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FOIL Appeal Determination for 09-29-0B (Richard Carver, October 26, 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


October 26, 2009

Richard Carver, Ph.D.
P.O. Box 30
Newark, DE 19714-0030

Re: Freedom of Information Law ("FOIL") Appeal No. 09-29-0B
FOIL Request No. 09-1740
DuPont Registration of Chlorantraniliprole

Dear Mr. Carver:

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 approximately 50 pages of inter-agency or intra-agency communications which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policies or determinations, or external audits. On this appeal I conducted a review of the records that were withheld and issue my determination herein.

On August 10, 2009 you requested "all records relating to the decision to register products containing chlorantraniliprole with the exception of direct communications between DuPont and DEC ... [and] any related assessments, evaluations or correspondence regarding any products containing chlorantraniliprole ... supplied to DEC." On September 16, 2009 the Department's Records Access Officer responded to your request and released certain electronic records. Other records were withheld as inter-agency or intra-agency privileged communications. On October 9, 2009 you filed your appeal with my office in regards to the records that were withheld.

You requested that the Department provide a description of the nature of the information contained in each withheld record, including the date, author and recipient. FOIL does not require an agency to prepare any list or index identifying the record or records withheld (see Advisory Opinions AO-14311 (October 27, 2003) and AO-12587 (March 19, 2001), New York State Department of State, Committee on Open Government). Thus, I will not be issuing such a log or list of the records withheld.

On this appeal I reviewed 39 records, consisting of 62 pages. Of those records, I have determined to release 2 records in their entirety and 3 records with redactions. The remaining 34 records contain inter-agency or intra-agency communications which are exempt from disclosure pursuant to POL §87(2)(g) or are not responsive to your request.

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 disclosure "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 records withheld consist of e-mails and hand written meeting notes. The e-mails are between DEC staff and between DEC staff and other governmental agencies. Some of the records also contain correspondence with DuPont. However, since you specifically excluded such communications in your request for records, those communications are not responsive to your request. The e-mails and notes contain questions, suggestions, opinions, advice, evaluations, proposals and recommendations. To protect the deliberative process and enable the Department staff to freely express opinions, questions, advice and the like, I am denying the release of 34 records containing inter-agency or intra-agency deliberative communications, pursuant to POL §87(2)(g).

I am releasing 8 pages of records that are either factual data or are not deliberative in nature. Based on such a small amount of pages, I am waiving all copying fees associated therein.

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. 09-29-0B.

Sincerely yours,


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
Michael Naughton, Office of General Counsel

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