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FOIL Appeal Determination for 07-18-4A Arpril 12, 2007(Richard Miller)

April 12, 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 12, 2007


Richard Miller, Esq.
Morris & McVeigh, LLP
19 Dove Street
Albany, New York 12210-1389

Re: Freedom of Information Law ("FOIL") Appeal No. 07-18-4A

Dear Mr. Miller:

Your FOIL request dated January 26, 2006, sought access to records concerning the solid waste management permit for the Town of Colonie landfill. By letter dated February 6, 2007, the Records Access Officer for the Department of Environmental Conservation ("Department") acknowledged receipt of your FOIL request and advised you to expect a further response to your request by March 7, 2007.

On March 30, 2007, this office received your letter dated March 27, 2007, by which you appealed the "deemed denial" of your FOIL request. In response to your appeal, we requested the Department's Central Office and Region 4 staff provide us with copies of the records that they determined to withhold. By letter dated April 5, 2007, a copy of which was provided to this office, Central Office staff advised you that releasable records were available for your review. By letter dated April 3, 2007, a copy of which was provided to this office, Region 4 staff advised you that nineteen (19) boxes of documents were available for your review. Both Region 4 and Central Office staff provided us with the records that they withheld.

By letter dated April 6, 2007, we advised you that we completed our review of the records withheld by Central Office staff and provided you with our determination of your FOIL appeal relative to those records. On the basis of that review, we advised you that 11 records that had been withheld by Central Office staff were being made available to you. We have now also completed our review of the records withheld by Region 4 staff and this letter provides our determination of your appeal with regard such records.

The vast majority of the records withheld by Region 4 staff fall within the scope of the inter-agency or intra-agency exception in Public Officers Law § 87(2)(g). Pursuant thereto, an agency may except from disclosure records or portions thereof that are inter-agency or intra-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. This exception is intended "to permit people within an agency to exchange opinions, advice and criticism freely and frankly (citation omitted)." The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 (2005).

Additionally, portions of certain records were withheld by Region 4 staff because they contain information that identifies private citizens who submitted complaints relating to the Colonie landfill. The complaints were released to you by Region 4 staff, but with each complainant's identifying information redacted. This is in accordance with Public Officers Law § 87(2)(b), which provides that records may be excepted from disclosure where their disclosure would "constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." We have determined that disclosure of the name of the complainant and other identifying information would constitute such an unwarranted invasion of personal privacy. See, e.g., New York Department of State Committee on Open Government Advisory Opinion, FOIL AO-13971, dated March 27, 2003 (opining that a complainant's identifying information may be withheld "on the ground that disclosure would result in an unwarranted invasion of personal privacy pursuant to [Public Officers Law] §§ 87[2] and 89[2][b]").

Finally, pursuant to Public Officers Law § 87(2)(a), records that are specifically exempted from disclosure by state or federal statute may be excepted from disclosure. Region 4 staff withheld records that contain communications between staff and Department counsel, are attorney work product or are draft settlement documents. Pursuant to sections 4503(a), 3101(c) and 3101(d) of the Civil Practice Law and Rules, records that contain attorney-client communications, attorney work product and material prepared for litigation are exempt. In addition, courts have held that documents containing offers of settlement may be withheld from disclosure to further the public interest in fostering negotiated settlements between litigants without fear of public disclosure. See United States v. Town of Moreau, 979 F. Supp. 129 (NDNY 1997), aff'd, 160 F.3d 853 (2d Cir. 1998).

On the basis of our review of the records or portions thereof that were withheld by Region 4 staff, we have determined that 62 of these records should be released to you, in whole or in part, in response to your FOIL request. The records being released comprise a total of 310 pages.

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 within thirty (30) days of this letter. Alternatively, if you wish to be provided with copies, please send a check in the amount of $77.50 (310 pages at $0.25 per page), made payable to the New York State Department of Environmental Conservation, to Ms. Sarbo within thirty (30) days of this letter.

This letter, and our letter to you dated April 6, 2007, constitute the final determination of the Department of Environmental Conservation with respect to your appeal. You have the right to seek review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No.
07-18-4A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By: Richard A. Sherman
Administrative Law Judge

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

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