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FOIL Appeal Determination for 08-15-0A (Elise N. Zoli, May 12, 2008)

May 12, 2008

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Public Protection, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8552 • FAX: (518) 402-9016
Website: http://www.dec.ny.gov/

May 12, 2008

Elise N. Zoli, Esq.
Goodwin Proctor LLP
Counselors at Law
Exchange Place
Boston, MA 02109

Re: Entergy/Indian Point Nuclear Electric Generation Facility
Freedom of Information Law ("FOIL") Appeal:
FOIL Appeal No. 08-15-0A; FOIL Request # 08-221

Dear Ms. Zoli:

This is in response to your appeal under the New York Freedom of Information Law concerning your request for records related to two public statements published by the New York State Department of Environmental Conservation (the "department") on its public website. Your request for these records was made by letter dated January 31, 2008. The department's Records Access Officer, Ruth Earl, replied to your request by letter dated March 13, 2008, providing three responsive records and withholding 40 pages of other records.

We concur with Ms. Earl regarding the first item of your request. The department does not maintain a list of all departmental personnel, agents or contractors who participated in or contributed to the drafting, preparation, review, approval or publication of either of the two departmental statements referenced in your request. The first item of your request is more akin to a civil discovery request rather than a request limited to records. As Ms. Earl noted in her response to you, New York State's Public Officers Law ("POL") pertains to existing records and does not require that an agency create a record in response to a request. See POL § 89(3).

We also concur with Ms. Earl regarding the records which have been withheld as exempt from disclosure pursuant to FOIL, as codified in POL. The records being withheld have been identified as exempt from disclosure pursuant to the FOIL exemption contained in POL § 87(2)(g). The withheld records are E-mail communications between department staff regarding preparation of the two statements you reference in your request, including non-final drafts of the statements and related documents (the final versions of which are available on the department's webpage).

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 documents, as noted above, consist of such intra-agency records that were prepared by the staff of the department in creating the two statements which you reference in your FOIL request.

Assistant Commissioner for Hearings and Mediation Services Louis A. Alexander has recused himself in this matter. He has delegated decision making authority regarding this FOIL appeal to the undersigned, Henry Hamilton, Assistant Commissioner, Office of Public Protection.

This letter is the final determination of the Department of Environmental Conservation. 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).

Sincerely yours,

/s/

Henry Hamilton,
Assistant Commissioner
Office of Public Protection

/s/

Kevin J. Casutto
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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