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FOIL Appeal Determination for 07-13-0A (Richard J. Brickwedde)

April 20, 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 20, 2007

Richard J. Brickwedde, Esq.
Brickwedde Law Firm
One Park Place, Suite 400
Syracuse, New York 13202

Re: Freedom of Information Law ("FOIL") Appeal No. 07-13-0A

Dear Mr. Brickwedde:

We are in receipt of your FOIL appeal, on behalf of Crosby Hill Auto Recycling ("Crosby Hill"), for various records in the possession of the New York State Department of Environmental Conservation ("Department" or "DEC") relating to Crosby Hill.1

We have reviewed the 105 records that were withheld by Department staff. Although we have determined that ninety-two (92) of the records were properly withheld in their entirety pursuant to Public Officers Law §§ 87(2) (a) and/or 87 (2)(g), we have also concluded that nine (9) records should be released, in whole or in part. The four (4) log books (Records 100, 101, 102 and 103) are currently being reviewed and will be addressed in a subsequent letter.

You were previously provided by Department staff with a chart that identified the withheld records and identified the legal basis for withholding the records. In this letter, we address the applicable exemptions and also the specific records that are to be released, in whole or in part.

I. Records to be Withheld

A. § 87(2)(g): Inter-agency or intra-agency records

All of the ninety-two (92) records that were properly withheld constitute intra-agency or inter-agency records that are exempt from release. These records include communications within DEC, between DEC and the Office of the Attorney General, or communications between DEC and contractors hired by DEC.

POL § 87(2)(g) exempts from disclosure inter-agency or intra-agency records that are not (i) statistical or factual tabulations or data, (ii) instructions to staff that affect the public, (iii) final agency policy or determinations, (iv) external audits, including but not limited to audits performed by the comptroller and the federal government. This exception is intended to permit people within an agency or between agencies to exchange opinions, advice and criticism "freely and frankly." The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488, 796 NYS2d 302, 308 (2005).

The records of communications between DEC and the contractors who are or were under contract with the State are also exempt from disclosure. Records which would, if prepared by employees of a public agency, be exempt from disclosure under FOIL, are similarly exempt as intra-agency materials when prepared by outside consultants "at the behest of the agency as part of the agency's deliberative process." Matter of Xerox Corp v. Town of Webster, 65 NY2d 131, 133, 490 NYS.2d 488, 490 (1985); see also Matter of Sea Crest Construction Corp. v. Stubing, 82 AD2d 546, 549-550 (2d Dept 1981)(under freedom of information law, correspondence between town and engineers and architects hired as consultants constituted intra-agency communications exempt from disclosure).

In your appeal, you listed the names of several individuals who are referenced in the log of withheld records and inquired whether they were DEC employees. Of those you identified, Andrew English, Dennis Farrar, Steve Karwiel, Tim LeBarron, Donna Weigel, Fred Woodward, Shawn Dussault, Dennis M. Pokrzywka, Tim DiGiulio, and Christopher Magee are DEC employees. "M. Romolin" that appears on the FOIL previously provided to you should have read "M. Romocki." Mr. Romocki is a DEC employee. As to your inquiry as to "Ricco," please be advised that Ricco is a nickname of a DEC employee. Matt Notaro, Bill Simpson, Daniel Gonzalez, Anthony Scala, Peter Fricano, Sean Smith, as well as Jason-Ramie Surveying, are consultants of the Department. With respect to Kevin Murphy, who is an outside counsel, his communications are being released by this appeal determination.

You also questioned the withholding of specific information such as data, results, survey directions, groundwater data, invoices, site maps, holding times, and cellphone bills that are referenced in the listing of withheld records. We have reviewed each of those records and have determined that each falls within the intra-agency/inter-agency exemption set forth in POL § 87(2)(g), and several are also exempt pursuant to POL § 87(2)(a). In many instances, the withheld record simply references the category of information in a general sense and does not provide any details (such as statistical or factual tabulations of data) or otherwise attach the specific information. You also cite to Gould v New York City Police Dept, 89 NY2d 267 (1996) in your FOIL appeal as support for your position that various records should be released. The decision in Gould does not in any way modify the purpose underlying the intra-agency/inter-agency exemption which is "to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers [citation omitted]. Gould, at 276.

However, the photographs that were part of several records are not subject to a FOIL exemption and are being released on this appeal. As noted, we are currently reviewing the log books which will be the subject of a further FOIL determination letter. We are, however, releasing the photographs that were attached to Record (log book) #102 by this letter.

B. § 87(2)(a) Records specifically exempted from disclosure by state or federal statute

(1) Sixty-eight (68) of the records that were properly withheld, are also exempt under attorney/client privilege pursuant to POL § 87(2)(a) which provides that an agency may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute. The attorney-client communications are exempt pursuant to CPLR 4503 which protects confidential communications between an attorney and a client in the course of professional employment. The records withheld include communications among Department staff, DEC counsel acting in a legal capacity, and the Office of the Attorney General, counsel for the Department. In that regard, state agencies have an attorney-client relationship with the Office of Attorney General. See Matter of Morgan v. New York State Department of Environmental Conservation, 9 AD3d 586, 587 (3d Dept 2004).

(2) We have determined that twelve (12) of the records that were properly withheld were also attorney work product and therefore exempt under FOIL (see POL § 87[2][a]) . Attorney work product is exempt from disclosure pursuant to CPLR 3101 and has been defined to include records that constitute "'interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs' conducted, prepared or held by the attorney [citation omitted]." Kenford Company v. County of Erie, 55 AD2d 466, 470, 390 NYS2d 715, 718 (4th Dept 1977).

As stated in Kenford, "[u]nder CPLR 3101(b), privileged matter, such as that falling within the scope of the attorney-client privilege recognized in Article 45 of the CPLR, is unconditionally excepted from discovery. CPLR 3101(c) establishes an unqualified privilege from disclosure for the attorney's work product, and section 3101(d) creates a qualified immunity for material prepared for litigation." See 55 AD2d at 469, 390 NYS2d at 718. The attorney work product records that were properly withheld by staff are records prepared by DEC counsel or counsel for the DEC.

II. Records to be Released

Based on our review, we have determined that records #s 13, 23, 27, 36, 56, 63, 65, and 80 should be released in part and #46 should be released in its entirety.

Record 13: This four-page record contains one page of photographs. The photographs are being released. The record also contains communications that are exempt from FOIL pursuant to POL §§ 87(2)(a) and/or (2)(g). (1 page to be released).

Record 23: This three-page record contains an email between Attorney Kevin Murphy, counsel for Richard Murtaugh, Jr. and Maureen Leary, Esq., of the Office of the Attorney General, counsel for the DEC. That e-mail is being released. The record also contains communications between DEC staff and attorney Maureen Leary; those portions of the record are being redacted pursuant to POL §§ 87(2)(a) and (2)(g). (2 pages [one in redacted form] to be released).

Record 27: This two-page record contains one page of photographs that is being released. The remainder of the record is being withheld pursuant to POL §§ 87(2)(a) and (2)(g). (1 page to be released).

Record 36: This two-page record contains one photograph which is being released. The remainder of the record is being withheld pursuant to POL § 87 (2)(g). (1 page to be released).

Record 46: This record is an email between Mr. Murphy and Ms. Leary and is being released in its entirety. (1 page to be released).

Record 56: This five-page record contains a letter to Mr. Murphy from Ms. Leary, and that letter is being released. The remainder of Record 56 is being withheld because it contains confidential communications between DEC staff and Attorney Leary of the Office of the Attorney General, counsel for the DEC and, therefore, is exempt pursuant to POL § 87(2)(a). It is also exempt as an inter-agency communication pursuant to POL § 87(2)(g). (3 pages [one in redacted form] to be released).

Record 63. The record contains, as an attachment, an invoice from Delta Environmental Consultants, which is being released. The remainder of the record is being withheld pursuant to POL §§ 87(2)(a) and (2)(g). (4 pages to be released).

Record 65. This seven-page record contains a copy of Exhibit R-17 and three pages of soil sample analytical results which are being released. The remainder of the record is being withheld pursuant to POL §§ 87(2)(a) and (2)(g). (4 pages to be released).

Record 80. The two-page record contains, in part, an e-mail from Fred Gilbert which is being released. The remainder of the record is being withheld pursuant to POL
§§ 87(2)(a) and (2)(g). (2 pages [one in redacted form] to be released).

As noted, 11 pages of photographs that are attached to Record (log book) #102 are also to be released.

The records to be released contain a total of thirty (30) pages. If you wish to be provided with copies of the records, please send a check for $7.50 to this office (attn: Kimberly Sarbo) within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover copying costs (30 pages at $ 0.25/page). Alternatively, if you wish to review these records in our office, please contact Kimberly Sarbo at (518) 402-8537 within this time frame. After that time, if you have not contacted Ms. Sarbo or submitted your payment, the records will be returned to their respective custodians in the agency.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for
Hearings and Mediation Services

By: /s/

Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer

1Your FOIL appeal was addressed to the Office of General Counsel. Please be advised that FOIL appeals are to be directed to the Assistant Commissioner of the Office of Hearings and Mediation Services (see 6 NYCRR 616.8[d]).

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