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FOIL Appeal Determination for 09-11-0B (Albert Dwumahene, March 4, 2009)

March 4, 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 4, 2009

Albert Dwumahene
Sullivan & Worchester, LLP
1666 K Street, NW
Washington, DC 20006

Re: Freedom of Information Law ("FOIL") Appeal Determination 09-11-0B
FOIL Request No. 08-2573
Belleayre Mountain Modified Project

Dear Mr. Dwumahene:

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. 08-2573. I requested the records that were withheld by the Department staff and on this appeal, I conducted a review of those records.

On December 12, 2008 you sent your FOIL request to the Department, to which Department staff acknowledged receipt of your request on December 22, 2008. Your request was for the supplemental draft environmental impact statement ("SDEIS") and the Agreement in Principle ("AIP") in regards to the Belleayre Mountain modified project. On January 22, 2009 Department staff responded to your request by releasing electronic copies of responsive records. Portions of the released records where redacted and one record in its entirety was withheld from disclosure pursuant to POL §87(2)(g) as inter-agency or intra-agency deliberative communications. On February 20, 2009 you filed your appeal with my office appealing Department staff's determination to withhold the one record and the redaction of other records.

Furthermore, within your FOIL appeal letter of February 20, 2009 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 seven (7) records that were withheld in whole or in part from release, consisting of 34 pages that were provided to me by Department staff. Also, I have determined that Region 3 staff have only two maps that were previously released to you by Ruth Earl by cover letter of January 22, 2009. Below is my decision regarding these records.

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 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")).

First, in regards to the record that was withheld in its entirety, which is a one-page e-mail between two DEC employees, will be withheld from disclosure on this appeal. The e-mail consists of an evaluation and opinion of a meeting that was conducted.

I have reviewed the remaining six (6) records that were released with redactions with the assertion that they were redacted as they contained inter-agency or intra-agency deliberative communications, pursuant to POL §87(2)(g). Based upon my review of the records, I have determined to uphold the redactions on four (4) records in part. The other two (2) records will be released in their entirety on this appeal. The portions or redactions of the records that I upheld herein clearly demonstrate the exchange of opinions, advice or recommendations between and amongst staff at the Department. I have released on this appeal the factual information, such as forwarding of e-mails with no actual communications amongst staff and factual statements made by staff. Attached please find the records that were previously released to you. I have waived all copy fees associated with their release.

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. 09-11-0B.

Very truly yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Attch.

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Jeanne Konz, Esq., DEC Central Office

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