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FOIL Appeal Determination for 09-10-0A (Thomas Maxson, March 5, 2009)

March 5, 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 REQUESTED

March 5, 2009

Thomas F. Maxson
Animal Rights Federation of New York
103 Whangtown Road
Kent Lakes, New York 10512

Re: Freedom of Information Law ("FOIL") Appeal No. 09-10-0A
FOIL Request No. 08-2466
Sightings or release of predatory animals in southern New York

Dear Mr. Maxson:

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 the Division of Fish, Wildlife and Marine Resources central office staff that no information that was responsive to your request was located. On November 18, 2008 you requested "all records from all departments regarding the release or knowledge of predatory animals in Putnam, Dutchess, Westchester and other downstate counties, including but not limited to mountain lions (aka cougars, catamounts, panthers, etc.), coyotes, etc." Central office staff responded to your request on January 13, 2009 stating that they had no responsive records. By letter dated February 12, 2009 you filed this appeal with my office claiming that some records had to exist within the Department.

After I received your request, I contacted the Division of Fish, Wildlife and Marine Resources in Central Office, to which they again stated that they had no records that were responsive to your request. I then contacted regional offices associated with the counties stated within your request. I contacted Region 2 (Long Island City) and Region 3 (New Paltz). I received responsive records from Region 2 and Region 3. Based on my review of the records, I have determined to release a majority of the subject record with redactions. The remaining records will be either released in their entirety or withheld based on the exemptions and discussion below.

Public Officers Law §87(2)(b)
POL §87(2)(b) authorizes withholding information where the release of that information "would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §87(2)(b) reads, in relevant part, as follows: "Each agency shall . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: . . . (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §89(2)(b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: . . . (iv.) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or (v) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

Public Officers Law §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")).

Review of records and decision
There are 169 records before me on this appeal. They mainly consist of sighting reports concerning different types of animals, including but not limited to, black bears, cougars and coyotes. Such reports are either submitted to DEC staff by citizens or records of phone or email reports of sightings. I have redacted the names, address and phone numbers of the complainants/reporters. Such information is not relevant to the work of the agency requesting the personal information. The relevant information to the Department is the information that is released on these records, consisting of the sighting of animals. The complainant/report personal information has been redacted pursuant to POL §87(2)(b), as such information if released would constitute an unwarranted invasion of personal privacy.

Of the 169 records before me on this appeal, eight (8) records have been withheld from disclosure as they are intra-agency deliberative communications, exempt pursuant to POL §87(2)(g). The information contained within those records consist of opinions, evaluations, recommendations and deliberations between Department staff. Also, there are two records that have been redacted and released on this appeal that contain intra-agency deliberative communications and personal privacy information. However, all other portions of those records will be released.

Beyond the records that have been released on this appeal, I can also direct you to other pertinent information may be of interest on our website:
The Hunting and Trapping Guide - http://www.dec.ny.gov/outdoor/37136.html
Wild Turkey information - http://www.dec.ny.gov/animals/7062.html.
Furthermore, I must note, Cornell University is conducting a coyote study within the requested counties. The Department is not possession of these records of Cornell University. Attempts to contact the University have been unsuccessful at the time of this appeal. However, you can find some information at http://www.nycoyote.org/. If I receive any records from Cornell University that are responsive to your request, I will review them and issue another separate determination on those records.

The records or portions of records that are being released pursuant to this appeal consist of 169 pages and a CD. If you wish to be provided with copies, please send a check made payable to the "New York State Department of Environmental Conservation" to my attention in the amount of $42.25 (169 pages at $0.25 per page - I waived the fee for the CD), within thirty (30) days of the date of this letter. If I do not hear from you by April 6, 2009, the records will be returned to their respective files and the FOIL appeal file will be closed.

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. 09-10-0A.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer
Jack Cooper, Central Office
Michael Knipfing, Region 3
Anna McNamara, Region 3
Fawzy Abdelsadek, Region 2

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