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FOIL Appeal Determination for 07-42-0A (Matthew R. Maron)

December 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/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

December 4, 2007

Matthew R. Maron, Esq.
Ganfer & Shore, LLP
360 Lexington Avenue
New York, New York 10017

Re: Freedom of Information Law ("FOIL") Appeal No. 07-42-0A
Appeal Determination

Dear Mr. Maron:

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 certain records that were withheld by the Department of Environmental Conservation's Central Office. These records, which were referenced in your FOIL appeal dated November 7, 2007, pertain to the General Theological Seminary of the Episcopal Church located at 175 9th Avenue, New York, New York.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from disclosure by the Department's Division of Mineral Resources - Bureau of Oil and Gas Regulation. On this appeal, we have conducted a de novo review of the records withheld. A brief review of your FOIL request, and Department staff's response thereto, follows.

BACKGROUND

By letter dated October 4, 2007, you submitted a request for access to records to Ms. Kathleen F. Sanford, Chief of the Permits Section in the Department's Division of Mineral Resources, Bureau of Oil and Gas Regulation, and requested the following information for the above-referenced property/premises:

"copies of all documents and records whether in handwritten,
printed or electronic form, received and/or maintained by the
New York State Department of Environmental Conservation
('NYSDEC') concerning the General Theological Seminary
of the Episcopal Church ('GTS') and/or the premises located
at 175 9th Avenue, New York, New York 10011 (the
'Premises'), including, but not limited to GTS's proposed
construction and drilling of GeoThermal Wells on the
Premises. The time period applicable to this request is
May 16, 2007 to the present."

By letter dated October 23, 2007, Ms. Sanford provided you with approximately 200 pages of records responsive to your FOIL request from the files of the Department's Division of Mineral Resources, Bureau of Oil and Gas Regulation. Ms. Sanford's letter also advised you that "[c]ertain information has been redacted from the enclosed records, specifically reports on well drilling and completion which are held confidential for a minimum period of 6 months, pursuant to Section 23-0313 of the Oil, Gas and Solution Mining Law. Personal contact information, such as cellular telephone numbers and third-party email addresses, has also been redacted. Other communication between this office and the New York City Department of Environmental Protection has been withheld pursuant to Public Officer's Law § 87(2)(g)."

By letter dated November 7, 2007 (and received on November 9, 2007), you timely filed this appeal from the denial of access to the records referenced in Ms. Sanford's October 23, 2007 letter to you with the Department's Office of Hearings and Mediation Services. In particular, your appeal sought well drilling data from the Department "to determine (a) if GTS drilled under any adjacent property owner's properties and (b) if GTS had impacted upon the water or other mineral rights of the adjacent property owners."

RECORDS REVIEWED

At the outset it should be noted that Department staff has complied with a substantial portion of your FOIL request by providing you with approximately 200 pages of records for the subject property/premises as noted above.

Based upon our review of the records withheld by the Division of Mineral Resources, Bureau of Oil and Gas Regulation, we have concluded that all but two records were properly withheld pursuant to one or more FOIL exemptions. A review of the applicable exemptions follows.

The first exemption, 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"]).

Accordingly, consistent with the foregoing, we have determined that 31 records (consisting of 136 pages) withheld by the Department's Division of Mineral Resources, Bureau of Oil and Gas Regulation (including but not limited to correspondence, E-mails and other written communications, memoranda and notes) are exempt from disclosure pursuant to the intra-agency/inter-agency exemption in POL § 87(2)(g).

The second 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 23-0313(1)(d) of the New York State Environmental Conservation Law ("ECL") provides a six-month exemption from disclosure for "[w]ell logs, well samples, directional surveys and reports on well drilling and completion, for all wells subject to the oil, gas and solution mining law."
This statutory provision and confidentiality exemption was referenced by Ms. Sanford in her October 23, 2007 letter to you.

In accordance with the foregoing, we have determined that three records (consisting of three pages) withheld by the Department's Division of Mineral Resources, Bureau of Oil and Gas Regulation, are exempt from disclosure pursuant to the State statute (ECL § 23-0313[1][d]) exemption in POL § 87(2)(a) because those records consist of well logs, well samples, directional surveys and reports on well drilling and completion, for wells subject to the oil, gas and solution mining law.

Pursuant to ECL § 23-0313(1)(d), the six-month confidentiality period begins on the date well drilling commences and, up to 30 days prior to the end of the six-month period, the permittee may request an extension of the confidentiality period for up to two years. In this instance, drilling has commenced on seven of the 15 permitted wells subject to your FOIL request. The wells drilled to date, with the applicable beginning and end dates for the statutory six-month confidentiality period are listed below:

Well # Drill Date 6-Month End Date
Well 1 10/12/07 04/09/08
Well 5 09/13/07 03/11/08
Well 6 09/10/07 03/08/08
Well 19 10/05/07 04/02/08
Well 20 09/24/07 03/22/08
Well 21 08/27/07 02/23/08
Well 22 08/15/07 02/11/08

Department staff has advised us that, to date, no extensions to the statutory six-month confidentiality period have been requested by the permittee, and drilling has not yet commenced on the permitted wells identified as numbers 7 through 14.

Furthermore, although portions of certain records may be releasable, other portions of those same records may be exempt pursuant to FOIL. In this matter, one of the records you were provided by Ms. Sanford in response to your FOIL request was an August 13, 2007 electronic mail message between Department staff and a consultant for the permittee that was redacted because it contained personal or identifying information to protect privacy. Typically, personal contact information, such as cellular telephone numbers and third-party e-mail addresses, in addition to other identifying information, is redacted to protect the privacy of that person pursuant to POL § 87(2)(b) which reads, in relevant part, as follows: "Each ... agency may deny access to records or portions thereof that: ... (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." As a result of the foregoing, we have determined that the redaction of certain information as noted above and described in Ms. Sanford's October 23, 2007 letter to you in accordance with POL § 87(2)(b) was correct.

Finally, based upon our review, we have identified two records (consisting of two pages) that are responsive to your FOIL request that were previously withheld from disclosure by the Department's Division of Mineral Resources, Bureau of Oil and Gas Regulation pursuant to
POL § 87(2)(a) but which we have determined to be releaseable. Copies of these two records are enclosed. The applicable photocopying fee for these records is being waived.

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. 07-42-0A.

Sincerely yours,

/s/
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

By: /s/
Mark D. Sanza
Administrative Law Judge

Enclosures

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer

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