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FOIL Appeal Determination for 09-24-0C (David Hartman, September 17, 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

September 17, 2009

David Hartman
256 River Road
Grahamsville, New York 12740

Re: Freedom of Information Law ("FOIL") Appeal No. 09-24-0C
FOIL Request No. 09-1449
Antler restriction proposal and withdrawal and Deer Team meeting records

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 Department staff to withhold records identified as responsive to your FOIL Request No. 09-1449. I requested the records that were withheld by staff and on this appeal I conducted a review of those records.

On June 30, 2009 you requested "any and all information that went into the decision making process to propose antler restrictions and the decision making process to withdraw the proposed antler restrictions from May 2008 to date..." You also requested "Deer Team Meetings from May 2008 to date all [m]inutes, [a]gendas, [m]eeting [m]aterials, [m]emos and any other documents, emails or recordings associated with above meetings." On July 31, 2009 the Department's Records Access Officer issued a FOIL response by stating that some records have been released to you, however approximately two inches of records were withheld from disclosure pursuant to POL §87(2)(g) as intra-agency communications exempt from disclosure. Also, Region 4 staff responded to your request and released all responsive records that they had in their possession. By letter dated August 27, 2009 you filed your appeal with my office.

You requested a list of every withheld record and the particular exemption(s) that apply to those records. While such a requirement has been imposed under the federal Freedom of Information Act ("FOIA"), there is no requirement under state law (see Advisory Opinions AO-14311 [October 27, 2003] and AO-12587 [March 19, 2001], New York State Department of State, Committee on Open Government). Therefore, I have not prepared a privilege log of the records withheld.

On this appeal, I have reviewed approximately 437 records, consisting of approximately 628 pages. I have determined to release, either in their entirety or with some redactions, 30 records. Additionally, I could release an additional 23 records with redactions; however those records consist of your correspondence with Department staff on the issue of antler restrictions. If you would like to receive your own correspondence with the Department, please feel free to contact me. The redactions, as mentioned above, consist of inter-agency or intra-agency communications exempt from disclosure pursuant to POL §87(2)(g). Furthermore, I have determined that 407 records are exempt from disclosure as inter- or intra-agency communications. Finally, 21 records are being withheld as they are duplicate copies or chain e-mails that contain the exact record that is being released on this appeal.

FOIL EXEMPTIONS: APPLICABLE LAW
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"]).

RECORDS REVIEWED AND APPEAL DETERMINATION
Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data (Public Officers Law 87[2][g][i]). Factual data simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182). Thus, I have determined to release records or portions of records that contain factual or statistical information. Factual and statistical information may be preliminary in nature, and are not meant to be final or determined to be accurate. To address an issue that you discussed within your letter of appeal, I would like to state that any case names that may be discussed herein are purely to quote or demonstrate how the Courts of New York State have addressed legal issues, particularly inter-agency or intra-agency communications. Case names or the parties involved in a matter will not determine how agency records should be treated or evaluated. I do not make determinations on whether to release or withhold records based on who is requesting the agency records. I have not made a comparison between a corporation, such as Xerox, and the sportsmen of New York State. Status of parties who request records under FOIL do not play a role in determining what is within a record and whether such records should be released or withheld from disclosure.

Furthermore, I would like to address the meeting minutes that were released by Region 4 staff. After reviewing the meeting minutes, I believe that they were inadvertently disclosed without proper redactions. If an agency record is inadvertent disclosed, that record or any similar records to the inadvertently disclosed records can be withheld or properly redacted (McGraw-Edison Co. v. Williams, 133 Misc.2d 1053, 1054-1055 [1986]). Two additional Deer Team Meeting notes have been located and will be released to you with redactions of intra-agency communications exempt from disclosure pursuant to POL §87(2)(g).

Many of the records that have been withheld deal with the aftermath of the survey and the withdrawal of the proposed regulations. However, they do not seem to be responsive to your request for records that went into the decision making process. Most of the records reflect discussions and comments on the creation of the survey, on how to respond to certain questions posed to the Department, setting up web pages to update the public, assignments, setting up meetings, and deliberations on proposals and recommendations. Many of the records were not part of the decision making process, but merely have antler restriction as a topic of the communication.

The records or portions of records that are being released pursuant to this appeal consist of forty-one (41) pages. 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 $10.25 (41 pages at $0.25 per page), within thirty (30) days of the date of this letter. If I do not hear from you by October 19, 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 No. 09-24-0C.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Committee on Open Government
Ruth Earl, Records Access Officer
Deborah Christian, Office of General Counsel
Gordon Batcheller, Division of Fish, Wildlife & Marine Resources
Toni Galluzzo, Region 4

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