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FOIL Appeal Determination for 05-14-7A (Joseph J. Heath)

July 12, 2006

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

July 12, 2006

Joseph J. Heath, Esq.
716 East Washington Street
Suite 104
Syracuse, New York 13210-1502
Attn: Thane Joyal, Esq.

Re: FOIL Appeal No. 05-14-7A

Dear Mr. Heath:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL", codified at §§ 84-90 of the Public Officers Law ["POL"]), from the denial of access to records pertaining to the preparation of (a) § 303(d) lists for 1998 and 2002 for Onondaga Lake, and (b) total maximum daily loads ("TMDLs") for ammonia and phosphorus for Onondaga Lake.

As you indicated in your correspondence dated February 1, 2006, after an exchange of telephone calls among Steven Eidt of the Region 7 office of the Department of Environmental Conservation ("Department"), Thane Joyal, Esq. of your office and myself, Ms. Joyal reviewed records relating to the preparation of the TDMLs on December 16, 2005 at the Department's Region 7 office. Subsequently, Mr. Steven Eidt telecopied a list of records that had been withheld to your office.

By your February 1, 2006 correspondence, you requested that the Department:

"(1) review its records to determine whether additional responsive documents exist; and

(2) provide access to all responsive documents; and

(3) if access to any requested records is denied pursuant to Public Officers Law § 87(2), a written list of such records stating the grounds for denial of access for each record withheld."

Subsequent to your letter, Mr. Jeff Myers, Director of the Department's Bureau of Water Assessment and Management, communicated with your office regarding records on the listing/ delisting of Onondaga Lake and its tributaries with respect to the § 303(d) lists. By e-mail communication, Mr. Myers provided information on the draft 2006 § 303(d) list, and the 1998 and 2002 listings. By e-mail dated February 28, 2006, Mr. Myers advised that a search of Department records did not identify any additional records subject to your FOIL request, other than those attached to his earlier e-mail communication.

Department staff has also advised me that no additional records exist that are responsive to your FOIL request, and that access to all responsive records has either been provided or, based on Department staff's review of applicable FOIL exemptions, withheld.

On this appeal, I have reviewed the withheld records that Department staff provided to me. Attached is a listing of the records that were withheld. The listing includes a description of the type of record, date of the record, and the number of pages. Please note that several of the records, as I received them, included other records as attachments. The final column of the listing notes whether, pursuant to my review of the records on this appeal, a FOIL exemption(s) applies or if the record (or portions thereof) is releaseable.

As you know, exemptions from FOIL are set forth at POL § 87(2). Based on a review of the records, I have determined that two FOIL exemptions, POL § 87(2)(a) and POL § 87(2)(g), are applicable to most of the records that were originally withheld.

POL § 87(2)(a) exempts those records that are specifically exempted from disclosure by state or federal statute. Certain of the records subject to this FOIL appeal represent communications and analysis by Department attorneys or attorneys from the Attorney General's office in their representation of the Department and are subject to the attorney-client privilege (see CPLR 4503[a]) and/or constitute attorney work product (see CPLR 3101[c]). Accordingly, these are exempt from disclosure.

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 (i) statistical or factual tabulations or data, (ii) instructions to staff that affect the public, (iii) final agency policy or determinations, or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government (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"]). Accordingly, various of the records (including but not limited to e-mails and other communications, memoranda, notes, and drafts) are exempt from disclosure pursuant to the intra-agency/inter-agency exemption.

As noted in the attached listing, many of the records which are otherwise releasable contain notes or comments of Department staff which are exempt pursuant POL § 87(2)(g). With respect to those records, the notes and comments would be redacted.

The records or portions of records that are being made available pursuant to the appeal consist of 200 pages. If you wish to be provided with copies, please send a check to Kimberly Sarbo of this office, made payable to the New York State Department of Environmental Conservation in the amount of $50.00 (200 pages at $0.25 per page), within thirty (30) days of the date of this letter. Alternatively, if you would prefer to review these documents at our office, please contact Kimberly Sarbo at (518) 402-8537 within thirty (30) days of the date of this letter.

This letter is the final determination of the Department of Environmental Conservation. 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, please refer to FOIL Appeal No. 05-14-7A.

Sincerely,

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

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

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