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FOIL Appeal Determination for 06-08-0A (Phillip Musegaas)

March 15, 2006

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) 402-9037
Website: www.dec.state.ny.us

March 15, 2006

BY TELECOPY & FIRST CLASS MAIL

Phillip Musegaas
Riverkeeper, Inc.
828 South Broadway
Tarrytown, New York 10591

Re: Freedom of Information Law (FOIL) Appeal No. 06-08-0A
FOIL Request No. 05-2145

Dear Mr. Musegaas:

This is in response to your appeal dated February 17, 2006 (which the Office of Hearings and Mediation Services received on February 23, 2006) regarding the denial by the Department of Environmental Conservation ("Department" or "DEC") of access to certain records concerning a leak of radioactive water at the Indian Point Energy Center.

The Department withheld thirteen documents, as set forth in a memorandum which was previously provided to you.

Initially, I note that three of the records that were withheld contain attachments and two of the records contain an additional continuation sheet of e-mail communications. The records, including the attachments, were reviewed in light of the requirements of FOIL and its statutory exemptions which are codified at section 87(2) of the Public Officers Law ("POL").

Based upon my review, I have determined that two FOIL exemptions, which are contained in POL § 87(2)(a) and POL § 87(2)(g), are applicable to certain of the records on this appeal.

POL § 87(2)(a) exempts those records that are specifically exempted from disclosure by state or federal statute. Certain of the records in your FOIL appeal represent communications and analysis by Department attorneys and are subject to the attorney-client privilege (see section 4503[a] of article 45 of the Civil Practice Law and Rules ["CPLR"]) and/or constitute attorney work product (see CPLR 3101[c]). Accordingly, these records 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"]). The intra-agency exemption allows for "the internal exchange of candid advice and opinions between agency employees" (see id. at 489).

With respect to one record, I have determined that exemptions relating to personal privacy (POL § 87[2][b]), endangerment of life or safety (POL § 87[2][f]), and security of information technology assets (POL § 87[2][i]) would apply and would allow for the redaction of cell phone numbers and/or e-mail addresses contained therein (see, e.g., Advisory Opinion of the Committee on Open Government, New York State Department of State, FOIL-AO-13356 [citing POL § 87[2][f] and POL § 87[2][i] as a basis for nondisclosure of e-mail addresses]).

My review of the records is set forth in the following table. The last column represents the final appeal determination.

Document Determinations
FROM TO DATE DOCUMENT TYPE DETERMINATION UPON APPEAL
P. Merges (DEC) B. Conlon, Esq. (DEC) 9/26/94 DEC Internal Memorandum Withhold - POL § 87(2)(a) and § 87(2)(g)
T. Rice (DEC) P. Merges (DEC) 12/2/94 DEC Internal Memorandum Withhold memorandum - POL § 87(2)(g). Release attachment (3 pages)
J. Ferry, Esq. (DEC) Jeff Lacey, Esq. (DEC) 11/30/94 DEC Internal Memorandum Withhold - POL § 87(2)(a) and (g)
P. Merges (DEC) J. Sama (DEC); copies to DEC personnel 9/15/00 DEC Internal Memorandum Release (2 pages), with redactions pursuant to POL § 87(2)(g)
T. Rice (DEC) D. O'Toole & C. Manfredi (DEC) 5/3/01 DEC Internal Memorandum Withhold memorandum - POL § 87(2)(g).
B. Youngberg (DEC) P. Merges & R. Rommel (DEC) 8/21/01, with prior 8/20/01 e-mail to B. Youngberg; copy to T. Rice (DEC) DEC Internal E-Mail Withhold internal e-mails - POL § 87(2)(g).
B. Youngberg (DEC) W. More (DEC), copies to DEC personnel 11/19/99 DEC Internal E-Mail (with 9/27/99 fax attachment to A. Klauss (DEC)) Withhold internal e-mail - POL § 87(2)(g). Release fax attachment (5 pages)
T. Rice (DEC) 10/18/05 Meeting Notes Withhold notes - POL § 87(2)(g).
B. Youngberg (DEC) R. Baldwin (DEC) 10/21/05 DEC Internal E-Mail, with preceding e-mails to DEC personnel Withhold internal e-mail - POL § 87(2)(g).
E. Murphy (DEC) B. Youngberg (DEC), and other DEC personnel 10/26/05 DEC Internal E-Mail Withhold internal e-mail - POL § 87(2)(g).
A. Crocker, Esq. (DEC) B. Youngberg (DEC) and other DEC personnel 12/13/05 DEC Internal E-Mail, with preceding e-mail attached Withhold internal e-mails - POL § 87(2)(a) & (g).
T. Rice (DEC) W. Little, Esq. (DEC) 12/14/05 DEC Internal E-Mail, with preceding e-mail attached Withhold internal e-mails - POL § 87(2)(a) & (g).
R. Snyder (DOH) T. Rice (DEC) 12/15/05 Inter-agency E-Mail, with attachment
Note: Attachment is a communication agreement proposed by the facility that was not approved or executed by DEC.
Withhold interagency e-mail - POL § 87(2)(g).
Release attachment (12 pages) with redactions of cell phone numbers and email addresses pursuant to POL § 87(2)(b)(cell phone numbers) and POL § 87(2)(f) and (i)(e-mail addresses).

Based upon the review, two attachments (consisting of eight pages) are being released in their entirety and one attachment (twelve pages) and one memorandum (two pages) are being released in redacted form. You had questioned whether any of the memoranda, e-mails or meeting notes contained "instructions to staff that affect the public" or "final agency policy or determination." The review of these records indicates that they do not contain such instructions and do not represent final agency policies or determinations.

You had requested that a copy of your appeal be provided to the Committee on Open Government ("Committee"). This is to advise that the Department routinely provides a copy of any FOIL appeal received to the Committee and, in this matter, a copy was forwarded to the Committee by Administrative Law Judge Susan DuBois with a copy of her March 10, 2006 letter addressed to you.

If you wish to be provided with copies of the records determined to be releaseable, please send a check in the amount of $5.50 (22 pages at $0.25 per page), payable to the New York State Department of Environmental Conservation, to the Office of Hearings and Mediation Services (Attn: Kimberly Sarbo) within thirty days of the date of this letter. If the Office of Hearings does not hear from you within thirty days of the date of this letter, the records shall be returned to their respective files.

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 CPLR and POL § 89(4)(b). In any further contact with this office, please refer to FOIL Appeal No. 06-08-0A.

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director
Committee on Open Government

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