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FOIL Appeal Determination for 09-09-3B (Stacy Butler, February 23, 2009)

February 23, 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 23, 2009

Stacy A. Butler, Esq.
Assistant County Attorney
Department of Law
Government Center
255 Main Street
Goshen, New York 10924

Re: Freedom of Information Law ("FOIL") Appeal No. 09-09-3B
FOIL Request No. 12-3/09; Albany FOIL Request No. 09-51
Spill No. 0809892

Dear Ms. Butler:

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 3 staff to withhold records identified as responsive to your FOIL Request. I requested the records that were withheld by the Department's Region 3 staff and on this appeal and I conducted a review of those records.

Background
On January 8, 2009 you submitted your FOIL request to the Department's FOIL e-mail address, requesting "all correspondence, records of telephone discussions, telephone log books and electronic records relating to the spill [No. 0809892] prior to December 4, 2008." The Department acknowledged receipt of your FOIL request through a letter dated January 12, 2009 and released a spill report form and a compact disc of responsive records to you. By letter dated, January 22, 2009, your office submitted an supplemental request for records. Your additional request was for "1) Records of any telephone calls or any other communications received by the DEC on December 3, 2008 relevant to the Spill; 2) All records of Inv. Harcher from December 4, 2008 pertaining to the actions taken by the DEC on December 4, 2008 including, but not limited to, arrival time at the Spill location and notes of conversations on that date." On January 27, 2009 Department staff responded to your initial request and withholding certain records as exempt from disclosure pursuant to POL §87(2)(e) as the records were compiled for law enforcement purposes. Furthermore, on that date, DEC staff responded to your additional request and stated that all records that would be released to you were released to you on January 12, 2009 on the compact disc. Through your letter of February 4, 2009, received by my office on February 9, 2009, you filed this appeal from the Department's denial of access to all responsive records. I have requested the withheld records from staff and my review of the withheld records follows herein.

RECORDS RECEIVED
On this appeal I have reviewed 12 records, consisting of 74 pages, that were provided to me by Region 3 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)(e). Below is the reasoning for my decision.

RELEVANT STATUTES ON APPEAL
POL §87(2)(e): Compiled for law enforcement purposes
POL §87(2)(e) provides an exception from FOIL for records that are compiled for law enforcement purposes and which if disclosed would (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of a right to a fair trial or impartial adjudication; (iii) identify a confidential source(s) or disclose confidential information relative to a criminal investigation; or (iv) reveal criminal investigation techniques or procedures, except routine techniques or procedures. This exemption authorizes the withholding of records or portions thereof compiled for law enforcement purposes which, if disclosed, would interfere with a DEC law enforcement investigations and/or consent order negotiation (see Pride International Realty, LLC v. Daniels, 4 Misc.3d 1005(A) (Sup. Ct., New York County, 2004) [holding that POL §87(2)(e)(i) applies to agency investigations of violations of the law]; see also Matter of City of New York v. BusTop Shelters, Inc., 104 Misc.2d 702, 711 (Sup. Ct., New York County 1980) ["[t]he only requirement is that the records in the possession of a public agency were compiled for law enforcement purposes"]).

WITHHELD RECORDS REVIEWED ON APPEAL
There are 12 records, consisting of 74 pages, before me on this appeal. The records consist of e-mails, letters, a complaint form, notes of DEC law enforcement officers and a laboratory report.

Furthermore, after reviewing the twelve (12) records that were withheld by Department staff, seven (7) records, consisting of 56 pages, are non-responsive to your FOIL requests. These records consist of e-mails, letters and notes. Your requests were narrowed down to records regarding the spill "prior to December 4, 2008." However, your supplemental request was for "actions taken by the DEC on December 4, 2008." Thus, I have included in my review a record dated December 4, 2008 that was responsive to your request. The seven (7) records are dated December 5, 2008 through January 27, 2009. Even though these records are non-responsive to your request, they are also exempt from disclosure pursuant to POL §87(2)(e) as they were compiled for law enforcement purposes in the investigation of the spill at issue. Since these records are not responsive to your requests and are exempt pursuant to POL §87(2)(e), they will not be released on this appeal.

Thus, there are five (5) records, consisting of 17 pages, that were withheld that are responsive to your requests. The five responsive records consist of a complaint form, a laboratory analysis report and two sets of notes taken by law enforcement officers.

In accordance with the foregoing, I have determined that the five (5) records were properly withheld from disclosure based on POL §87(2)(e) as they were compiled for law enforcement purposes and which if disclosed would interfere with the Department's investigations of spill number 0809892. The records withheld pursuant to POL §87(2)(e) are an internal complaint form, statements or notes compiled by DEC law enforcement while investigating the spill at issue. These records are not subject to release pursuant to Public Officers Law §87(2)(e)(i) as they are compiled for law enforcement purposes or for preparation of trial and, if disclosed, would interfere with investigations or judicial proceedings. The investigation into this matter is still ongoing. Release of the notes, form and report could compromise the investigation and any possible outcome of that investigation. Thus, the records will not be released on this appeal.

Furthermore, I must note that portions of the notes taken by the officers contain personal privacy information, such as birth dates and possibly home telephone numbers or addresses. Such information is also exempt from disclosure pursuant to POL §87(2)(b).

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. 09-09-3B.

Sincerely,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC Records Access Officer
Captain Richard Martin, Region 3
Inv. Cynthia Harcher, Region 3
Michael Knipfing, Region 3

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