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FOIL Appeal Determination for 05-05-0A (Justin Peacock)

August 8, 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: www.dec.state.ny.us

August 8, 2005

Justin Peacock, Esq.
The Hearst Corporation
Office of General Counsel
959 Eighth Avenue
New York, New York 10019

Re: Freedom of Information Law Appeal No. 05-05-0A

Dear Mr. Peacock:

This is in response to your appeal pursuant to the New York State Freedom of Information Law ("FOIL"), Article 6 of the Public Officers Law ("POL").

You filed your appeal on behalf of the Albany Times Union which had submitted a FOIL request to the Records Access Officer of the Department of Environmental Conservation ("Department") for a copy of the Draft Preservation and Management Plan ("Draft Plan") prepared by the Erie Canalway National Heritage Corridor Commission (the "Commission"). The Commission, of which the Department is a member, was established by federal legislation to work with governmental authorities to develop and implement a comprehensive plan for the Erie Canalway.

At the time of the Albany Times Union's request, the Draft Plan was undergoing internal review. The Department's Records Access Officer, by letter dated May 13, 2005, withheld the Draft Plan pursuant to the FOIL exception for inter-agency materials contained in POL § 87(2)(g). The Records Access Officer noted that the Department and the Commission were cooperating agencies "having the common purpose of developing and implementing the [Draft] Plan." As further stated by the Records Access Officer:

"The sharing of this [Draft] Plan among Commission members is integral to the [Draft] Plan's development and implementation. Thus the Department is entitled to assert the "inter-agency or intra-agency materials" . . . exemption in order to foster independent deliberative discussions between Commission members with the ultimate goal of securing the quality of the decision making process with respect to this [Draft] Plan's development."

POL § 87(2)(g) provides that an agency may deny access to records or portions thereof that are inter-agency or intra-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. In your appeal, you contend that POL § 87(2)(g) was not an appropriate basis to deny the FOIL request on the ground that the referenced exception does not apply to inter-agency communications between a New York state agency, such as the Department, and a federal agency. Alternatively, you contend that, even if this exception applied, it would not justify withholding the entire Draft Plan as some portions would be releaseable as factual data.

The Commission's development of the Draft Plan represents a collaborative and deliberative process to provide guidance on policies and activities to realize the full potential of the Erie Canalway National Heritage Corridor. It has long been understood that correspondence between a state agency and an outside consultant, or reports prepared by a consultant for such an agency, constitute intra-agency material under FOIL when exchanged in a deliberative process. See Matter of Sea Crest Construction Corp. v. Stubing, 82 AD2d 546, 549-550 (2d Dept 1981)(applying POL § 87(2)(g) to consultant records). It is the Department's position that materials generated in a deliberative process involving the Department and a federal agency (including but not limited to any consultant-prepared material) would similarly be subject to POL § 87(2)(g), and that this statutory FOIL exception would equally apply where the Department is a member of a federally-established commission. Cf. General Electric Company v. Massachusetts Department of Environmental Protection, 429 Mass 798, 807 (1999) (under Massachusetts version of FOIL, which is similar in relevant respect to New York's FOIL statute, deliberative communications between the United States Environmental Protection Agency and the Massachusetts Department of Environmental Protection are not foilable); see also U.S v. Allsteel, Inc., 1988 WL 139361, *2 (N.D. Ill., Dec. 21, 1988). Accordingly, POL § 87(2)(g) applies to the Draft Plan.

The application of the exceptions in FOIL, however, is not mandatory. The Department may exercise discretion and release a record that it could otherwise withhold. On this appeal, although the application of the FOIL exception in POL § 87(2)(g) to the Draft Plan is affirmed, I determine, based on my review of the record before me, that I shall not apply the exception and the Draft Plan shall be released. In light of the foregoing, this determination need not reach your alternative argument that certain portions of the Draft Plan constitute factual data that are releaseable pursuant to FOIL.

Accordingly, if you would like to receive a copy of the Draft Plan, please contact me at (518) 402-8537 and a copy will be forwarded to your attention. In any future communications concerning this appeal, please refer to the above-referenced appeal number (05-05-0A).

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer

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