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FOIL Appeal Determination for 07-24-0A (James L. Simpson)

July 13, 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.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED


July 13, 2007

James L. Simpson, Esq.
Riverkeeper, Inc.
828 South Broadway
Tarrytown, New York 10591

Re: Freedom of Information Law Appeal No. 07-24-0A

Dear Mr. Simpson:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL" codified at sections 84-90 of the Public Officers Law ["POL"]), from the denial by staff of the Department of Environmental Conservation ("Department" or "DEC") of access to certain records relating to Outfall No. 008 of the Finch Pruyn & Co., Inc. ("Finch Pruyn") facility in Glens Falls, New York (SPDES Permit No. NY0005525).

Your appeal comprises two parts: (1) an appeal of the determination to withhold certain records by Department staff in DEC Region 5; and (2) an appeal based on a constructive denial of certain records by DEC Central Office staff. We will respond to the appeal in the above order.

DEC Region 5 Records

By letter dated May 15, 2007, Ms. Sheryl L. Quinn, the FOIL Coordinator for DEC's Region 5 office, advised you that 84 pages of records had been identified that were releaseable pursuant to FOIL. Region 5 staff also forwarded a listing of spills at the Finch Pruyn facility and facility information reports on the facility's petroleum bulk storage tanks. You were notified that additional documents were being withheld pursuant to POL § 87(2)(e) and (2)(g). Although the records that were withheld were not specifically identified, this is to advise that they related to a May 2006 spill at the facility and included the following:

(a) Report on Wastewater Spill at Finch Pruyn's Mill, dated May 25, 2006 (one page);
(b) three (3) photographs of the site dated June 1, 2006 (three pages);
(c) DEC Spill Complaint Form regarding the May 25, 2006 spill at Finch Pruyn (three pages);
(d) Spill Summary, Spill #0602064 (one page);
(e) Significant Incident Report (two pages); and
(f) eight (8) photographs of the site dated May 25, 2006 (eight pages).

Subsequent to Ms. Quinn's letter, DEC Region 5 concluded its enforcement relating to the May 2006 spill and an order on consent was finalized on May 21, 2007. In light of the foregoing, we have determined that the basis for withholding the above-referenced records is for the most part moot and the records, with certain redactions, may be released as follows:

- the one (1) page Report on Wastewater Spill and the eleven (11) pages of photographs are being released in their entirety;

- the DEC Spill Complaint form has been redacted to remove the identity of the complainant and the Spill Summary has been redacted to remove a personal cell phone number and a beeper number. This redacted information is being withheld pursuant to POL § 87(2)(b) which reads, in relevant part: "Each agency shall . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
. . . (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article."

The disclosure of the name of the complainant and the other personal information would constitute such an unwarranted invasion of personal privacy. See, e.g., Advisory Opinion of the New York Department of State Committee on Open Government, 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 [POL] § 87[2] and 89[2][b]"). Similarly, release of personal cell phone and beeper numbers would also constitute an invasion of personal privacy;

- with respect to the Significant Incident Report, one sentence in the section entitled "Synopsis of Facts or Events" is being redacted pursuant to POL § 87(2)(g). That exemption 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. 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 (1985); and

- a portion of the Spill Summary report is also being redacted pursuant to POL § 87(2)(g) to delete intra-agency deliberative matter.

The records that are being released in response to this part of your appeal total eighteen (18) pages. In addition, we are releasing a copy of a five (5) page May 2007 order on consent that relates, in part, to the May 2006 spill.

DEC Central Office Records

The second part of your appeal dealt with a constructive denial of certain Central Office records relating to:

(a) "[a]ny and all reports, memoranda, correspondence, and other information relating to DEC's decision to conduct a "Fast Track" renewal of the [SPDES permit No. NY0005525]";

(b) "[a]ny and all reports, memoranda, correspondence, and other information relating to DEC's decision whether or not to administratively review the . . . SPDES permit (as opposed to a technical review), including the number of times this permit has been administratively reviewed pursuant to the DEC's Environmental Benefit Permit Strategy;" and

(c)"[a]ny and all reports, memoranda, correspondence, and other information that lead DEC to compute an Environmental Benefit Permit Strategy score of 35 for this facility." 1

In our consideration of your appeal, we have been advised by Department staff as follows. SPDES permits are reviewed in accordance with the procedures set forth in Division of Water Technical and Operational Guidance Series ("TOGS") 1.2.2 ("Administrative Procedures and the Environmental Benefit Permit Strategy for Individual SPDES Permits"). This guidance document appears on the Department's website at http://www.dec.ny.gov/docs/water_pdf/togs122.pdf, There is no separate "fast track" process but, as noted, TOGS 1.2.2. establishes the relevant framework for administrative review.

Department staff has provided us with a one-page handwritten list identifying the number of times the permit has been reviewed as well as the dates of such reviews. A copy of that list is enclosed. In addition, under cover of a letter dated April 26, 2007 from Linda Prinzo ("Prinzo Letter"), you were provided with copies of the following: SPDES Priority Evaluation Fact Sheet; Request for Information dated July 3, 1998; a June 11, 1996 DEC transmittal letter with permit effective October 1, 1996; a May 16, 2001 DEC transmittal letter with permit effective October 1, 2001; and SPDES renewal application questionnaires. These copies were from the file of the Bureau of Water Permits pertaining to the Finch Pruyn permit subject to this FOIL request.

We also requested that the DEC Division of Environmental Permits ("DEP") review its records to identify SPDES permit renewal documents and permits that DEP has on file for the facility. We have been advised that some of the records that DEP identified were duplicates of records in the Bureau of Water Permits and were furnished under cover of the Prinzo Letter. Additional records were identified in DEP files that have been determined to be subject to your appeal and may be released. These records (which, in total, comprise 24 pages) include:

(1) Notice/Renewal Application/Permit (permit effective date of October 1, 2006)
(1 page);
(2) SPDES Renewal Application Questionnaire, undated (1 page);
(3) Permit Application Process Sheet dated May 8, 2006 (1 page);
(4) Letter to Finch Pruyn dated February 20, 2004 notifying permittee of a Department initiated modification of the SPDES permit (3 pages);
(5) Letter to Finch Pruyn dated January 8, 2003 enclosing DEC response to permittee's November 4, 2002 comments regarding a draft SPDES permit (2 pages); and
(6) SPDES permit dated January 8, 2003 (16 pages).

Relative to the Environmental Benefit Permit Strategy ("EBPS") and scoring of this permit, is a two page SPDES Priority Evaluation Fact Sheet which was provided to you under cover of the Prinzo Letter. We have been advised that this is the only record that the Department has regarding the computation of the score pursuant to the Environmental Benefit Permit Strategy ("EBPS").

For your reference, we have enclosed a copy of a document which sets forth the EBPS and contains related explanatory material. In addition, we refer you to the following link from the Department's website, http://www.dec.ny.gov/permits/6054.html. At this page, click on "Priority Ranking List" and then click on "Central Office," and you will be directed to the most recent EBPS ranking list which includes the latest score for SPDES permit No. NY0005525.

The records being released contain a total of 47 pages. If you wish to be provided with copies of the records, please send a check for $11.75 to this office within 30 days of the date of this letter, payable to the New York State Department of Environmental Conservation to cover photocopying costs (47 pages at $0.25/page).

Alternatively, if you wish to review these records at our office, please contact Kimberly Sarbo at (518) 402-8537 within thirty days of the date of this letter. After that time, if you have not contacted our office or submitted your payment, the records will be returned to their respective custodians in the agency 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 Civil Practice Law and Rules, and Public Officers Law § 89(4)(b). In any further contact with this office relating to this appeal, please refer to FOIL Appeal No. 07-24-0A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

Molly T. McBride
Administrative Law Judge

Enclosure

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


1 A number of Central Office records were released in response to your FOIL request and are not the subject of this appeal.

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