)(a) and 87(2)(g). Public Officers Law § 87(2)(a) provides an exemption for records or portions thereof which are "specifically exempted from disclosure by state or federal statute." Records subject to the attorney-client privilage (see CPLR 4503[a]) and/or attorney work product (see CPLR 3101[c]] and [d][2]) are excepted from FOIL (see, e.g., Matter of Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 58 AD2d 234 [2d Dept 1977]). Public Officers Law § 87(2)(g) provides an exemption for records or portions thereof which 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" (emphasis added).

You were also notified in Region 3's June 9, 2005 letter that if you wished to appeal the determination to withhold that record, you were to file an appeal with the Assistant Commissioner of the Office of Hearings and Mediation Services within thirty days of denial. Accordingly, any challenge to the withholding of this record in June 2005 in your current appeal is untimely.

You also mention that I stated in the June 9, 2005 letter that the file you were requesting pursuant to FOIL "is approximately 1/2-inch thick." I did not make that statement, nor, as noted, was the June 9, 2005 letter from me. I am advised by Region 3 staff that most of the file which was being referenced in that letter was made accessible to you pursuant to your earlier FOIL requests.

In sum, Region 3 staff indicates in the DEC April 2007 letter that only three records have been added to the Solid Waste file since your previous FOIL request of January 2005 and these were furnished to you. Subsequent to your appeal, I contacted Region 3 staff who reconfirmed to me that there are no other records within the Solid Waste Program subject to this appeal - that is, from the day after the receipt of your earlier January 2005 FOIL request to the date that the most recent FOIL request was received (April 24, 2007). Accordingly, no basis exists for the current appeal and it is dismissed.

However, I have been advised by Region 3 staff that it is in the process of reviewing its Law Enforcement Program files to identify whether any relevant records subject to your most recent FOIL request may exist. Region 3 staff will respond to you directly with respect to any such records, and you will have full rights to appeal that response if you so choose.

This letter is a final determination of the New York State Department of Environmental Conservation with respect to your appeal relating to the Region 3 Solid Waste Program records. 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).

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner

Attachment

cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth L. Earl, Records Access Officer
Michael J. Knipfing, Region 3

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