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FOIL Appeal Determination for 10-04-5A (Fay Detraglia, April 5, 2010)

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

April 5, 2010

Fay Detraglia
P.O. Box 136
Greenfield Center, NY 12833

Freedom of Information Law ("FOIL") Appeal No. 10-04-5A
FOIL request #10-387 (Regional FOIL 10-061)
Conservation Easement Document #2009010215 (Lake Desolation Road)

Dear Mr Detraglia:

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 records from disclosure.

Region 5 staff denied your request in stating that the requested easement was currently under negotiation, thus was exempt from disclosure under POL §87(2)(g). However, after consultation with regional staff and central office staff I have determined that there was some miscommunication in regards to your request. Your request was for easement document number 2009010215. Staff has informed me that the Department does not have this record. The easement you requested is between two private parties and is available at the Saratoga County Clerk's Office.

POL §86(4) defines the term "record" to include "any information kept, held, filed, produced, reproduced by, with or for an agency... in any physical form." The record that you requested was not produced, kept or filed with the Department, but was an easement between two private individuals, filed with the Country Clerk's office. Furthermore, no copies of the requested easement are maintained or held by the Department. FOIL does not require an agency to create or obtain a record that it does not possess or maintain to satisfy a FOIL request.

Based on the above, I have determined that the Department did not withhold any records responsive to your request as the Department does not possess the record you requested.

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. 10-04-5A.


Very truly yours,

/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc:
Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer
Sheryl Quinn, FOIL Coordinator Region 5
John Keating, Real Property Central Office

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