May 19, 2014

David Karopkin

Via Email – dkaropkin@gmail.com

Dear Mr. Karopkin:

This is in response to your August 19, 2013, Freedom of Information Act (FOIA)

request in which you requested the following:

1) any public record, contract, permit, or email from your office

relating to the removal of turkeys from South Beach Psychiatric

Center,

2) any contract with New York State Department of Health or South

Beach Psychiatric Center or USDA Wildlife Services relating to the

removal of turkeys from South Beach Psychiatric Center or at any

other New York State Department of Health facility,

3) any contract with New York State Department of Health or South

Beach Psychiatric Center or USDA Wildlife Services relating to the

removal of geese or any other animals from South Beach Psychiatric

Center or at any other New York State Department of Health facility.

You are asking that all records relating to the above matters from any time, but

specifically relating to the removals of turkeys from the grounds of South Beach

Psychiatric Center during the week of August 12, 2013. Your request was received in

this office on August 19, 2013 and assigned case number 2013-APHIS-04918-F.

Wildlife Services (WS) employees conducted a thorough search of their physical

and electronic files, as well as their email accounts using search terms “Staten

Island” and “turkey.” WS forwarded to FOIA 149 pages found within their files.

Of those 149 pages, 42 pages are being provided to you in part under FOIA

Exemption 5, 5 U.S.C. § 552 (b)(5) and FOIA Exemptions 6, 5 U.S.C. § 552 (b)(6)

and 67 pages are being provided you in full without redactions. In addition, ten

(10) pages are not being provided to you as they are not responsive to your request.

Please note that within the records set there were 30 duplicate pages.

Exemption 5

Exemption 5 permits the Government to withhold “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party in

litigation with the agency.” 5 U.S.C. 552(b)(5). The exemption has been

construed by the courts to exempt records that would be subject to evidentiary

privileges available in judicial proceedings. As a threshold matter, the

responsive records must be inter-agency or intra-agency documents in order to

be protected from disclosure under Exemption 5.

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David Karopkin 2

2013-APHIS-04918-F

One privilege incorporated into Exemption 5 is the deliberative process

privilege, which protects the quality of agency decision making. To qualify for

protection, the information must be pre-decisional and deliberative. Three policy

purposes constitute the basis for the deliberative process privilege: (1) to

encourage open, frank discussions on matters of policy between subordinates and

supervisors; (2) to protect against premature disclosure of proposed policies

before they are finally adopted; and (3) to protect against public confusion that

might result from disclosure of policies and rationales that do not ultimately

serve as the basis for agency action. Specifically, we have withheld talking

points discussed amongst APHIS employees and draft versions of the “USDA-

APHIS-Wildlife Services Categorical Exclusion Record” although the final

version is being released to you.

Where possible, the agency has made discretionary releases of information that it

deemed would not cause harm to the agency’s decision-making process.

Exemption 6

Exemption 6 permits the government to withhold from “personnel and medical files

and similar files” information about individuals when the disclosure of such

information “would constitute a clearly unwarranted invasion of personal privacy.”

We have determined that these records meet the definition of “similar” files,

because they contain information pertaining to individuals.

In order to determine whether a document may be withheld under Exemption 6, an

agency must undertake a three-step analysis. First, the agency must determine

whether a significant privacy interest would be compromised by the disclosure of

the record. Second, the agency must determine whether the release of the document

would further the public interest by shedding light on the operations and activities

of the Government. Third, the agency must balance the identified privacy interests

against the public interest in disclosure. In this circumstance, we are withholding

private individual names, titles, phone numbers, email addresses, physical addresses

and signatures.

We have determined that the individuals have more than a de minimis privacy

interest in this information because the identifying information could be used to

make unwanted contact or communications with individuals mentioned in the

documents. In addition, the signatures could be used for identity theft as a person

uses a signature to attest as to who they are in business and personal records. Under

Exemption 6, the only pertinent public interest is whether release of the information

would shed light on the agency’s activities and the agency’s performance of its

statutory duties. We determined that the release of the identifying information does

not shed any light on APHIS activities. Therefore, the privacy interests of the

individuals in the records you have requested outweigh the non-existent public

interest in disclosure of the information.

David Karopkin 3

2013-APHIS-04918-F

You may appeal our partial denial of the information. If you choose to appeal, your

appeal must be in writing and must be received within 45 days of the date of this

letter to:

Administrator

Animal and Plant Health Inspection Service

Ag Box 3401

Washington, DC 20250-3401

Please refer to 2013-APHIS-04918-F in your appeal letter and add the words

“FOIA Appeal” to the front of the envelope. To assist the Administrator in

reviewing your appeal, provide specific reasons why you believe modification of

the determination is warranted.

If you have any questions, please do not hesitate to contact Kacie Edwards of my

staff at Kacie.L.Edwards@aphis.usda.gov.

Sincerely,

Tonya G. Woods

Director

Freedom of Information & Privacy Act

Legislative and Public Affairs

Enclosures