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FOIL Appeal Determination for 04-24-5A (Jeffrey D. Wait)

July 29, 2005

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

July 29, 2005

BY FIRST CLASS MAIL

Jeffrey D. Wait, Esq.
Flink Smith LLC
23 British American Boulevard
Latham, New York 12210

Re: Freedom of Information Law ("FOIL") Appeal No. 04-24-5A

Dear Mr. Wait:

This is in response to your appeal, on behalf of the City of Saratoga Springs Department of Public Works ("SSDPW"), pursuant to FOIL (codified at sections 84-90 of the Public Officers Law ["POL"]). Specifically, you appealed the denial, by the staff of the New York State Department of Environmental Conservation ("Department"), of access to certain records regarding polychlorinated biphenyls in the Hudson River upstream of the Sherman Island Dam.

On appeal, you noted that the Department had provided SSDPW with access to several boxes of records but that some records had been withheld. You stated that access to those remaining records had been orally denied by the Region 5 FOIL Coordinator, but that no reasons for that denial were provided and that the records should be released. In particular, you raised questions regarding the availability of records generated after April 2003.

Subsequent to the appeal, Region 5 staff forwarded to the Office of Hearings and Mediation Services copies of the records that it had withheld. Region 5 staff provided our office with two hundred ninety-eight (298) records which included documents generated over approximately the last fifteen years.1 Of the 298 records, nine (9) were duplicates and three (3) were nonresponsive.2 After omitting the duplicates and the nonresponsive documents, of the 286 records remaining, I have determined that 97 records should be released in their entirety, 34 records should be released in part, and 155 records should be withheld in their entirety.

In reviewing the records, I have determined that three exceptions to FOIL apply, specifically the FOIL exceptions contained in POL § 87(2)(a), POL § 87(2)(g) and POL § 87(2)(e)(i). A discussion of each exception and its applicability to the records withheld follows.

POL § 87(2)(a) provides an exception for records that are "specifically exempted from disclosure by state or federal statute." In the FOIL appeal before me, certain of the documents are subject to the attorney-client privilege (see CPLR 4503(a)) and/or constitute attorney work product (see CPLR 3101(c) and (d)(2)). Such records are excepted from FOIL (see, e.g., Matter of Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 58 AD2d 234 [2d Dept 1977]). In addition, we do not interpret the provisions of FOIL to require the release of documents that are subject to negotiation with the Department (see United States v. Town of Moreau, 979 F.Supp. 129 (NDNY 1997), aff'd, United States of America v. Glens Falls Newspapers, Inc., 160 F.3d 853 [2d Cir 1998]; see also CPLR 4547).

POL § 87(2)(g) authorizes the denial of access to records or portions thereof that are intra-agency or inter-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits (see POL § 87[2][g][i]-[iv]). Intra-agency materials that consist of opinions and recommendations of agency staff are excepted from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (1985); see also New York Times Co. v. City of New York Fire Department, 4 NY3d 477, 488 (2005) ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]); cf. Cities Service Co. v. FTC, 627 F. Supp. 827, 835-36 [D.D.C. 1984][interpreting comparable provision in the federal Freedom of Information Act]).

POL § 87(2)(e)(i) provides an exception from FOIL for records that are compiled for law enforcement purposes and which if disclosed would interfere with law enforcement investigations or judicial proceedings. Records relating to agency enforcement activity, such as consent order negotiations and the implementation of such orders, would be subject to this exception (cf. Pride International Realty, LLC v. Daniels, 4 Misc3d 1005[A][NY Co Sup Ct 2004][applying the broad interpretation given to the law enforcement exemption in the federal Freedom of Information Act to FOIL and holding that POL § 87(2)(e)(i) applies to agency investigations of violations of the law]).

Certain of the records subject to this appeal include draft studies and reports that Niagara Mohawk Power Corporation ("Niagara Mohawk") has prepared to address contamination relating to property that it owns in the Town of Queensbury, New York (the "Queensbury Site"). These are submitted for the Department's review and comment pursuant to Department-initiated enforcement action (see consent order dated January 30, 1992; see also Record of Decision issued in March 1995 for the Queensbury Site ). Niagara Mohawk's submissions are considered by the Department in determining the extent of remedial activity that will be required and its review of and comment on those documents may lead to substantial revision. The release of these records, prior to the Department's final acceptance and approval, would materially impair the resolution of this matter through a non-adjudicatory process and would otherwise frustrate future investigations in this regard (cf. FOIL Appeal Determination 98-24-8A, dated October 21, 1998). In light of the foregoing, the FOIL exception in POL § 87(2)(e)(i) applies.

Of the 155 records that are being withheld in their entirety:

a) 116 records are withholdable pursuant to POL § 87(2)(g);
b) 13 records are withholdable pursuant to POL § 87(2)(a) and POL § 87(2)(g);
c) 1 record is withholdable pursuant to POL § 87(2)(a), POL § 87(2)(e)(i), and POL § 87(2)(g);
d) 9 records are withholdable pursuant to POL § 87(2)(a), POL § 87(2)(e)(i) and POL § 87(2)(g); and
e ) 16 records are withholdable pursuant to POL § 87(2)(a) and POL § 87(2)(e)(i).

Of the 34 records that are being released in part, we have withheld or redacted those portions of those records that are subject to exceptions under FOIL as follows:

Assigned Number (Number of Pages of Record in Parentheses) Material Withheld Applicable FOIL Exception(s)
22 (4 pages) 1 page withheld; 3 pages released POL § 87(2)(e)(i) and POL § 87(2)(a)
34 (1) 1 page released; DEC staff notes redacted POL § 87(2)(g)
55 (4) 4 pages released; DEC staff notes on first page redacted POL § 87(2)(g)
57 (1) 1 page released; portion of DEC staff notes redacted POL § 87(2)(g)
72 (1) 1 page released; portion of DEC staff message redacted POL § 87(2)(g)
75 (4) 2 pages withheld; 2 pages released POL § 87(2)(g)
86 (3) 1 page released; 2 pages withheld POL § 87(2)(a); POL § 87(2)(g) and POL § 87(2)(e)(i)
90 (6) 6 pages released; redaction of portion of DEC staff memorandum POL § 87(2)(g)
94 (3) 2 pages released; 1 page withheld POL § 87(2)(g)
97 (2) 2 pages released; portion of DEC staff notes on first page redacted POL § 87(2)(g)
98 (3) 3 pages released; portion of DEC staff comment on first page redacted POL § 87(2)(g)
99 (3) 3 pages released; portion of DEC staff comment on first page redacted POL § 87(2)(g)
101(1) 1 page released; portion of DEC staff comment redacted POL § 87(2)(g)
102 (1) 1 page released; portion of DEC staff comment redacted POL § 87(2)(g)
103 (2) 2 pages released; portion of DEC staff comment on second page redacted POL § 87(2)(g)
106 (1) 1 page released; portion of DEC staff comment redacted POL § 87(2)(a) and POL § 87(2)(g)
117 (6) 1 page released; 6 pages withheld POL § 87(2)(a) and POL § 87(2)(e)(i)
119 (3) 2 pages released; 1 page withheld POL § 87(2)(g)
124 (1) 1 page release; portion of DEC staff comment redacted POL § 87(2)(g)
125 (17) 16 pages released; 1 page withheld POL § 87(2)(g)
148 (20) 1 page released; 19 pages withheld POL § 87(2)(g)
151 (30) 22 pages released; 8 pages withheld POL § 87(2)(a), POL § 87(2)(g) and POL § 87(2)(e)(i)
153 (23) 3 pages released; 20 pages withheld POL § 87(2)(a) and POL § 87(2)(g)
175 (1) 1 page released; DEC staff comments on first page redacted POL § 87(2)(g)
200 (1) 1 page released; portion of DEC staff memo redacted POL § 87(2)(g)
206 (4) 4 pages released; DEC staff comments on third and fourth pages redacted POL § 87(2)(g)
215 (1) 1 page released; DEC staff comment redacted POL § 87(2)(g)
219 (1) 1 page released; part of DEC staff comment redacted POL § 87(2)(g)
240 (1) 1 page released; part of DEC staff comment redacted POL § 87(2)(g)
247 (1) 1 page released; part of DEC staff memo redacted POL § 87(2)(g)
249 (4) 4 pages released; portions of DEC staff memo redacted on first and second pages POL § 87(2)(g)
255 (11) 10 pages released; 1 page withheld POL § 87(2)(a) and POL § 87(2)(g)
276 (1) 1 page released; portion of DEC staff memo redacted POL § 87(2)(g)
282 (2) 2 pages released; DEC staff comments redacted POL § 87(2)(g)

In light of the questions that you raised in your appeal regarding the availability of more recent documents, a further review has been conducted for records generated from January 2000 to the date that the initial FOIL request was received, and an additional 53 records have been identified that should have been subject to the initial FOIL request. Of these documents, 35 are being withheld (13 are being withheld pursuant to POL § 87(2)(g); 6 are being withheld pursuant to POL § 87(2)(a), POL § 87(2)(e)(i) and POL § 87(2)(g); and 16 are being withheld pursuant to POL § 87(2)(a) and POL § 87(2)(e)(i)). Eighteen (18) records are being released.3

The records being released, in whole or in part, comprise 405 pages. If you wish to be provided with copies of these records, please send a check for $101.25 (405 pages at $0.25 per page), payable to the New York State Department of Environmental Conservation, to the Office of Hearings and Mediation Services (Attn: Deborah Vachon) within 30 days of the date of this letter. If you would prefer to review these documents at our office, please contact Deborah Vachon at 518-402-9003 within this same time frame. If we do not hear from you within 30 days of the date of this letter, we shall return these records to the appropriate staff files.

In addition, it is my understanding that a number of site-related documents were previously provided to SSDPW or made available for your review. These documents include:

- "Preliminary Data Evaluation Report for the Queensbury Site" dated March 1993;

- "Remedial Investigation Report for the Queensbury Site" dated May 1994;

- "Final Feasibility Study Report for the Queensbury Site" dated December 1994;

- "Annual Fish Tissue Sampling Program Data Report" dated February 1996;

- "Remedial Construction Report" dated February 1997;

- "Supplemental Data Collection and Technology Assessment Update for Operable Unit 2 - Queensbury Site" dated March 1997;

- "Annual Fish Tissue Sampling Program Data Report of 1999 Results and Five Year Summary" dated April 2000;

- "Sediment Dredging Technologies Review Update of the State-of-the-Art" dated March 2000;

- Annual Fish Tissue Sampling Program Data Report of 2000 Results and Six-Year Summary (1995-2000)" dated February 2001;

- "Work Plan: Sediment Investigation and Supplemental Feasibility Study for the Queensbury OU-2 Site" dated September 2001;

- "Annual Fish Tissue Sampling Program Data Report of 2001 Results and Seven-Year Summary (1995-2001)" dated November 2001; and

- "Annual Fish Tissue Sampling Program Data Report of 2002 Results and Eight-Year Summary Report" dated March 2003.

If my understanding is not correct, please let me know and I can advise you of the duplication cost or, alternatively, arrangements can be made for you to review the records at our office.

This represents the final determination of the Department. You have the right to seek review of this determination pursuant to article 78 of the Civil Practice Law and Rules and POL § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 04-24-5A.

Very truly yours,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert J. Freeman, Executive Director
Committee on Open Government

1A number of the records consisted solely of transmittal telecopy sheets or transmittal slips.

2The three nonresponsive documents related to matters not subject to your FOIL request. To facilitate the review of the records that were withheld by Region 5, our office initially numbered the documents from 1 to 300. This numbering has no substantive import. Subsequently, it was found that two (2) documents were merely continuations of two other numbered documents, thereby reducing the actual numbers of documents withheld from 300 to 298.

3Among these eighteen documents are several sequentially numbered progress reports. The extent to which SSDPW was provided with access to progress reports in response to its initial FOIL request is unclear on the record before me. If you determine following your review of the released records that there are progress reports to which SSDPW has not been accorded access, please contact me.

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