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FOIL Appeal Determination 09-32-5A (Richard Doin, November 25, 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

November 24, 2009

Richard L. Doin
139 Woodcliff Drive
Plattsburgh, New York 12901

Re: Freedom of Information Law ("FOIL") Appeal No. 09-32-5A
FOIL Request No. 09-2279 (Regional FOIL Request #09-287)
Champlain Bluffs Development Corp. (CBDC) and/or J.D. Dame

Dear Mr. Doin:

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 inter-agency or intra-agency communications. On this appeal I reviewed the records that were withheld and issue my determination herein.

On October 27, 2009 you requested all records pertaining to Champlain Bluffs Development Corp. ("CBDC") and/or J.D. Dame. On November 5, 2009 the Department's Region 5 FOIL Coordinator responded to your request and released 37 pages of responsive records. Other records were withheld as inter-agency or intra-agency privileged communications. On November 10, 2009 you filed your appeal with my office in regards to the records that were withheld.

On this appeal I reviewed 9 records, consisting of 23 pages. Of those records, I have determined to release one record. Two records will be released in part with redactions of inter-agency communications. Additionally, four records will be withheld as they are inter-agency or intra-agency communications which are exempt from disclosure pursuant to POL §87(2)(g). Finally, I affirm the redactions of two records that were previously released to you on November 5, 2009, as they contain personal privacy information.

APPLICABLE STATUTES
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"]).

POL § 87(2)(b) authorizes withholding information from disclosure where the release of that information "would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL § 89(2)(b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: . . . (iv.) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it."

DECISION AND RATIONALE
Four records shall be withheld from disclosure in their entirety as they are draft consent orders that clearly show the deliberative, back and forth process prior to the final execution of the consent order. Release of a draft order could chill agency staff from exchanging ideas, advice or criticism on this consent order. Furthermore, the final signed consent order was released to you under cover letter of November 5, 2009. This is also the rationale for why I have determined to redact portions of two records as they contain inter-agency deliberative communications.

Regional staff released to you two records containing redactions. The redactions clearly were of the bank account numbers on two checks to the Department by the responsible party. Release of a bank account number could cause great harm to the individual or corporation who holds such bank accounts. An economic and personal hardship could ensue if such information was released to the public.

I am releasing one record that contains factual data. I am waiving all copying fees associated for this one record and the redacted 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 Public Officers Law §89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL No. 09-32-5A.

Sincerely yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Committee on Open Government, without attachments
Ruth Earl, Records Access Officer, without attachments
Deborah Christian, Office of General Counsel
Sheryl Quinn, Region 5 FOIL Coordinator

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