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FOIL Appeal Determination for 08-04-1A (Theodore Bohn, May 23, 2008)

May 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

May 23, 2008

Theodore Bohn, Esq.
Attorney at Law
501 Fifth Avenue
Suite 1900
New York, New York 10017

Re: Freedom of Information Law Appeal No. 08-04-1A
FOIL Request No. 07-1103

Dear Mr. Bohn:

This letter is a final determination of the agency in response to your appeal under the New York Freedom of Information Law ("FOIL") concerning your request for records, above referenced. This appeal was initiated by your letter dated January 4, 2008 (Bohn to Pinamonti). During the pendency of this appeal, the Department's Region 1 staff identified additional records responsive to your request, including records created subsequent to the date of your FOIL request letter. This was confirmed by letter dated February 14, 2008 (Casutto to Bohn), stating that the additional records were available for your review, other than a small number of withheld records for which Department staff asserted the FOIL exemption of intra- or inter-agency materials that are not statistical or factual tabulations of data (see, Public Officers Law § 87(2)(g)).

On April 21, 2008, you were able to review the additional available records at the Department's Region 1 offices. Then, in a telephone conversation with ALJ Casutto on May 8, 2008, you stated that you did not wish to appeal the withheld records (which totaled 36 pages), but that you would like a final agency determination on this FOIL appeal. ALJ Casutto sent a confirming letter dated May 9, 2008 (Casutto to Bohn), recounting the above and requesting that you indicate by May 20, 2008, if you wished to appeal the withheld records. In this letter, ALJ Casutto further stated that with no response by May 20, 2008, we would issue a final agency determination on this FOIL appeal as you requested.

Because you have reviewed all requested records and have not contested the Department's withholding of 36 pages of records, no further dispute exists for review in this matter. Nonetheless, regarding the withheld records, we note that 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 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"]). The withheld records consist of such intra-agency records that were prepared by Department staff and, although subject to your FOIL request, are exempt from disclosure pursuant to POL § 87(2)(g).

This letter is a final determination of the agency. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Laws and Rules and Public Officers Law Section § 89(4)(b).

Thank you for your patience.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

/s/

By: Kevin J. Casutto
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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