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CERTIFIED MAIL: RETURN RECEIPT REQUESTED

June 21, 2010

VHB Engineering, Surveying & Landscape Architecture, PC
Attn: David Kennedy
2150 Joshua's Path, suite 300
Hauppauge, NY 11788

Freedom of Information Law appeal # 10-15-1B
Freedom of Information Law request # 10-0260

Dear Mr. Kennedy:

Background

You made a request for access to "Any and all Marine Habitat records, including violations, tidal wetland permit applications and permits, non-jurisdiction applications and determinations of non-jurisdiction, and any associated site plans, surveys and records for the above-listed properties", namely, "#7 Stephen's Path, #7 David's Way, #8 David's Way, #10 David's Way, #11 David's Way and #17 David's Way Port Jefferson NY, 11777" by your application dated March 24, 2010.

That request was acknowledged by the Regional FOIL Coordinator's letter dated April 2, 2010 to you.

In response to that request, you were advised by the Regional FOIL Coordinator's letter dated April 5, 2010 to you that certain responsive information was available at the Department of Environmental Conservation's website; and that if you required additional records you could resubmit your request.

You made a request for access to "Any and all records regarding tidal wetland permit applications and permits, violations, non-jurisdiction applications and determinations of non-jurisdiction, and any associated site plans and surveys for the above-listed properties", namely, "#15 Stephen's Path, #7 David's Way, #8 David's Way, #10 David's Way, #11 David's Way and #17 David's Way Port Jefferson NY, 11777" by your letter and application dated April 8, 2010.

That request was acknowledged by the Regional FOIL Coordinator's letter dated April 8, 2010 to you.

That request was granted in part and denied in part by the Regional FOIL Coordinator's letter dated May 13, 2010 to you, which partial denial consisted of the withholding of certain unspecified records, upon the ground that the withheld records were exempt pursuant to Public Officers Law § 87(2)(g): the letter recites, "Records only available for 17 David's Way. ... various records have been identified as responsive to your FOIL request. Although responsive to your FOIL request, some records are being withheld pursuant to the following exemption under Article 6 of the Public Officers Law (POL), Section 87(2)[g]".

You made an appeal from that partial denial by your letter dated June 3, 2010: the letter recites, "Although various relevant records apparently exist for these properties [15 Stephen's Path, 7 David's Way, 8 David's Way, 10 David's Way, 11 David's Way, and 17 David's Way: Port Jefferson, New York], the NYSDEC has allowed VHB to review records for only one property (17 Davids Way, Port Jefferson)".

That appeal was acknowledged by the FOIL Appeals Officer's letter dated June 8, 2010 to you.

Thereafter, I made inquiry to this Department's Region 1 staff.

Based on the results of that inquiry, I am able to advise you that the withheld records consist of the following:

  • Notice of Violation dated August 25, 1992 from F. Panek to T. Garland and Onatier Construction Corp. re alleged Tidal Wetlands Act violation committed on or before August 11, 1992
  • Notification of Availability for Review, undated, from M. Peterson re J. Siddiqui application # 1-4722-04318/00001
  • Notification of Availability for Review dated May 20, 2002 from M. Peterson re J. Siddioui application # 1-4722-04318/00001
  • Tidal Wetlands Administrative Review Sheet dated June 19, 2002 by C. Arfsten and M. Peterson re Siddiqui application # 1-4722-04318/01
  • letter dated June 30, 2002 from J. Siddiqui to M. Peterson re application # 1-4722-04318/00001
  • Notification of Availability for Review dated July 1, 2002 from M. Peterson re J. Siddioui application # 1-4722-04318/00001
  • Tidal Wetlands Administrative Review Sheet dated August 5, 2002 by C. Arfsten and M. Peterson re Siddioui application # 1-4722-04318/01

Discussion

Preliminarily. Inasmuch as your June 3, 2010 letter identifies your client's property as 7 Stephen's Path; and inasmuch as that letter refers to the six properties which are referenced in your second application dated April 8, 2010: I infer that the inclusion of "#7 Stephen's Path" in your first application dated March 24, 2010 was erroneous, and that the properties which are the subject of this appeal are the six properties respectively known as 15 Stephen's Path, 7 David's Way, 8 David's Way, 10 David's Way, 11 David's Way and 17 David's Way.

With respect to the portion of this appeal as relates to the properties known as 15 Stephen's Path, 7 David's Way, 8 David's Way, 10 David's Way and 11 David's Way: The statement in the Regional FOIL Coordinator's May 13, 2010 letter that "Records [are] only available for 17 David's Way" necessarily amounts to a statement that there are no responsive records pertaining to the properties known as 15 Stephen's Path, 7 David's Way, 8 David's Way, 10 David's Way and 11 David's Way. An appeal may be made only from a denial of access to records, pursuant to Public Officers Law § 89(4)(a) and 6 NYCRR § 616.8(c). Thus, an appeal may not be made from a response that an agency does not possess responsive records, because that does not constitute a denial. See Committee on Open Government advisory opinion FOIL-AO- 13083 (December 20, 2001).

With respect to the portion of this appeal as relates to the property known as 17 David's Way:

  • The Notice of Violation dated August 25, 1992 is not a responsive record pertaining to the property known as 17 David's Way, inasmuch as that Notice relates to an alleged violation at "West Beach", no street address, described as "the beach owned by the Village of Port Jefferson".
  • The undated Notification of Availability for Review, the Notification of Availability for Review dated May 20, 2002, and the Notification of Availability for Review dated July 1, 2002, alike, are intra-agency records which are neither statistical or factual tabulations or data, nor instructions to staff that affect the public, nor final agency policy or determinations, nor external audits; and in this matter the withholding of such records was proper because the same are within the exemption at Public Officers Law § 87(2)(g).
  • The letter dated June 30, 2002 is not an inter/intra-agency record: it is a communication to the agency from a private person in connection with that person's pending application, and in this matter the withholding of that record was erroneous.
  • The Tidal Wetlands Administrative Review Sheet dated June 19, 2002 and the Tidal Wetlands Administrative Review Sheet dated August 5, 2002, alike, are intra-agency records, which, however, are final agency determinations; and in this matter the withholding of such records was erroneous.

Determination

With respect to the portion of this appeal as relates to the properties known as 15 Stephen's Path, 7 David's Way, 8 David's Way, 10 David's Way and 11 David's Way: This appeal does not lie, and such portion is therefore dismissed.

With respect to the portion of this appeal as relates to the property known as 17 David's Way:

  • Because the denial of access to the Notice of Violation dated August 25, 1992 from which this appeal was made was a denial of access to a nonresponsive record, this appeal is moot, and it is therefore dismissed.
  • The denial from which this appeal was made is reversed, in part, and access to certain withheld records, namely, the letter dated June 30, 2002, the Tidal Wetlands Administrative Review Sheet dated June 19, 2002 and the Tidal Wetlands Administrative Review Sheet dated August 5, 2002, is granted; and copies of those three records are enclosed.
  • The denial from which this appeal was made is affirmed, in part, and access to certain withheld records, namely, the undated Notification of Availability for Review, the Notification of Availability for Review dated May 20, 2002, and the Notification of Availability for Review dated July 1, 2002, is denied.

This determination is a final agency action.

Please take notice that, pursuant to Public Officers Law § 89(4)(b), you may obtain review of this determination by bringing a proceeding in court pursuant to Civil Practice Law and Rules Article 78.

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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