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FOIL Appeal Determination for 07-11-2A (David R. Alexander)

April 24, 2007

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

April 24, 2007

BY TELECOPY & FIRST CLASS MAIL

Air Resources Group, LLC
6281 Johnston Road
Albany, New York 12203

ATTN: David R. Alexander
Managing Principal

Re: Freedom of Information Law ("FOIL") Appeal No. 07-11-2A
Appeal Determination - Gershow Recycling of Brooklyn
(DEC Spill No. 0509318)

Dear Mr. Alexander:

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 Gershow Recycling of Brooklyn facilities located at 1885 and 1888 Pitkin Avenue, Brooklyn, in 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 2 and Central 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

By letter dated February 13, 2007, Katherine A. Keslick of your firm requested the following records pursuant to FOIL from the Department's Region 2 office consisting of sampling and spill investigation information related to DEC Spill No. 0509318 at Gershow Recycling of Brooklyn:

1. Full laboratory results for all samples collected for this investigation including chromatograms, QA/QC, etc.;
2. Full copies of chain of custody forms for these samples;
3. Identification of the individual(s) that collected the samples in the field;
4. Full photos of each sampling location and any other photos taken during the site investigations by the DEC;
5. Details of the matrix of each sample, the sampling depth, the quantity of sample collected, preservation techniques, and the disposition of the sample (does it still exist?);
6. Any written field notes taken during sampling;
7. Any written technical basis for the selection of an analytical methodology for each sample;
8. Any written technical basis including policy memos for the Department's contention that gasoline range analytes constitute the primary and sole determination of the presence of gasoline;
9. Any details including the formal spill report for Spill No. 0509318 and an alleged March 23, 2006, spill (DEC stated this fact in a letter but review of the spill database indicates no spill record with that date); and
10. Any documents detailing the sampling, transporting, and analyzing of any and all samples collected by the DEC relating to any alleged spill on or adjacent to Gershow's properties located at 1885 or 1888 Pitkin Avenue, Brooklyn, NY.

While that request was still pending with, and being processed by, the Department's Region 2 office, by application form to the Department's Central office dated February 22, 2007, Ms. Keslick renewed her previous FOIL request and further sought:

"... copies of all field, sampling, analytical, and investigatory documents generated and prepared by the NYSDEC Central office and/or the NYSDEC Region 2 Office related to Spill No. 0509318 which allegedly occurred at or around Gershow Recycling of Brooklyn, Inc."

This subsequent request also refined and substantially limited the scope of Ms. Keslick's FOIL requests to "NYSDEC documents" and specifically stated that "no documents generated by ARG (Air Resources Group, LLC), ERM (Environmental Resources Management) or Meyer, Suozzi, English and Klein, P.C. (MSEK) [law firm]" were to be considered or included in the Department's response. As a result, the number of records subject to the FOIL request and subsequent appeal were reduced. In addition, correspondence and attachments that were sent by the Department to MSEK were not considered to be part of the FOIL request and appeal.

By letter dated February 27, 2007, the Department's records access officer advised Ms. Keslick that "[a]ll documents identified as responsive to your request are withheld from disclosure in accordance with the following provisions of the Public Officers Law (POL):

• POL § 87.2e, as the documents were compiled for law enforcement purposes, and

• POL § 87.2g, as some of the documents are inter-agency or intra-agency communications which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits."

By letter dated March 5, 2007, you filed this appeal with OHMS.

Records Reviewed

We have reviewed on this appeal the records that were provided to us by Department staff and which have been determined to be responsive to the original February 13, 2007 FOIL request as subsequently modified by the February 22, 2007 FOIL request.

- Region 2 Office Records

In accordance with the limitations to the initial FOIL request made in the subsequent February 22, 2007 application form, the Department's Region 2 office provided us with various records that were previously withheld and which, in part, are subject to your appeal. Based on our review of those materials, we have identified thirty-five records, in addition to two other records in possession of Region 2 (for a total of thirty-seven [37] documents), which are subject to your appeal. We have determined that one (1) record (the NYSDEC Spill Report Form for Spill Number 0509318) is releaseable in redacted form pursuant to POL § 87(2)(g). We were not provided with any spill report forms for any other spill. The remaining thirty-six (36) records are being withheld pursuant to POL §§ 87(2)(e) and/or (2)(g).

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. Mosczydlowski, 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 (including but not limited to correspondence, e-mails and other written communications, memoranda and notes) 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"]).

Of the Region 2 records, thirty-six (36) records are exempt from release as follows:

- POL § 87(2)(e)(i) & (iv) and POL § 87(2)(g): 2 records;
- POL § 87(2)(e)(i) and POL § 87(2)(g): 32 records; and
- POL § 87(2)(e)(i): 2 records.

As noted, one (1) record is releaseable in redacted form.

- Central Office Records

In addition, we have identified thirty-two (32) 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): 9 records;
- POL § 87(2)(e)(i) and POL § 87(2)(g): 22 records; and
- POL § 87(2)(e)(i): 1 record.

Access to Records

The redacted NYSDEC Spill Report Form that is being released pursuant to this appeal is being forwarded under cover of this letter.

This letter is the final determination of the Department of Environmental Conservation with respect to your appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the Civil Practice Law and Rules, and POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 07-11-2A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By: Mark D. Sanza
Administrative Law Judge

Attachment

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Robert H. Feller, Esq. (By Telecopy & First Class Mail)(w/attachment)



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