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FOIL Appeal Determination for 08-06-1A (Kimberly A. Judd, March 14, 2008)

March 14, 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

March 14, 2008

Kimberly A. Judd, Esq.
Bennett & Read
212 Windmill Lane
Southampton, New York 11968-4841

Re: Freedom of Information Law ("FOIL") Appeal No. 08-06-1A
Appeal Determination

Dear Ms. Judd:

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 Department staff's denial of an application for a dock permit submitted to the Department's Region 1 office on behalf of your client, Steven Carbone, at property located on Quantuck Bay, Quiogue (Suffolk 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 Region 1 office as referenced in Department staff's letter to your client's consultant, Brant Reiner of Inter-Science Research Associates, Inc., dated February 1, 2008. 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 a letter to George W. Hammarth, Deputy Permit Administrator for Region 1, dated January 3, 2008, Brant Reiner of Inter-Science Research Associates, Inc. requested as follows:

" . . . this office would respectfully request a copy of the NYSDEC's
technical review, staff's field inspection report and/or notes prepared
during the inspection of the subject property and Quantuck Bay
shoreline. We would like to compare the technical staff's findings
with our inspection notes and the other information/data used in the
preparation of this application."
By letter dated February 1, 2008, Karen S. Westerlind, Environmental Analyst I in Region 1, advised Mr. Reiner that the Division of Environmental Permits was "unable to satisfy" his January 3, 2008 request for copies of the technical notes and field reports of the Department's Marine Habitat Protection staff in connection with Mr. Carbone's permit application.

By letter dated February 14, 2008, and received February 19, 2008, you timely filed this appeal with the Department's Office of Hearings and Mediation Services on behalf of Mr. Carbone from the denial of access to the records referenced in Ms. Westerlind's February 1, 2008 letter to Mr. Reiner.

RECORDS REVIEWED

On this appeal, we have reviewed the records that were provided to us by Department staff, most of which consist of the application materials submitted to the Region 1 office by or on behalf of your client, Steven Carbone. In this regard, we have reviewed the five records which Region 1 staff determined were to be withheld from disclosure in response to Mr. Reiner's January 3, 2008 request.

Based upon our review of the records provided to us by staff on this appeal, we have determined that the five records that were withheld by staff were properly withheld in their entirety pursuant to the intra-agency/inter-agency FOIL exemption.

Specifically, 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 the following five (5) records, consisting of seven (7) pages, withheld by the Department's Region 1 office are exempt from disclosure pursuant to the intra-agency/inter-agency exemption:

- a staff-prepared Tidal Wetland Field Evaluation Report dated March 23, 2007;
- a staff-generated report with a send date of February 6, 2007;
- a March 29, 2007 internal staff memorandum;

- a November 9, 2007 internal staff memorandum; and
- a staff-prepared Tidal Wetland Field Evaluation Report dated November 13, 2007.

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. 08-06-1A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

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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