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FOIL Appeal Determination for 07-13-0A (Richard Brickwedde 2)

June 26, 2007

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

June 26, 2007

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Richard Brickwedde, Esq.
Brickwedde Law Firm
One Park Place, Suite 400
Syracuse, New York 13202

Re: Freedom of Information Law ("FOIL") Appeal No. 07-13-0A
Appeal Determination - Crosby Hill

Dear Mr. Brickwedde:

This letter completes the response of the Department of Environmental Conservation ("Department") to your appeal, pursuant to FOIL, for various records in the possession of the Department relating to Crosby Hill.

You previously received our letter dated April 20, 2007 ("April Letter") which provided a partial response to your FOIL appeal. As indicated in that prior correspondence, the Department was in the process of reviewing four additional records (log books) that were subject to your FOIL appeal. That process has been completed and our determination follows.

Based on our review, we have determined that the log books may be withheld in their entirety pursuant to Public Officers Law § 87(2)(e)(i). That section provides that records may be withheld if they are compiled for law enforcement purposes and which, if disclosed, would "interfere with law enforcement investigations." FOIL recognizes the need to withhold records that are developed during such investigations (see, e.g., Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 58 AD2d 234, 238 [2d Dept 1977]; see also Pride International Realty, LLC v. Daniels, 4 Misc.3d 1005[A]). In this matter, the log books subject to this appeal have been prepared in the context of an ongoing investigation.

In addition, portions of the four records are subject to being withheld pursuant to Public Officers Law § 87(2)(g) as intra-agency materials that 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. As discussed in the April Letter, this exception is intended to permit people within an agency or between agencies to exchange opinions, advice and criticism "freely and frankly" (The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005]). Furthermore, certain portions are exempted from disclosure pursuant to Public Officers Law § 87(2)(a), which relates to records or portions thereof that are specifically exempted from disclosure by state or federal statute. CPLR 4503, for example, expresses a clear legislative intent to establish and preserve confidentiality for attorney-client communications. In this regard, several entries in the log books summarize such communications and are withholdable pursuant to Public Officers Law § 87(2)(a).

Although redacted copies of the log books were provided to you in the context of ongoing litigation not related to this FOIL appeal, please note that those copies were not provided pursuant to FOIL which would allow the log books to be withheld in their entirety. In providing the redacted log books to you, neither the Department of Environmental Conservation nor the Attorney General's office intends to waive or otherwise affect the right to withhold these records under FOIL.

This letter, together with the previous correspondence dated April 20, 2007, represents the final determination of the Department of Environmental Conservation with respect to your FOIL 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 further correspondence, please refer to FOIL Appeal No. 07-13-0A.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner

/s/

Molly McBride
Administrative Law Judge

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


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