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FOIL Appeal Determination for 09-23-0B (David Hartman, July 30, 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

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

July 30, 2009

David Hartman
256 River Road
Grahamsville, New York 12740

Re: Freedom of Information Law ("FOIL") Appeal No. 09-23-0B
FOIL Request No. 09-1336
Regulatory proposal for antler restrictions

Dear Mr. Hartman:

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 New York State Department of Environmental Conservation (hereinafter "Department") to withhold from disclosure a memorandum from Department staff directed to the Department's Commissioner. I requested the record that was withheld by staff and on this appeal, I conducted a review of the record and issue my determination herein.

On June 12, 2009 you requested all public comments relative to a proposed regulation change concerning expansion of antler restrictions for deer hunting in 8 wildlife management units ("WMU's"). All public comments were released to you on June 24, 2009. After two additional requests for records, all records were released with the exception of one record. On June 30, 2009 Department staff issued their final FOIL response by stating that a recommendation memorandum from Director Patricia Riexinger to Commissioner Grannis concerning the regulatory proposal would be withheld from disclosure pursuant to POL §87(2)(g) as intra-agency communications exempt from disclosure. On July 17, 2009 you filed your appeal with my office in regards to the one record that was withheld.

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. 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 NY2d 131, 132 [1985]; see also New York Times Co. v. City of New York Fire Department, 4 NY3d 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 record is a memorandum from Department staff to the Commissioner of the Department. The memorandum contains only opinions, recommendations and analyses of the public comments that were received, as well as, personal evaluations, opinions and advice regarding the proposed changes. The memorandum will not be released pursuant to POL §87(2)(g).

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. 09-23-0B.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Committee on Open Government, without attachments
Ruth Earl, Records Access Officer, without attachments
Deborah Christian, Office of General Counsel
Gordon Batcheller, Division of Fish, Wildlife & Marine Resources
Jack Cooper, Division of Fish, Wildlife & Marine Resources

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