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FOIL Appeal Determination for 07-37-6A (Edmund J. Wiatr, Jr.)

October 4, 2007


New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

October 4, 2007

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Edmund J. Wiatr, Jr.
2 Sylvan Glen Road
Utica, New York 13501

Re: Freedom of Information Law Appeal No. 07-37-6A - Appeal Determination
Freedom of Information Law Request No. 60

Dear Mr. Wiatr:

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 five (5) records that were withheld in their entirety by the Region 6 office of the Department of Environmental Conservation ("Department"). These records, which were listed in a September 12, 2007 letter from John Moesel of Region 6 to you and which were also referenced in your FOIL appeal dated September 17, 2007 (which our office received on September 26, 2007), pertain to the Town of New Hartford and COR Development ("COR").

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the five (5) records that were withheld by Region 6. On this appeal, we have conducted a de novo review of the records withheld.

Based upon our review of these five (5) records, we have determined that these records were properly withheld in their entirety pursuant to one or more FOIL exemptions. Three of the records were internal communications involving an attorney of the Department. Both Mr. Randall Young (who sent one of the communications and received another) is an attorney with Region 6 and Mr. Scott Crisafulli (who sent one of the communications) is an attorney with the Department's central office. The fourth record was a letter from Department attorney Randall Young to COR involving a pending enforcement matter. The fifth record is a case initiation form that was prepared by Department staff and forwarded to Department attorney Young.

The exemptions from FOIL are set forth in POL § 87(2), and three of these are applicable to this pending appeal. POL § 87(2)(g), authorizes the denial of access to records or portions thereof that are intra-agency or inter-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, including but not limited to audits performed by the comptroller and the federal government (see POL § 87[2][g][i]-[iv]).

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 (citation 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 Dept., 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"]).

Consistent with the foregoing, we have determined that four (4) of the five (5) records withheld are exempt from disclosure pursuant to the intra-agency exemption.

In addition, POL § 87(2)(e)(i), authorizes the withholding of records or portions thereof compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc 3d 1005[A][Sup Ct, New York County 2004] [holding that POL § 87(2)(e)(i) applies to agency investigations of violations of the law]; see also Matter of City of New York v. BusTop Shelters, Inc., 104 Misc 2d 702, 711 [Sup Ct, New York County 1980]).

Consistent with the foregoing, we have determined that all five (5) of the records are exempt from disclosure pursuant to this exemption.

A third exemption, POL § 87(2)(a), authorizes the withholding of records or portions thereof that are specifically exempted from disclosure by state or federal statute. Section 4503 of the New York Civil Practice Law and Rules provides an exemption for attorney-client communications in the course of professional employment. Section 3101(c) of the New York Civil Practice Law and Rules provides an exemption for attorney work product. We have determined that four of the five records would be exempt from disclosure pursuant to this exemption.

In sum: (i) four of the records are exempt pursuant to POL § 87(2)(a); POL § 87(2)(e)(i); and POL § 87(2)(g); and (ii) one of the records is exempt pursuant to POL § 87(2)(e)(i).

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 Public Officers Law § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-37-6A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

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

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