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FOIL Appeal Determination for 10-10-0A (Amy Witryol, May 10, 2010)

CERTIFIED MAIL: RETURN RECEIPT REQUESTED

May 10, 2010

Amy Witryol
4726 Lower River Road
Lewiston, NY 14092

re: Freedom of Information Law appeal # 10-10-0A
Freedom of Information Law request # 10-444

Dear Ms. Witryol:

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

Background

You made a request for access to the "Sept NFSS RI addendum report" [Niagara Falls Storage Site Remedial Investigation Report Addendum: Sampling and Analysis Plan; Site Safety and Health Plan (September 2009)] by your email message of February 22, 2010.

That request was acknowledged by the Records Access Officer's letter dated March 2, 2010 to you.

That request was denied in whole by the Records Access Officer's letter dated March 29, 2010 to you upon the ground that the record was exempt pursuant to Public Officers Law § 87(2)(g): the letter recites that the cited statute "permits the Department to withhold inter-agency documents which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determination, or external audits. The Department interprets the term 'inter-agency' in the POL to include federal, as well as state and local agencies, in determining whether the records may be withheld under FOIL".

You made an appeal from that denial by your letter dated April 22, 2010: the letter concludes, "If the portions of the SAP [Sampling and Analysis Plan] which are statistical, factual or instructions affecting the public can be released on appeal, may I ask DEC respond to this portion of the appeal, promptly. May I also ask that, because DEC has appealed the federal exemption issue in court, that a reply on the federal exemption portion of this appeal be held until the court has reached a decision".

That appeal was acknowledged by the FOIL Appeals Officer's letter dated April 26, 2010 to you.

Discussion

It is well-established that a record which is a draft can be withheld in a proper case to protect the agency's legitimate interest in protecting the confidentiality of its deliberative process. See, e.g., McGraw-Edison Co. v. Williams, 133 Misc.2d 1053 (Sup. Ct., Albany Co., 1986). However, the situation in this appeal is more closely analogous to that presented in Steele v. New York State Department of Health, 119 Misc.2d 963 (Sup. Ct., Niagara Co., 1983), where the Court observed, "Respondent's major argument as to ... the drafts of the air monitoring report is that it need not supply them because the factual material contained therein was supplied in other records provided to the petitioner. This is hardly an acceptable reason to withhold the material. Certainly petitioner is entitled to examine and use these records as he sees fit even though he has other records which may contain the same information". Assuming arguendo that the United States Army Corps of Engineers is an "agency" for purposes of the exemption at Public Officers Law § 87(2)(g), nevertheless, in the absence of any particularized assertion that the subject record contains material integral to the deliberative process, it is not within the exemption.

Determination

The denial from which this appeal was made is reversed, and access to the subject record is granted.

In view of this determination, the portion of this appeal regarding the status of an entity performing a governmental function of the United States as an "agency" for purposes of the exemption at Public Officers Law § 87(2)(g) is rendered moot, and such portion is dismissed.

This determination is a final agency action.

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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