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FOIL Appeal Determination for 07-16-5A (Kenneth Bartholomew)

April 3, 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/

April 3, 2007

Kenneth Bartholomew
8 Elizabeth Street
Apartment 107
Whitehall, New York 12887

Re: FOIL Appeal No. 07-16-5A
SPDES Violations and Resolutions

Dear Mr. Bartholomew:

This letter responds to your correspondence of March 13, 2007, appealing Department Staff's denial of access to certain records, as set forth in a March 9, 2007 letter from the Region 5 Freedom of Information Law ("FOIL") Coordinator. For the reasons set forth herein, Department Staff's denial of access is affirmed, except as noted below.

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, in whole or in part. On this appeal, a de novo review of those records was conducted. As discussed more specifically in this correspondence, certain of the withheld records are exempt from FOIL because they are intra-agency materials which do not meet any of the standards for disclosure under Public Officers Law ("POL") § 87(2)(g)(i) through (iv). In addition, certain records are exempt from disclosure pursuant to POL § 87(2)(b), because release of those records would constitute an unwarranted invasion of personal privacy.

Thirty-five pages were provided to OHMS. Of those records, two pages consist of the redacted complaint form 06-008828 previously provided to you. Enclosed with this letter are copies of three newspaper articles, two photographs, and a flow chart that are being released to you in their entirety (a total of 7 pages). Also enclosed are redacted copies of a complaint form (05-005344) and a Significant Incident Report form (a total of 4 pages).

Procedural and Factual History

By letter dated February 6, 2007 to the Department's Region 5 Records Access Officer, you requested "[a]ny records containing mention of violations of SPDES PERMITS by any governmental entity and any type resolution of these alleged violations for the past three years in." By letter dated March 5, 2007, Charles S. Haugh, P.E., Chief of the SPDES Compliance Information Section, Division of Water, provided you with a list of SPDES enforcement orders taken by the Department since 2004. In correspondence dated March 9, 2007, Region 5 Department Staff provided you with two redacted pages, and denied access to the redacted information pursuant to Section 87(2)(b) of the Public Officers Law, "as the release would result in unwarranted invasion of personal privacy." The letter went on to state that the Region maintained other documents responsive to your FOIL request, but that access to that information was denied pursuant to Section 87(2)(e) of the Public Officers Law, "as the records are compiled for law enforcement purposes." This appeal followed.

The issue on appeal is whether Department Staff correctly decided that the requested records are exempt from disclosure under FOIL.

Discussion

Agencies have a broad duty of disclosure under FOIL, and there is a presumption that agency records will be made available to the public, unless they fall within one of several categories of statutory exemptions that allows the agency to withhold certain records. See, Matter of Spencer v. Lombardi, 267 A.D.2d 13, 14 (1st Dept. 1999). Nevertheless, the Department is entitled to withhold materials as long as the "requisite particularized showing" is made that an exemption applies. Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274-75 (1996).

Some of the records sought in your request are exempt pursuant to POL § 87(2)(g) because they constitute intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. See POL § 89(2)(g)(i-iv); New York Times Co. v. City of New York Fire Dept., 47 N.Y.3rd 477, 488 (2005) (exception is intended to foster free and frank exchange of opinions, advice and criticism); Flores v. City of New York, 207 A.D.2d 302 (1st Dept. 1994)(exemption from disclosure applied to police officer's internal affairs division records and civil complaint review board file); Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985) (intra- and inter-agency exchanges are excluded from disclosure "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)"). Thus, Department Staff properly withheld an e-mail exchange concerning an ongoing investigation, as well as communications between counsel for the Department and an attorney for a municipality.

Moreover, the records of communications between Department counsel and the municipality's attorney constitute confidential settlement discussions, and therefore are not subject to disclosure under FOIL. See United States v. Glens Falls Newspapers, 160 F.3d 853, 857-58 (2d Cir. 1998) (settlement discussions and documents did not carry a presumption of public access; public policy favors withholding to avoid undermining attempts at resolution; presumption of access is "negligible to nonexistent"); Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 58 A.D.2d 234, 237 (2nd Dept. 1977) ("Records prepared by the government solely with respect to its actual or contemplated status as a litigant are not records of governance and the public can have no greater right of access thereto than the party with whom the government is engaged in such litigation."); FOIL Advisory Opinion Number 6547 of the New York State Committee on Open Government, March 26, 1991 (draft consent order transmitted between a state agency and a municipality would constitute inter-agency material, and in addition, could justifiably be withheld as non-final).

In your appeal, you objected to the redaction of Complaint Form 06-008828 (6/28/06). Portions of a complaint that identify a complainant by name or provide other identifying details may be deleted because disclosure would result in an unwarranted invasion of personal privacy. POL § 87(2)(b); Scarola v. Morgenthau, 246 A.D.2d 417, 418 (1st Dept. 1998)(affirming denial of access to petitioner of statements made by informants, because disclosure would constitute unwarranted invasion of personal privacy); Matter of Mulhall, supra (statements of a witness who did not testify at trial properly fell within scope of statutory exemptions under POL §§ 87(2)(b) and 87(2)(e)(i) and (iii)); Advisory Opinion No. 13971 of the New York State Commission on Open Government (March 27, 2003) (portions of a complaint that identify a complainant by name or provide other identifying details may be redacted to prevent disclosure that would result in an unwarranted invasion of personal privacy). The fact that certain details, such as the name of a business, may be "public," does not mandate their release when disclosure would reveal a complainant's identity. In light of this, Department Staff properly redacted Complaint Form 06-008828.

In addition, enclosed with this letter are other records that have been redacted pursuant to Section 87(2)(b) and 87(2)(g). These include a complaint form (05-005344) and a Significant Incident Report. Also enclosed are copies of three newspaper articles that were included in the files where responsive documents were located, and a copy of a flow chart and two photographs.

Conclusion

Department Staff's denial of access is affirmed, except as set forth above.

This letter contains the final determination of the Agency in this matter. As provided in POL § 89(4)(b) and Section 616.8(h) of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York, you are informed that you have the right to seek judicial review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules.

Sincerely,

/s/

Louis A. Alexander
Assistant Commissioner
for Hearings and Mediation Services

/s/

By: Maria E. Villa
Administrative Law Judge

Enclosures

cc: Robert Freeman, Committee on Open Government
Sheryl L. Quinn, FOIL Coordinator, Region 5 (with enclosures)
Ruth Earl, Records Access Officer
James T. McClymonds, Chief Administrative Law Judge

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