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FOIL Appeal Determination for 08-03-2A (Jeffrey B. Gracer, March 19, 2008)

March 19, 2008

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

March 19, 2008


Jeffrey B. Gracer, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022-1906

Re: Freedom of Information Law ("FOIL") Appeal No. 08-03-2A
FOIL Request No. 07-26-29

Dear Mr. Gracer:

This is in further response to your appeal, pursuant to the Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]), from the denial of access to certain Department records. Your FOIL request, dated November 7, 2007, sought records relating to the Department's determination to deny entry of the 76 Eleventh Avenue Development Site (Site no. C231036) ("site") into the Brownfields Cleanup Program and records relating to eligibility determinations for other sites "that are or were subject to a Voluntary Cleanup Agreement with Con Edison."

Under cover letter dated December 12, 2007, the Department's Records Access Officer provided copies of certain responsive records and advised that all other responsive records were being withheld in accordance with POL § 87(2)(a), as attorney-client privileged or attorney work product, or POL § 87(2)(g), as intra-agency or inter-agency records. You subsequently appealed the Department's determination to withhold responsive records and, by letter dated February 12, 2008, we advised you of our determination of your appeal and provided you with additional records.

As detailed more fully in the February 16, 2008 letter from Assistant Commissioner Alexander and the February 29, 2008 letter from ALJ Sherman, you raised certain objections to the Department's determination of your appeal and also clarified aspects of your FOIL request. You clarified that you are seeking correspondence and other records sent to the parties by the Department, but are not seeking correspondence and other records sent to the Department by the parties. Additionally, you advised that you are not seeking disclosure of records that fall under the intra-agency/inter-agency or attorney-client/attorney work product exceptions under FOIL.

In accordance with your clarification, Department staff recommenced its records review. During the course of that review, the undersigned provided additional records to you on February 16 and 29. Staff has now advised us that its recommenced records review is complete and we enclose herewith eleven (11) additional responsive records.

You will note that the records released to you on February 16, February 29 and today consist of letters or emails from the Department to one or more of the parties or agreements (e.g., Brownfield Cleanup Agreements) signed by the Department and one or more of the parties. We determined that all of the responsive records provided to this office by Department staff in response to your clarified FOIL request are releasable and, accordingly, all these records have now been provided to you.

This letter, together with our letters to you of February 12, 16 and 29, 2008, constitute 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 POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 08-03-2A.

Very truly yours,


Louis A. Alexander
Assistant Commissioner


By: Richard A. Sherman
Administrative Law Judge

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

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