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FOIL Appeal Determination for 07-02-2A (Gavin Kearney)

March 14, 2007

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: http://www.dec.state.ny.us/


March 14, 2007


Gavin Kearney, Esq.
New York Lawyers for
the Public Interest, Inc.
151 West 30th Street, 11th Floor
New York, New York 10001-4017

Re: Freedom of Information Law ("FOIL") Appeal No. 07-02-2A
Appeal Determination - Gershow Recycling Corporation

Dear Mr. Kearney:

This is in partial 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 Gershow Recycling Corporation facilities that are located in Region 1 and Region 2 of the New York State Department of Environmental Conservation ("Department").

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services ("OHMS") requested copies of the records that were withheld from the Department's Region 1 and 2 offices. On this appeal, a de novo review of the records withheld has been conducted. A review of your FOIL requests, and the initial Department staff response thereto, follows.

BACKGROUND

On April 27, 2005, you requested the following records from the Department's Region 2 office:

1. All records concerning SP[D]ES permitting, pursuant to ECL Article 17 - Title 8, for Gershow Recycling Corporation, 1885 Pitkin Avenue, Brooklyn, NY 11212;

2. All records concerning SPDES general permitting for storm water, pursuant to 40 CFR Part 122-124, for Gershow Recycling Corporation, 1885 Pitkin Avenue, Brooklyn, NY 11212;

3. All records concerning violations, fines, enforcement actions, or other actions taken against Gershow Recycling Corporation by the NYSDEC;

4. Any and all other records concerning Gershow Recycling Corporation, corporate headquarters located at 71 Peconic Avenue, PO Box 526, Medford, NY 11763; and

5. Any and all other records concerning Gershow Recycling Corporation's facility located at 1885 Pitkin Avenue, Brooklyn, NY 11212.

The 1885 Pitkin Avenue, Brooklyn address is located within the geographic area (Kings County) covered by the Department's Region 2 office, while the 71 Peconic Avenue, Medford address is located within the geographic area (Suffolk County) covered by the Department's Region 1 office.

By letter dated July 6, 2005, the Department's Region 2 office advised you that "no records could be located for the names and/or addresses you provided." Subsequently, based upon additional discussions you had with Department staff, you renewed your previous request on August 18, 2006 and, in a letter of the same date, requested the following additional records:

6. Any and all other records concerning Gershow Recycling Corporation's facility located at 631 Muncy Avenue, Lindenhurst, NY 11757; and

7. Any and all other records concerning Gershow Recycling Corporation's facility located at 24 Denton Avenue, New Hyde Park, NY 11040.

Both the 631 Muncy Avenue, Lindenhurst address and the 24 Denton Avenue, New Hyde Park address are located within the geographic area (Suffolk and Nassau counties, respectively) covered by the Department's Region 1 office.

By letter dated August 24, 2006, the Department's Region 2 office indicated that a response to your requests could be expected "within 20 days from the date of this letter." By letter dated August 30, 2006, the Department's Division of Law Enforcement (Lt. Michael R. O'Hara) advised you that the subject of your FOIL requests, Gershow Recycling Corporation, was involved in "an ongoing criminal investigation ... and any records associated with that investigation" would not be released at that time. Lt. O'Hara cited POL § 87(2)(e)(i), (ii), (iii), and (iv), which relate to records compiled for law enforcement purposes, as the bases for denying access to the requested records.

By letter dated August 31, 2006, the Department's records access officer (Ruth L. Earl) informed you that your request had been referred to Lt. O'Hara, Ms. Nancy Pinamonti in Region 1, and Dr. Fawzy I. Abdelsadek in Region 2, and that a response could be expected by September 29, 2006. By letter dated September 8, 2006, the Department's Region 1 office indicated that records related solely to Gershow Recycling Corporation at 71 Peconic Avenue, Medford, were expected to be provided to you "on or about October 5, 2006."

As of January 5, 2007, you had not received any further correspondence from the Department nor had you been provided with any records. By letter dated January 5, 2007, you filed this appeal with OHMS.

SUBSEQUENT REFINEMENT OF FOIL REQUEST

During a telephone call to discuss this appeal with Administrative Law Judge ("ALJ") Mark D. Sanza on January 31, 2007, you were advised that OHMS had received several boxes containing records from Regions 1 and 2 in relation to your FOIL requests. ALJ Sanza advised you that the greatest quantity of records received were from the Department's Region 1 office and most of those dated from the late 1980's and 1990's.

In response, you advised ALJ Sanza that the primary focus of your FOIL requests was for any records relating to the Gershow Recycling facility located in Region 2, i.e., 1885 Pitkin Ave., Brooklyn. You further advised ALJ Sanza that, with respect to the Gershow Recycling facilities located in Region 1, i.e., 631 Muncy Avenue, Lindenhurst and 24 Denton Avenue, New Hyde Park, you were primarily interested in records relating to recent violations, fines, permit application materials, and current permits.

RECORDS REVIEWED

We have reviewed on this appeal the records that were provided to us by Department staff and which have been determined responsive to your original April 27, 2005 and August 18, 2006 FOIL requests. As noted by ALJ Sanza in the telephone conference of January 31, 2007, the significant majority of records obtained in response to those FOIL requests were related to the Gershow Recycling facilities located in Region 1, i.e., 631 Muncy Ave., Lindenhurst and 24 Denton Ave., New Hyde Park.

Based upon the refinement to the scope of your FOIL requests made during your telephone call with ALJ Sanza in January 2007, we determined that any records relating to Gershow Recycling from the Department's Region 1 office dated prior to January 2001 were not within the scope of your request for "recent" documents for those facilities.

- Region 1 Office Records

In accordance with this limitation, we have identified one hundred seventy (170) records from the Region 1 office files dated between January 2001 and August 18, 2006 that were previously withheld. Based on our review of those records on this appeal, we have determined that one hundred twenty-six (126) of those records should be released in their entirety. We have determined that forty (40) of the records from Region 1 were properly withheld in their entirety pursuant to one or more FOIL exemptions, as follows:

POL § 87(2)(a), POL § 87(2)(e)(i), and POL § 87(2)(g): one (1) record;
POL § 87(2)(e)(i) and POL § 87(2)(g): seven (7) records; and
POL § 87(2)(g): thirty-two (32) records.

In addition, we have determined that four (4) other records from Region 1 should be released but in redacted form only.

A review of each of the referenced exemptions follows. POL §87(2)(a) exempts those records or portions thereof 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 and are subject to the attorney-client privilege (see CPLR 4503[a]) and/or constitute attorney work product (see CPLR 3101[c]). Accordingly, these records are exempt from disclosure.

POL § 87(2)(e)(i) authorizes the withholding of records or portions thereof 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 Misc 3d 1005[A][Sup Ct, New York County 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. Moszcydlowski, 58 AD2d 234 [2d Dept 1977]; City of New York v. BusTop Shelters, Inc., 104 Misc 2d 702, 711 [Sup Ct, New York County 1980]). POL § 87(2)(e)(iv) authorizes the withholding of records or portions thereof that are compiled for law enforcement purposes and which, if disclosed, would reveal criminal investigative techniques or procedures, except for routine techniques or procedures.

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 exempt 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 Dept., 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, consistent with the foregoing, we determined that forty (40) of the various records from the Department's Region 1 office during the refined time period subject to your FOIL request (including but not limited to correspondence, e-mails and other written communications, memoranda and notes) are exempt from disclosure pursuant to the attorney/client, law enforcement and/or intra-agency/inter-agency exemptions.

With respect to the four records that we have identified may be released in redacted form, certain portions of those records are exempt from disclosure pursuant to exemptions provided for in the POL. For example, some of the records which we have determined to be releaseable are portions of spill reports prepared by Department staff in response to complaints called in to the Department. Typically, the name and address of a complainant, in addition to other identifying information of the complainant, is redacted to protect the privacy of that person pursuant to POL § 87(2)(b). That section reads, in relevant part, as follows: "Each agency shall ... make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: ... (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article" (see also Advisory Opinion of the New York State Department of State Committee on Open Government #13971, March 27, 2003 [portions of a complaint identifying complainants may be deleted pursuant to POL §§ 87[2][b] & 89[2][b]).

- Region 2 Office Records

With respect to records relating to Gershow Recycling from the Department's Region 2 office, Department staff provided us with twelve (12) records that were previously withheld. Based on our review of those records, we have determined that four (4) records from Region 2 were properly withheld in their entirety as follows:

- POL § 87(2)(e)(i) and POL § 87(2)(g): two records; and
- POL § 87(2)(g): two records.

In addition, for the reasons set forth above, we have determined that one (1) spill report record should be released to you but in redacted form, with certain information redacted pursuant to POL § 87(2)(e)(i) and POL § 87(2)(g).

- Central Office

In addition, we have identified twenty-two records in Central Office that, although subject to your FOIL request, are exempt from release as follows:

- POL § 87(2)(e)(i) & (iv) and POL § 87(2)(g): 7 records;
- POL § 87(2)(e)(i) and POL § 87(2)(g): 13 records;
- POL § 87(2)(g): 1 record; and
- POL § 87(2)(e)(i): 1 record.

ACCESS TO RECORDS

The records or portions of records that are being released pursuant to this appeal consist of eight hundred ninety-one (891) pages from Region 1 and thirty-three (33) pages from Region 2, for a total of nine hundred twenty-four (924) 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 $231.00 (924 pages at $0.25 per page), within thirty (30) days of the date of this letter. Alternatively, if you would like to review these documents at our office, please contact Administrative Law Judge Mark Sanza (518-402-9003) within thirty (30) days of the date of this letter. If we do not hear from you within thirty (30) days of the date of this letter, the records will be returned to the appropriate agency files.

The Department is in the process of reviewing certain additional documents that are subject to this FOIL appeal, and expects to conclude that review shortly. If you have any questions, please contact Administrative Law Judge Mark Sanza directly. In any future correspondence or communications relating to this appeal, please refer to FOIL Appeal No. 07-02-2A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services


/s/

By: Mark D. Sanza
Administrative Law Judge

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

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