FOIL Appeal Determination for 07-36-0A (Donald J. Camerson, II)
October 3, 2007
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
October 3, 2007
Donald J. Camerson, II, Esq.
Bressler, Amery & Ross, P.C.
P.O. Box 1980
Morristown, New Jersey 07962
Re: Freedom of Information Law ("FOIL") Appeal No. 07-36-0A
Dear Mr. Camerson:
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"]) on behalf of your client, Walter M. Baker, from the denial of access to three (3) records that were withheld in their entirety by the Central Office of the Department of Environmental Conservation ("Department"). These records, which were referenced in your FOIL appeal dated September 13, 2007, pertain to the R. Baker & Son Machinery Dismantlers, Inc. site (DEC #243008) located at 250 South Washington Avenue, Staten Island, New York.
In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the three (3) records that were withheld from disclosure by the Department's Central Office, Division of Environmental Enforcement. On this appeal, we have conducted a de novo review of the records withheld. A brief review of your FOIL request, and Department staff's response thereto, follows.
By letter dated June 12, 2007, your client, Walter M. Baker, submitted an application for access to records to the Department's Central Office requesting the following:
"All documents, including the most recent and archived documents,
relating to the property at 250 N. Washington Avenue, Staten Island,
New York, including all documents relating to any alleged release
of 'hazardous substances', the alleged presence of 'hazardous wastes',
the listing of the site as a Class 2 site in the New York Registry of
Inactive Hazardous Waste Sites (Site No. 130154), and the actions
taken by the DEC as set forth in the DEC's letter dated May 17, 2007."
By letter dated June 22, 2007, the Department's Records Access Officer, Ruth L. Earl, advised Mr. Baker that his FOIL request was being referred to the Department's Divisions of Environmental Enforcement, Environmental Remediation, and Solid and Hazardous Materials in Central Office, as well as the Department's Region 2 office, and that a response to the request could be expected by July 23, 2007.
By letter dated July 6, 2007, the Department's Region 2 office advised Mr. Baker that "no records could be located for the names and/or addresses" of the site referenced in his FOIL request. Thereafter, by letter dated July 16, 2007, the Department's Division of Solid and Hazardous Materials advised Mr. Baker that "no records responsive to [his] FOIL Request have been located."
Subsequently, by letter dated July 19, 2007, you advised the Department's Division of Environmental Enforcement of your representation of Mr. Baker and inquired into the status of Department records responsive to Mr. Baker's previous FOIL request. In a July 19, 2007 electronic mail message to you from Michael Lesser, Esq., an attorney in the Department's Division of Environmental Enforcement, Central Office, you were advised that the address and site number of the facility/location referenced in Mr. Baker's FOIL request to the Department were incorrect, thereby hampering the Department's ability to locate any responsive records. Mr. Lesser's message also provided you with the corrected information for the subject of Mr. Baker's FOIL request and advised that he had resubmitted the FOIL request, as corrected, to the Department for response on your client's behalf .1
In a letter dated August 9, 2007, the Department's Division of Environmental Enforcement provided you with 51 pages of records responsive to the corrected FOIL request of your client and advised you that three (3) documents were being withheld because of certain exemptions from disclosure provided in the Public Officers Law and New York's CPLR.2 Then, in a letter dated August 10, 2007, the Department's Division of Environmental Remediation provided your client with an additional 74 pages of records responsive to his corrected FOIL request.
By letter dated September 13, 2007 (and received on September 14, 2007), you filed this appeal from the denial of your client's access to the three records referenced in Mr. Lesser's August 9, 2007 letter to you with the Department's Office of Hearings and Mediation Services.
At the outset it should be noted that Department staff has complied with the vast portion of your client's FOIL request by providing you, or your client directly, with a total of 125 pages of records for the subject site as noted above. Moreover, while Department staff indicated in its August 9, 2007 letter to you that three (3) records responsive to your's client's FOIL request were withheld, this total should actually be four (4). One additional record provided to us consisted of "post-it notes" with handwritten information which was attached to one of the three records previously identified as being withheld.
Based upon our review of these four (4) records, we have determined that they were properly withheld in their entirety pursuant to one or more FOIL exemptions. A review of the applicable 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 the four (4) records withheld by the Department's Division of Environmental Enforcement (including but not limited to correspondence, e-mails and other written communications, memoranda and notes) are exempt from disclosure pursuant to the intra-agency exemption.
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 two (2) of the four (4) records exempt from disclosure pursuant to the intra-agency exemption are also exempt from disclosure pursuant to the exemption in POL § 87(2)(a) (in this instance, records exempt by CPLR 4503) and one (1) of the four records is also exempt pursuant to the law enforcement exemption in POL § 87(2)(e)(i).
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. 07-36-0A.
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
1 The correct site information for R. Baker & Son Machinery Dismantlers, Inc. is 250 South Washington Ave., Staten Island, New York - N.Y.S. Inactive Hazardous Waste Site #243008, as compared to 250 North Washington Ave., Staten Island, and Site #130154.
2 Specifically, the August 9th letter indicated that the withheld documents consisted of "interagency or intra- agency correspondence" (see Public Officers Law § 87[g]), and "attorney work product and/or attorney-client communications" (see Public Officers Law § 87[a], and CPLR 3101[b], [c] and 4503).