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FOIL Appeal Determination for 09-28-0A (Jim McCulley, October 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

October 28, 2009

Jim McCulley
104 Alford Lane
Lake Placid, New York 12946

Re: Freedom of Information Law ("FOIL") Appeal No. 09-28-0A
FOIL Request #09-2067
Lyon Mountain Appraisal

Dear Mr. McCulley:

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 appraisals from two agency consultants that were determined to be responsive to your request. I requested the records that were withheld by staff and on this appeal I conducted a review of those records.

On September 22, 2009, you requested the appraisals for the Lyon Mountain area property bought from The Nature Conservatory. On September 29, 2009 the Department's Records Access Officer responded to your request by stating that the appraisals would not be disclosed as they are intra-agency documents exempt from disclosure pursuant to POL §87(2)(g). By an undated letter received by my office on October 9, 2009, you filed this appeal.

The two records withheld are appraisals from the firms of "LandVest" and "Sewell Company." Both firms served as consultants to the Department regarding a possible real estate transaction. The Department purchased the land on October 20, 2008. The appraisals were used to gain advice and assistance prior to a final determination of the Department regarding the land. The appraisals consist of opinions, advice and evaluation of the land, but are not the final determination of the land's value or how the Department proceeded with the purchase of land.

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 disclosure "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 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")].

Beyond opinions on the property's value, appraisals consist of comparable sales data. Firms use comparable sales data as a means of finding a property's value. Comparable sales data that a consultant subjectively obtains and relies upon within their appraisal is exempt from disclosure, even though such records are factual in nature and obtainable by other means (Matter of General Motors Corp., GM Powertrain Div. v. Town of Massena, 180 Misc2d 682, 693 NYS2d 870). The use of such comparable sales data by the appraiser is not just factual or statistical data, but information that has evolved from a thought process and professional judgment and subjective determinations.

The appraisal reports consist partly of factual and statistical material describing the subject property and the area in which it is located and partly opinions and analysis of the land itself and value of the land. Factual and statistical material is accessible under FOIL, except if such data is compiled subjectively by the author and contains judgment and thought in compiling. Pages or portions of pages that contain non-subjective factual or statistical data are being released on this appeal. The appraisers' opinions about conditions that may affect the value of the subject property or opinions on the land itself and information about comparable sales of land are being withheld pursuant to POL §87(2)(g).

The records or portions of records that are being released pursuant to this appeal consist of 75 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 $18.75 (75 pages at $0.25 per page). Please submit payment for the records by November 23, 2009 or 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. 09-28-0A.

Very truly yours,

/S/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government (w/ copy of FOIL Appeal)
Ruth Earl, Records Access Officer
Jeanne Konz, Office of General Counsel
Keith Matteson, Lands and Forests

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