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FOIL Appeal Determination for 09-25-0D (Jeanne Casatelli, September 28, 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 28, 2009

Jeanne Casatelli
40 Iroquois Place
East Greenbush, NY 12061

Re: Freedom of Information Law ("FOIL") Appeal No. 09-25-0D
FOIL Request No. 09-1678
Eagle Nest

Dear Ms. Casatelli:

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 redact a portion of one record identified as responsive to your FOIL Request No. 09-1678. I requested the record that was redacted by staff and on this appeal I conducted a review of that record.

Your FOIL request sought "all inspection reports, site visit reports, monitoring reports, memos, emails, summary reports, data reports and other reports, and photographic documentation by DEC personnel (including their names) regarding eagle sightings and activities" regarding a bald eagle's nest you believe is located on or near Campbell Island. On August 25, 2009 the Department's Records Access Officer issued a FOIL response stating that the nest location has been redacted as it is exempted from disclosure by state or federal statute, more specifically Environmental Conservation Law §11-0539(4). By letter dated September 21, 2009 you filed your appeal with my office.

POL §87(2)(a), authorizes the denial of access to records or portions thereof that are specifically exempt from disclosure by state or federal statute. With respect to the locations or habitats of rare, threatened or endangered species, the New York State Environmental Conservation Law, Section 11-0539(4) gives the Department the authority to withhold records indicating those locations "where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive, provided, however, that the commissioner may permit access to such records, data or information to persons, educators, schools or universities engaged in legitimate scientific and academic research." Bald eagles are classified as threatened species (6 NYCRR 182.6(b)(6)(iii)). Since the information that was redacted is the location of a bald eagle's nest release is prohibited pursuant to POL §87(2)(a) and ECL §11-0539(4).

Staff has relayed to me that all of the records responsive to your request have been released. There are no additional responsive records that could be located. In your appeal letter of September 21, 2009, you stated that you received unclear and insufficient information. FOIL pertains to existing records and POL §89(3) states in relevant part that an agency is not required to create a record in response to a request. As I understand your correspondence, you may have sought records that do not exist. If no such records exist, the Department is not obliged to prepare answers or records.

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 POL §89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL No. 09-25-0D.

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
Mark Sanza, Office of General Counsel
Peter Nye, Fish, Wildlife and Marine Resources


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