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Lasdon, William S. (Estate of) - Letter Ruling 5, March 23, 1993

Letter Ruling 5, March 23, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road, Albany, New York 12233-1550

Thomas C. Jorling
Commissioner

March 23, 1993
Joel H. Sachs, Esq.
Plunkett and Jaffe, P.C.
1 North Broadway
White Plains, New York 10601

Alice McCarthy and David Rubinton, Esqs.
NYSDEC, Division of Environmental Enforcement
220 White Plains Road - Fifth Floor
Tarrytown, New York 10591

RE: DEC v. Estate of Lasdon: Disclosure Ruling - February 26, 1993 Revised Privilege Log

Dear Mr. Sachs, Ms. McCarthy and Mr. Rubinton:

The Commissioner's February 11, 1993 Interim Decision required the Department Staff to revise its privilege log regarding its documents to be withheld from disclosure. The revised privilege log was submitted on February 26, 1993. The Respondent Estate filed its response in opposition on March 8, 1993. The Department Staff filed its papers on March 15, 1993.

The Department Staff claim that all of the documents listed on the privilege log are exempt from disclosure because they are either: attorney client; attorney work product; material prepared for litigation or; are privileged because they contain official or public information.

The Respondent Estate argues that the Commissioner's Interim Decision required the release of all documents used for settlement. For the documents labeled as material prepared for litigation, the Estate also claims that the documents should be released because it is unable to reproduce any factual information except through the release of these documents.

By way of introduction, it is necessary to state that under CPLR Article 31, all material is disclosable unless specifically exempt. It is the burden of the party seeking to protect the materials to demonstrate that they fall within an exemption.

There is an absolute exemption against disclosure for attorney client documents and for attorney work product (CPLR 3101 (b) and (d)). Documents included in the material prepared for litigation category however can be disclosed when the party seeking the materials has a substantial need for the information and is unable without undue hardship to obtain the substantial equivalent of the material by any other means (CPLR 3101(d)(2)).

A number of documents that the Department seeks to withhold are documents that were exchanged between the Department Staff and former respondents Nepera and Warner Lambert, in furtherance of reaching a settlement. The Department Staff claims that these documents are privileged and therefore are entitled to an exemption from disclosure pursuant to CPLR 3101(b).

The privilege that the Department asserts is a common law privilege. This privilege has been named the 'official information in the public interest' privilege in the proposed code of evidence for New York recently prepared by the Law Revision Commission (see section 513 of the Proposed Code of Evidence).

In its commentary on this privilege, the Law Revision Commission states that such a privilege exists under present state law, citing the same cases offered by the Department Staff (Cirale v. 80 Pine St. Corp., 35 N.Y. 2d 113, (1974), Crow-Crimmins-Wolff v. County of Westchester, 126 A.D.2d 696, (2d Dept. 1987)). However, in those same commentaries, the Commission also notes that under present law, the privilege is limited by the Freedom of Information Law (FOIL) and that no privilege attaches to any material required to be disclosed under that law (see commentaries to proposed section 513, citing Doolan v. Boces, 48 N.Y.2d 341, (1979). Therefore, in order to analyze whether the privilege extends to the type of situations at hand, one must first examine the provisions of FOIL.

A77, B1, B4, B5, B7, B25, B29, B36, B59, B60, B77, B84, B87, B89, B93, B94, B96, C14, C15, C17, C22, C27, C36, C37, C39, and C41 - The Commissioner's February 11, 1993 Interim Decision required the Department Staff to specify the CPLR bases to exclude certain information listed as "settlement documents." These documents are separate and distinct from those settlement documents the Department Staff claim to be attorney work product under the CPLR. Accordingly, those documents will be discussed separately in this ruling.

As stated above, the privilege asserted does not attach to any material that would have to be disclosed pursuant to FOIL. Under FOIL all agency records are available for public inspection except those that fall within the categories delineated in POL section 87(2). A review of these categories demonstrates that the records at issue could not even arguably fall within any of these categories. Since these records would be disclosable under FOIL, they are not within the so-called official information in the public interest privilege and they must be disclosed.

B13 - This document was prepared at the request of a DEC attorney by a DEC engineer regarding whether the site is a 'significant threat'. The information is classified as material prepared for litigation and is therefore subject only to a conditional privilege. However, to obtain disclosure of the documents, the Estate needs to show that there is a substantial need for the materials that cannot otherwise be obtained without undue hardship (CPLR 3101 (d)(2)). The Estate claims that it was denied access to the sites to conduct sampling but has not presented any affidavits or other proof showing the evidence is otherwise unavailable nor has it shown what efforts were made to obtain the evidence by other means (Chief ALJ Ruling at 2, January 27, 1993). B13 is not releasable.

A20 - There is no attorney work product basis to withhold copies of letters from Ned Sullivan and Commissioner Jorling since Ned Sullivan is not an attorney. This document is releasable.

A58 and A79 - These are copies of letters between Ned Sullivan, Commissioner Jorling and the Estate's agent, Tonio Burgos. The attorney work product exemption is claimed. At my request, these documents were supplied to me. They consist of memorandums from Ned Sullivan to Commissioner Jorling, from Michael O'Toole to Ned Sullivan and Commissioner Jorling to Tonio Burgos. Commissioner Jorling's letter to Mr. Burgos was prepared by Mr. Sullivan and the final document that was sent by him to Mr. Burgos. The documents authored by Mr. Sullivan and Mr. O'Toole are not protected by attorney work product since they are not attorneys.

B19 - This memo is between two DEC attorneys regarding respondent's liability and the attorney work product exemption is asserted. Upon information and belief by the Estate, this document is purported to offer a legal opinion that 'waste' deposited at the Maybrook site may not properly be subject of an Article 27 enforcement hearing. The Estate argues that the document is relevant and material to the defense but does not dispute that there is a work product privilege. The exemption is unconditional and therefore the document is not releasable.

A15, A18, and A22 - The first two documents are memos exchanged between DEC attorneys and attorneys in the Attorney Generals office. These documents are protected by the attorney client exemption. A22 is a document from DEC attorney Owens to Commissioner Jorling concerning settlement in 1988, and is classified as attorney work product. The Estate argues that there is no legal basis to withhold these settlement or stipulation of issues documents from disclosure, and likewise, these documents are important to the Estate in another matter in US District Court for the Southern District of New York. There is no basis to release these documents because the exemption is unconditional.

B6, C13, and C16 - These documents are from a DEC attorney to attorneys for former respondents Nepera and Warner Lambert and relate directly to settlement negotiations. The attorney work product privilege is claimed. Any exemption these documents may have enjoyed was waived when these documents were released to the former respondents. These documents are releasable.

A6[e], A6[g], A6[j], A31, A32, B15, B16, B20, B26, B27, B64, B66, B78, C9, C20, and C23 - These are documents prepared by DEC attorneys to other DEC attorneys, by DEC attorneys to the file or from the DEC attorneys to the Commissioner regarding on going negotiations for settlement during 1990 and 1991. They also include a draft referral letter to the Department of Law regarding an administrative subpoena, attorney memoranda, status reports and meeting summary's, prepared by an attorney recording analyses of the case. The attorney work product privilege is claimed for these materials. The Estate includes these documents in its argument that all settlement documents should be released. As noted previously, attorney work product is exempt from disclosure and the exemption is unconditional.

C19 - This document was supplied to me at my request. This document was misidentified on the privilege log as being prepared by Commissioner Jorling. In fact, the document was prepared by DEC attorney David Markell and was sent through Marc Gerstman to Commissioner Jorling. It is regarding a status update on the Nepera inactive site negotiations and is dated December 12, 1991. The document is marked 'Privileged & Confidential.' Department Staff claim this document is an attorney work product. The Estate includes this document among those to be considered as settlement documents that should be released. Based upon my review of the document, it contains case strategies and legal analysis and therefore would be protected under attorney work product and would not be releasable.

B21 - At my request this document was supplied to me for review. It consists of two drafts and a final document dated April 3, 1991 from DEC attorney David Markell to Commissioner Jorling through the General Counsel, Marc Gerstman. The documents are stamped ' CONFIDENTIAL ENFORCEMENT SENSITIVE FOIL EXEMPT'. The authors discuss the Nepera sites in the context of a case strategy and legal analysis on this on-going enforcement matter. The Department Staff have identified these documents as work product. The Estate includes these documents in its argument on settlement documents that are releasable where settlement was reached. I find these documents to be attorney work product and are not releasable.

B22 - This document was supplied to me at my request. This document is from DEC attorney David Markell through Marc Gerstman to Commissioner Jorling regarding a status update on the Nepera Inactive Site Negotiations, dated December 16, 1991. The document is marked 'Privileged & Confidential' and is claimed to be attorney work product. The Estate argues that this document should be released where settlement was reached. My review indicates this document contains legal opinions and strategies offered by a DEC attorney about an on-going enforcement matter. B22 is an attorney work product and is not releasable.

B18 - This January 22, 1992 document is from a DEC engineer to a DEC attorney regarding settlement discussions and is claimed to be material prepared for litigation. The Estate includes this document in its arguments for release of all settlement documents for which the final settlement agreement was released. The Estate has not shown that it has a substantial need to obtain this document (CPLR 3101(d)(2)). Moreover, the official information in the public interest would also apply. FOIL would protect this document as an intra-agency memoranda and as prepared as part of an enforcement matter (POL section 87(2)(e) and (g)).

All documents determined to be releasable shall be made available to the Respondent within one business day.

Very truly yours,
/s/
Daniel E. Louis
Chief Administrative Law Judge

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