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FOIL Appeal Determination for 09-31-3B (Marc Moran, 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

Marc Moran
Chief Operating Officer
Beacon Institute for Rivers and Estuaries
199 Main Street
Beacon, New York 12508

Re: Freedom of Information Law ("FOIL") Appeal No. 09-31-3B
FOIL Request #09-1861 / R3-593-3/09
The Beacon Institute

Dear Mr. Moran:

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" or "DEC") to withhold from disclosure 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. Staff also determined to redact one record claiming that it contains personal privacy information protected from disclosure pursuant to POL §87(2)(b).

On August 25, 2009 you requested all records regarding the Beacon Institute, Inc. from December 31, 2006 to the present. On October 2, 2009 the Department's Central Office Records Access Officer responded to your request and released 150 pages of records and 2 CD's of electronic records. Approximately 90 pages and 40 electronic mail messages were withheld by central office staff. On October 9, 2009 the Department's Region 3 Records Access Office informed you that staff found four responsive records and withheld one record pursuant to POL §87(2)(g). On October 30, 2009 and October 31, 2009 you filed two appeals with my office. I have combined the two appeals into one and issue my determination herein.

On this appeal I reviewed 82 records. Of those records, I have determined to release 16 records in their entirety and 16 records with redactions. The redactions consist of inter-agency communications, personal privacy information and non-responsive portions of records. The remaining records contain inter-agency or intra-agency communications which are exempt from disclosure pursuant to POL §87(2)(g). Furthermore, on October 2, 2009 four redacted records were released to you. Two of those records were properly redacted as the release of the redacted information would cause an unwarranted invasion of personal privacy pursuant to POL §87(2)(b) or is non-responsive to your FOIL request. The other two records will be released to you either in its entirety or with less redaction.

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 internal e-mails and memoranda that contain questions, suggestions, opinions, advice, evaluations, proposals and recommendations. To protect the deliberative process and enable Department staff to freely express opinions, questions, advice and the like, I am denying the release of those records containing inter-agency or intra-agency deliberative communications. However, I have determined to release to you the records or portions thereof that contain factual or statistical data or tabulations. Even though this data may be preliminary and/or draft data, it is subject to release.

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."

There are three records that have been redacted that contain personal privacy information, such as, personal e-mail addresses or home telephone numbers. Such information is of personal nature that release to the public could result in economic or personal hardship to the subject individual and is not relevant to the ordinary work of the Department.

The records that I am releasing on this appeal are on the enclosed compact disc. Also, two ecords, attached hereto in hard copy, are records that were previously released to you on October 2, 2009 with redactions. However, I determined to release one with less redaction and one in its entirety. I am waiving all copying fees associated with the copying of the compact disc and the two 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. 09-31-3B.

Very truly yours,


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
Tim Eidle, Attorney for the Division of Water
Michael Knipfing, Region 3 FOIL Coordinator

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