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FOIL Appeal Determination for 04-07-6A (Judy Drabicki)

May 17, 2004

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-9003 FAX: (518) 402-9037


May 17, 2004

Judy Drabicki, Esq.
25723 NYS Route 180
Dexter, New York 13634

Re: Freedom of Information Law ("FOIL") Appeal No. 04-07-6A
FOIL Request #9 of 2004, DEC Region 6

Dear Ms. Drabicki:

We have completed our review of the documents to which the Department's Region 6 Office denied you access, as described in your appeal dated March 16, 2004. Your January 15, 2004 request sought all records in the Region 6 Office in Watertown related to the acquisition of land by the state for the flooding and development of the Stillwater Reservoir. The request was made pursuant to the Freedom of Information Law (FOIL, New York State Public Officers Law (POL) §§ 84 through 90).

The denial of access was based on the documents being exempt from FOIL under POL § 87(2)(g) (inter-agency or intra-agency records that are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policies or determinations, or external audits), and/or POL § 87(2)(a) (records that are specifically exempted from disclosure by state or federal statute). On March 26, 2004, Regional Attorney James T. King, Esq. sent you a list of the withheld documents that identified the provisions of FOIL under which each document was withheld.

With a few exceptions, as noted below, the documents withheld by Region 6 are being withheld for the reasons stated in the list transmitted on March 26. The documents listed as exempt from disclosure by state statute are subject to the attorney-client privilege pursuant to section 3101(b) of the Civil Practice Law and Rules (CPLR), are attorney work product (CPLR §3101(c)), or are exempt under both provisions.

This decision modifies the original FOIL determination of Region 6 as follows.

Document 1, that was withheld pursuant to POL § 87(2)(a), is not a privileged attorney-client document but instead is an opinion of the Attorney General that was published (25 St. Dept. Rpt. 550).

Document 2, which was a letter from the Superintendent of State Forests to Commissioner Staley, had been withheld pursuant to POL § 87(2)(g). Based on our review, portions of this document are factual data. A redacted copy of this document will be made available, providing the factual data but withholding the opinion, questions and deliberative portions of the document.

Document 11, which includes three memoranda, was withheld under POL § 87(2)(g). It continues to be withheld on that basis. In addition to this exemption, one of the memoranda is a request for legal advice from the Department's then-General Counsel and is also exempt under the attorney-client privilege. Similarly, document 16 is exempt pursuant to POL § 87(2)(g), as stated by Region 6, and also pursuant to attorney-client privilege and as attorney work product. Document 20 is exempt pursuant to POL § 87(2)(g), as stated by Region 6, and pursuant to attorney-client privilege. Document 40, in addition to being exempt under POL §87(2)(a) as stated by Region 6, is also exempt pursuant to POL §87(2)(g).

Document 15 was withheld pursuant to POL §§ 87(2)(a) and 87(2)(g). Attached to Document 15 were two pages that set forth the text of a copy of a resolution that was adopted by the State Council of Parks. Based upon our review, this text is accessible under FOIL.

Document 21 was withheld pursuant to POL § 87(2)(g). One of the attachments to Document 21 was a legal description entitled "Stillwater Reservoir Motor Vehicle Parking". We have determined that the document, upon redaction of two notations, to be accessible under FOIL.

Document 34 was withheld by Region 6 pursuant to POL § 87(2)(g). Portions of this document are factual data. A redacted copy of this document will be made available, providing the factual data but withholding the opinion, questions and deliberative portions of the document.

Document 36 is exempt from access under FOIL for the reasons listed by Region 6, but this appeal decision provides further discussion of the reasons for the exemption. With regard to document 36, which is a DEC employee's notes of a meeting, Mr. King informed Administrative Law Judge Susan J. DuBois that the persons who participated in the meeting were all DEC employees. The notes describe work that the meeting participants recommended DEC carry out, and the notes are not statistical or factual tabulations or data, final agency policy or determinations, or instructions to staff that affect the public.

Document 48 had been withheld as attorney work product. Upon review of the document, and the relevant case law addressing the attorney work product exemption, we have determined that this document (which is an excerpt from the Forty-Third Annual Report for the Conservation Department) is accessible under FOIL. See, e.g., Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc2d 99, 756 NYS2d 367 (Sup Ct, New York County), appeal withdrawn, 309 AD2d 1311, 766 NYS2d 415 (1st Dept 2003).

The documents that are being released total 36 pages. If you wish to be provided with copies of the documents, please send a check for $9.00 to this office within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (36 pages at $.25 per page). If you wish to review these documents in our office, please contact Deborah Vachon at (518) 402-9003 within this time frame. After the 30 days have elapsed, if you have not contacted Ms. Vachon or submitted your payment, the documents will be returned to their respective custodians in the agency.

This is the final determination of the Department of Environmental Conservation regarding your March 16, 2004 FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules.

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner for Hearings and Mediation Services


/s/
By: Susan J. DuBois
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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