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FOIL Appeal Determination for 04-30-3A (Christopher A. Amato)

December 17, 2004

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 FAX: (518) 402-8541
Website: www.dec.state.ny.us

December 17, 2004

Christopher A. Amato, Esq.
79 North Pearl Street
Albany, New York 12207

Re: Freedom of Information Law ("FOIL") Appeal No. 04-30-3A;
FOIL Request No. 04-1514
Documents relating to Thalle Industries, Inc.

Dear Mr. Amato:

I have completed a review of the records to which the Records Access Officer of the New York State Department of Environmental Conservation ("Department") denied you access, as described in your appeal letter dated November 18, 2004 ("appeal letter"). Based upon my review of the records and consideration of the arguments raised in your appeal letter, this is to advise that the determination of the Records Access Officer to withhold certain records is affirmed subject to the comments below.

Background

Your original FOIL request sought six categories of records with respect to Thalle Industries, Inc. and the administrative proceeding on Thalle Industries, Inc.'s permit application (Matter of Thalle Industries, Inc., DEC Project No. 3-1330-00049-02001 ("Thalle proceeding")). Your request included but was not limited to records concerning or relating to the recusal of Commissioner Erin M. Crotty.

In response to your original FOIL request, the Department's Records Access Officer provided, under cover of a letter dated November 10, 2004 ("initial determination letter"), ten telecopy cover sheets and the October 8, 2004 letter notifying the parties in the Thalle proceeding of the Commissioner's recusal, together with the recusal memorandum. In responding to your original FOIL. request, the Records Access Officer assumed that you were not requesting copies of the post-issues conference briefs and transmittals that were copied to you during the recent Thalle proceeding.

As referenced in the initial determination letter, other records were identified that were responsive to your request but were withheld in accordance with the exemptions under FOIL. These records included internal confidential memoranda and written communications to the Commissioner on the Thalle proceeding from the Chief Administrative Law Judge ("CALJ") or the Assistant Commissioner for the Office of Hearings and Mediation Services ("Assistant Commissioner") and from the Commissioner to the Assistant Commissioner.

Those records were determined to be exempt from FOIL pursuant to the following statutory provisions: (1) Public Officers Law § 87(2)(g) as intra-agency materials that are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits; and/or (2) Public Officers Law § 87(2)(a) as records specifically exempted from disclosure by state law (attorney-client communications and attorney work product).

Applicable Exemptions

1. Intra-Agency Materials

The intra-agency materials that were withheld reflect opinions, advice and recommendations that are protected from disclosure. See, e.g., Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (1985)(opinions and recommendations are exempt 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 Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549 (2d Dept 1981)("purpose of the intra-agency exemption was to protect the deliberative process of the government").

You argue in your appeal that "the mere fact that responsive documents are intra-agency memoranda is insufficient to exempt them from disclosure under FOIL" (Appeal Letter, at 3). The Department, in addressing FOIL requests, applies the exceptions to the intra-agency exemption that are contained in the Public Officers Law (see Public Officers Law § 87(2)(g)(i)-(iv)). In that regard, the initial determination letter expressly stated that the intra-agency materials that were withheld were not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits (see id.).

The decisions that you cite in your appeal letter on intra-agency materials do not reach any contrary result, but confirm the appropriateness of the Department's FOIL evaluation. In citing Matter of Century House Historical Society v. New York Public Service Comm., 237 AD2d 844 (3d Dept 1997), you refer to an interoffice memorandum by an Administrative Law Judge that the court held was not exempt from disclosure. However, as the court notes in that matter, the interoffice memorandum "was expressly adopted" by the Public Service Commission as stated in a publicly issued "erratum notice" (id. at 845). None of the withheld documents that are the subject of your original FOIL request have been formally adopted by the Department.

You cite Matter of New York 1 News v. Office of the President of the Borough of Staten Island, 231 AD2d 524 (2d Dept 1996) for the proposition that factual observations are not exempt from disclosure. As noted in the initial determination letter, the withheld documents were not factual tabulations or data. Moreover, Matter of New York 1 News recognizes that the exemption for intra-agency materials applies to materials that are communications exchanged for discussion purposes "not constituting final policy decisions" (id. at 525 (citation omitted)).

You also cite Matter of Miracle Mile Associates v. Yudelson, 68 AD2d 176 (4th Dept), lv denied 48 NY2d 606, 706, appeal withdrawn 48 NY2d 706 (1979)), for the proposition that an agency may not "throw a protective blanket over all information by casting it in the form of an internal memo." No one disputes that proposition. More importantly, the decision in Miracle Mile Associates underscores that the exemption for intra-agency materials "is afforded for all papers which reflect the agency group's thinking in the process of working out that policy and [accordingly] an agency may refuse to produce material integral to the agency's deliberative process" (68 AD2d, at 182).

2. Attorney-Client Communications/Attorney Work Product

The Public Officers Law authorizes an agency to deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87(2)(a)). For purposes of this appeal, this provides exemptions for attorney-client communications and attorney work product.

Attorney-client communications are exempt pursuant to section 4503(a) of the Civil Practice Law and Rules ("CPLR") which protects confidential communications between the attorney and client. The documents withheld in this matter include communications from the CALJ and the Assistant Commissioner, acting in their legal capacities, to the Commissioner.

Attorney work product is exempt from disclosure pursuant to CPLR 3101(c) and has been defined to include documents that constitute "interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs, prepared or held by the attorney" (Kenford Co. v. County of Erie, 55 AD2d 466, 470 (4th Dept 1977)(citation omitted)).

You argue that no showing was made of any attorney-client relationship between the Commissioner and the CALJ and the Assistant Commissioner. The positions of Assistant Commissioner and CALJ are responsible for providing legal advice and counsel to the Commissioner on matters pending before the Office of Hearings and Mediation Services. Both the CALJ and the Assistant Commissioner serve as confidential counsel to the Commissioner, similar to the role of a judicial clerk. An attorney has always held the position of Assistant Commissioner for Hearings and Mediation Services. By job description, the position of CALJ is required to be held by an attorney, and the present incumbent is an attorney.

You state that the Commissioner has her "own sizable legal staff." However, section 307(2) of the State Administrative Procedure Act establishes limits on the Commissioner's ability to use the Office of General Counsel on matters before the Office of Hearings and Mediation Services.

You cite Matter of Morgan v. New York State Department of Environmental Conservation, 9 AD3d 586 (3d Dept 2004), for the proposition that the attorney-client privilege does not apply to information obtained from or communicated to third parties. None of the records that are being withheld on the basis of attorney-client privilege was obtained from or communicated to third parties.

Document Identification

Although you argue that the Department failed to adequately identify the documents being withheld, a review of the initial determination letter indicates that you were advised of the authors of the various records and the types of records being withheld.

For purposes of this appeal determination, I note that the materials withheld included memoranda and other communications from the Assistant Commissioner to the Commissioner, communications from the Commissioner to the Assistant Commissioner, and memoranda from the CALJ to the Commissioner. There were no communications from the Commissioner to the CALJ. Furthermore, most of the withheld materials addressed various matters pending before the Office of Hearings and do not only address the Thalle proceeding.

In addition, the CALJ provides the Commissioner with a copy of all the rulings of the administrative law judges following their issuance. Accordingly, the Commissioner received a copy of Administrative Law Judge Edward Buhrmaster's December 10, 2003 rulings in the Thalle proceeding from the CALJ after the rulings were sent to the issues conference participants. Similarly, the CALJ provided the Commissioner with a copy of the Deputy Commissioner's decision on the Thalle proceeding after it was sent to the issues conference participants.

There is no requirement under the Public Officers Law that requires preparation of any list or index identifying each record that was withheld (see Advisory Opinion AO-11591, July 27, 1999, Committee on Open Government, New York State Department of State). However, for your reference, I am providing the following information on the withheld records by the categories of your original FOIL request:

YOUR ORIGINAL FOIL REQUEST RESPONSE

Category 1: "All records concerning or relating to the October 8, 2004 Memorandum from Commissioner Erin Crotty to Assistant Commissioner Louis Alexander entitled 'Delegation of Decision Making Authority Thalle Industries, Inc.'" Certain records subject to this category were provided to you with the initial determination letter. Records withheld included drafts of the memorandum and letter to the parties, and an intra-agency transmittal memo.
Category 2: "All records concerning or relating to the reasons or grounds for the recusal of Commissioner Crotty in the above-referenced matter." There are no records.
Category 3: "All records concerning or relating to the issue of recusal of Commissioner Crotty, or any other Department employee in the above-referenced matter." There are no records.
Category 4: "All records consisting of, concerning or relating to communications between Commissioner Crotty and Thalle Industries, Inc., or any employee, representative, agent, attorney, or other person authorized to, communicate on behalf of Thalle Industries, Inc." There are no records.
Category 5: "All records consisting of, concerning or relating to communications between Commissioner Crotty and any other DEC employee concerning Thalle Industries, Inc." There are no records other than those referenced under Category 1 and Category 6.
Category 6: "All records consisting of, concerning or relating to communications between Commissioner Crotty and any other DEC employee concerning the above-referenced proceeding." Records under this category that were withheld included communications: (a) from the Commissioner to the Assistant Commissioner; (b) from the Assistant Commissioner to the Commissioner; and (c) the CALJ to the Commissioner (consisting of administrative status reports). Most of the withheld records addressed a number of matters before the Office of Hearings and had only limited reference to the Thalle proceeding.

As indicated by the previous table, the records that are being withheld all fall within your first and sixth categories.

In reviewing these materials, I note that attached to one memorandum from the Assistant Commissioner to the Commissioner (category 6 record) was a copy of Exhibit 12A that was introduced at the issues conference. Attached to a second memorandum were two figures (Figure 6 and 8) from the draft environmental impact statement for the Thalle proceeding. I understand that you have Exhibit 12A and the two figures, but if that is not correct please let me know and I will forward those to you.

Recusal

You argue that the Commissioner has failed, in her October 8, 2004 memorandum, to identify the grounds for her recusal. The regulations that govern permit proceedings (6 NYCRR Part 624) contain no requirement for the Commissioner to identify the reason or reasons for her recusal, and no presumption arises from any such recusal. Its exercise is entirely within the Commissioner's discretionary authority.

Your argument that the Commissioner's recusal waives any deliberative process privilege, and for which you cite no support, has no basis in law. The exemption for intra-agency materials is not waived on the basis of the Commissioner's role in a permit proceeding. Accordingly, communications from Department staff to the Commissioner or from the Commissioner to Department staff remain intra-agency materials whether or not the Commissioner is recused with respect to a proceeding.

You have also requested that I recuse myself from determining this appeal on grounds of "potential conflict of interest" because of unspecified "improper communications" (Appeal Letter, at 1). As FOIL appeals officer for the Department, I find nothing relating to your appeal including the records subject to your original FOIL request that would warrant my recusal and, accordingly, your request for my recusal is denied. It is the responsibility and obligation of the Assistant Commissioner to advise and counsel the Commissioner. Such communications are in no way improper.

This letter is a 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 Public Officers Law § 89(4)(b). In any further contact with this office on this matter, please reference FOIL appeal number 04-30-3A.

Sincerely,


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

cc: Robert Freeman, Executive Director,
Committee on Open Government
James T. McClymonds, Chief Administrative Law Judge
Ruth Earl, Records Access Officer

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