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FOIL Appeal Determination for 05-11-0A (Matt Pacenza)

November 4, 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

November 4, 2005

Mr. Matt Pacenza
Times Union
645 Albany-Shaker Road
Albany, New York 12205

Re: Freedom of Information Law Request No. 05-1290
Freedom of Information Law Appeal No. 05-11-0A

Dear Mr. Pacenza:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at sections 84-90 of the Public Officers Law ["POL"]), of the partial denial of your request to inspect records relating to the Hadlock Pond Dam.

You applied for access to six categories of records by form dated July 16, 2005 ("July Request"). By letter dated October 7, 2005, the Records Access Officer for the Department of Environmental Conservation ("Department") advised that documents responsive to your July Request had been compiled and reviewed. The Records Access Officer indicated that various records were being released, but that other records were being withheld pursuant to one or more of the following exemptions:

- POL § 87 (2)(a), which exempts records that are specifically exempted from disclosure by state or federal statute;
- POL § 87 (2)(f), which exempts records which if disclosed would endanger the life or safety of any person; and
- POL § 87 (2)(g), which exempts records which are inter-agency or intra-agency material.

You were advised that you may appeal the denial of access to the withheld records, and you appealed the partial denial by telecopied letter on October 13, 2005.

Department staff provided me with those records that had been withheld. Based upon my review of those records and the applicable exemptions, I have determined that some of the withheld records should be released. For your convenience, I have presented a summary of this determination by reference to the six categories of records that you listed in your July Request.

Item #1. "The four inspection reports from when DEC personnel examined the dam under construction at Hadlock Pond in 2004 and 2005."

Appeal determination: I have been advised that there were four site visits during the time period you reference. Following three of those visits - October 26, 2004, December 10, 2004 and April 13, 2005 - visual inspection forms were generated. These three forms are being released on this appeal.

A fourth site visit took place on December 20, 2004, and included a representative from the Army Corps of Engineers. The Department did not prepare a visual inspection form based on that visit.

Item 2. "The consent order that the DEC entered into in 2004 (or possibly 2003) with the Town of Fort Ann to build the new dam at Hadlock Pond."

Appeal determination: A copy of the consent order (August 2004) that you requested, in addition to the 2005 amended order on consent which extended the completion date for the Hadlock Pond Dam construction project, were among the documents released in the initial response to your July Request.

Item 3. "Design plans for the Hadlock Pond dam prepared by HTE Northeast."

Appeal determination: Sixteen (16) drawings and figures for the Hadlock Pond Dam prepared by HTE Northeast (including plans prepared in 1997, 1999 and 2003) and three (3) design plans by Engineering Ventures Inc. are being released. These include the following:

HTE Northeast

- Drawing No. 1, "Existing Conditions Plan" (July 9, 2003);
- Drawing No. 1, "Existing Conditions, Proposed Conditions, Sections and Details" (February 1999);
- Drawing No. 2, "Existing and Proposed Conditions Plan" (July 1, 2003);1
- Drawing No. 2, "Plans and Sections" (February 1999);
- Drawing No. 3, "Proposed Spillway Section" (July 1, 2003);
- Drawing No. 3, "Proposed Spillway Section" (July 1, 2003) (with Department Region 5 receipt stamp);
- Drawing No. 3, "Sections and Details" (February 1999);
- Drawing No. 3, "Proposed Spillway Section with Flow Net" (July 1, 2003);
- Drawing No. 4, "Plans of Spillway and Fuse Plugs" (July 1, 2003);
- Drawing No. 4, "Ogee Spillway Geometry Details" (February 1999);
- Drawing No. 5, "Sections and Details" (July 1, 2003);
- Drawing No. 6, "Fuse Plug Sections and Details" (July 1, 2003);
- Drawing No. 6, "Fuse Plug Sections and Details" (July 1, 2003)
(updated 12/16/04);
- Drawing No. 7, "Ogee Spillway Geometry" (October 29, 2001);
- Figure 1, "Site Plan and Sections" (March 1997); and
- Figure 2, "Plans and Sections" (March 1997).

Engineering Ventures Inc.

- C1.0, "Project Overview of Wetland Disturbance" (2002);
- C1.1, "Mitigation Plan for Wetland Disturbance" (2002); and
- C2.1, "Mitigation Profile for Wetland Disturbance" (2002).

In addition, various design plans are attached to HTE correspondence that is being released pursuant to your Items # 4 and #5 (please refer to the following category).

Items #4 & #5. "DEC's evaluation of the design plans for the dam prepared by HTE Northeast" and "Any communication between DEC staff (memos, letters, emails, etc.) and Kubricky Construction Corp. (dam builder), or DA Collins (Kubricky parent company), or HTE Northeast (dam designer) in regards to the dam at Hadlock Pond."

Appeal determination: One hundred twenty-eight (128) records relating to these two items were withheld. By this appeal determination, forty-three (43) records are being released and eighty-four (84) are being withheld (of those being withheld, fifty-six are being withheld pursuant to POL § 87 [2][g] and twenty-eight pursuant to POL § 87 [2][a] and POL § 87 [2](g]), and one (1) record is being released in part. The record being released in part is a letter dated July 11, 2005 (two pages of the letter are being released, with the third page listing bcc's being withheld pursuant to POL § 87 [2][g]).

Item 6. "The list of the 53 dams in New York State that the DEC has determined are deficient."

Appeal determination: You were advised by the Records Access Officer, in her letter dated October 7, 2005, that no such list is maintained by the Department.

As noted in the summary with respect to Items #4 and #5, records subject to the exemptions set forth in POL § 87(2)(a) and POL § 87(2)(g) are continuing to be withheld. A discussion of each exemption follows.

POL § 87(2)(a) provides an exemption for records that are "specifically exempted from disclosure by state or federal statute." In the FOIL appeal before me, certain of the records represent communications between Department staff and Department attorneys and, accordingly, are subject to the attorney-client privilege (see CPLR 4503[a]) and/or constitute attorney work product (see CPLR 3101[c]). Such records are exempted from FOIL (see also Matter of Orange County Publications, Inc. v. County of Orange, 168 Misc.2d 346, 352 [Orange Cty Sup Ct 1995] [attorney-client privilege relating to facts of which attorney was informed, an opinion on law, legal services, or assistance in some legal proceeding]).

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 and inter-agency materials that consist of opinions and recommendations of agency staff are exempted 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"]). A number of the records involve internal communications among Department staff or with other state or federal agencies, Department staff notes, and other Department staff analyses that are subject to the intra-agency/inter-agency exemption.

In addition to POL § 87(2)(a) and POL § 87(2)(g), a number of documents were withheld pursuant to POL § 87 (2)(f) in the October 7, 2005 response to your July Request. POL § 87 (2)(f) provides an exemption for records from disclosure that could endanger the life and safety of any person ("public safety exemption"). In the aftermath of the September 11, 2001 tragedy, agencies at all levels of government have examined the sensitivity of the information that is disseminated in order to ensure that the public security is protected. Consistent with that need, the Department's Division of Water has evaluated the manner in which information regarding the State's dam infrastructure is maintained and disseminated. As a result of that evaluation, security sensitive information has been withheld from disclosure pursuant to the public safety exemption. Certain exceptions have been applied, as appropriate, to information requests from an owner of a dam, municipal officials in the jurisdiction in which a dam is situated, and other governmental entities.

Furthermore, as you may know, FOIL has been amended to include protections for records that may contain critical infrastructure information. "Critical infrastructure" is defined at POL § 86(5) to mean "systems, assets, places or things, whether physical or virtual, so vital to the state that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the state, its residents or its economy." A plain reading of "critical infrastructure" clearly encompasses dams and the Department evaluates all critical infrastructure in the context of the exemption provided for by POL § 87 (2)(f), as was initially done here (see also POL § 89[5][1-a]), together with any other applicable exemption.

However, where a dam has failed and resulting damage has occurred, the public safety/critical infrastructure basis for withholding dam-related information must be revisited. In such situations, the Department will evaluate on a case-by-case basis whether the POL § 87 (2)(f) exemption should still be applied. In light of the circumstances relating to the Hadlock Pond Dam and its failure on July 2, 2005, I have determined that the justification for withholding records for reasons of public safety has been substantially diminished and in this instance is outweighed by the public interest in the records relevant to the construction of the dam. Accordingly, records that would otherwise be withheld pursuant to POL § 87 (2)(f) are being released by this appeal determination.2

The records that are being released will be held for your review for a period of thirty (30) days from the date of this letter. If you wish to review the records, please contact Kimberly Sarbo or me at (518) 402-8537. If we do not hear from you within thirty (30) days, we shall return these records to the appropriate staff files. If you wish to have copies made of these materials, the charge is $0.25 per page, except for oversized materials which will be priced according to the specific costs of reproduction.

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. 05-11-0A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert J. Freeman, Executive Director,
Committee on Open Government (w/copy of appeal)

1This drawing in a reduced format was included in the records released in the initial response to your July request.

2As you know, the Department has issued a comprehensive report entitled "Report of Engineering Investigation of the Hadlock Pond Dam Failure" that was prepared by Clough Harbour & Associates LLP. The report, dated October 3, 2005, appears on the Department's website.

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