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FOIL Appeal Determination for 08-10-5A (Mary E. Aitner, March 18, 2008)

March 18, 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/


March 18, 2008

Mary E. Aitner
16 William Street
Port Henry, New York 12974

Re: Freedom of Information Law ("FOIL") Appeal No. 08-10-5A
Appeal Determination

Dear Ms. Aitner:

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 Department staff's denial of access to certain records pertaining to Jim's Body Shop located on William Street, Port Henry (Essex 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 5 office as referenced in Department staff's letter to you dated January 22, 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.


On December 18, 2007, you submitted a completed Department "Application For Access To Records" form requesting the following information related to Jim's Body Shop:

"Any and all records, permits, complaints, enforcement actions, and
inspections, etc. pertaining to this auto body shop since my previous
[FOIL] request 06-1398 [on] 9/1/06."

Your FOIL request was assigned FOIL No. 07-2956 by the Department's Record Access Officer in Albany, was then referred to the Department's Region 5 office for disposition and, thereafter, assigned FOIL No. 07-411 by the Region 5 office.

In a letter dated January 22, 2008, Sheryl L. Quinn, FOIL Coordinator for the Department's Region 5 office, advised you that eighty (80) pages of records responsive to your FOIL request were available for inspection and copying. Ms. Quinn also advised you in that letter that other records responsive to your FOIL request were being withheld from disclosure in accordance with certain provisions of the POL, namely, the law enforcement exemption contained in POL § 87(2)(e), and the interagency or intra-agency materials exemption contained in POL § 87(2)(g).

By letter dated February 22, 2008, you filed this appeal from the denial of access to the withheld records referenced in Ms. Quinn's January 22, 2008 letter to you with the Department's Office of Hearings and Mediation Services.


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 eighty (80) pages of records for the subject location as noted above. This page count does not include an additional number of documents and two videotapes that you had submitted to the Region 5 office in connection with Jim's Body Shop, or correspondence on which you had been copied or otherwise previously furnished.

On this appeal, we have reviewed the seventy-six (76) withheld records that were provided to us by Department staff. Based upon our review of those records, we have determined that, of those that were previously withheld, four (4) of those records (consisting of 4 pages) can be released to you in their entirety and one page of a two-page record may be released. The remainder were properly withheld by Department staff in accordance with the provisions of FOIL. 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 seventy-one (71) records withheld by the Department's Region 5 office (including but not limited to correspondence, E-mails and other written communications, memoranda and notes) and a portion of one (1) additional record are exempt from disclosure pursuant to the intra-agency/inter-agency exemption.

The second 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 two (2) of the seventy-one (71) records exempt in their entirety 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).

The records that have been identified for release pursuant to this appeal consist of five (5) pages. Copies of these pages are enclosed, and the applicable photocopying fee 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. 08-10-5A.

Sincerely yours,


Louis A. Alexander
Assistant Commissioner

By: /s/

Mark D. Sanza
Administrative Law Judge


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

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