FOIL Appeal Determination for 07-23-3A (Frank Mancuso)
July 6, 2007
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 • FAX: (518) 402-9037
CORRECTED VERSION: August 9, 2007
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
July 6, 2007
Mr. Frank Mancuso
720 Tower Hill Road
Millbrook, New York 12545
Re: Freedom of Information Law ("FOIL") Appeal No. 07-23-3A
Appeal Determination - Echo Bay Waste Remediation Site (#360016)
Dear Mr. Mancuso:
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 eighty-four (84) records that were withheld in their entirety by the Department's Region 3 office in New Paltz. These records, which were referenced in William A. Buskey's letter to you dated May 15, 2007, pertain to the ConEd Echo Bay Inactive Hazardous Waste Site (#360016) located in New Rochelle, Westchester County, New York.
In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the eighty-four (84) records that were withheld from the Department's Region 3 office. On this appeal, we have conducted a de novo review of the records withheld. A brief review of your FOIL request, and the initial Department staff response thereto, follows.
On April 24, 2007, you requested the following from the Department's Region 3 office: all records concerning "ConEd Echo Ave. Site #3-60-016 in New Rochelle, NY From May - 02 - present."
By letter dated April 30, 2007, the Department's Region 3 office advised you that "there are approximately 13 inches of records responsive to this request." On or about May 16, 2007, you reviewed the records responsive to your FOIL request at the Department's Region 3 office. At that time, you were advised in writing that Department staff had determined to withhold access to eighty-four (84) records that staff had determined were exempt under POL § 87(2)(g) as inter-agency or intra-agency communications. By letter dated May 31, 2007 (and received on June 8, 2007), you filed this appeal from the denial of access to records with the Department's Office of Hearings and Mediation Services.
At the outset it should be noted that while Department staff initially indicated that a total of eighty-four (84) records were withheld, this total is actually eighty-three (83) because one of the records provided to us was a duplicate of another. Based upon our review, we have concluded that twenty-five (25) of the records can be released in their entirety, and two (2) records can be released in redacted form. We have determined that the remaining fifty-six (56) records from Region 3 were properly withheld in their entirety pursuant to one or more FOIL exemptions. A review of these exemptions follows.
The first exemption, 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[g][i]-[iv]).
Intra-agency and inter-agency materials that consist of opinions and recommendations of agency staff 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 ; see also New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488  ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]).
Accordingly, consistent with the foregoing, we have determined that fifty-six (56) of the records from the Department's Region 3 office (including but not limited to correspondence, E-mails and other written communications, memoranda and notes) are exempt from disclosure pursuant to the intra-agency/inter-agency exemption. In addition, as noted, we have determined that two (2) Department records subject to your FOIL appeal may be released in redacted form. The two records are E-mail messages between Department staff. We have concluded that these E-mail messages should be released in redacted form only as they contain information specifically exempt from disclosure by POL § 87(2)(g).
The second exemption, 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 City of New York v. BusTop Shelters, Inc., 104 Misc 2d 702, 711 [Sup Ct, New York County 1980]). A third exemption, POL § 87(2)(a), authorizes the withholding of records or portions thereof that are specifically exempted from disclosure by state or federal statute. Section 4503 of the New York Civil Practice Law and Rules provides an exemption for attorney-client communications in the course of professional employment. In accordance with the foregoing, we have determined that one (1) of the fifty-six (56) records exempt from disclosure pursuant to the intra-agency/inter-agency exemption is also exempt from disclosure pursuant to the state or federal statute exemption in POL § 87(2)(a) and the law enforcement exemption in POL § 87(2)(e)(i).
ACCESS TO RECORDS
The records or portions of records that are being released pursuant to this appeal consist of forty (40) pages. If you wish to be provided with copies, please send a check to Kimberly Sarbo of this office, made payable to the "New York State Department of Environmental Conservation" in the amount of $10.00 (40 pages at $0.25 per page), within thirty (30) days of the date of this letter.
Alternatively, if you would like to review these documents at our office, please contact Kimberly Sarbo at (518) 402-8537 within thirty (30) days of the date of this letter. If we do not hear from you within thirty (30) days, the records will be returned to their respective files and the FOIL appeal file will be closed.
This letter is 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. 07-23-3A.
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services
By: Mark D. Sanza
Administrative Law Judge
cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer