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FOIL Appeal Determination for 08-30-1B (Aram V. Terchunian, November 3, 2008)

November 3, 2008

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


November 3, 2008

Aram V. Terchunian
First Coastal Corporation
P.O. Box 1212
4 Arthur Street
Westhampton Beach, NY 11978

Re: Freedom of Information Law ("FOIL") Appeal No. 08-30-1B
FOIL Request No. 08-0935
DEC Permit No.: 1-4736-05770/00001 & 00002

Dear Mr. Turchunian:

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 determination of Region 1 staff to withhold records identified as responsive to your FOIL Request No. 08-0935. I requested the records that were withheld by the Department's Region 1 staff and on this appeal, I conducted a review of those records.

On September 5, 2008 you faxed your FOIL request to Nancy Pinamonti, Region 1 FOIL Coordinator. On September 11, 2008 Region 1's FOIL Coordinator acknowledged receipt of your request. On September 24, 2008 Region 1 released responsive records, however withheld certain records claiming that they contained inter-agency or intra-agency material that were exempt from disclosure. By letter dated October 28, 2008, received on October 29, 2008, you filed this appeal with my office from the denial of access to the withheld records.

Please be advised that your appeal was not timely filed. The regulations of the New York State Department of Environmental Conservation require that an appeal be filed within thirty days of the denial (see §616.8(d) fo title 6 of the Official Compilation of Codes, Rules and Regulations of New York State). Region 1's FOIL response was dated September 24, 2008, and, as staff advised in its letter, any appeal had to be filed within 30 days. Your appeal letter is dated October 28, 2008, four days after the 30 day appeal period. Although the late filing of your appeal would be a basis to deny your appeal, I have exercised my discretion and hereby consider your appeal on the merits. Thus, my review of the records is as follows.

Furthermore, within your FOIL appeal letter of October 28, 2008 you requested that a privilege log be provided. Such a requirement has been imposed under the federal Freedom of Information Act ("FOIA"), which may involve the preparation of a so-called "Vaughn index" (see Vaughn v. Rosen, 484 F.2d 820 (1973)). There is no requirement under New York State FOIL that requires preparation of any list or index identifying the record or records withheld (see Advisory Opinions AO-14311 (October 27, 2003) and AO-12587 (March 19, 2001), New York State Department of State, Committee on Open Government). Based on the above, I will not be issuing a privilege log of the records withheld.

On this appeal, I have review thirty-three (33) records that were withheld from release, consisting of 39 pages that were provided to me by Department staff. Based on my review of the records, I have determined that Region 1 staff properly withheld the records. Below is the reasoning for my decision.

POL §87(2)(g), authorizes the denial of access to records or portions thereof that are intr-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 person in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. V. Town of Webster, 65 N.Y.2d 131, 132 (1985); see also New York Times Co. V. City of New York Fire Department, 4 N.Y.3d 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")). Thirty-three (33) records are being withheld on this appeal as they contain intra-agency deliberative materials. Such records consist of internal process tracking sheets and notifications for review of the permits along with comments, opinions, evaluations and advice in regards to permit numbers 1-4736-05770/00001 and 00002. Such records will not be released on this appeal.

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 No. 08-30-1B.

Sincerely yours,

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer
Nancy Pinamonti, Region 1 FOIL Coordinator

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