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FOIL Appeal Determination for 05-12-0A (David M. Klein)

December 1, 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

December 1, 2005


David M. Klein, P.E.
P.O. Box 121
Kattskill Bay, New York 12844

Re: FOIL Request 05-1321; FOIL Appeal No. 05-12-0A

Dear Mr. Klein:

This letter addresses your October 17, 2005 appeal of the October 7, 2005 determination of the Records Access Officer for the Department of Environmental Conservation ("Department"), by which you were denied access to certain records based on various exceptions to the Freedom of Information Law ("FOIL"). Please note that, although your appeal letter indicated that I sent the October 7, 2005 letter, that letter was not from me and represented an initial FOIL response and not an appeal determination.

Your initial FOIL request was dated July 20, 2005, which you made on behalf of North Country Engineering, P.C. of Glens Falls, New York. By that request, you sought an opportunity to inspect certain records relating "to the Hadlock Pond Dam replacement project." Specifically, you listed the following records in which you were interested:

1. Contract Documents (Plans and Specifications)
2. Record or As-Built drawings
3. Bid(s) received for the project
4. Any change orders
5. Any inspection or test reports
6. Proposals from Engineering Firms
7. Agreement(s) with Engineering Firm
8. Agreement(s) with Law Firm
9. Consent Order
10. Permit(s)
11. Correspondence (Prior to 7/2/05) between Law Firm and:
A. Engineer
B. Contractor
C. Town of Fort Ann
E. Inspection Firm
12. Proposal(s) and agreements(s) with testing firm

The Department's Records Access Officer indicated that various records were being released, but that certain records were being withheld in accordance with one or more of the exceptions that are contained in FOIL (as codified in the Public Officers Law [POL]). These exceptions included:

- POL § 87(2)(g), which exempts records which are inter-agency or intra-agency material;
- POL § 87(2)(f), which exempts records which if disclosed would endanger the life or safety of any person; and
- POL § 87(2)(a), which exempts records that are specifically exempted from disclosure by state or federal statute (the October 7, 2005 letter specifically referenced section 4503[a][attorney-client privilege] of the Civil Practice Law and Rules ["CPLR"]).

Department staff provided me with copies of the records that had been withheld which included records up to the date of your initial FOIL request. Pursuant to our conversation of mid-November, I reviewed documents from the mid-1990's up to the date of your initial FOIL request, and based upon my review, I have determined that certain of the withheld records should be released. Of the two hundred fifty-three (253) records during the referenced time period that had been withheld and which I identified as subject to your FOIL request, eighty (80) are being released, including but not limited to:

- various visual inspection forms of the dam site; and
- design plans for the Hadlock Pond Dam (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., including 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).

One hundred seventy (170) records are being withheld on the following grounds:

- eighty-three (83) pursuant to POL § 87(2)(g);
- eighty (80) pursuant to POL § 87(2)(a) and POL § 87(2)(g);
- two (2) pursuant to POL § 87(2)(a), POL § 87(2)(g) and POL § 87(2)(e)(i); and
- five (5) pursuant to POL § 87(2)(e)(i).

In addition, three (3) records are being released in part. These include:

- 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]);
- a memorandum dated July 17, 1995 which is being withheld pursuant to POL § 87(2)(a) and POL § 87 (2)(g). However, the attachment (a consent order dated July 17, 1995) is being released; and
- a letter dated July 28, 1994, with handwritten notes being redacted pursuant to POL § 87(2)(g).

A review of the applicable exceptions follows. As we discussed on our recent telephone conversation, 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 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 exception.

You had asked whether any correspondence or other documents between the Department and the Town of Fort Ann were being withheld pursuant to the inter-agency exception. The answer is no. However, certain correspondence or communications between the representatives of the Town of Fort Ann and the Department relating to consent order negotiations are being withheld pursuant to POL § 87(2)(e)(i). 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 implementation of such orders, are subject to this exception (cf. Pride International Realty, LLC v. Daniels, 4 Misc3d 1005[A][NY Co Sup Ct 2004].

In addition to POL § 87(2)(a) and POL § 87(2)(g), a number of documents were initially withheld pursuant to POL § 87 (2)(f) as noted in the October 7, 2005 response. POL § 87 (2)(f) provides an exception for records from disclosure that could endanger the life and safety of any person ("public safety exception"). In the aftermath of the September 11, 2001 tragedy, agencies at all levels of government 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 exception. 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 exception provided for by POL § 87(2)(f), as was initially done here (see also POL § 89[5][1-a]), together with any other applicable exception.

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) exception 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 solely pursuant to POL § 87(2)(f) are being released by this appeal determination.2

You had inquired regarding whether a list of withheld documents would be provided with the appeal determination. Please be advised that there is no requirement under the Public Officers Law that requires preparation of any list or index identifying each record that has been withheld (see Advisory Opinions AO-12924 [August 30, 2001] and AO-11591 [July 27, 1999], New York State Department of State, Committee on Open Government).

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 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 their costs of reproduction.

This letter 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. 05-12-0A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert J. Freeman, Executive Director,
Committee on Open Government (w/copy of appeal)
Ruth L. Earl, Records Access Officer

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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