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FOIL Appeal Determination for 10-09-3A (Edward Williams, May 7, 2010)

CERTIFIED MAIL: RETURN RECEIPT REQUESTED

May 7, 2010

Edward Williams
423 North Ridgewood Road
South Orange, New Jersey 07079

Re: Freedom of Information Law appeal # 10-09-3A
Freedom of Information Law requests ## 162-3/10; 171-3/10 and 201-3/10

Dear Mr. Williams:

I am the new FOIL Appeals Officer for the Department of Environmental Conservation, replacing Dena N. Putnick.

Background

On March 3, 2010 you requested meeting materials, communications and submissions between Region 3 and the Town of Rosendale or Hudson River Valley Resorts ["HRVR"] and all records previously requested. All records were released, with the exception of one e-mail that was redacted. The redacted record was an e-mail communication of February 24, 2010. Department staff redacted the record pursuant to Public Officers Law § 87(2)(g) as intra-agency communications exempt from disclosure.

On March 5, 2010 you requested HRVR's submissions and the Department's approval; 226 records were released. One responsive record was withheld and one was redacted.

On March 19, 2010 you requested an inventory of HRVR submissions; all responsive records were released with the exception of portions of two pages of the 118 page Primary Field Survey.

You made an appeal from the denials expressly re requests ## 162-3/10 and 171-3/10 by your letter dated April 22, 2010. Your appeal requested an index of every record that was withheld by disclosing the "(a) the date of the record; (b) author; (c) recipient(s) if any; (d) name of the DEC individual who maintains the record; (e) the name / title of the file in which the record is maintained; (f) the general subject matter of the record; (g) and the specific legal basis under which it is claimed that the record is exempt from disclosure in response to this FOIL request." FOIL does not require an agency to prepare any list or index identifying the record or records withheld (see Advisory Opinions AO-14311 (October 27, 2003) and AO-12587 (March 19, 2001), New York State Department of State, Committee on Open Government. I have not prepared such an index but this appeal concerns only four records (three redacted before release and one withheld in its entirety) and the records are readily identifiable.

That appeal was acknowledged by the FOIL Appeals Officer's letter dated April 23, 2010 to you.

Discussion

Public Officers Law § 87(2)(a) authorizes the denial of access to records or portions thereof that are specifically exempt from disclosure by state or federal statute. With respect to the locations or habitats of rare, threatened or endangered species, Environmental Conservation Law § 3-0301(2)(r) authorizes the Department to deny "access to inspection of records which identify locations of habitats of species designated endangered pursuant to section 11-0535 of this chapter...where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive." Environmental Conservation Law § 11-0539(4) gives the Department the authority to withhold records indicating "locations or habitats of rare, threatened or endangered species ... where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive, provided, however, that the commissioner may permit access to such records, data or information to persons, educators, schools or universities engaged in legitimate scientific and academic research."

By letter dated April 5, 2010 the Department stated that one record that was responsive to request 201-3/10 was redacted pursuant to Public Officers Law § 87(2)(a). The record that was redacted was the Primary Field Survey for the HRVR. Two pages of the 118 page document contain location information on the habitat of an endangered species, the Northern cricket frog. [6 NYCRR § 182.6(a)(4)(ii)]. The redactions consist of directions to and a map of the location of the habitat. All other information was released.

Public Officers Law § 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 persons in an advisory role would be able to express their opinions freely to agency decision makers' [citation]": Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985); see also The New York Times Co. v. City of New York Fire Department, 4 N.Y.3d 477, 829 N.E.2d 266, 796 N.Y.S.2d 302 (2005), "The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure [citations]".

One responsive record (a February 24, 2010 e-mail) was redacted before release. The first e-mail in the chain (a communication with a person outside the agency) was released; the remainder were withheld as intra-agency communications. A January 6, 2010 e-mail consisting of staff communications expressing suggestions, ideas, opinions was withheld in its entirety. A February 2, 2010 e-mail that was partially redacted also consists of an exchange of staff recommendations, opinions and requests. These three records (one in its entirety, two as redacted) were appropriately withheld as intra-agency deliberative communications exempt from disclosure.

Determination

The denials from which this appeal was made are affirmed and access to the redacted portions of three records and one record in its entirety is denied. This determination is a final agency action. 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).

Cordially,

/s/

James H. Eckl
FOIL Appeals Officer

cc: Committee on Open Government

Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231-0001


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