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FOIL Appeal Determination for 07-34-1A (Gary Vegliante)

October 12, 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 12, 2007

VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Gary Vegliante
26 Seaside Drive
Port Jefferson, New York 11777-1132

Re: Freedom of Information Law ("FOIL") Appeal No. 07-34-1A
Request Nos. 07-400 and 07-401

Dear Mr. Vegliante:

This letter responds to your correspondence of September 6, 2007, concerning two Freedom of Information Law ("FOIL") requests that you made to the Department of
Environmental Conservation's Region 1 office on March 28, 2007 and March 29, 2007.1

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services ("OHMS") requested copies of any responsive records, including those which were withheld, in whole or in part. On this appeal, a de novo review of 336 pages of records that were provided to our office by Region 1 was conducted. Region 1 staff have advised us that no other records responsive to your FOIL requests have been identified.

Enclosed with this correspondence are 329 pages of records, some of which were previously released to you. In addition, some of the materials consist of correspondence received from you. As you will see, there are also several copies of some documents. In light of the delays associated with the initial FOIL request, photocopying costs have been waived on this appeal.

Two records are being withheld as exempt from FOIL because those records consist of intra-agency materials which do not meet any of the standards for disclosure under Public Officers Law ("POL") § 87(2)(g)(i) through (iv).

Procedural and Factual History

In an Application for Access to Records ("Application") dated March 28, 2006, you requested

Any and all communication [sic], memo's, notes and or emails regarding Bayside Property within the boundaries of the Village of West Hampton Dunes between Charles T. Hamilton or any officer of employee of NYSDEC and any officer or employee of the Town of Southampton or the person known as Ronald Comito for the years 2006 + 2007.

An Application dated March 29, 2006 requested

Any + all notes, memo's, communications and or emails regarding the violation against Enrico Scarda dated on or before 7/27/2006 at 774 Dune Rd. W.H.D. Tax Map 907-2-2-39 and same information regarding the compliance conference held in Oct. 2006 by any NYSDEC official or employee.

In a letter dated April 6, 2007, you sent copies of these requests to the Region 1 FOIL coordinator.

According to your letter of September 6, 2007, files were made available to you on July 12, 2006,2 consisting of seventeen pages of records. In that letter, you indicated that those records were unresponsive to your requests. The April 12, 2007 response by the Region 1 FOIL coordinator to your request for information concerning Ronald Comito stated that there was no information in the Department's files. The April 12, 2007 response to your request concerning Enrico Scarda attached a copy of the Notice of Violation.

In your appeal, you stated that you were seeking notes from an October 2006 compliance conference. Those notes are being released to you (see Nos. 176-177) on this appeal. In addition, portions of some of the records being released to you were crossed out, specifically Nos. 232, 241 and 317. We have confirmed with Region 1 that the copy of the record being released to you is identical to the record as it exists in the regional office file.

Discussion

Agencies have a broad duty of disclosure under FOIL, and there is a presumption that agency records will be made available to the public, unless they fall within one of several categories of statutory exemptions that allows the agency to withhold certain records. See, Matter of Spencer v. Lombardi, 267 A.D.2d 13, 14 (1st Dept. 1999). Nevertheless, the Department is entitled to withhold materials as long as the "requisite particularized showing" is made that an exemption applies. Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274-75 (1996).

Two of the records sought in your request are exempt pursuant to POL § 87(2)(g) because they constitute intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. See POL § 89(2)(g)(i-iv); New York Times Co. v. City of New York Fire Dept., 47 N.Y.3rd 477, 488 (2005) (exception is intended to foster free and frank exchange of opinions, advice and criticism); Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985) (intra- and inter-agency exchanges are excluded from disclosure "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)"). Thus, two records consisting of staff members' handwritten notes of intra-agency deliberative material are being withheld.

Conclusion

This letter contains the final determination of the Department in this matter. As provided in POL § 89(4)(b) and Section 616.8(h) of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York, you have the right to seek judicial review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner


/s/

By: Maria E. Villa
Administrative Law Judge

Enclosures

cc: Robert Freeman, Committee on Open Government
Nancy Pinamonti, Region 1
Ruth Earl, Records Access Officer

1 Although the requests are dated 2006, based on the content of the FOIL requests, it appears that the requests were made on March 28, 2007 and March 29, 2007.
2 Based on the content of the FOIL requests, it appears that the files were made available to you on July 12, 2007.

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