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FOIL Appeal Determination for 07-30-3A (Barry Goldberg 2)

August 31, 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 31, 2007

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

Re: Freedom of Information Law Appeal No. 07-30-3A
Freedom of Information Law Request No. 336-3/07

Dear Mr. Goldberg:

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 access to records by Region 3 staff of the New York State Department of Environmental Conservation ("Department").

You filed a FOIL request with the Region 3 office of the Department on June 12, 2007 to which the Region 3 office responded by letter dated July 10, 2007. You subsequently filed an appeal on July 24, 2007 ("July 2007 Appeal") which is the subject of this letter determination. In the July 2007 Appeal, you raise a number of issues that have been addressed in prior FOIL appeal determination letters. Although there is no legal requirement to revisit those issues, I provide the following information:

- April 9, 2003 FOIL Appeal Determination Letter. You state in the July 2007 Appeal that you never received the April 9, 2003 FOIL determination letter. As I stated to you in my FOIL appeal determination letter dated June 8, 2007 which addressed one of your earlier appeals, 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 April 9, 2003 FOIL determination was also provided to you by Region 3 in June 2005.

For your convenience, I attached another copy of the April 9, 2003 FOIL determination letter to my June 8, 2007 FOIL appeal determination letter to you. In fact, you acknowledged receipt of the April 9, 2003 FOIL appeal determination letter in correspondence to me dated June 12, 2007. It is unclear why, despite your prior acknowledgment, you now state that you did not receive the April 9, 2003 FOIL appeal determination letter;

- Intra-Office Memorandum prepared by Region 3 attorney Jonah Triebwasser. This matter was fully addressed in my June 8, 2007 FOIL appeal determination letter. As noted previously, any challenge to the withholding of that record is untimely;

- June 9, 2005 Department letter. You previously raised questions regarding this letter which you said was sent by me. As noted in my FOIL appeal determination letter dated June 8, 2007, the June 9, 2005 letter was not from me. Moreover, I am advised by Region 3 staff that most of the file which was referenced in the June 9, 2005 letter was made accessible to you; and

- July 16, 2002 Letter from Captain Peter Fanelli. You argue that the Department's determination to withhold a record that was referenced in Captain Fanelli's 2002 correspondence was improper. Your objections to the withholding of the record were raised and addressed in a prior FOIL appeal determination letter. Your objections will not be reconsidered.

In your July 2007 Appeal, you argue that, notwithstanding your FOIL request, you have not received any records relating to a Department site visit to your property on March 27, 2007. By letter dated July 17, 2007, Captain Richard W. Martin of the Department's Region 3 office advised you that no records were created with respect to that site visit. On this appeal, I contacted Captain Martin who reiterated that no records were created.

In your appeal, you maintain that the records provided to you in response to your June 12, 2007 FOIL request did not relate to your residence at 139 Massachusetts Avenue, Congers, your vacant parcel of land at 141 Massachusetts Avenue, Congers, your wife or you personally. I have reviewed your June 12, 2007 FOIL request in which you requested records with regard to your properties "and any adjoining or nearby properties, including but not limited to those at 135, 140, 143, and 147 Massachusetts Avenue, and the Palisades Interstate Parkway Commission to the east of these properties." Based on the language of your FOIL request, the records provided to you were within the scope of that request.

You also maintain that, contrary to Region 3's FOIL response dated July 10, 2007, you never received a copy of a redacted record that was referenced as being forwarded. Although Region 3 staff advises me that a copy of the redacted record was forwarded to you previously, another copy of that redacted record is enclosed with this letter. A portion of that record was withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy (see Public Officers Law § 89 [2][b]), and I hereby reaffirm the determination to redact the record on that basis. It is unclear from the July 2007 Appeal whether you are also appealing the denial to access of four other records, two of which were withheld, respectively, as intra-agency and inter-agency deliberative pursuant to Public Officers Law § 89(2)(g), and two which were withheld pursuant to the personal privacy and law enforcement exemptions pursuant to Public Officers Law § 89(2)(b) and Public Officers Law § 89(2)(e). I have reviewed these records as part of this appeal, and reaffirm Department staff's determination to withhold them on the cited grounds.

In the July 2007 Appeal, you state that you are also appealing a letter from Suzan Innes of the Region 3 solid waste program dated April 27, 2007 "concerning the decision to withhold materials from [you] regarding the above[-]captioned matter." You previously appealed that determination and a FOIL appeal determination letter was issued in that regard. Your objection to the withholding of those materials will not be revisited.

In the July 2007 Appeal, you pose several questions. Please note that the Freedom of Information Law is designed for the public to access existing records. Neither the Department, nor any other agency subject to FOIL, is obligated to respond to requests in the form of questions or to create new records in response to those questions. See Public Officers Law § 89(3) ("[n]othing in [FOIL] shall be construed to require any entity to prepare any record not possessed or maintained by such entity"); see also New York State Committee on Open Government, Advisory Opinion 11543 (June 29, 1999) (no requirement to create a record or to provide information in response to questions); Advisory Opinion 10422 (November 7, 1997) (stating that, in response to a FOIL request, an agency is not required to answer questions).

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 the Public Officers Law
§ 89(4)(b).

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosure

cc: Robert Freeman, Executive Director
Committee on Open Government (w/copy of appeal)
Ruth Earl, Records Access Officer
Michael Knipfing, Region 3

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