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FOIL Appeal Determination for 08-26-0A (Wayne Bayer, September 4, 2008)

New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
PHONE: (518) 402-9522 FAX: (518) 402-9018 or (518) 402-9019
Website: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

September 4, 2008

Wayne Bayer
NYSDEC
625 Broadway
Albany, New York 12233-7014

Re: Freedom of Information Law ("FOIL") Appeal No. 08-26-0A; FOIL Request No. 08-1249 Appeal Determination

Dear Mr. Bayer:

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 the denial of access to certain records pertaining to the job specifications, classification standards and performance programs for Peter Frank and Frank Dunston and the current incumbent for the Urban Forestry Program Coordinator.

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Central Office. These records were referenced in Department staff's letter to you dated July 16, 2008. On this appeal, I conducted a de novo review of those records.

On June 23, 2008 you submitted an application for Access of Records to our Records Access Officer seeking "job specifications, classification standards and performance programs for: Peter Frank when he was upgraded from Forester 2 to Forester 3 and Frank Dunston - current and previous and the current incumbent for the Urban Forestry Program Coordinator." You supplemented your request on June 23, 2008 with six specific questions detailing what information you were requesting.

Your FOIL request was assigned FOIL No. 08-1249 by the Department's Records Access Officer in Albany. By letter dated June 30, 2008, Ruth Earl, Records Access Officer, acknowledged receipt of your FOIL request and was forwarding your request to appropriate staff within the divisions of Fiscal Management and Lands and Forests. On July 16, 2008 Department staff sent you a letter responding to your FOIL request. The letter of July 16, 2008 does not reference any withheld records pursuant to POL § 87. After the FOIL response was completed, by letter dated July 21, 2008 you submitted three additional questions to the Department. You are now appealing the Department's failure to respond to your July 21, 2008 questions. Thus, my de novo review of the records follows.

First, the Freedom of Information Law (FOIL) pertains to existing records. POL §89(3) provides in part that an agency is not required to create or prepare a new record in response to a request for information. Furthermore, FOIL does not require that agencies answer questions, as the law deals with records only (see, e.g. Committee on Open Government, Advisory Letter to Claudia Cinquanti, dated November 7, 1997).

Secondly, enclosed you will find the Performance Evaluation Program for Peter Frank and the classification for the position of Project Coordinator for Frank Dunstan that were determined to be releaseable but not included within the July 16, 2008 letter to you. Based on my investigation with the appropriate divisions within DEC, I have uncovered no further records in regards to your requests. The releaseable records attached hereto consist of ten (10) pages for which I am waiving all copying fees associated thereto.

Notwithstanding the above, your request of July 21, 2008, to which you are appealing, contains only questions to which no records are available, thus your appeal is denied.

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 further correspondence relating to this appeal, please refer to FOIL Appeal No. 08-26-0A.

Sincerely yours,

/s/
Dena Putnick, Esq.|
FOIL Appeals Officer

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

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