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FOIL Appeal Determination for 08-12-0A (Daniel Riesel, June 9, 2008)

June 9, 2008

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

June 9, 2008

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

Re: Freedom of Information Law ("FOIL") Appeal No. 08-12-0A
FOIL Request No. 08-111

Dear Mr. Riesel:

This is in response to your appeal, dated March 24, 2008, made 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 January 17, 2008, sought records relating to the Department's eligibility determinations regarding sites that were proposed for entry into the Brownfields Cleanup Program from January 1, 2006 through January 17, 2008.

Under cover letter dated March 4, 2008, the Department's Records Access Officer provided two DVDs containing electronic copies of certain responsive records and advised that all "internal eligibility determination memos" were being withheld in accordance with POL§ 87(2)(g), as intra-agency or inter-agency records.

We received your appeal on March 25, 2008 and requested that the Department's Central Office and Region 2 staff provide us with copies of the records that they withheld. Department staff provided us with 284 withheld records and advised that these were all the responsive records that they were able to identify. We have completed our review of these records and this letter provides our determination of your appeal.

The vast majority of the records withheld by Department staff involved communications between the Department's Office of General Counsel and program staff. As such, these records fall within the scope of both POL § 87(2)(g), as intra-agency records, and POL § 87(2)(a), as attorney-client privileged or attorney work product.

Pursuant to POL § 87(2)(g), an agency may except from disclosure records or portions thereof that are inter-agency or intra-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. This exception is intended "to permit people within an agency to exchange opinions, advice and criticism freely and frankly" (The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005] [citations omitted]).

Pursuant to POL § 87(2)(a), an agency may except from disclosure records or portions thereof that are specifically exempted from disclosure by state or federal statute. Pursuant to sections 4503(a) and 3101(c) of the Civil Practice Law and Rules, records that contain attorney-client communications or attorney work product are exempt from disclosure.

On the basis of our review of the records provided by Department staff, we have determined that thirty-two (32) were nonresponsive, most because they concerned amendments to existing Brownfield Cleanup Agreements and were unrelated to the Department's eligibility determinations. Additionally, twenty-nine (29) of the records supplied by staff were duplicates. After eliminating nonresponsive and duplicate records from the 284 records provided by staff, there are 223 withheld records subject to your appeal.

All of the 223 responsive records that were withheld by Department staff fall within the scope of the intra-agency exception. In addition, 216 of the withheld records fall within both the intra-agency exception and the attorney-client or attorney work product exception.

Seven (7) of the withheld records fall under only the intra-agency exception and, as noted above, this exception does not extend to statistical or factual tabulations or data, among other things. As to these seven (7) records, we have determined that portions of five (5) (consisting of site maps and statistical tabulations that were contained within or attached to the withheld records) may be released to you. The partial records being released are enclosed.

Consistent with your FOIL request, all of the withheld records relate to the Department's eligibility determinations regarding sites that were proposed for entry into the Brownfields Cleanup Program. However, contrary to the assertions in your appeal, none of the withheld records are final agency determinations. Rather, these records contain non-final Department staff assessments and recommendations concerning eligibility.

This letter constitutes 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. 08-12-0A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner


/s/

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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