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FOIL Appeal Determination for 07-28-2A (Joe & Emily Berlen)

January 8, 2008

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: www.dec.ny.gov


January 8, 2008

Joe & Emily Berlen
254 Slater Blvd.
Staten Island, New York 10305

Re: Freedom of Information Law ("FOIL") Appeal No. 07-28-2A
FOIL Request Nos.: R2-07-652; R2-07-664

Dear Mr. & Mrs. Berlen:

We have received and reviewed the forty-nine withheld records that are the subject of the above-referenced FOIL appeal. Enclosed is a copy the FOIL chart that was furnished by Assistant Regional Attorney Udo Drescher, to which we have added our office's appeal determinations with respect to the documents that were originally withheld. We concur with Mr. Drescher's determination that the majority of withheld documents are exempt from disclosure pursuant to FOIL, as codified in New York State's Public Officers Law ("POL"). We have, however, determined that one page of document #19, the November 10, 1992 letter, should be released. We have also determined that two pages of document #21, the July 18, 1991 letter (with handwritten staff notes redacted) and the attachment to that letter, should also be released. Copies of those pages are being forwarded under cover of this letter.

The records that are being withheld have been identified as exempt from disclosure pursuant to the FOIL exemptions contained in POL §§ 87(2)(a) and/or (2)(g).

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 exempted 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 Department, 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"]). Most of the withheld documents consist of such intra-agency materials that were prepared by staff of the Department of Environmental Conservation ("Department" or "DEC").

POL § 87(2)(a) addresses documents specifically exempted from disclosure by state or federal statute. A number of the documents that were withheld are exempt under the attorney/client privilege and/or as attorney work product pursuant to POL § 87(2)(a). Specifically, attorney-client communications and attorney work product are exempt, respectively, pursuant to sections 4503 and 3101(c) of the Civil Law Practice and Rules. Section 4503 protects confidential communications between the attorney and client in the course of professional employment. The documents withheld are communications between Department Staff, Department counsel acting in a legal capacity, and the New York State Attorney General's Office, counsel for the Department. Section 3101(c) specifically provides that the work product of an attorney is not obtainable.

By letter dated October 30, 2007, on which you were copied, Mr. Drescher provided a review of the status of the various items set forth in your FOIL request. By letter dated November 3, 2007, you responded to Mr. Drescher's letter, and specifically requested that the forty-nine withheld documents be reviewed on this appeal. In addition to the documents that were withheld, you inquired whether all records "that the [DEC] will use for the basis of any permit decision regarding history of 'fill placement' at Block 3713 lot 44/46" had been addressed in Mr. Drescher's October 30, 2007 letter. Mr. Drescher has confirmed to our office that his October 30, 2007 letter addressed all such documents that could be located by the Department. He also confirmed that a thorough search was made for those documents. Further, you asked for clarification of whether all permit documents related to application FW-2087-037 dated 9/16/87 were released. Mr. Drescher confirmed to our office that no further documents have been located at the Department related to that permit application and that a thorough search had been conducted.

Finally, in your November 3rd letter, you asked for a response to Item 6 from your FOIL request, and listed five application files to which you requested access. These include the applications under DEC file numbers 2-6404-00463/00001, 2-6404-00203/00001, 2-6404-00169/00001, 2-6404-00169/00003, and 2-6404-00313/00002. We assume that, with respect to those application files, you wish to obtain documents responsive to Item 6, that is, "[a]ny and all Soil Survey and Groundwater Testing requests/demands by the [DEC]."

Mr. Drescher already noted in his letter of October 30, 2007 that the responsive documents from the first application file on your list, DEC file number 2-6404-00463/00001, were being made available. In addition, Mr. Drescher informed our office that he will search the remaining application files you listed to see if they contain any responsive documents that you have not yet received and, if they do, he will submit those to you. Please be advised that your request for documents relating to these application files for which further Department staff is still undertaking a review is not covered by this appeal. Upon receipt of Mr. Drescher's response of the results of the review of those remaining application files, you are entitled to file a further appeal as to the documents in those files (that is, 2-6404-00203/00001, 2-6404-00169/00001, 2-6404-00169/00003, and 2-6404-00313/00002).

This letter is the final determination of the Department of Environmental Conservation. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules, and Public Officers Law § 89(4)(b).

Sincerely yours,


Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services


By: Molly T. McBride
Administrative Law Judge


cc: Robert Freeman, Executive Director
Committee on Open Government - w/copy of appeal
Udo Drescher, Esq., Legal Affairs, Region 2
Ruth Earl, Records Access Officer

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