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FOIL Appeal Determination for 07-22-9A (Douglas Ceisner)

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. Douglas Ceisner
100 East Avenue
Akron, New York 14001

Re: Freedom of Information Law ("FOIL") Appeal No. 07-22-9A
Wetland on property at 12739 Main Road,
Akron (Town of Newstead), New York

Dear Mr. Ceisner:

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 the Department's Region 9 office to provide responses to questions that you submitted to that office. The questions appear on a 2-page written questionnaire entitled "Form for use when wetlands delineated" that you provided to Region 9 staff during a meeting with them on February 21, 2007. The questionnaire relates to your ownership of property at 12739 Main Road (Rte. 5) in the Town of Newstead, New York.

Notably, this questionnaire was not generated by the Department nor does it constitute a proper FOIL request. In response to your request that Department staff complete the questionnaire, Region 9 staff advised you, by letter dated April 16, 2007, that FOIL pertains to existing records, and that "the Department is not obligated to create a record by completing your questionnaire." While Department staff may answer questions in certain circumstances (such as in meetings with them), that is separate from the requirements of FOIL, which deals exclusively with the disclosure of existing records.

POL § 89(3) expressly provides, in part, that an agency is not required to create a record in response to a request. The staff of the Committee on Open Government of the New York Department of State ("Committee"), which issues advisory opinions on FOIL, has addressed the situation where questions were asked of an agency. In a number of advisory opinions, Committee staff has noted that, pursuant to FOIL, an agency is not required to answer questions and its only obligation is to disclose relevant existing records not subject to any FOIL exemption (see, e.g., Advisory Opinion to Roger Clegg, dated July 18, 1977).

Nevertheless, in conjunction with its response to you, it is our understanding that Region 9 staff provided you with certain documents and materials that it believed might assist you in completing the wetland questionnaire. In that regard, we understand that Region 9 staff provided you with copies of the following items:

(1) Letter dated November 17, 2006 (with attachments) from Charles P. Rosenburg, Senior Ecologist, Region 9 - Division of Fish, Wildlife and Marine Resources, to Michael Bassanello, Town of Newstead Highway Department, regarding Freshwater Wetland WO-42 located in the vicinity of the intersection of Route 5 and South Newstead Road in the Town of Newstead;

(2) Department publication dated September 1992 containing Article 24 Freshwater Wetlands and Title 23 of Article 71 of the New York State Environmental Conservation Law;

(3) Department publication containing 6 NYCRR Part 663 - Freshwater Wetlands Permit Requirements (undated); and

(4) Department publication containing 6 NYCRR Part 664 - Freshwater Wetlands Mapping and Classification Regulations dated May 19, 1980.1

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the documents that Region 9 staff provided you in response to your request that the Department complete your questionnaire. In addition to the materials noted above, we have identified some additional documents that may be of assistance to you in answering the questionnaire. These items are:

A. Department publication entitled "New York State Freshwater Wetlands Delineation Manual" dated July 1995;

B. Department publication entitled "Freshwater Wetlands Program - Guide for Applicants 2004;" and

C. U.S. EPA publication entitled "Building Near Wetlands - The Dry Facts" revised April 1999.

Copies of these additional three records are enclosed. Please note however that these are being voluntarily provided as there is no requirement that these be provided pursuant to your FOIL request as submitted. In keeping with prior practice in this matter, the photocopying fee for these records is waived. We have also identified another record - a U.S. EPA publication entitled "Wetlands Regulation Guidebook for New York State" dated December 1993 (55 pages). Because more current information is available in the other records that have been or are being provided, the EPA publication is not being forwarded under cover of this letter. If you would like a copy, please contact Kimberly Sarbo at (518) 402-8537. For this record, the cost would be twenty-five cents a page or thirteen dollars and seventy-five cents ($13.75).

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 POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-22-9A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By:
Mark D. Sanza
Administrative Law Judge

Enclosures

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

1When Region 9 furnished you with this material, Department staff's response noted that there was "no charge for the records since only six pages have been copied. Copies of the law and regulations are also provided at no charge."

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