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FOIL Appeal Determination for 07-25-3A (Patrick Nelligan 2)

July 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.ny.gov/


July 9, 2007

Mr. Patrick Nelligan
Weeping Spruce Preserve
P.O. Box 401
Wassaic, New York 12592

Re: Freedom of Information Law Appeal No. 07-25-3A

Dear Mr. Nelligan:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at sections 84-90 of the Public Officers Law ["POL"]), from the denial of access to records by Region 3 staff of the New York State Department of Environmental Conservation ("Department"). These records relate to the permit application submitted by the Amenia Water District for Well #4-A. Although Region 3 staff withheld access to two records, it made various records available which you reviewed on June 7, 2007.

On June 18, 2007, this office received your letter dated June 14, 2007, wherein you state that you "find it necessary to appeal the withholding of public documents by Region 3 Environmental Permits." Further to our consideration of your appeal, Region 3 staff provided us with copies of the two records they withheld.

We note that your FOIL appeal asserts that staff improperly withheld a "draft permit" and an "authorization letter" that were responsive to your FOIL request. Your description of the records that you assert were withheld does not correspond to the two withheld records that Region 3 staff provided to us for review. However, in this appeal we are providing you with both a determination on the records that staff withheld and a response to your assertions that Department staff improperly withheld a draft permit and an authorization letter.

We shall first address the two withheld records that Region 3 staff provided to this office for review. Staff withheld both records on the basis of Public Officers Law § 87(2)(g). Pursuant thereto, an agency may except from disclosure records or portions thereof that 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. This exception is intended "to permit people within an agency 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).

We have reviewed the two withheld records provided by Region 3 staff. The two records, which are e-mail communications between Region 3 staff, both fall within the scope of the exception in Public Officers Law § 87(2)(g). Accordingly, they were properly withheld.

With regard to the records you assert were withheld (that is, the "draft permit" and the "authorization letter"), it appears that you filed your appeal prior to receiving Mr. Merriman's June 13, 2007 letter. In that letter, Mr. Merriman explains that draft permits are available only "where applicable" and that the Department only includes draft permits at the time of completeness for three federally delegated permit programs (SPDES, Air and Hazardous Waste). None of these permits are pertinent to the Amenia Water District permit application, and we have been advised by Region 3 staff that no draft permits were prepared at the time of your FOIL request.

It is not clear to us what the "authorization letter" noted in your appeal refers to. However, attached to your appeal is a copy of a letter, dated June 1, 2007, from Morris Associates Engineering Consultants, PLLC ("Morris Associates") to the New York State Department of Health. The Morris Associates' letter refers to "Water Supply and Wetlands permits obtained from the NYSDEC on this project" and, in the margin next to this phrase, there is a handwritten question mark. Accordingly, we assume that these "permits" are the authorizations to which you are referring. However, Region 3 staff have informed us that no such permits have been issued for this project.

One might surmise that Morris Associates, by its letter, intended to indicate that the attached plans were consistent with applicable permit application requirements. However, to the extent that Morris Associates' letter states or otherwise suggests that permits had been issued or draft permits had been prepared for this project as of June 1, 2007, it is incorrect.

In summary, both of the records withheld by Region 3 staff were properly withheld in accordance with Public Officers Law § 87(2)(g). Furthermore, at the time of your FOIL request, the Department did not possess records that correspond to either the "draft permit" or the "authorization letter" that you reference in your appeal.

In your appeal, you requested that a new public comment deadline relating to the Town of Amenia Water District's request for permits be recommended. Please be advised that the Office of Hearings and Mediation Services has no authority in its consideration of FOIL appeals to revise or alter such comment periods. Any request in this regard should be directed to Region 3.

This is the final determination of the Department on the above-referenced appeal. 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). In any further contact with this office related to this appeal, please refer to FOIL Appeal No. 07-25-3A.

Very truly yours,


Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services


By: Richard A. Sherman
Administrative Law Judge

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

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