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FOIL Appeal Determination for 07-49-0A (Peter L. Elliott)

January 23, 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: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

January 23, 2008

Peter L. Elliott, Esq.
Messenger & Elliott
The Galleries of Syracuse
Suite 211
441 South Salina Street
Syracuse, New York 13202

Re: Freedom of Information Law ("FOIL") Appeal No. 07-49-0A
Appeal Determination
FOIL Request No. 07-2525

Dear Mr. Elliott:

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 pertaining to the Upper Crown Mill Dam located on Nine Mile Creek in the Village of Marcellus, Onondaga County, 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 Central Office as referenced in Department staff's letter to you dated November 30, 2007. On this appeal, we have conducted a de novo review of those records. A brief review of your FOIL request, and Department staff's response thereto, follows.

BACKGROUND

In an electronic mail message to Robyn M. Adair, Esq., Senior Attorney with the Department's Office of General Counsel, dated October 24, 2007, you requested copies of "any and all engineering or other reports that DEC may have in its possession relative to the Upper Crown Dam." Ms. Adair provided your electronic request to the Department's Records Access Office where it was assigned FOIL Request No. 07-2525. Thereafter, receipt of your FOIL request was acknowledged by the Department's Records Access Office in an electronic mail response to you dated November 1, 2007. This acknowledgment advised you that a response to your request was expected by December 3, 2007.

Contemporaneously with your electronic FOIL request to the Department, with a letter to Ms. Adair dated October 24, 2007, and received October 29, 2007, you submitted a completed Department "Application For Access To Records" form requesting the following:

"Permits, Engineering, legal and consulting reports on the Crown
Mill Dam, Dam ID # 073-0337 located on Nine Mile Creek,
approximately 800 feet North of Main Street in the Village of
Marcellus, County of Onondaga and State of New York."

In a letter dated November 30, 2007, Ms. Adair provided you with 77 pages of records responsive to your electronic FOIL request. Ms. Adair also advised you in that letter that other records responsive to your electronic FOIL request were being withheld from disclosure in accordance with certain provisions of the POL, namely, as "interagency or intra-agency correspondence" (POL § 87[2][g]) or protected by "attorney-client privilege" (POL § 87[2][a]). According to Ms. Adair's letter to you, a total of approximately "one quarter inch of documents" were being withheld as a result of the POL exemptions noted therein.

By letter dated December 7, 2007, and received December 28, 2007, you timely filed this appeal from the denial of access to the withheld records referenced in Ms. Adair's November 30, 2007 letter to you with the Department's Office of Hearings and Mediation Services.

RECORDS REVIEWED

At the outset, it should be noted that Department staff has complied with a significant portion of your FOIL request by providing you with a total of 77 pages of records for the subject dam as noted above. On this appeal, we have reviewed three categories of records. We have reviewed the records that staff determined to be responsive to your electronic request dated October 24, 2007. We have also reviewed the records that staff determined were not responsive to your electronic FOIL request. In addition, on this appeal we have been provided with, and reviewed, records (namely photographs) which were not previously identified by staff.

Department staff characterized the records as responsive/non-responsive based on its consideration of your electronic FOIL request only. On this appeal, we have considered your electronic FOIL request together with your written application for records. We concluded that the records that Department staff identified as non-responsive in fact fall within the scope of your FOIL request, based upon consideration of your written application for records.

Based upon our review of the records provided to us by staff on this appeal, we have determined the following:

- of the 27 (excluding 2 duplicates) records that were previously withheld by staff in its November 30, 2007 letter to you, 1 of those records (consisting of 1 page) can be released to you. We have determined that the remaining 26 records were properly withheld in their entirety pursuant to one or more FOIL exemptions (11 records withheld pursuant to POL §§ 87[2][a] and 87[2][g]; 1 record withheld pursuant to POL § 87[2][e][i], 11 records withheld pursuant to POL § 87[2][g], and 3 records withheld pursuant to POL §§ 87[2][e][i] and 87[2][g]);

- of the 17 records (excluding 3 duplicates) that staff initially determined were not responsive to your electronic FOIL request, we have determined that 3 of those records (consisting of 14 pages) can be released. We have determined that the remaining 14 records should be withheld in their entirety (8 records withheld pursuant to POL §§ 87[2][a] and 87[2][g]; 1 record withheld pursuant to POL § 87[2][e][i], 4 records withheld pursuant to POL
§ 87[2][g]), and 1 record withheld pursuant to POL §§ 87[2][a], 87[2][e][i] and 87[2][g]); and

- of those records which were not previously identified by staff (that is, 21 pages of photographs), we have determined that all of them can be released.

A review of the applicable FOIL 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 thirty-eight (38) records withheld by the Department's Central Office (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.

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 4503 of the New York Civil Practice Law and Rules ("CPLR") provides an exemption for attorney-client communications in the course of professional employment. In accordance with the foregoing, we have determined that twenty (20) of the thirty-eight (38) records exempt from disclosure pursuant to the intra-agency/inter-agency exemption are also exempt from disclosure pursuant to the state statute (CPLR) exemption contained in POL § 87(2)(a).

A third exemption, 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]). In accordance with the foregoing, we have determined that four (4) of the thirty-eight (38) records exempt from disclosure pursuant to the intra-agency/inter-agency exemption are also exempt from disclosure pursuant to the law enforcement exemption in POL § 87(2)(e)(i). In addition, 2 records are exempt from disclosure solely pursuant to the law enforcement exemption in POL § 87(2)(e)(i).

The records that have been identified for release pursuant to this appeal consist of thirty-six (36) pages. If you wish to be provided with copies, please send a check to Kimberly Sarbo of this office, made payable to the "New York State Department of Environmental Conservation" in the amount of $9.00 (36 pages at $0.25 per page for photocopying), within thirty (30) days of the date of this letter. Alternatively, if you would like to review these documents at our office, please contact Kimberly Sarbo at (518) 402-8537 within thirty (30) days of the date of this letter to make those arrangements. If we do not hear from you within thirty (30) days, the records will be returned to their respective files and the FOIL appeal file will be closed.

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. 07-49-0A.

Sincerely yours,

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

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

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

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