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FOIL Appeal Determination for 09-07-1C (Ray Velten, February 13, 2009)

February 13, 2009


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: http://www.dec.ny.gov/

CERTIFIED MAIL RETURN RECEIPT

February 13, 2009

Ray Velten
824 Venetian Blvd.
Lindenhurst, NY 11757-6333

Re: Freedom of Information Law ("FOIL") Appeal No. 09-07-1C
FOIL Request No. 09-0041
Dock installation permit

Dear Mr. Velten:

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. 09-0041. I requested the records that were withheld by the Department's Region 1 staff and on this appeal and I conducted a review of those records.

Background
On January 22, 2009 Region 1 FOIL Coordinator for the Department acknowledged receipt of your FOIL request for information on the dock installation at 827 Venetian Boulevard, Lindenhurst, New York. On January 29, 2009 Department staff responded to your request. Through the January 29, 2009 letter various records were released by the Department and were available for review and/or copying at the Department's Region 1 office. As of the time of this decision, you have yet to review or request copies of the released records. Through your letter of January 30, 2009, received by my office on February 2, 2009, you filed this appeal from Region 1's January 29, 2009 letter. Based on your January 30th letter, I believe that the records you are seeking have already been released by Region 1 on January 29th and are available at the Department's Region 1 office. Nevertheless, I have requested the withheld records from staff and my review of the withheld records follows herein.

RECORDS REVIEWED
On this appeal I have reviewed 4 records, consisting of 5 pages, that were provided to me by Region 1 staff. Based upon my review of the records, I have determined that the records were properly withheld from disclosure pursuant to the exemption codified within POL §87(2)(g). Below is the reasoning for my decision.

Relevant Statutes on Appeal
POL §87(2)(g): Inter-agency or intra-agency communications
Inter-agency (DEC and another state or municipal agency's communications) or intra-agency (internal DEC communications) communications, which are deliberative in nature, are exempt from disclosure pursuant to POL §87(2)(g). 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 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")).

Withheld records reviewed on appeal and determination
There are four (4) records before me, consisting of five (5) pages. The records before me consist of internal tracking of the permit application, to which agency staff have expressed opinion, evaluation and recommendations regarding the requested permit. Thus, I have determined that the records shall not be released pursuant to this appeal. Your appeal is herein denied.

I continue to urge you to contact our Region 1 office to review and/or request copies of the records that were previously released to you on January 29, 2009. If you fail to contact the Regional office within short order the records will be returned to their respective custodians within the agency.

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. 09-07-1C.

Sincerely,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

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

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