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FOIL Appeal Determination for 09-08-3A (David Radovanovic, 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
PHONE: (518) 402-9522 FAX: (518) 402-9018 or (518) 402-9019
Website: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

February 13, 2009

David Radovanovic
100 Dock Street
Saugerties, New York 12477

Re: Freedom of Information Law ("FOIL") Appeal No. 09-08-3A
FOIL Request No. 09-127 / 25-3/09
Partition Street Project / Partition Street, Saugerties, Ulster County (Diamond Mills Paper Company / Dam)

Dear Mr. Radovanovic:

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 Diamond Mills Paper Company / Dam on Partition Street, Saugerties, New York.

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Region 3 office. On this appeal, I conducted a de novo review of those records.

BACKGROUND
On January 14, 2009 you submitted a letter to the New York State Department of Environmental Conservation's (hereinafter "DEC" or the "Department") FOIL e-mail address seeking certain records of the Department relating to the Partition Street Project / Partition Street, Village of Saugerties, New York. On January 16, 2009 DEC's Region 3 Records Access office acknowledged receipt of your request and assigned your request FOIL No. 25-3/09. By letter dated January 20, 2009, Region 3 Division of Environmental Permits responded to your request by releasing all responsive records that were in the custody of that division. On January 21, 2009, Region 3 Division of Water responded to your request and released responsive records, however withheld disclosure of six (6) records as they were exempt from disclosure pursuant to POL §87(2)(g), as they contain inter-agency or inter-agency deliberative communications. Finally, on January 27, 2009, Region 3 Division of Law Enforcement responded to your request by stating that after a diligent search, no records could be located that were responsive to your request. On February 5, 2009 you filed this appeal with my office regarding the six (6) records withheld from disclosure by Region 3 Division of Water.

I have received the records withheld by Region 3 Division of Water staff and I have conducted a de novo review. Following is my determination:

RECORDS REVIEWED
On this appeal, I have reviewed six (6) records, consisting of nine (9) pages, that were provided to me by Department staff. The records consist of four (4) e-mails between December 2005 and January 2008 and two (2) internal memoranda from 2008.

RELEVANT STATUTORY EXEMPTIONS
POL §87(2)(g): inter-agency or intra-agency deliberative communications
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")).

The e-mail before me on this appeal contain opinions, evaluations, requests and perceptions of Department staff. Furthermore, the internal memoranda consist of recommendations regarding a permit and opinions of staff regarding the same. Such internal deliberative communications, exempt from disclosure pursuant to POL §87(2)(g), will not be released through this appeal. Based on the above, 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. 09-08-3A.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Michael Knipfing, Region 3 Records Access
Beth Zicca, Region 3 Division of Water

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