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FOIL Appeal Determination for 06-16-5A (Erick Titrud)

August 14, 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

August 14, 2006

BY TELECOPY & FIRST CLASS MAIL

Erick Titrud, Esq.
Assistant Attorney General
Office of the Attorney General
State of Vermont
109 State Street
Montpelier, Vermont 05609-1001

Re: Freedom of Information Law Appeal No. 06-16-5A
Records relating to International Paper Company

Dear Mr. Titrud:

This letter is a partial response to your letter dated July 29, 2006 by which the Office of the Attorney General, on behalf of the State of Vermont, appealed from the denial of access by the New York State Department of Environmental Conservation ("Department") to records pertaining to International Paper Company - Ticonderoga Mill ("International Paper" or "facility").

BACKGROUND

By letter dated December 15, 2005, the State of Vermont requested, pursuant to the New York State Freedom of Information Law ("FOIL,", codified at Public Authorities Law ["POL"] §§ 84-90), records relating to International Paper. The State's FOIL request primarily concerned records pertaining to the Department's review of a proposed modification to International Paper's Title V permit to conduct a two-week test burn of tire-derived fuel.

By letter dated December 22, 2005, the Department's Records Access Officer advised you that the records subject to the FOIL request would be made available for review by February 3, 2006.

On February 2, 2006, the Department's Region 5 office contacted your office by telephone to advise that the Department had completed its document review and those records determined to be releaseable were now available for inspection. Certain of the records were being made available at the Region 5 office in Ray Brook, New York, and the remaining records were being made available at the Region 5 sub-office in Warrensburg, New York. Not having received a response, the Department, by letter dated February 17, 2006, again contacted your office regarding the availability of the records for review.

I am advised by Department staff that it was not until the week of June 18, 2006 that your office contacted the Department to schedule a time to review the records. I am further advised that you reviewed the records at the Region 5 office in Ray Brook on June 30, 2006 and at the Warrensburg sub-office on July 24, 2006. You requested copies of over 2,300 pages of records and the Department has advised you of the cost for their reproduction.

At the time of your review at the Region 5 office in Ray Brook, you were provided with a letter from Regional Attorney Christopher A. Lacombe dated June 29, 2006 (the "June 2006 Letter") that advised that Vermont's December 15, 2005 FOIL request covered only those records up until February 3, 2006. I understand that, on July 24, 2006, you filed a FOIL request for records that had been generated, prepared or otherwise obtained after February 3, 2006. That second FOIL request is still pending and is not the subject of this appeal.1

The June 2006 Letter also advised that certain records were being withheld pursuant to various FOIL exemptions. As stated in the letter:

"[t]he basis for the Department's withholding of documents are that the documents either constitute inter-agency or intra-agency materials that are not subject to release under Public Officers Law [§ 87(2)(g)]. In addition, some of the documents were not released because they would interfere with enforcement proceedings under Public [Officers] Law [§ 87(2)(i)]. Furthermore, some documents were not released because they are privileged information under the attorney-client privilege or constitute attorney work product" [June 2006 Letter, at 2].

In your July 29, 2006 letter, you contended that the Department "has not provided sufficient information about the withheld documents or the specific basis for withholding each document." The letter also indicated that the State of Vermont received notification of the Department's determination to withhold records on June 30, 2006.

APPEAL PROCESS

- Applicable FOIL Exemptions

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from the Department's central and Region 5 offices. On this appeal, a de novo review of the records withheld has been conducted. Based upon this review, I have determined that most of the records were properly withheld pursuant to one or more FOIL exemptions, specifically, POL § 87(2)(a), POL § 87(2)(e)(i), and POL § 87(2)(g).

POL § 87(2)(a) authorizes the denial of access to those records that are specifically exempted from disclosure by state or federal statute. Certain of the records subject to this FOIL appeal are communications to and from attorneys within the Department. Accordingly, those records are subject to the attorney-client privilege (see section 4503[a] of the New York Civil Practice Law and Rules ["CPLR"]) and/or constitute attorney work product (see CPLR 3101[c]) and are exempt from disclosure pursuant to POL § 87(2)(a)(see, e.g., United Policyholders v. Serio, 298 AD2d 286 [1st Dept 2002][memorandum from agency staff attorney to two agency employees exempt from FOIL disclosure pursuant to POL § 87(2)(a)]; Turner v. Dept. of Finance, 242 AD2d 146, 148 [1st Dept 1998]["Public Officers Law § 87(2) exempts attorney-client communications that are confidential under CPLR 4503(a) and attorney-work product under CPLR 3101(c) in subdivision (a)"]). In addition, the Department interprets POL § 87(2)(a) to apply to records relating to communications from or to Department attorneys in the negotiation of consent orders or documents to resolve enforcement actions (see CPLR 4547).

POL § 87(2)(e)(i) authorizes the denial of records compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc3d 1005[A][NY Co Sup Ct 2004][holding that POL § 87(2)(e)(i) applies to agency investigations of violations of the law]; see also Matter of Westchester Rockland Newspapers, Inc. v. Moscydlowski, 58 AD2d 234 [2d Dept 1977]; City of New York v. BusTop Shelters, Inc., 104 Misc2d 702, 711 [NY Co Sup Ct 1980]["[t]he only requirement is that the records in the possession of a public agency were compiled for law enforcement purposes"]).

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"]); Matter of Miracle Mile Associates v. Yudelson, 68 AD2d 176 [4th Dept], appeal denied, 48 NY2d 706 [1979]. Accordingly, various of the Department records subject to the State of Vermont's FOIL request (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.

Please note also that the aforementioned exemptions are not exclusive. As an example, records which are communications from a Department attorney to a Department employee and exempt from FOIL pursuant to POL § 87(2)(a) will likely also be exempt as intra-agency records pursuant POL § 87(2)(g).

Furthermore, although portions of certain records may be releaseable, other portions of those same records may be exempt pursuant to FOIL. For example, some of the records which I have determined to be releaseable contain either notes or comments of Department staff which represent opinion or are otherwise part of the deliberative process and, therefore, are exempt pursuant POL § 87(2)(g) or are notes or comments of Department attorneys which are exempt pursuant POL §§ 87(2)(a) and (2)(g). With respect to those records, the notes and comments will be redacted prior to releasing those records.

You indicated, in your appeal letter, that the Department had not provided "sufficient information" regarding the withheld documents. Please be advised that no requirement exists under FOIL to prepare a list or index identifying records that have been withheld (see, e.g., Advisory Opinions AO-12924 [August 30, 2001] and AO-14311 [October 27, 2003], New York State Department of State, Committee on Open Government [nothing in FOIL or State judicial decision construing FOIL that would require denial at agency level to identify every record withheld or include a description of the reason for withholding each document]; see also Nalo v. Sullivan, 125 AD2d 311, 312 [2d Dept 1986], lv denied, 69 NY2d 612 [1987]).

- Summary of Record Review

As indicated, this FOIL review addressed records from both the Department's central office and Region 5 office.

- Central Office Records - Previously Considered

I have been provided with ninety-six (96) records from the Department's central office files that were withheld. Based on the review on this appeal, I have determined that five (5) of those records should be released in their entirety, including the following:

- e-mail dated October 31, 2005 from Wally McLean (two-pages);
- DEC Policy DP-33 dated December 29, 2003 (7 pages);
- Department staff e-mail dated January 20, 2006 (1 page);
- Department staff e-mail dated January 6, 2006 (1 page); and
- e-mail dated June 9, 2005 from Robert Stegemann (1 page).

I have determined that ten (10) records should be released but that the Department staff comments contained in or written on the documents should be redacted as noted below:

- tire derived fuel trial barchart (redactions pursuant to POL § 87[2][a] & POL § 87[2][g])(1 page);
- letter dated June 23, 2004 from Steven Riva (3 pages) (redactions pursuant to POL § 87[2][g]);
- letter dated April 13, 2005 from Senator Hilary Rodham Clinton (redactions pursuant to POL § 87[2][g])(2 pages, including telecopy sheet);
- letter dated October 13, 2005 from Senator Betty Little (2 pages)(redactions pursuant to POL § 87[2][g]);
- letter dated December 22, 2005 from Congressman Bernard Sanders (redactions pursuant to POL § 87[2][g])(3 pages, including telecopy sheet);
- letter dated November 8, 2005 from Senator Hillary Rodham Clinton and Congressmen John Sweeney and John McHugh (1 page) (redactions pursuant to POL § 87[2][g]);
- letter dated November 9, 2005 from Teresa Sayward (2 pages) (redactions pursuant to POL § 87[2][g]);
- forwarding transmittals with attached request from the State of Vermont regarding public comment period (redactions pursuant to POL § 87[2][g] on one transmittal page)(6 pages);
- Department staff e-mail dated November 10, 2005 with attached memorandum (3 pages)(redactions pursuant to POL § 87[2][g]) on attached memorandum; attached e-mail withheld pursuant to POL § 87[2][a] and [g]); and
- letter dated September 2, 2005 from Senator James Jeffords (redactions pursuant to POL § 87[2][g])(3 pages).

I have determined that the remaining eighty-one (81) records were appropriately withheld in accordance with the following exemptions:

- POL § 87(2)(a) and POL § 87(2)(g) - fifty (50) records;
- POL § 87(2)(e)(i) and POL § 87(2)(g) - one (1) record; and
- POL § 87(2)(g) - thirty (30) records.

I have been advised that the following thirteen (13) letters (which are not included in the tally of 96 records initially withheld) were likely provided to you for review with the records made available in Ray Brook or Warrensburg:

- letter dated March 15, 2005 from Steven Riva;
- letter dated October 18, 2004 from Congressman John E. Sweeney;
- letter dated January 26, 2004 from James G. Coutant;
- letter dated June 15, 2005 from Carl Johnson;
- letter dated November 28, 2005 from Carl Johnson;
- letter dated November 28, 2005 from Carl Johnson;
- letter dated August 24, 2005 from Michael J. McMurray;
- letter dated September 14, 2005 from William R. Wasilauski;
- letter dated August 17, 2005 from Christopher P. Mallon;
- letter dated September 2, 2005 from Christopher P. Mallon;
- letter dated December 14, 2005 from Carl Johnson;
- letter dated January 17, 2006 from NRDC;
- letter dated December 20, 2005 from People for Less Pollution.

However, I have not been able to verify whether that is correct. Accordingly, if you would like to receive copies of one or more of the above-listed thirteen (13) letters, please let me know.

- Central Office Records - Newly Identified Documents

In the course of the review of your appeal, an additional one hundred eighty-seven (187) records were identified in central office that were subject to your FOIL request but which may not have been considered in the initial FOIL review. I have independently reviewed those records, many of which are e-mails between Department staff or other correspondence, and my conclusions follow:

- 4 records are exempt pursuant to POL § 87(2)(a) & POL § 87(2)(g)(note: all four records are intra-agency e-mails);
- 65 records are exempt pursuant to POL § 87(2)(g)(note: these records primarily consist of intra-agency e-mails and intra-agency drafts);
- 35 records are releaseable in part, with redactions of portions pursuant to POL § 87(2)(g); and
- 83 records are releaseable in their entirety.

I believe that copies of some of the aforementioned 118 records that are releaseable in whole (83 records) or in part (35 records) were included in the records that you reviewed at Ray Brook and Warrensburg. However, because that has not been verified, the records are also being made available pursuant to this appeal.

- Region 5 Records

I have reviewed to date five hundred eleven (511) records from the Region 5 office that were withheld. Based on this review, I have determined the following:

- seventeen (17) records were properly withheld pursuant to POL § 87(2)(a), POL § 87(2)(e)(i), and POL § 87(2)(g);
- thirteen (13) records were properly withheld pursuant to POL § 87(2)(a) and POL § 87(2)(e)(i);
- seven (7) records were properly withheld pursuant to POL § 87(2)(a) and POL § 87(2)(g);
- five (5) records were properly withheld pursuant to POL § 87(2)(e)(i);
- twenty-four (24) records were properly withheld pursuant to POL § 87 (2)(e)(i) and POL § 87(2)(g);
- three hundred fifty-three (353) records were properly withheld pursuant to POL § 87(2)(g);
- with respect to seventeen (17) records which were withheld pursuant to POL § 87(2)(g) in their entirety, I have determined that portions of those records are not subject to the POL § 87(2)(g) exemption and, accordingly, those portions will be released;
- with respect to one (1) record which was withheld in its entirety pursuant to POL § 87(2)(a), POL § 87(2)(e)(i) and POL § 87(2)(g), I have determined that portions of the record were not subject to those exemptions and, accordingly, those portions will be released; and
- seventy-four (74) records previously withheld will be released in their entirety.

In addition, I reviewed six (6) records that had been released in part where portions had been redacted pursuant to POL § 87(2)(g) and one (1) record that had been released in part where portions had been redacted pursuant to POL § 87(2)(a), POL § 87(2)(e)(i) and POL § 87(2)(g). I affirm on this appeal that the redactions with respect to these seven (7) records were properly made in accordance with the referenced FOIL exemptions.

REMAINING RECORDS TO BE REVIEWED

It appears that there are additional records from Region 5 that were withheld which remain to be received for review on this appeal. Please note that, because of the length of time that the State of Vermont took to arrange for the inspection of records, various records had been retrieved for use in the project and, as such, were not all accumulated in one location.

The Department is in the process of determining the extent of any additional records. With respect to any further records that are identified, I anticipate that their review would be completed by the end of this month.

AVAILABILITY OF RECORDS FOR REVIEW

The records or portions of records that are being released are available for your review at our office at 625 Broadway, Albany, New York. If you would like to review the records, please contact Kimberly Sarbo at (518) 402-8537. Alternatively, if you wish to be provided with copies, please contact Ms. Sarbo in writing. The cost for reproduction will then be determined and you will be advised accordingly.

This letter is the final determination of the Department of Environmental Conservation with respect to the records referenced herein. However, because there may be additional records subject to review on this appeal, this appeal remains open. I shall be notifying you if there are any further records to review and, if so, if any are releaseable ("subsequent notification"). Accordingly, the time period for any appeal pursuant to article 78 of the Civil Practice Law and Rules and POL § 89(4)(b) shall not commence until that subsequent notification.. In any further contact with this office, please refer to FOIL Appeal No. 06-16-5A. If you have any questions, please feel free to contact me.

Sincerely,


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

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

1Because of the numerous documents subject to your initial FOIL request, I understand that some post-February 3, 2006 records may have been provided for your review. However, with respect to this appeal, only records prior to and including the February 3, 2006 cutoff date were reviewed.

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