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FOIL Appeal Determination for 07-33-0A (John Fritschie)

September 11, 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/

September 11, 2007

BY TELECOPY & FIRST CLASS MAIL

John Fritschie, Esq.
Senior Attorney
Delaware Riverkeeper Network
300 Pond Street, Second Floor
Bristol, PA 19007

Re: Freedom of Information Law ("FOIL") Request No. 07-1657

Dear Mr. Fritschie:

This is in response to your letter dated September 5, 2007 in which you sought clarification regarding the records that were reviewed pursuant to the above-referenced FOIL request.

In your letter you stated that the response received from the Department's Records Access Officer (dated August 6, 2007) was "too ambiguous to allow Delaware Riverkeeper Network to properly appeal [a denial of certain records] because it fails to specifically describe which documents have been withheld." Although such request for clarification should have been addressed to the Department's Records Access Officer, for administrative efficiency I am responding to your letter directly.

I have requested from Department staff copies of the records that were withheld. Although no obligation exists to provide a list of withheld records, I am exercising my discretion in this matter to provide such a list (and for your reference, with the exemptions that Department staff determined were a basis for withholding the records noted):

- 6 site plan figures prepared by IES: trade secret/confidential business information ("CBI"), Public Officers Law ("POL") § 87(2)(f)
- LaBelle Farms Expansion figure trade secret/CBI, POL § 87(2)(f)
- 5 permit application process sheets POL § 87(2)(g)
- 2 cross section views of effluent pump chamber trade secret/CBI
- 20 Department staff records (e-mail communications, notes, etc.) POL § 87(2)(g)
- 4 communications with IES trade secret/CBI [3 records], POL § 87(2)(f) [3 records], POL § 87(2)(g) [in part, 1 record]
- manure storage facility information (7 records) trade secret/CBI, POL § 87(2)(f)
- 5 site plan diagrams trade secret/CBI, POL § 87(2)(f)

You stated that, only after the records that are being withheld are identified, "can Delaware Riverkeeper Network properly address this appeal." In light of the foregoing, I have not, as the Department's FOIL Appeals Officer, reviewed the merits of the exemptions that Department staff have applied to the records. However, if based on this information you decide to appeal Department staff's determination as to certain or all of the withheld records, please submit your appeal to me by October 1, 2007, and indicate which of the above-referenced records you are seeking to have released, together with any argument in support of your position.

By your letter, you also sought clarification "as to whether [Department staff's denial] includes the nutrient management plan for the facility." The Records Access Officer noted in her August 6, 2007 letter that certain records were still being reviewed and that Delaware Riverkeeper Network would be subsequently notified as to the extent to which they were releaseable. I have been advised that the nutrient management plan is subject to that ongoing review.

If you have any questions, please feel free to contact me.

Sincerely yours,

/s/

Louis A. Alexander

cc: Robert Freeman, Executive Director
Committee on Open Government
(w/copy of your letter dated September 5, 2007)
Ruth L. Earl, Records Access Officer

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