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FOIL Appeal Determination for 07-18-4A April 6, 2007 ( Richard Miller)

April 6, 2007

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 1st Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.state.ny.us/

April 6, 2007

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

Re: Freedom of Information Law ("FOIL") Appeal No. 07-229

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. Your appeal states that, because no records were provided by March 7, 2007, the Department "failed to conform with the provisions of Public Officers Law § 89(3)" and that this failure constitutes a 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 have now provided us with the records that they withheld.

We have completed our review of the records withheld by the Central Office staff and this letter provides our determination of your appeal with regard such records. Please note that we will provide our determination with regard to records withheld by Region 4 staff under separate cover.

Central Office staff provided us with 87 records that it withheld from or redacted for disclosure. Three of these records were not within the scope of your FOIL request and, therefore, are not subject to this determination. With regard to the remaining 84 records, Central Office staff excluded or redacted all of these records on the basis of 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.

We have reviewed the 84 records denoted above and determined that all or part of 11 of these records should have been released in response to your FOIL request. Specifically, the following records are hereby released and available for your review (note that many of these records were attachments contained in records withheld by staff and may be duplicates of records previously made available to you):

• Town of Colonie sanitary landfill Permit. (No. 0929) dated February I, 1983 (one page).
• A 1982 Hazardous Waste Manifest (one page).
• Nine attachments to a withheld record, consisting of (i) a December 30, 1988 solid waste management permit issued to Universal Demolition Recycling, Limited (one page); (ii) a Universal Demolition Recycling Ltd sample Certificate of Material Origin (one page); (iii) a December 1, 1989 letter from Universal Demolition Recycling Ltd (one page); (iv) a Universal Demolition Recycling Ltd sample Certificate of Material Origin (one page); (v) the Department Technical and Administrative Guidance Memorandum (TAGM), dated December 26, 1989, for construction and demolition debris (five pages); (vi) a letter to Mr. Barry Cohen, dated December 18, 1990 (two pages); (vii) a letter to Mr. Paul Roth, dated December 6, 1990 (two pages); (viii) a letter to Mr. James Solano, dated January 15, 1991 (two pages); and (ix) a letter to Mr. Charles Vigliotti, dated February II, 1991 (two pages).
• Town of Colonie Application for Variance From 6 NYCRR 360, dated September 14, 1994 (one page).
• Letter to Mr. David Hansen, dated September 23, 1992 (three pages).
• Letter to Mr. William Clarke, dated June 17, 1997 and attached Application for Variance From 6 NYCRR 360 (two pages).
• Letter to Mr. John Feltman, dated February 26, 1997 (one page).
• Copy of jacket cover and excerpt from "Landfill Bioreactor Design & Operation" (two pages).
• Department form: Checklist for Local Government Financial Test (two pages).
• Letter to Mr. Jeffery Schmidt, dated April 2, 2001 (two pages).
• Email to Mr. Matthew McGarry, dated July 22, 2005 (one page).

The remaining responsive records that were withheld by Central Office staff fall within the scope of the inter-agency or intra-agency exemption in Public Officers Law § 87(2)(g) and are being withheld in their entirety. 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, we conclude that one of the withheld records is a settlement document exempt from disclosure in accordance with Public Officers Law § 87(2)(a). This provision exempts records from disclosure under FOIL that are specifically exempted from disclosure by state or federal statute. Records that contain attorney-client communications, attorney work product and material prepared for litigation are exempt pursuant to sections 4503(a), 3101(c) and 3101(d) of the Civil Practice Law and Rules. 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).

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 $8.25 (33 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.

As previously noted, you shall be provided with an appeal determination relative to the records Region 4 staff determined to withhold by separate letter.

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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