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FOIL Appeal Determination for 07-32-7A (Katherine Colley)

September 13, 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 13, 2007

Ms. Katherine Colley
351 Algerine Street
Afton, New York 13730

Re: FOIL request 7004 - relocation of bears
FOIL Appeal No. 07-32-7A

Dear Ms. Colley:

In response to your Freedom of Information Law (FOIL) request of August 6, 2007, I have been advised by Ms. Kim Wentworth of the Department's Region 7 office in Syracuse that on August 28, 2007 she sent you several documents related to the release of a black bear in Melondy Hill State Forest in Afton, New York. By letter dated August 30, 2007, Ms. Wentworth listed 5 records that were withheld based upon staff's determination that these e-mails are exempt from disclosure under FOIL. On September 10, 2007, we received your appeal of staff's FOIL determination.

I have reviewed copies of the e-mails that staff withheld from disclosure and I have determined that these 5 records contained 9 separate e-mails (several of these were e-mail chains that appeared on one page). Of these e-mails, 2 can be released entirely and 2 can be released with redactions. The remaining e-mails and the redacted material are properly withheld pursuant to Public Officers Law (POL) § 87(2)(g) because they constitute intra-office non-final deliberative communications. Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff are exempt from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citations omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]; see also, New York Times Co. v. City of New York Fire Dep't, 4 NY3d 477, 488 [2005] ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"].

Accordingly, enclosed please find the 4 releaseable e-mails on two pages. The copying fee for these records is waived.

In your appeal, you indicated that you had not been advised of the right to appeal the denial of information. Following receipt of your appeal, Assistant Commissioner Alexander informed Region 7 staff that information relating to appeal procedures is to be included in any FOIL response where records have been withheld. We have been advised by the Region that such language will be included in future response letters, as appropriate.

In addition, following your conversation with Mr. Alexander, he contacted Division of Fish & Wildlife staff to inquire whether any additional guidance documents or protocols existed with respect to bear-related incidents. We understand that Region 7 sent to you the New York State Black Bear Response Manual and the Framework for Black Bear Management in New York. In addition, enclosed is a one page fact sheet that deals with the immobilization of bears which is used as guidance by staff. The copying fee for this record is also waived.

This letter constitutes the Department's final decision 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 POL § 89(4)(b). In any further contact with this office related to this appeal, please refer to FOIL Appeal No. 07-32-7A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

By: Helene G. Goldberger
Administrative Law Judge


cc: Robert Freeman, Executive Director
Committee on Open Government (w/copy of appeal)
Ruth Earl, DEC, Records Access Officer (w/out attachments)
Kim L. Wentworth, Region 7 FOIL coordinator (w/attachments)

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