Wednesday, May 27, 2015

John J. Tormey III, Esq. SLAMS New York State Department Of Environmental Conservation (NYSDEC) With Article 78 Anellotech Litigation.











SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
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In the Matter of the Application of
JOHN J. TORMEY III, ESQ.,                                                    Index No. _________________

                                                Petitioner,

For a Judgment Pursuant to Article 78 of the
New York Civil Practice Law and Rules,                                    NOTICE OF PETITION

                        - against -

THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION (NYSDEC),
JOSEPH (JOE) MARTENS, RUTH L. EARL, and
DEBORAH WHIPPLE (DEB) CHRISTIAN, ESQ.,

                                                Respondents.
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            PLEASE TAKE NOTICE that, upon the annexed VERIFIED PETITION of John J. Tormey III, Esq., duly verified on Wednesday the 27th day of May, 2015 pursuant to CPLR §7804(d), the exhibits attached thereto, and upon all of the proceedings heretofore had herein, an application will be made to a term of this Court, to be held and heard at the courthouse thereof, at the New York State Supreme Court, Ulster County Courthouse, located at 285 Wall Street, Kingston, NY 12401 USA, in the __________ Part, Room ______, on Tuesday the 16th day of June, 2015, at 9:30 A.M. in the forenoon of that day, or as soon thereafter as counsel can be heard in this Special Proceeding pursuant to New York Civil Practice Law and Rules (CPLR) §§7803 and 7806, for:
(i) a judgment pursuant to Article 78 of the CPLR (CPLR §§7801 et seq.; titled "Proceeding Against Body Or Officer"), for an order pursuant to CPLR §§7803 and 7806 compelling and directing Respondents to fully produce, disclose, furnish, release, and reveal records previously requested by Petitioner pursuant to and as required by the New York State Freedom of Information Law ("FOIL"), Public Officers Law §§84 et seq., and specifically, to fully produce, disclose, furnish, release, and reveal to Petitioner an unredacted and otherwise unexpurgated copy of that certain e-mail dated December 3, 2015 from Mr. Charles Sorensen of Anellotech, Inc. to NYSDEC's George Sweikert and Daniel J. Valleau, a redacted copy of which Petitioner previously obtained from Respondents under FOIL and which Petitioner previously obtained as a result of the final agency determination by Respondents of Petitioner's FOIL appeal therefrom made to NYSDEC; and

(ii) this Court's review pursuant to CPLR §§7803 and 7806 of the Wednesday, May 6, 2015 FOIL appeal final agency determination by Respondents; this Court's overruling of that NYSDEC determination; this Court's modification of that NYSDEC determination; this Court's annulment of redactions made by Respondents to the records produced in connection with that NYSDEC determination; and this Court's prohibition of any further redactions made by Respondents to the records produced in connection with that NYSDEC determination as such actions by Respondents would be beyond the authority of Respondents and otherwise violative of the law; and

(iii) for such other and further relief as this Court may deem just and proper.

            PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR §7804(c), a verified answer and opposing affidavits, if any, must be served and received by Petitioner at least five (5) days prior to the aforesaid date of hearing and the return date of this application.
            PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR §7804(e), you, Respondents, are directed to file with the Clerk of the Court a certified transcript of the record of the proceedings under consideration, together with your answer and answering affidavits.
            Petitioner designates Ulster County, New York as place of trial (CPLR §7804[h]). The bases of venue are that, upon Petitioner's information and belief in each case:
(a) the Respondents made the complained-of determination within Ulster County, New York, in part or in whole; and

(b) Respondents refused to perform duties specifically enjoined upon Respondents in Ulster County, New York by law; and

(c) the proceedings were brought and taken, in the course of the matters sought to be restrained herein, originating in part or in whole in Ulster County, New York; and

(d) material events otherwise took place in Ulster County, New York; and


(e) One or more of the Respondents maintain an office in Ulster County, New York.

Dated:  Pearl River, New York
            May 27, 2015
                                                                                   
                                                                                    Yours, etc.

                                                                                    JOHN J. TORMEY III, ESQ.
                                                                                   
                                                                                    By: ________________________
                                                                                                John J. Tormey III, Esq.
                                                                                    Attorney at Law - Petitioner pro se
                                                                                    P.O. Box 918
                                                                                    Pearl River, New York 10965 USA
                                                                                    (845) 735-9691 (telephone)
                                                                                    (845) 735-0476 (facsimile)
                                                                                    jtormey@optonline.net







To:       The New York State Department Of Environmental Conservation (NYSDEC)
21 South Putt Corners Road
New Paltz, NY 12561 USA
           
Mr. Joseph (Joe) Martens, Commissioner
The New York State Department Of Environmental Conservation (NYSDEC)
Office of The Commissioner
625 Broadway, 4th and 14th Floors
Albany, NY 12233-1010 USA

Deborah Whipple (Deb) Christian, Esq.
Assistant Counsel and Acting FOIL Appeals Officer, Office of the General Counsel
The New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500 USA

Ms. Ruth L. Earl, Records Access Officer
The New York State Department Of Environmental Conservation (NYSDEC)
625 Broadway, 4th Floor
Albany, NY 12233-1500 USA

cc:        Robert J. Freeman, Executive Director
The New York State Committee on Open Government, Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231 USA

























SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
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In the Matter of the Application of
JOHN J. TORMEY III, ESQ.,                                                    Index No. _________________

                                                Petitioner,

For a Judgment Pursuant to Article 78 of the
New York Civil Practice Law and Rules,                                    VERIFIED PETITION

                        - against -

THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION (NYSDEC),
JOSEPH (JOE) MARTENS, RUTH L. EARL, and
DEBORAH WHIPPLE (DEB) CHRISTIAN, ESQ.,

                                                Respondents.
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            Petitioner, JOHN J. TORMEY III, ESQ., as and for his Verified Petition pursuant to
New York Civil Practice Law & Rules (CPLR) §7801, et seq., against Respondents THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (NYSDEC), JOSEPH (JOE) MARTENS, RUTH L. EARL, and DEBORAH WHIPPLE (DEB) CHRISTIAN, ESQ., alleges as follows:
NATURE OF THE PROCEEDING
            1.         The Petitioner in this proceeding, JOHN J. TORMEY III, ESQ., seeks an order of this Court pursuant to CPLR §§7803 and 7806 directing and compelling Respondents to fully produce, disclose, furnish, release, and reveal to Petitioner an unredacted and otherwise unexpurgated copy of that certain textual and numerical electronic-mail transmission ("e-mail") dated December 3, 2015 from Mr. Charles Sorensen of Anellotech, Inc. to NYSDEC's Mr. George Sweikert and Mr. Daniel J. Valleau (the "Anellotech December 3, 2015 E-Mail"; or, "Subject Document"):
(a) an initially-redacted copy (Exhibit "A") of which Petitioner previously obtained from Respondents pursuant to NYSDEC's Tuesday, February 24, 2015 initial Freedom Of Information Law (FOIL) determination (NYSDEC's transmittal memo for which is copied at Exhibit "B"); and

(b) a second version but still heavily-redacted copy (Exhibit "C") of which Petitioner previously obtained from Respondents, pursuant to NYSDEC's bi-partite: (i) interim Monday, March 23, 2015 response (Exhibit "D"); and then (ii) final Wednesday, May 6, 2015 FOIL appeal determination (Exhibit "E"). For ease of reference, the bi-partite and now-final NYSDEC FOIL Appeal determination (as per CPLR §7801) shall be referred to as the "NYSDEC Wednesday, May 6, 2015 FOIL Appeal Determination", the "Wednesday, May 6, 2015 FOIL Appeal Determination", the "NYSDEC FOIL Appeal Determination", the "FOIL Appeal Determination", or simply, the "Appeal Determination", as the context may suggest or require.

            2.         In summary, Petitioner's Thursday, February 26, 2015 Appeal ("FOIL Appeal" or, simply, "Appeal"; Exhibit "F") of NYSDEC's initial FOIL determination (please see Exhibit "B") thereupon caused NYSDEC to disclose some additional and further document content (Exhibit "C") previously redacted from the Subject Document by NYSDEC upon its initial FOIL production to Petitioner (Exhibit "A"). Yet NYSDEC's now-final May 6, 2015 FOIL Appeal Determination (as per CPLR §7801) still and to this day redacts, conceals, suppresses, and withholds four (4) key portions of the Subject Document to which Petitioner and all other members of the public are nevertheless fully entitled (please see the blacked-out redactions at Exhibit "C"). The Subject Document and therefore all of its content is owned by the public, and must be fully released and revealed to the public, for public view and use.
            3.         Upon information and belief, NYSDEC's Wednesday, May 6, 2015 now-final FOIL Appeal Determination (as per CPLR §§7801, 7803):
(a) was made in violation of one or more lawful procedures (meriting mandamus, prohibition, and certiorari review);
(b) was affected by one or more errors of law (meriting mandamus, prohibition, and certiorari review);
(c) is arbitrary (meriting mandamus, prohibition, and certiorari review);
(d) is capricious (meriting mandamus, prohibition, and certiorari review);
(e) is an abuse of discretion (meriting mandamus, prohibition, and certiorari review);
(f) was not supported by substantial evidence (meriting certiorari review); and
(g) was made by a body and by officers who each acted beyond their lawful authority to act, effecting redactions which they had no authority to make (meriting prohibition review).
(h) was made by a body and by officers who each failed to perform duties enjoined upon them, respectively, by law, and who each failed to do certain tasks that the law requires of them (meriting mandamus review).

The NYSDEC Wednesday, May 6, 2015 FOIL Appeal Determination should, therefore, be modified by this Court pursuant to CPLR §§7803 and 7806 so as to fully produce, disclose, furnish, release, and reveal, to Petitioner, the unredacted, unexpurgated entirety of the Anellotech December 3, 2015 E-Mail in its original, unredacted, and unexpurgated form.
THE PARTIES
            4.         Petitioner, JOHN J. TORMEY III, ESQ. ("Tormey", or "Petitioner"), is a private citizen and an entertainment and media attorney who lives in the State of New York, County of Rockland, Town of Orangetown, and Hamlet of Pearl River. Petitioner maintains an address at "P.O. Box 918, Pearl River, New York  10965  USA".
            5.         Upon information and belief, the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION ("NYSDEC"; "Respondent") is, according to the agency's own Internet website, New York State's "environmental protection and regulatory agency" (please see http://www.dec.ny.gov/). NYSDEC maintains an address at "21 South Putt Corners Road, New Paltz, New York 13561 USA".
            6.         Upon information and belief, JOSEPH (JOE) MARTENS ("Martens"; "Respondent") is the Commissioner of the NYSDEC. The NYSDEC Commissioner, also according to the agency's own Internet website, "leads the agency in implementing its core statutory mission to protect public health and the environment" (please see: http://www.dec.ny.gov/about/243.html). Commissioner Martens maintains an address at "The New York State Department Of Environmental Conservation (NYSDEC), Office of The Commissioner, 625 Broadway, 4th and 14th Floor, Albany, NY 12233-1010 USA".
            7.         Upon information and belief, RUTH L. EARL ("Earl"; "Respondent") is either the Records Access Officer, or else a Records Access Officer, of the NYSDEC. The (or a) NYSDEC Records Access Officer, also according to the agency's own Internet website, responds to FOIL requests (please see: http://www.dec.ny.gov/public/373.html). Ms. Earl maintains an address at "The New York State Department Of Environmental Conservation (NYSDEC), 625 Broadway, 4th Floor, Albany, NY 12233-1500 USA".
            8.         Upon information and belief, DEBORAH WHIPPLE (DEB) CHRISTIAN, ESQ. ("Christian"; "Respondent") is the Assistant Counsel and, apparently according to the record in this matter, Acting FOIL Appeal Officer of the NYSDEC. The NYSDEC FOIL Appeal Officer, also according to the agency's own Internet website, responds to FOIL appeals (please see: http://www.dec.ny.gov/public/373.html). Attorney Christian maintains an address at "Office of the General Counsel, The New York State Department of Environmental Conservation (NYSDEC), 625 Broadway, 14th Floor, Albany, NY 12233-1500 USA".
JURISDICTION AND VENUE
            9.         Jurisdiction in this Court is proper pursuant to CPLR §7804(b) and CPLR §506(b).
            10.       Venue is proper pursuant to CPLR §506(b) in that, upon information and belief in each case:

(a) the Respondents made the complained-of determination within Ulster County, New York, in part or in whole; and

(b) Respondents refused to perform duties specifically enjoined upon Respondents in Ulster County, New York by law; and

(c) the proceedings were brought and taken, in the course of the matters sought to be restrained herein, originating in part or in whole in Ulster County, New York; and

(d) material events otherwise took place in Ulster County, New York; and

(e) One or more of the Respondents maintain an office in Ulster County, New York.

FACTUAL BACKGROUND
            11.       On Tuesday, January 20, 2015, Petitioner served a request ("FOIL Request") upon NYSDEC pursuant to the New York State Public Officers Law ("POL") §84 et seq., otherwise known as the New York State Freedom Of Information Law (“FOIL”). The FOIL request sought records regarding a chemical company called "Anellotech, Inc.". Anellotech seeks to erect a smokestack as part of its building expansion in Pearl River, New York near Petitioner's
home. The FOIL Request was served upon the following NYSDEC employees in particular:
(a) Ms. Ruth L. Earl, Records Access Officer in NYSDEC's Office Of General Counsel; and

(b) Ms. Wendy Rosenbach, NYSDEC's Head Of Public Affairs.

A copy of that FOIL Request is annexed hereto as Exhibit "G" and incorporated herein by this reference.
            12.       Thereafter, also on Tuesday, January 20, 2015, later that same day, Petitioner served a supplementary FOIL request ("Supplementary FOIL Request"), to principally similar effect, regarding Anellotech, upon the following NYSDEC employees:
(a) Ms. Ruth L. Earl, Records Access Officer in NYSDEC's Office Of General Counsel; and

(b) Ms. Wendy Rosenbach, NYSDEC's Head Of Public Affairs; and, this time and additionally,

(c) Mr. George Sweikert, NYSDEC Regional Air Pollution Control Engineer (RAPCE).

A copy of that Supplementary FOIL Request is annexed herewith as Exhibit "H" and incorporated herein by this reference.
            13.       In response to an NYSDEC phone message and call indicating that records were ready, Petitioner traveled to New Paltz, New York on Monday, February 23, 2015. Petitioner picked-up approximately Three Hundred Seventy-Two (372) pages of NYSDEC-produced documents from NYSDEC's apparent outside copy-vendor known as the "PDQ" copy service. Petitioner then Bates-Stamped the Three Hundred Seventy-Two (372) pages of documents in numerical order, with sequential Bates-Stamp numbers #025001 through #025372.
            14.       An NYSDEC transmittal letter was not included in the approximate 372 pages of NYSDEC-produced documents which Petitioner physically picked-up in New Paltz on Monday, February 23, 2015. Petitioner therefore and to that effect prompted the voicemail of Respondent Ms. Ruth Earl, NYSDEC's Records Access Officer. Ms. Earl then forwarded Petitioner a transmittal letter by e-mail on Tuesday, February 24, 2015, notifying Petitioner, inter alia, of Petitioner's right to appeal the NYSDEC's FOIL determination. A copy of Respondent Ms. Earl's Tuesday, February 24, 2015 transmittal letter is annexed hereto as Exhibit "B" and incorporated herein by this reference.
            15.       Petitioner timely appealed the NYSDEC Tuesday, February 24, 2015 FOIL determination. A copy of Petitioner's Thursday, February 26, 2015 Appeal is annexed hereto as Exhibit "F" and incorporated herein by this reference.
            16.       In the Appeal, Petitioner inter alia sought complete reversal of the wrongful NYSDEC broad-brush wholesale redactions on the NYSDEC Documents Bates-Stamped as #025040 and #025041 (Exhibit "A"). In the Appeal, Petitioner emphasized that no NYSDEC redactions whatsoever should have been made from these documents, since the information contained in these documents is absolutely vital to the future public health (vel non) of the citizens of Rockland County, New York (please see Exhibit "E", Exhibit "F"). Incidentally, NYSDEC expressly acknowledged this public health concern of Petitioner's, without any denial, in NYSDEC's May 6, 2015 final Appeal determination letter (Exhibit "E").
            17.       Exhibit "A" clearly indicates that NYSDEC initially intentionally withheld from Petitioner certain text and/or other material contained within those two (2) pages of NYSDEC FOIL-produced e-mails. The handwritten inscriptions on both pages, presumably in Ms. Earl's handwriting, on the NYSDEC documents Bates-Stamped as #025040 and #025041, apparently sought to "explain", to someone, the two massive deletions made thereto, reading, simply and unbelievably, without further explanation:
"Information redacted per POL - See 87.2d."
NYSDEC apparently intended Petitioner to simply live with this simplistic bureaucratic lever-push of an agency "answer", on a life-and-death public health issue regarding the possible inhalation of toxic chemicals by thousands of people.
            18.       The gravity of the underlying matter itself, the massive scale of the initial NYSDEC redactions themselves, and the utter lack of satisfactory NYSDEC explanation for why NYSDEC made these initial redactions, is what triggered the FOIL Appeal. Petitioner then partially won his FOIL Appeal against NYSDEC. NYSDEC's Monday, March 23, 2015 interim determination letter on the FOIL Appeal is annexed hereto as Exhibit "D". NYSDEC's Wednesday, May 6, 2015 final determination letter on the FOIL Appeal is annexed hereto as Exhibit "E". Please see CPLR §7801. However, to this day, NYSDEC continues to maintain that the four (4) heavily blacked-out redactions of material ("Four Remaining NYSDEC Redactions") from the Anellotech December 3, 2014 E-Mail (Exhibit "C") are somehow appropriate. NYSDEC is wrong.
            19.       In her Wednesday, May 6, 2015 letter (Exhibit "E"), NYSDEC's Assistant Counsel and Respondent Deborah Christian, Esq. mischaracterizes the still-massive redactions of material as somehow constituting "only minimal redactions" (emphasis added). Yet a mere ocular review of Exhibits "C" and "E" will tell any reader - lay, legal, judicial, bureaucratic, media, or otherwise - that the extant NYSDEC redactions have in fact eviscerated the very heart of the Anellotech December 3, 2014 E-Mail (Exhibit "C"). Petitioner is filing this Article 78 Special Proceeding (CPLR §7804) against the New York State Department Of Environmental Conservation, because Petitioner will not stand for this wrongful and irresponsible suppression and concealment of the truth by his state government and the state agency charged with the responsibility of "protecting" his "environment" in New York State and that of his neighbors.
            20.       Petitioner seeks an order of this Court pursuant to CPLR §§7803 and 7806 determining that the Four Remaining NYSDEC Redactions are wrongful, inappropriate, and unlawful, and ordering that NYSDEC and all the Respondents furnish Petitioner with an unredacted, unexpurgated copy of the Anellotech December 3, 2014 E-Mail in its original, unredacted, and unexpurgated form.

ARGUMENT
            21.       As the Legislative declaration of the operative FOIL statute proclaims:
"The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality". New York State Freedom of Information Law, Public Officers Law §84.

            22.       The New York State Court Of Appeals observed that the FOIL statute "proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government". Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 393 N.E.2d 463, 1979 N.Y. LEXIS 2168, 419 N.Y.S.2d 467, 5 Media L. Rep. (BNA) 1581 (N.Y. 1979). Fink v. Lefkowitz is a Court of Appeals Article 78 FOIL case inter alia compelling production of certain routine prosecutorial techniques contained in a manual:
"[T]he agency does not have carte blanche to withhold any information it pleases. Rather it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure". Fink v. Lefkowitz, 47 N.Y.2d 567, 571.

            23.       Here in the instant case, the "agency" is NYSDEC. Fink v. Lefkowitz compels the realization that DEC does not have carte blanche to withhold any information NYSDEC pleases.
            24.       Additionally, even in Attorney Christian's Wednesday, May 6, 2015 letter (Exhibit "E") - which, as Petitioner reads it, itself expressly invites judicial review of the agency final determination at both its Page 2 and its Page 3 - NYSDEC has failed to articulate a sufficiently "particularized and specific justification" for any deletion or redaction to #025040 and #025041 (Exhibit "C"). The first paragraph of Page 2 of Attorney Christian's Wednesday, May 6, 2015 letter simply iterates hornbook conclusions:
"...that the redacted material is treated as confidential business information, that it has commercial value to [Anellotech's] competitors, and that disclosure would be likely to cause 'substantial competitive harm' to a privately owned entity in a competitive industry".

These are conclusions. They are not particularized and specific justifications. Please see also Ragusa v. New York State Dept. of Law, 52 Misc. 2d 602, 578 N.Y.S.2d 959, 1991 N.Y. Misc. LEXIS 698, 1992-2 Trade Cas. (CCH) P69997 (N.Y. Sup. Ct. 1991) (New York State Supreme Court Article 78 proceeding holding that certain records from an Attorney General's investigation of a company's pricing policy were not "trade secrets").
            25.       Furthermore, in the Third Department, any claimed exemption to disclosure under New York's FOIL law is "to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption". Matter of Hanig v. State of N.Y. Dept. of Motor Vehicles, 168 A.D.2d 884, 564 N.Y.S.2d 805, 1990 N.Y. App. Div. LEXIS 15767 (N.Y. App. Div. 3d Dep't 1990); see also Matter of Fink v. Lefkowitz, 47 N.Y.2d. 567, 571; Matter of Washington Post v. New York State Ins. Dept., 61 N.Y.2d, 557, 566.
            26.       As persuasively expressed in the Second Department appellate case of Verizon v. Bradbury:
"The disclosure provisions of FOIL are required to be given an expansive interpretation and the statutory exemptions to disclosure are to be viewed narrowly (see Matter of Newsday, Inc. v Empire State Dev. Corp., 98 N.Y.2d 359 [2002]). The entity claiming an exemption has the burden of showing that the requested material falls squarely within the ambit of one of the statutory exemptions (id.; see also Public Officers Law §89[5][e]). The entity resisting disclosure, whether an agency of government or the provider of the information, must articulate a particularized and specific justification for denying access (Emphasis added) (see Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562 [1986])".

Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 1114, 837 N.Y.S.2d 291, 2007 N.Y. App. Div. LEXIS 6637, 2007 NY Slip Op 4654 (N.Y. App. Div. 2d Dep't 2007) (Article 78 FOIL litigation holding that a draft of a cable franchise agreement with a municipality was not exempt from disclosure as a "trade secret", because the company failed to establish a specific harm that disclosure would cause).
            27.       Neither in Attorney Christian's Wednesday, May 6, 2015 letter, nor elsewhere, has NYSDEC at all carried any such "burden" that any of the Four Remaining NYSDEC Redactions qualify for exemption from FOIL disclosure (Exhibit "C"). In fact, the record in this matter reads otherwise. Notwithstanding Attorney Christian's apparent protestations to the contrary that NYSDEC has done what is required of the "administrative level" (Exhibit "E", page 2), in Petitioner's view NYSDEC has failed Petitioner, and has failed all other citizens of Pearl River, Nanuet, Rockland County, and New York State, by shirking the burden incumbent upon an agency as discussed in Bradbury.
            28.       As for the Four Remaining NYSDEC Redactions, New York State Public Officers Law §87.2(d) reads, in relevant part:
"2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
. . .

(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise..." [Emphasis added].

            29.       The POL §87.2(d) exemption is unavailing to NYSDEC here. NYSDEC has made no showing anywhere in Exhibits "D" or "E", and NYSDEC has made no showing otherwise, that the Four Remaining NYSDEC Redactions somehow constitute "trade secrets" or "would cause substantial injury to the competitive position of the subject enterprise". For one thing, if and as Anellotech appears to claim patent protection for its process known as "pyrolysis", and given that patent is in fact a lawful monopoly afforded by federal law (please see https://www.law.cornell.edu/wex/patent) then therefore, for the term of any patent, Anellotech would have no competition with respect to its pyrolysis process (please see Paragraph 36 hereinbelow).   
            30.       From the context of NYSDEC Document #025040 (Exhibit "C"), and specifically the text apparently written by Anellotech's Mr. Charles (Chuck) Sorensen which immediately precedes the NYSDEC's initially-made redaction (Exhibit "A"), we can glean that the thereafter-redacted material reflects "emissions quantities". Mr. Sorensen's text reads:
"The emissions quantities were estimates as follows, and this information is Anellotech Confidential".

Attorney Christian and NYSDEC claim that the Four Remaining NYSDEC Redactions are not "levels of emissions" (Exhibit "E"). Yet Attorney Christian and NYSDEC would have Petitioner believe that agency statement sight unseen, unverified, and on faith alone.
            31.       Additionally, the mere ipse dixit recitation of "(it')s Anellotech Confidential" is insufficient to qualify the thereafter-redacted material as a "trade secret" under the Public Officers Law. After all, not all "confidential" material constitutes a "trade secret". "Trade secret" has a more narrow definition than "confidential". A penitent's confession to a priest is confidential, for example, but under most circumstances it is not a "trade secret". Please see, generally:

            32.       NYSDEC's Attorney Christian in her Wednesday, May 6, 2015 letter (Exhibit "E") essentially asks Petitioner to take her and NYSDEC's "word for it" that the Four Remaining NYSDEC Redactions are "not data and do[] not pertain to the types or levels of emissions at the Rockland County facility". The fact of the matter is, the case law decided in New York State does not require Petitioner to take Attorney Christian's and the NYSDEC's "word for it". The law in the Third Department, and in New York State generally, in fact and instead requires a review by the Court of the Four Remaining NYSDEC Redactions - at minimum, subject to the analysis of the Ragusa case at Paragraphs 43 and 44 hereinbelow indicating a more summary approach.
            33.       As expressed in Exhibit "F", while Petitioner's primary concern is any emissions information therein, Petitioner's concerns about the Subject Document, Anellotech, and the NYSDEC are not limited to emissions information alone. Any emissions information and other content still concealed from view by the Four Remaining NYSDEC Redactions, is, or could be, vitally important life-and-death information for Petitioner and the rest of the Rockland County public. It is information that Petitioner and his neighbors must have.    
            34.       Petitioner lives in Rockland County, and Petitioner breathes the air in Rockland County - at least for now. If Anellotech gets its Pearl River smokestack, its building expansion, and its malevolent way otherwise, Petitioner may be breathing Anellotech's emissions every day and night, possibly for the rest of Petitioner's life. Petitioner lives directly downwind of Anellotech's Pearl River location. So too, could many thousands of others end up breathing Anellotech's toxic emissions every day and night for the rest of their lives. Anellotech's process, as well as Anellotech's emissions, are of grave concern to Petitioner and his neighbors.
            35.       Anellotech has already admitted that carcinogenic benzene, toluene, xylenes, carbon monoxide, carbon dioxide, methane, C5+ hydrocarbons (typically found in gasoline), ethylene, propylene, and butylenes will be emitted from Anellotech's 99-foot-high planned smokestack (please see Exhibit "C"). Benzene, for example, causes leukemia. Upon information and belief, one drop of benzene in a pool is sufficiently toxic to contaminate the entire pool. The Four Remaining NYSDEC Redactions do not constitute information that can rightfully or justifiably be concealed from Petitioner or from any other member of the Rockland County public. Petitioner is prepared to take this matter to the highest possible court if needed to establish that principle and thereby force the truth out of NYSDEC.
            36.       Additionally, Anellotech has indicated to local Rockland County media and in public meetings before the Town of Orangetown, New York, that Anellotech is concealing information regarding its operations and planned smokestack emissions on some sort of "trade secret" or "patent pending" basis. But these claimed bases are merely pretextual and of whole cloth. Anellotech's claims of secrecy have no rational basis much less any foundation in contract law or in patent law. Anellotech has already disclosed to the public virtually all, if not entirely all, of the details of its intended and actual pyrolysis process in publicly-posted patent documents filed with the U.S. Patent & Trademark Office (USPTO), such as those documents linked to and found at these URL's, for example:

As a point of procedure, Petitioner respectfully requests that the Court take judicial notice of the Anellotech material posted to the above-listed Internet websites. If requested by the Court, Petitioner can and will provide the Court the same archived hard-copies of the above-cited web-posted material relating to Anellotech's patent activities, which Petitioner already furnished to NYSDEC as a collective Exhibit in the FOIL Appeal.
            37.       By definition, there could be nothing "trade secret" about the information already publicly-posted to the above patent-related URLs, under POL §87.2(d) or otherwise. This same patent-filing disclosure-and-waiver argument was raised by Petitioner to NYSDEC in the Appeal, but received no response whatsoever from Attorney Christian, which itself reflects the arbitrary and capricious nature of the subject NYSDEC agency action now scrutinized by the Court in this Article 78 Special Proceeding (CPLR §7804).
            38.       NYSDEC has no valid reason for claiming "trade secret" protection concealing the Anellotech operations or processes. The NYSDEC cannot participate in the concealment of toxic carcinogenic emissions known to cause leukemia and other cancers in the members of the public whom NYSDEC apparently sporadically forgets it is sworn as a government environmental agency to protect - nor can NYSDEC rightfully participate in the concealment of Anellotech's operations otherwise. Anellotech's Pearl River neighbors are entitled to know the totality of the processes and methods Anellotech intends to use to spew benzene, toluene, xylenes, carbon monoxide, carbon dioxide, methane, C5+ hydrocarbons, ethylene, propylene, and butylenes into the residential breathing-air.
            39.       In addition to the Fink v. Lefkowitz discussion hereinabove, the New York State Court of Appeals in 1995 further considered and determined what constitutes "trade secret" material in the context of another Article 78 FOIL litigation. In a case distinguishable in its procedural posture and on its facts from the instant case, in which a book company was able to prove an actual likelihood of economic harm with evidence submitted to the court below, the Court of Appeals held that the "trade secret" exemption in the Public Officers Law §87.2(d) is triggered when public disclosure of the trade material would “cause substantial injury to the competitive position" of the entity from which the information would be obtained. Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 N.Y.2d 410, 419, 663 N.E.2d 302, 639 N.Y.S.2d 990, 1995 N.Y. LEXIS 4751 (N.Y. 1995). In the instant case, however, NYSDEC has failed to make any showing of Anellotech's "competitive position" here. After all, NYSDEC's first FOIL response was a simple hand-write of the following characters at Exhibit "A":
"Information redacted per POL - See 87.2d."
That wasn't a showing. That was simply "Go away, Kid, you bother me". Attorney Christian's Wednesday, May 6, 2015 NYSDEC letter was not much more particularized and specific than that.
            40.       The Court of Appeals in Encore College further observed that the party seeking "trade secret" protection need show actual competition and the likelihood of substantial competitive injury. Encore College v. Auxiliary Services, 87 N.Y.2d 410, 419 (N.Y. 1995). Again, NYSDEC has made no such showing of "actual competition" for Anellotech, a "likelihood" of substantial competitive injury to Anellotech, or even a possibility of any specific form of injury to Anellotech here. Attorney Christian has only offered her ipse dixit recitation of a portion of Encore College, a case which Petitioner first cited to her in the Thursday, February 26, 2015 FOIL Appeal (Exhibit "F"). That's an insufficient NYSDEC showing for Article 78 and FOIL purposes under the case law.
            41.       The Court of Appeals in Encore College further discussed an examination of the “commercial value of the requested information to competitors and the cost of acquiring it through other means”. Encore College v. Auxiliary Services, 87 N.Y.2d 410, 420 (1995). NYSDEC has failed to make any showing of "commercial value", or "cost", here.
            42.       Verizon New York, Inc. v. Bradbury was an Article 78 appellate case out of the Second Department, holding that a draft of cable franchise agreement with a municipality was not exempt from disclosure as collective bargaining or contract award material, or as a "trade secret" - because Verizon, the company seeking to prevent FOIL disclosure, failed to establish a specific harm that disclosure would cause. Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291, 2007 N.Y. App. Div. LEXIS 6637, 2007 NY Slip Op 4654 (N.Y. App. Div. 2d Dep't 2007). In Verizon v. Bradbury, Verizon failed to make a showing of harm, and thereupon lost its FOIL appeal:
"Moreover, Verizon failed to establish the specific harm it would suffer if the documents were disclosed. Thus, the Supreme Court correctly determined that the documents were not exempt from disclosure pursuant to Public Officers Law §87(2)(d) (citation omitted)... Accordingly, we reverse the judgment insofar as appealed from, and deny Verizon's petition in its entirety".

Verizon New York, Inc. v. Bradbury, 40 A.D.3d 1113, 1115. In the instant case, again, NYSDEC has failed to identify, establish, or even suggest any specific harm that Anellotech might suffer as a result of disclosure of the Four Remaining NYSDEC Redactions.
            43.       Ragusa v. New York State Dept. of Law, 52 Misc. 2d 602, 578 N.Y.S.2d 959, 1991 N.Y. Misc. LEXIS 698, 1992-2 Trade Cas. (CCH) P69997 (N.Y. Sup. Ct. 1991) was another Article 78 proceeding holding that certain records from an Attorney General's investigation of a company's pricing policy were not "trade secrets". The court in Ragusa observed:
"The Attorney General resists disclosure on the ground that the documents sought are "trade secrets or other economically sensitive information". Presumably, he has reference to P.O.L. 87 sub 2(d). The Assistant Attorney General's opposing affidavit has a single relevant sentence: "The Bureau's records in Matsushita contain economically sensitive information pertaining to Matsushita's pricing policies and its distributors." Who Matsushita's distributors are in this state, at least its retail distributors, is information readily available. A visit to any electronics dealer will promptly reveal whether Panasonic or Technics products are sold. As to its "pricing policies", the petitioner is not seeking to determine Matsushita's costs [cf. Matter of Belth v Insurance Department, 95 Misc. 2d, 18,20] or even how it arrives at the prices it charges. What petitioner seeks is evidence of the "Go" pricing policy, that is, the uniformity of retail sales prices it allegedly sought to impose on its distributors; what it seeks are documents relating to compliance or non-compliance with this "Go" policy, complaints from other dealers about it and the like. Most significantly, the Attorney General does not allege that cost-to-produce figures are even in his possession.

Like much of the remainder of the defense, all we have is a general statement about "economically sensitive information". We are provided with no information by the Attorney General which even hints at the nature of this information... [Emphasis added].

Akin to Ragusa, the instant case also finds us with what is essentially a naked NYSDEC statement claiming Anellotech "trade secrets" "and/or" "confidential business information" (Exhibit "E") - in a confidentiality dialogue originally instigated and invited by NYSDEC employees themselves, as a purported basis for NYSDEC continued concealment of vitally-important information relating to a public health life-and-death matter. NYSDEC's position here in the instant case is as untenable as the (former) Attorney General's was in Ragusa. The Four Remaining NYSDEC Redactions must be undone. The material currently redacted from Exhibit "C" must be revealed to Petitioner and to the public.
            44.       The Ragusa court continued by assessing the appropriate method for a court's handling of true confidential information, in the context of an Article 78 proceeding:
"Finally, we come to the question of procedure. The preferred method is for the Court 'to conduct an in camera inspection of documents requested under FOIL and to redact confidential information' [Cornell University v. City of New York Police Department, supra, at p.516]; but where, as here, there are no 'specifics presented either in the moving papers or on oral argument that support the conclusion that an in camera inspection of the individual papers would be helpful on this issue' [Church of Scientology v State, 61 A.D.2d, 942, 943], such inspection is unnecessary and may be dispensed with".

As was true in Ragusa, NYSDEC has offered no specifics here in the instant case (Exhibit "E") as to why claimed confidential information, in the apparent form of "trade secrets", would even warrant further inspection. Accordingly, under the Ragusa rationale, persuasive if not binding as it is here, any such inspection procedure should simply be dispensed with. The DEC-redacted information in Four Remaining NYSDEC Redactions at Exhibit "C" should be disclosed to Petitioner and made public.
            45.       Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937, 597 N.Y.S.2d 829, 1993 N.Y. App. Div. LEXIS 4836 (N.Y. App. Div. 3d Dep't 1993) was a Third Department Article 78 case wherein the appellate court granted access to a contract bid submitted by a private organization, and access to factual and statistical data used by an agency in making its final determination to award the contract:
"Mere conclusory allegations, without factual support, that the requested materials fall within an exemption are insufficient to sustain an agency's burden of proof" (Matter of Polansky v. Regan, 81 AD2d 102, 103 [citations omitted][in original])". Professional Standards Review of America v. New York State Department of Health, 193 A.D.2d 937, 939.

Similarly here, NYSDEC has only made conclusory statements (Exhibit "E"). NYSDEC has not provided reasons, much less particularized or specific reasons, for exemption from disclosure. NYSDEC must grant access to the unredacted totality of content in Exhibit "C".
            46.       P.J. Garvey Carting and Storage Inc. v. County of Erie, 510 N.Y.S.2d 365, 1986 N.Y. App. Div. LEXIS 63159, 125 A.D.2d 972 (N.Y. App. Div. 4th Dep't 1986) is a CPLR 3211 case in which the appellate court denied an unsuccessful bidder any damages for the release of its voting machine "route list" by county. The route list was held to be neither a "trade secret" nor "record" under FOIL, "as it can be created by any knowledgeable person in the moving business". 510 N.Y.S.2d 365, 366. Similarly here, NYSDEC has failed to specifically identify anything that would constitute a "trade secret" exempt from disclosure under FOIL. Any knowledgeable person in the chemical business should, or can, already know the details of Anellotech's pyrolysis process, at minimum because any knowledgeable person in the chemical business can simply look it up, even on the Internet. Additionally, anyone can look up Anellotech's patent applications on the Internet, which appear to disclose almost the totality, if not the entirety itself, of Anellotech's pyrolysis process (please see Paragraph 36 hereinabove).
            47.       N.Y. PIRG Inc. v. City of New York, N.Y.L.J., Sept. 27, 1982 (Sup. Ct., New York County, 1982) is a trial court decision rejecting an agency's assertion that disclosure of real property gains tax returns would reveal "trade secrets". Similarly here, and again, NYSDEC has failed to identify anything that would constitute a "trade secret" exempt from disclosure under FOIL.
            48.       Hearst Corp. v. State, Office of State Comptroller, 24 Misc. 3d 611, 882 N.Y.S.2d 862, 2009 N.Y. Misc. LEXIS 868, 2009 NY Slip Op 29157, 37 Media L. Rep. 1713 (N.Y. Sup. Ct. 2009) is a trial court Article 78 decision addressing the technical methodology of electronic FOIL production, and holding that the "trade secret" exception to disclosure does not apply to state payroll tables omitting Social Security Numbers of state employees:
"[T]he court concludes that [r]espondents have failed to demonstrate that merely providing petitioner with the requested data from specified payroll tables in electronic form would constitute a breach of Oracle's proprietary rights or cause it to suffer a substantial competitive injury. Indeed, [r]espondents have already provided petitioners with the data dictionary: a listing of the data elements comprising the 14 tables they seek. There is nothing in the affidavit [...] that provides a basis for concluding that Oracle would suffer competitive harm as a result of the agency exporting specified data elements from the various database tables and providing it to petitioners in an electronic spreadsheet format". Hearst Corp. v. State, Office of State Comptroller, 882 N.Y.S.2d 862, 878.

Here in the instant case, again, NYSDEC has failed to identify anything that would constitute "competitive harm", "injury", or a "trade secret" exempt from disclosure under FOIL. The Four Remaining NYSDEC Redactions must be undone.
            49.       In Markowitz v. Serio, 2008 NY Slip Op 5775, 11 N.Y.3d 43, 893 N.E.2d 110, 862 N.Y.S.2d 833, 2008 N.Y. LEXIS 1827 (N.Y. 2008), a request for records revealing “the number of voluntary [automobile] policies issued, renewed, cancelled… or nonrenewed” for “each Kings County zip code, including, by carrier,”, was held by the Court of Appeals to be not exempt from disclosure as a "trade secret". The Court found that the interested insurance companies were not able to provide specific, persuasive evidence, or demonstrate that the disclosure of the records would put them at a competitive disadvantage:
"The Department and insurers argue that the applicable FOIL exemption here is Public Officers Law § 87(2)(d), which states that the Department "may deny access to records or portions thereof that . . . are trade secrets or are submitted . . . by a commercial enterprise . . . and which if disclosed would cause substantial injury to the competitive position of the subject enterprise". As the parties seeking the exemption, the Department and insurers are charged with the burden of proving their entitlement to it (see Public Officers Law §89[4][b]; [5][e]), meaning that they must demonstrate that the reports " 'fall[] squarely within a FOIL exemption by articulating a particularized and specific justification for denying access' " (Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 463, 880 NE2d 10, 849 NYS2d 489 [2007] quoting Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566, 496 NE2d 665, 505 NYS2d 576 [1986]). Because the overall purpose of FOIL is to ensure that the public is afforded greater access to governmental records, FOIL exemptions are interpreted narrowly (see Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557, 564, 463 NE2d 604, 475 NYS2d 263 [1984]). To meet its burden, the party seeking exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure might potentially cause harm.

Here, the Department and insurers have failed to meet this burden. The evidence suggesting they will suffer a competitive disadvantage is theoretical at best. The insurers' key argument is that if they are forced to reveal zip codes of areas where relatively few policies are issued, competitors could use this information to exploit an insurer's geographic weak spot. It has not been shown that zip code data, without more, would necessarily put the insurer at a competitive disadvantage. Because neither the Department nor insurers have met their burden of justifying the exemption of the reports under Public Officers Law §87(2)(d) (see Matter of Washington Post Co., 61 NY2d at 567), the order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court reinstated" (emphasis added). Markowitz v. Serio, 11 N.Y.3d 43, 50-51.

Similarly here, NYSDEC has failed to identify anything that would constitute a "trade secret" exempt from disclosure under FOIL. NYSDEC has failed to offer up anything resembling a "particularized and specific justification" for redaction. NYSDEC has only offered, theoretical and at best, speculative conclusions, but has offered no specific, persuasive evidence that disclosure will cause competitive injury. Yes, NYSDEC offered some ipse dixit. NYSDEC offered some "take my word for it". However, NYSDEC has failed to cite, much less demonstrate, any possibility of any "competitive disadvantage" caused by disclosure.
            50.       Based upon the circumstances set forth herein, the NYSDEC's FOIL Appeal Determination must be modified by this Court pursuant to CPLR §7806 so as to fully produce, disclose, furnish, and reveal the unredacted, unexpurgated entirety of the Anellotech December 3, 2015 E-Mail to Petitioner; and specifically, produce, disclose, furnish, and reveal the Four Remaining NYSDEC Redactions.
            51.       New York State Freedom of Information Law, Public Officers Law §89.(4).(c) provides that this Court, in this proceeding:
"may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when:
i. the agency had no reasonable basis for denying access; or
ii. the agency failed to respond to a request or appeal within the statutory time".

Petitioner respectfully requests that this Court recognize Petitioner has already "substantially" (but not wholly) "prevailed" pursuant to the NYSDEC Appeal determination set forth in Exhibit "E" by dint of NYSDEC's release of an Anellotech emissions list therein to Petitioner; that Petitioner has already incurred substantial costs and time-expenditures in this matter; that NYSDEC had, and has, no reasonable basis for denying Petitioner access to records by redactions or otherwise; and that NYSDEC failed to properly respond to both Petitioner's FOIL requests and Petitioner's FOIL Appeal within the statutory time. While Petitioner has not invoked the assistance of outside counsel in this matter, Petitioner, as an attorney and pro se litigant herein, requests an award of attorney's fees and other litigation costs assessed against NYSDEC to the full extent that the law will allow.
            52.       No previous application for the same or similar relief has been made to any Court.
            WHEREFORE Petitioner respectfully requests that a judgment of this Court pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR") and specifically pursuant to CPLR §§7803 and 7806, be made and entered herein:
(i) compelling and directing Respondents to fully produce, disclose, furnish, release, and reveal records previously requested by Petitioner pursuant to and as required by the New York State Freedom of Information Law ("FOIL"), Public Officers Law §§84 et seq., and specifically, to fully produce, disclose, furnish, release, and reveal to Petitioner an unredacted and otherwise unexpurgated copy of that certain e-mail dated December 3, 2015 from Mr. Charles Sorensen of Anellotech, Inc. to NYSDEC's George Sweikert and Daniel J. Valleau; and

(ii) overruling that Wednesday, May 6, 2015 FOIL Appeal final NYSDEC agency determination by Respondents; modifying that NYSDEC determination; annulling the redactions made by Respondents to the records produced in connection with that NYSDEC determination; and prohibiting any further redactions made by Respondents or any of them to the records produced in connection with that NYSDEC determination as

same would be beyond the authority of Respondents and otherwise violative of the law; and for such other and further relief as this Court may deem just and proper.
Dated:  Pearl River, New York
            May 27, 2015

                                                                                    Yours, etc.
                                                                                    JOHN J. TORMEY III, ESQ.

                                                                                    By: ________________________
                                                                                                John J. Tormey III, Esq.
                                                                                    Attorney at Law
                                                                                    Petitioner pro se
                                                                                    P.O. Box 918
                                                                                    Pearl River, New York  10965  USA
                                                                                    (845) 735-9691 (telephone)
                                                                                    (845) 735-0476 (facsimile)
                                                                                    jtormey@optonline.net




VERIFICATION

STATE OF NEW YORK           )
                                                    )ss.:
COUNTY OF ROCKLAND      )

            JOHN J. TORMEY III, ESQ., being duly sworn, deposes and says:
            I am the Petitioner in the action herein; I have read the annexed Notice Of Petition and Verified Petition and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters, I believe them to be true.

                                                                        ___________________________________
                                                                                    JOHN J. TORMEY III, ESQ.

Sworn to before me this
27th day of May, 2015

___________________
Notary Public

























































































SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
--------------------------------------------------------------------X
In the Matter of the Application of
JOHN J. TORMEY III, ESQ.,                                                    Index No. 15-1686
                                                                                                    [Filed: 05-27-2015]
                                                Petitioner,

For a Judgment Pursuant to Article 78 of the
New York Civil Practice Law and Rules,                                    AFFIDAVIT OF SERVICE
                                                                                                      UPON ALL RESPONDENTS

                        - against -

THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION (NYSDEC),
JOSEPH (JOE) MARTENS, RUTH L. EARL, and
DEBORAH WHIPPLE (DEB) CHRISTIAN, ESQ.,

                                                Respondents.
--------------------------------------------------------------------X

STATE OF NEW YORK           )
                                                    )ss.:
COUNTY OF ROCKLAND      )

            JOHN J. TORMEY III, ESQ., being duly sworn, deposes and says:
            I am the Petitioner in the action herein. I am over eighteen (18) years of age. I maintain an address at P.O. Box 918, Pearl River, New York 10965 USA.
            On Wednesday, May 27, 2015, I served the within:
1. NOTICE OF PETITION, stamped "as-filed" by the County Clerk's Office;
2. VERIFIED PETITION (with its Exhibits "A" through "H"), stamped "as-filed" by the County Clerk's Office;
3. VERIFICATION (corresponding to said VERIFIED PETITION);
4. REQUEST FOR JUDICIAL INTERVENTION (RJI), stamped "as-filed" by the County Clerk's Office;
5. APPLICATION FOR INDEX NUMBER, stamped "as-filed" by the County Clerk's Office; and
6. OFFICIAL RECEIPT FOR RECORDING, as issued by the County Clerk's Office;

upon the following entity and persons, each Respondents in this Special Proceeding:
                        A.
The New York State Department Of Environmental Conservation (NYSDEC)
21 South Putt Corners Road
New Paltz, NY 12561 USA
Fax: 1-845-255-3042
           
B.
Mr. Joseph (Joe) Martens, Commissioner
The New York State Department Of Environmental Conservation (NYSDEC)
Office of The Commissioner
625 Broadway, 4th and 14th Floors
Albany, NY 12233-1010 USA
Fax: 1-518-402-8541

C.
Deborah Whipple (Deb) Christian, Esq.
Assistant Counsel and Acting FOIL Appeals Officer, Office of the General Counsel
The New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500 USA
Fax: 1-518-402-9018

D.
Ms. Ruth L. Earl, Records Access Officer
The New York State Department Of Environmental Conservation (NYSDEC)
625 Broadway, 4th Floor
Albany, NY 12233-1500 USA
Fax: 1-518-402-9018

at and to their above-indicated respective mailing addresses, fax numbers, and e-mail addresses as designated by these parties for this purpose:
(i) by depositing a true copy of each and same in post-paid properly addressed wrappers, each in an official depository under the exclusive care and custody of the United States Postal Service (USPS) within the State of New York;

(ii) by faxing a true copy of each and same to each of these parties, at their respective fax numbers indicated hereinabove (it being understood that Respondent Earl and Respondent Christian share the same fax number as indicated hereinabove); and

(iii) by e-mailing a true copy of each and same to each of these parties, at their respective e-mail addresses indicated hereinabove (it being understood that the materials were e-mailed to the Respondents as twelve (12) different, sequentially-numbered ".pdf" attachments given the apparent size-limitations of one of the e-mail servers used therefor; and it being further understood that NYSDEC Region 3 Director Martin Brand's e-mail account replied with a "bounce-back" e-mail message ["Brand Bounce-Back"] indicating Mr. Rudolph and Ms. Kruger's e-mail addresses also set forth hereinabove, to which  the twelve (12) different, sequentially-numbered ".pdf" attachments were promptly today re-transmitted and re-directed).

Attached hereto as Exhibit "A" and incorporated herein by this reference are:

(a) pictorial copies of the envelopes and mailing-labels used for the four (4) outgoing mailings;

(b) a copy of the United States Postal Service (USPS) receipt indicating tracking numbers for delivery-confirmation for the four (4) outgoing mailings;

(c) fax-receipts for the faxes issued to the four (4) respondents (it being understood that Respondent Earl and Respondent Christian share the same fax number and therefore received a single 74-page fax); and

(d) hard-copies of the e-mail transmittals (along with the Brand Bounce-Back and its sequelae) for all e-mails transmitted.

                                                                        ___________________________________
                                                                                    JOHN J. TORMEY III, ESQ.
Sworn to before me this
27th day of May, 2015

___________________
Notary Public


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