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FOIL Appeal Determination for 07-31-0A (Mary Anne Kowalski)

August 21, 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/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

August 21, 2007

Ms. Mary Anne Kowalski
25 Reber Street
Albany, New York 12205

Re: Freedom of Information Law Appeal No. 07-31-0A
Freedom of Information Law Request (dated July 20, 2007) No. 07-0853

Dear Ms. Kowalski:

This is in response to your appeal dated August 9, 2007, pursuant to the Freedom of Information Law ("FOIL," which is codified in the New York State Public Officers Law), with respect to records relating to the Empire Green Biofuels - Seneca IDA proposal. You based your appeal on "failures [of the Department of Environmental Conservation] to abide by all of the requirements concerning the time within which it must respond to a request."

For the following reasons, your appeal is dismissed. You stated in your appeal that the law requires that agencies respond within five business days of the receipt of a written request for a record. Paragraph 3 of section 89 of the Public Officers Law ("POL") states, in relevant part:

"Each entity subject to the provisions of [FOIL], within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied. . . ."

Although you indicate that you received a response within five business days from Department staff, you state that the response did not include a statement of the approximate date when the request would be granted or denied.

I am advised by Department staff that, in its letter acknowledging receipt of your FOIL request, it was stated that you "may expect a reply in about four weeks." Department staff does not have a dated copy of its response but Department staff advises me that the response was mailed on or about July 20, 2007. Although it may have been preferable to provide an approximate specific date in the response letter, the statement "in about four weeks" was sufficient to provide an expected deadline of August 20, 2007. In light of the foregoing, your appeal dated August 9, 2007 (relating to your FOIL request dated July 20, 2007) is premature and must be dismissed. Furthermore, I understand that Department staff has over the past two weeks been in direct contact with you regarding the records subject to your FOIL request and, by invoice dated August 20, 2007, advised of the availability of records subject to your FOIL request.

In your appeal, you also state that recent statutory amendments require that agencies subject to FOIL must accept requests for records in the form of electronic mail and shall respond to such requests by electronic mail. You state that the written response (which was mailed to you) does not comply with the new amendments. I disagree. As you know the Department has established an electronic mailbox to receive FOIL requests (see http://www.dec.ny.gov/public/373.html). The Department does not read the statutory language to require electronic responses where reasonable means are not available for such responses or where responses are made by other acceptable means (in this instance, by first class mail to you). However, the Department is continuing to review procedures to allow for greater use of electronic mail with respect to FOIL requests.

In your appeal, you stated that all appeals and any subsequent FOIL appeal determinations must be sent to the Committee on Open Government. Please be advised that the Department forwards all appeals and determinations to the Committee on Open Government.

This letter is the final determination of the Department of Environmental Conservation with respect to your appeal dated August 9, 2007. 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). Please be advised that, in the event that you disagree with Department staff's determination of what records are releaseable, you would be entitled to file another appeal.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director
Committee on Open Government (w/copy of appeal)
Ruth L. Earl, Records Access Officer

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