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FOIL Appeal Determination for 09-27-3A (Patrick Donnelly, October 16, 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

October 16, 2009

Patrick Donnelly
Jacobowitz and Gubits, LLP
158 Orange Avenue
P.O. Box 367
Walden, NY 12586-0367

Re: Freedom of Information Law ("FOIL") Appeal No. 09-27-3A
Region 3 FOIL #040-3/09; Albany FOIL #09-173
Mount Airy Estates / City of Newburgh water supply

Dear Mr. Donnelly:

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. 09-173. I requested the records that were withheld by staff and on this appeal I conducted a review of those records.

On January 22, 2009, your firm requested "all records pertaining to Brown's Pond, a City of Newburgh water supply source." On February 18, 2009 Region 3 staff responded to your request by releasing responsive records, however redacting certain personal privacy information and records that were compiled for law enforcement purposes. On August 19, 2009 you resubmitted your January 22, 2009 FOIL request and requested to review the records again that previously were available for review. Region 3, staff after subsequent review of the records, discovered records that they determined should be withheld pursuant to POL §87(2)(g) as they contain inter-agency or intra-agency communications exempt from disclosure. On October 1, 2009, you filed your appeal from staff's determination to withhold records from disclosure.

On this appeal, I received and reviewed 2 records. One record is an e-mail dated March 26, 2002. The other record consists of the same March 26, 2002 e-mail and a responsive e-mail of March 28, 2002. I have determined that both e-mails were properly withheld pursuant to POL §87(2)(g).

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"]). Opinions, recommendations or policy formulations fall within the narrowly construed exemption of inter-agency or intra-agency communications under POL §87(2)(g) (Matter of Mitzner v. Sobol, 173 AD2d 1064, 570 NYS2d 402).

RECORDS REVIEWED AND APPEAL DETERMINATION
The records before me are internal e-mail discussions containing opinions, advice and proposals. The first e-mail is from staff posing questions to other staff regarding an application for emergency connection to a water supply. The second e-mail is a response to those questions posed in the first e-mail, along with advice and proposals on how to proceed. Based on the content of the e-mails, they are internal exchanges of questions, opinions and advice, thus exempt from disclosure 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. 09-27-3A.


Very truly yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Lara Quintiliani, Assistant Regional Attorney, Region 3
Michael Knipfing, Region 3 FOIL coordinator

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