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Mt. Hope Asphalt Corp. - Ruling 6, December 27, 1994

Ruling 6, December 27, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Consolidated Hearing In the Matter of Alleged Violation of Articles 19 and 27 of the New York Environmental Conservation Law and Parts 201 and 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, and Proceedings to Revoke All Permits Now Held by and Deny All Applications for Permits Filed by,

MT. HOPE ASPHALT CORP., a/k/a
MOUNT HOPE ASPHALT CORP.

and

FRANK PETROSKY,
Individually, and In His Capacity as an Officer of MT. HOPE ASPHALT CORP.,
a/k/a MOUNT HOPE ASPHALT CORP.,

Respondents.

RULING ON ASSERTED PRIVILEGES

[Sixth Ruling]

Introduction

Following issuance of the Fifth Ruling, on December 7, 1994, Staff submitted privilege logs and documents for in-camera review. By letter dated December 8, 1994, Staff submitted 30 documents for review in response to Respondents' Subpoena Duces Tecum requests 1 through 6. Additionally, on December 15, 1994, Staff submitted 29 documents in response to Respondents' Subpoena Duces Tecum request 18.

The elements of any privilege claimed must be established by the party asserting the privilege. In addition, as a general rule, the documents must be shown to be material, relevant and necessary to the issues being litigated. Staff has asserted with respect to a number of documents that the documents are not relevant to the action at bar. A brief discussion of the principles relevant to ruling upon each claim is presented, followed by an application of these principles to the documents at issue.

The privileges variously identified by Staff as "public official", "executive", "law enforcement" and "public interest", are generally within the common law qualified "public interest" privilege, which applies to communications between public officers and to public officers in the performance of their duties. (See Fifth Ruling, p.4). Official information includes confidential communications between public employees in the performance of their duties where the public interest requires that these communications should not be divulged. This definition of official information reflects present New York law. Cirale v 80 Pine St. Corp., 35 NY2d 113, 117, 316 NE2d 301 (1974), Lambert v Barsky, 91 Misc. 2d 443, 445 [motion to quash subpoena seeking production of confidential records of state Judicial Nominating Committee, granted] (1977).

The holder of the privilege is the government, not the individual who made or received the communication. The essence of the privilege is the public interest in maintaining confidentiality often, but not exclusively, for the purpose of encouraging full and frank discussion of issues and alternatives before a final decision is made. Cirale, supra at 118. In determining whether this privilege applies, a balancing test should be employed, to determine whether the government interest outweighs the interest of the party seeking the contested document(s). Cirale, supra at 118.

Included within the public interest privilege, is the law enforcement privilege asserted by Staff. The law enforcement privilege provides a qualified immunity. In applying the privilege, as with the public interest privilege, caselaw indicates that the burden is on the party seeking the confidential information to establish particularized need that outweighs the public law enforcement interest both in the particular case and to demonstrate how disclosure would affect the public interest in the future. See, Melendez v City of New York, 109 AD2d 13, 21 [citing Cirale, supra] (First Dept. 1985), Nelson v Mollen, 175 AD2d 518 (Third Dept. 1991), Roberson v City of New York, et al., 163 AD2d 291 (Second Dept. 1990).

Staff asserts a common-law settlement privilege for some documents relating to negotiations leading to the January, 1993 Consent Order. The common law settlement privilege is based upon the principle that admissions of fact explicitly or implicitly made during settlement negotiations are protected from discovery (or subpoena production) pursuant to the public policy of encouraging and facilitating settlement. Crow-Crimmins-Wolf & Munier v County of Westchester, et al., 126 AD2d 696, 697 (Second Dept. 1987), citing, White v Old Dominion S.S. Co., 102 NY 661 (1886), In the Matter of Albert A. Lopa, et al., Commissioner's Interim Decision, NYSDEC Case No. R8-0798-90-08 (July 10, 1991); Compare, Central Petroleum Corp. v Kyriakoudes, et al., 121 AD2d 165, citing, White, supra [On motion for summary judgment, admission of fact made in connection with settlement negotiations deemed admissible] (First Dept. 1986). While I find that the settlement privilege is not applicable, the rulings below reflect that many of those documents are not relevant to this proceeding or are within the public interest privilege, or both.

Pursuant to CPLR 3101(c), absolute immunity applies to the work product of an attorney. Essentially, work product is material prepared by an attorney as an attorney; something peculiar to the lawyer's trade and talent. By comparison, CPLR 3101(d) provides only conditional immunity for material prepared for litigation. Although attorney work product may be defined very broadly, where found to be applicable here, it has been limited to intra-agency attorney reports on the progress of pending litigation, or legal advice or opinions rendered to Department Staff.

Where a state government agency is asserting attorney-client privilege in an enforcement proceeding, the circumstances under which the elements of the privilege must be considered are somewhat different than those prevailing between a private attorney and a private client. It is not always clear, for example, who exactly is the "client" of agency staff attorneys, although in many instances circumstances indicate that Department Staff is the "client".

Such government agency attorneys are public officers ultimately responsible to serve the people of the State. In this sense, government attorneys are "retained" by the public, in addition to providing legal services to other branches of the agency. For this reason there is generally less policy justification to cloak government attorneys' communications with the confidentiality afforded by the attorney-client privilege. This policy is represented in the State's Freedom of Information Law (Public Officers Law, 84-90), which is intended to encourage the openness of government activities. The public and Respondents' interest in such openness is especially great when a state agency initiates an administrative enforcement proceeding. Although only civil penalties are sought, the proceeding is penal in nature.

All documents have been identified in two privilege logs, which Staff has provided to Respondents. A total of 59 documents were submitted for in-camera review. One group of 30 documents is in response to Subpoena requests 1 through 6, and the other group of 29 documents is in response to Subpoena request 18. Documents discussed below are identified with reference to the enumeration assigned by Staff in its privilege log, and a determination either granting or denying the Motion to Quash. In many instances where more than one privilege applies, only one asserted privilege is identified as applicable.

Documents in Response to Subpoena Requests 1 Through 6

In light of considerations addressed above, I find that the public interest privilege applies to the following documents in that holding each document privileged furthers the government's interest in full and frank discussion of issues and alternatives related to its regulatory mandate. Therefore, Staff's Motion to Quash is granted with respect to these documents: #10, #14, #16, #17 #18, #19, #23, #26, #28, #29 and #30.

In light of considerations addressed above, I find that following documents are excluded from production as attorney work product: #4 [public interest privilege also applies], #5 [also, is not relevant to the issues at bar; public interest privilege applies]; and #9 [also, is not relevant to the issues at bar; public interest privilege applies; attorney-client privilege applies], #24 [also, public interest privilege applies; attorney-client privilege applies], #25 [also, public interest privilege applies].

The following documents are not relevant to issues at bar. Therefore, the Motion to Quash is granted with respect to these documents: #2, #3, #6, #8, #12, #13, #15, #20, #21, #22 and #27.

In light of considerations addressed above, I find that asserted privileges do not apply to the following documents. Therefore, Staff's Motion to Quash is denied with respect to these documents: #1, #7, and #11.

Bureau of Environmental Conservation Investigations
Documents in Response to Subpoena Request 18

With respect to the 29 documents identified by Staff in response to Subpoena Duces Tecum request 18, Staff has asserted six bases for privilege. One is public interest privilege, and four others are aspects of the law enforcement privilege. Lastly, Staff asserts that the documents are irrelevant to this action.

One aspect of the law enforcement privilege cited by Staff is that all the documents have been compiled for law enforcement purposes, and if disclosed would interfere with other law enforcement investigations. On this basis alone, the Motion to Quash is granted with respect to these documents.

Based upon my review of Respondents' filings in opposition to the Motion to Quash, Respondents have not demonstrated particularized need in the instant action. Therefore, the issue of balancing competing interests need not be addressed, because there would be no policies to balance. Roberson, supra at 292. In reviewing the materials before me, Staff's Motion to Quash is granted with respect to the 29 documents for which the law enforcement privilege is asserted.

Summary Ruling

All contested documents are returned to Staff under cover of this Ruling. Regarding Subpoena Duces Tecum requests 1 through 6, Staff is directed to provide documents #1, #7, and #11 to Respondents. Staff's Motions to Quash are otherwise granted, for reasons explained above.

/s/
Administrative Law Judge

Albany, New York
December 27, 1994

To: Attached Service List

SERVICE LIST

MT. HOPE ASPHALT CORP. ET AL.

NYSDEC File No. 1-5445-93-09

Kevin J. Casutto
Administrative Law Judge
Office of Hearings
NYSDEC
50 Wolf Road, Room 409
Albany, NY 12233-1550
Phone: (518) 457-3468
FAX: (518) 485-7714

Timothy P. Mazzei, Esq.
Zimmer & Mazzei
400 Townline Road
Hauppauge, NY 11788
Phone: (516) 979-1111
FAX: (516) 979-1695

Sanford Strenger, Esq.
Farrell, Fritz, Caemmerer,
Cleary, Barnosky & Armentano
EAB Plaza
Uniondale, NY 11556-0120
Phone: (516) 227-0613
FAX: (516) 227-0777

Louise M. Aja, Esq.
Assistant Regional Attorney
Region 1, NYSDEC
Building 40, SUNY Campus
Stony Brook, NY 11790-2356
Phone: (516) 444-0260
FAX: (516) 444-0373

(12/20/94)

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