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FOIL Appeal Determination 09-33-3C (Michael L. Fox, 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


November 25, 2009

Michael L. Fox
Jacobowitz and Gubits
P.O. Box 367
Walden, New York 12586-0367

Re: Freedom of Information Law ("FOIL") Appeal No. 09-33-3C
FOIL Request No. 09-2178 (Regional FOIL Request 711-3/09)
Vanderburgh Cove Sewer District

Dear Mr. Fox:

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 and information that if disclosed would be an unwarranted invasion of personal privacy. On this appeal I conducted a review of the records that were withheld and issue my determination herein.

On October 9, 2009 you requested all records relating to the Vanderburgh Cove Sewer District from January 1, 2009 through the time of your request. On October 15, 2009 Department staff responded to your request and released approximately two inches of responsive records. One record was redacted as it contained personal privacy information. Staff withheld seven records as inter-agency or intra-agency communications exempt from disclosure pursuant to POL §87(2)(g). On November 10, 2009 you filed this appeal with my office regarding the records that were withheld and redacted.

On this appeal I reviewed eight records. Of those records, I have determined to release two records in their entirety and four records with redactions. The one record that was redacted and released to you previously was properly redacted pursuant to POL §87(2)(b) as release of the redacted information would be an unwarranted invasion of personal privacy. One record is being withheld in its entirety as it contains only inter-agency or intra-agency communications which is exempt from disclosure pursuant to POL §87(2)(g).

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."

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"]).

There are a total of eight records that I reviewed on this appeal. One record was previously released to you with redactions of personal privacy information. This record is a sign-in sheet from a meeting. Residents from the Vanderburgh Cove area were in attendance and gave their addresses and telephone numbers. Such personal information is not relevant to the work of the Department and, if released, could cause economic and personal hardship to those residents. Thus, those redactions were proper.

One record will be withheld from disclosure in its entirety as it contains inter-agency deliberative communications exempt from disclosure pursuant to POL §87(2)(g). This record contains Department staff's notes from a conference call. The notes are opinions, evaluations and deliberations on how to proceed with the issue. The notes are not recitation of factual data that should be released under POL §87(2)(g)(i). Additionally, there are five records that will be released with redactions of inter-agency deliberative communications. I will be releasing the factual or statistical data, but withholding the deliberative or subjective portions of the records.

Finally, one record will be released in its entirety as it was improperly withheld. The e-mail that is being released contains no deliberative communications.

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. 09-33-3C.

Sincerely yours,


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
Michael Knipfing, Region 3 FOIL Coordinator
Vijay Gandhi, Region 3 Water Program

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