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FOIL Appeal Determination for 10-05-0A (Ron McGreevy, April 22, 2010)

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

April 22, 2010

Ron McGreevy
P.O. Box 427
Mattituck, NY 11952

Re: Freedom of Information Law ("FOIL") Appeal Determination 10-05-0A
FOIL Request No. 10-443
Draft Detailed Project Report for the Mattituck Inlet Section 111

Dear Mr. McGreevy:

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 a draft detailed project report for the Mattituck Inlet under Section 111 of the River and Harbor Act.

By letter dated March 23, 2010 Department staff withheld the Draft Detailed Project Report prepared by the U.S. Army Corps of Engineers pursuant to POL §87(2)(g), claiming that the report was inter-agency communications exempt from disclosure. Your appeal of this decision was received by my office on March 26, 2010. I have reviewed the requested record and have determined that it is appropriate to release the report.

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 FOIL "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 Draft Detailed Project Report was created by a federal agency. The Department holds the position that records that are created, exchanged or from a federal agency to the Department should be analyzed as records of another agency. Thus, I must determine if the report can be withheld from disclosure pursuant to POL §87(2)(g) as inter-agency communications. I herein determine that the report does not contain deliberative communications between the Department and the Army Corps of Engineers nor is it an integral part to the internal decision making process. The report does not contain proprietary or deliberative information, such as an exchange of ideas, opinions or advice, but rather contains objective information and statistical tabulations on what has and will occur at the Mattituck Inlet. It is a recitation of what the Army Corps of Engineers has found or preliminarily determined and therefore should be released. However, I must emphasize that the Army Corps of Engineers has advised the Department that it continues to review comments on the draft detailed report and thus it is incomplete, inconclusive and subject to change.

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. 10-05-0A.

Very truly yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Attch.

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Richard Tuers, Coastal Erosion, Central Office
Tim Eidle, Office of General Counsel

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