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FOIL Appeal Determination for 09-19-0B (Michael Fogel, May 26, 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: www.dec.ny.gov


May 26, 2009

Michael Fogel
Gilberti, Stinziano, Heintz & Smith, P.C.
555 East Genesee Street
Syracuse, New York 13202-2159

Re: Freedom of Information Law ("FOIL") Appeal No. 09-19-0B
FOIL Request No. 09-892
Comments submitted to DEC of Draft Guide

Dear Mr. Fogel:

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 your claim that the Department of Environmental Conservation (herein "the Department") did not respond fully to your request and that certain records were improperly withheld from disclosure. I requested the records that were withheld by the Department's Office of Climate Change staff and on this appeal and I conducted a review of those records.


By letter dated April 14, 2009 you requested "all written comments submitted to DEC by any means...during the public comment period on NYSDEC Draft Guide for Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements." On April 23, 2009 the Office of Climate Change responded to your request. The Department released 15 records and withheld two (2) records consisting of seven (7) pages as intra-agency deliberative communications. After your inquiry on one record, on April 24, 2009, the Department released an additional record. You again contacted staff on April 27, 2009 inquiring on the records that were withheld. Finally on May 12, 2009 you wrote your appeal on the Department determination of April 23, 2009. You appeal the withholding of those seven pages and also claim that the Department constructively denied part of your request as you claim that someone through another heard there were more comments on the proposed policy.

I have discussed your claim that additional comments were not released by Department staff. I have been told that the Department released all comments that were received during the public comment period, except for the seven (7) pages that were withheld. 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 two (2) records, consisting of seven (7) pages, that were provided to me by the Office of Climate Change. 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 and intra-agency 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

The records before me consist of internal comments on the proposed policy. Agency staff have expressed opinion, evaluation and recommendations regarding the proposed policy within these two records. Unlike the public comments that were received, there is internal discussions and questions and concerns on how an individual division may interpret or understand the proposed policy. The divisions, bureaus or regional offices of the Department should feel free to express their opinions on proposed policy without fear of reprisal or public scrutiny. Thus, I have determined that the records shall not be released pursuant to this appeal.

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.

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. 09-19-0B.



Dena N. Putnick, Esq.
FOIL Appeals Officer

Cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC Records Access Officer
Deborah Christian, Corporate Affairs Bureau
Kim Farrow

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