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FOIL Appeal Determination for 06-23-0A (John A. Fritschie)

October 22, 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.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED
& BY TELECOPY

October 22, 2007

Mr. John A. Fritschie
Delaware Riverkeeper Network
300 Pond Street, Second Floor
Bristol, PA 19007

Ms. Sarah Uhlemann, Esq.
Staff Attorney
The Humane Society of the United States
2100 L Street
Washington, D.C. 20037

Re: Freedom of Information Law Appeal No. 06-23-0A (Delaware Riverkeeper Network)
Freedom of Information Law Request No. 06-1367 (Delaware Riverkeeper Network)
Freedom of Information Law Appeal No. 07-14-0A (Humane Society)
Freedom of Information Law Request No. 07-21 (Humane Society)

Dear Mr. Fritschie and Ms. Uhlemann:

This is in response to your separate appeals, 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 of access to records relating to the Hudson Valley Foie Gras, Inc. ("Hudson Valley") facility.

BACKGROUND

A. Delaware Riverkeeper Network

By letter dated August 22, 2006, Delaware Riverkeeper Network requested seven categories of information relating to the Hudson Valley facility, including:

"1) All correspondence, including meeting notes and e-mails, between [the Hudson Valley facility], [its] consultants, and NY DEC regarding these apparent violations since June 1, 2006;
2) The "monthly reports" referred to by Christopher Jaeger, Environmental Consultants, LLC, in his June 8, 2006 letter to John Sansalone, NY DEC ostensibly showing chlorine discharge levels different than those reported on [the Hudson Valley facility's] discharge monitoring reports ("DMR");
3) Any other contemporaneously produced data, reports or notes documenting chlorine or other pollutant discharge levels that allegedly differ from values reported in [the Hudson Valley facility's] DMRS;
4) All data and technical information on discharge temperature levels and testing referred to in Mr. Jaeger's June 30, 2006 letter to Mr. Sansalone;
5) Any contemporaneously produced data, reports, or notes containing the information on fecal coliform, settable solids, BOD, TSS, Phosphorus and Ammonia referenced in Mr. Jaeger's June 30, 2006 letter;
6) [the Hudson Valley facility's] CAFO Nutrient Management Plan; and
7) Any description of the Best Management Practices utilized by [the Hudson Valley facility]."

The August 22 Delaware Riverkeeper Network FOIL request was designated as 06-1367. By letter dated September 11, 2006, staff of the Department of Environmental Conservation ("Department" or "DEC") advised Delaware Riverkeeper Network that the Department did not maintain copies of the comprehensive nutrient management plans for concentrated animal feeding operations ("CAFOs"), including the Hudson Valley facility, and was therefore unable to provide that record as part of Delaware Riverkeeper Network's FOIL request. Other records were provided to Delaware Riverkeeper Network in response to its FOIL request.

By letter dated October 3, 2006, Delaware Riverkeeper Network appealed from the September 11, 2006 letter, arguing that access to the nutrient management plan should be provided. The appeal was designated as appeal number 06-23-0A.

B. The Humane Society of the United States

By letter dated January 4, 2007, the Humane Society of the United States (the "Humane Society") submitted a FOIL request relating to the Hudson Valley facility. In its letter, the Humane Society requested the following:

"Records pertaining to [the Hudson Valley facility's] SPDES permit:

(1) All Clean Water Act Discharge Monitoring Reports ("DMRs") or other
monitoring records from July 2006 through the date that the Department of Environmental Conservation . . . receives this request.

Records pertaining to [the Hudson Valley facility's] CAFO permit:

(1) [the Hudson Valley facility's] Comprehensive Nutrient Management Plan ("CNMP"), with all attachments and supporting documents.

(2) All monitoring or compliance records for [the Hudson Valley facility's] CAFO permit and CNMP, including but not limited to, all results of monitoring, land application data, "free-board" or other capacity-related records for the facility's lagoon or other containment structures, and incidents of discharge or overflow from the production area or waste containment structure."

In its January 4, 2007 letter, the Humane Society indicated that it had submitted a similar FOIL request for the Hudson Valley facility's comprehensive nutrient management plan or agriculture waste management plan. According to the Humane Society, the Department had responded that its file contained neither of those records. The Humane Society did not appeal that decision. In its January 4, 2007 letter, the Humane Society argued that, in light of a recent Department inspection of the facility, "the [comprehensive nutrient management plan] is now certainly in DEC's files."

The Humane Society's January 4, 2007 FOIL request was assigned FOIL number 07-21. On February 13, 2007, the Department advised the Humane Society that various records were releaseable pursuant to its FOIL request and copies were provided to the Humane Society pursuant to its request (see, e.g., February 13 and 26, 2007 letters from the Department to the Humane Society). At that time of the pendency of the Humane Society's request, the Department had in its possession eleven pages of the Hudson Valley facility's comprehensive nutrient management plan, of which it released several pages under cover of the February 26, 2007 letter. One of those pages from the comprehensive nutrient management plan was found to have been inadvertently released and, pursuant to the Department's request, was subsequently returned to the Department (see correspondence from the Department to the Humane Society dated March 28, 2007 and responding letter from the Humane Society dated April 9, 2007).

By letter dated March 15, 2007, the Humane Society appealed from the Department's determination. In its appeal, which was assigned FOIL appeal number 07-14-0A, the Humane Society "requests that DEC provide [the Humane Society] with access to all requested records, including the full comprehensive nutrient management plan and all CAFO-compliance documents, including land application data, lagoon capacity information, and discharge incidents." I have been advised by Department staff that no compliance documents subject to the January 4, 2007 FOIL request were withheld, and the only records subject to that FOIL request that were withheld were certain pages of the comprehensive nutrient management plan that were at that time in the Department's physical possession.

DISCUSSION

The Department's position is that comprehensive nutrient management plans that are prepared by CAFOs do not fall within the definition of "record" under FOIL (see POL
§ 86[4], defining record as any information kept, held, filed, produced or reproduced by, with or for an agency;" see also POL § 89(3) ["[n]othing in FOIL shall be construed to require any entity to prepare any record not possessed or maintained by such entity"]). The comprehensive nutrient management plans that are prepared by CAFOs are not submitted to Department staff for its review, nor are copies filed with the Department's staff or offices.

In certain circumstances, such as enforcement matters involving a CAFO, Department staff may obtain a copy of the plan or pages from the plan for review. Where the Department has a comprehensive nutrient management plan or pages from the plan in its physical possession, and a FOIL request is received for that plan or those pages, the plan or pages that are in the Department's physical possession are subject to FOIL and are evaluated in the context of applicable FOIL exemptions.

At the time of Delaware Riverkeeper Network's FOIL request, the Department did not have a copy of the Hudson Valley facility's comprehensive nutrient management plan or any pages from that plan. At the time of the Humane Society's FOIL request, the Department had only copies of eleven pages from the plan. Since then the Hudson Valley facility has submitted a nutrient management plan to the Department pursuant to an order on consent between the Hudson Valley facility and the Department. Accordingly, the question of whether a compre- hensive nutrient management plan maintained only at a CAFO facility is within the definition of record for purposes of FOIL does not have to be reached or otherwise revisited at this time.

As the Department now has a copy of the nutrient management plan in its physical possession, the Department has determined to consider that plan in the context of the FOIL appeals of Delaware Riverkeeper Network and the Humane Society. The Department has reviewed the comprehensive nutrient management plan subject to an evaluation of applicable exceptions set forth at POL § 87(2) to determine what portions, if any, may be released. A review of those exceptions, applicable to this comprehensive nutrient management plan, follows.

A. FOIL Exceptions: Applicable Law

As noted, pursuant to POL § 87(2), various statutory exceptions to disclosure under FOIL are set forth. The Department has determined that three of these exceptions are applicable here: POL § 87(2)(a); POL § 87(2)(d); and POL § 87(2)(f).

POL § 87(2)(a) provides that an agency may deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute." In this matter, a portion of the comprehensive nutrient management plan would be exempt pursuant to Agriculture & Markets § 151-g, which provides that agricultural environmental management plans "shall be considered confidential and not subject to public disclosure."

Also applicable is the exception relating to trade secrets and confidential business information. An agency "may deny access to records or portions thereof" that "are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise" (POL § 87[2][d] [emphasis added]).

Although the Public Officers Law does not define the term "trade secret," the Department's regulations provide a definition. Pursuant to the regulations, a trade secret "may consist of, but shall not necessarily be limited to, any formula, pattern, process, procedure, plan, compound, or device, that is not published or divulged and which gives an advantage over competitors who do not know, use or have access to such data or information" (6 NYCRR 616.7[c][2][i][a]; see also Cargill, Inc. v. Sears Petroleum & Transport Corp., 334 F Supp 2d 197, 244 [NDNY 2004][noting that New York State follows the Restatement of Torts definition of trade secret]). The regulations also provide a definition for "confidential business information." Specifically, "confidential business information" may consist of "customer lists, revenue, expense, or income information, or other compilations of information that is not published or divulged and which if disclosed would likely cause substantial injury to the competitive position of the subject enterprise" (6 NYCRR 616.7[c][2][i][b]).

Another relevant exception is POL § 87(2)(f) which relates to "critical infrastructure." The regulations define "critical infrastructure" to mean "systems, assets, places or things, whether physical or virtual, so vital to the State that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the State, its residents or its economy" (6 NYCRR 616.7[c][2][i][c]). The Department applies the critical infrastructure exception through POL § 87(2)(f), which allows for the withholding of records in whole or in part which, if disclosed, would endanger the life or safety of any person (see also Advisory Opinion of the Committee on Open Government dated March 31, 2005 [FOIL-AO-15236] [noting that POL § 87(2)(f) may be relevant in relation to matters involving critical infrastructure]).

The Department's FOIL regulations list various factors that may be considered in determining whether to grant or to continue an exception from disclosure pursuant to POL
§ 87(2)(d), either as a trade secret or as confidential business information, and for purposes of critical infrastructure information. These include:

"(ii) the extent to which the information is known outside of the business of the person submitting the information;

"(iii) the extent to which it is known by the person's employees and others involved in his business;

"(iv) the extent of measures taken by the person to guard the secrecy of the information;

"(v) the value of the information to the person and to his competitors;

"(vi) the amount of effort or money expended by the person in developing the information; and

"(vii) the ease or difficulty with which the information could be properly acquired or duplicated by others" (see 6 NYCRR 616.7[c][2][ii]-[vii]).

In the above-referenced March 31, 2005 advisory opinion, the Committee on Open Government also addressed the concept and parameters of what might constitute a trade secret. It specifically references the discussion in Kewanee Oil Co. v. Bicron Corp. (416 US 470 [1974]), citing this United States Supreme Court decision for the principle that the subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business. The March 31, 2005 advisory opinion also quotes the definition of "trade secret" that appears on page 234 of volume 104 of the second edition of New York Jurisprudence. It notes that the conditions set forth in this definition, together with the nature of the record and area of commerce in which a commercial entity is involved, would be factors to determine the extent to which disclosure would "cause substantial injury to the competitive position" of a commercial enterprise (advisory opinion, at 3).

In addressing the meaning of substantial competitive injury, the advisory opinion refers to the New York Court of Appeals discussion in Matter of Encore College Bookstores, Inc. v. Auxiliary Service Corp. of State Univ. of New York, 87 NY2d 410 (1995). In Encore College Bookstores, the Court considered language under the federal Freedom of Information Act with respect to substantial competitive injury. See id. at 419-20 (discussing the commercial value of requested information to competitors and the cost of acquiring it through other means).

B. Position of Hudson Valley Facility

Prior to the Department's obtaining the comprehensive nutrient management plan for the Hudson Valley facility, the Hudson Valley facility submitted correspondence (letters dated January 22, 2007 and February 8, 2007) to the Department in which the facility maintained that its comprehensive nutrient management plan should be considered to constitute a "trade secret" and "confidential business information" which would exempt the plan from release. In addition, it argued that the plan constituted "critical infrastructure information" because of "the adverse economic impact on New York jobs that would result from the disclosure of its Nutrient Plan," and should be withheld on that basis.

In its correspondence, the Hudson Valley facility evaluated each of the regulatory factors set forth at 6 NYCRR 616.7[c][2][ii]-[vii]. The facility noted that its comprehensive nutrient management plan is considered as proprietary information, and is not known outside the facility. According to the facility, the plan is not available to its employees or others involved in the business operation (except for the owners of the business, designated managers and employees who need to be aware of the plan to perform their duties, and outside experts who assist the Hudson Valley facility with the development or implementation of the plan).

Furthermore, the Hudson Valley facility indicated that it maintains the plan in a secure location with only limited access. It argued that the value of the information, if revealed, would significantly assist its competitors who could use the plan to improve their competitive position with respect to the Hudson Valley facility. It also noted that the Hudson Valley facility has expended considerable sums in preparing the plan and has undertaken significant efforts to update and implement the plan. Finally, the Hudson Valley facility argued that the information in the plan could not be easily acquired or duplicated by others.

C. Review of the Comprehensive Nutrient Management Plan

The Hudson Valley facility comprehensive nutrient management plan has been reviewed in consideration of the applicable FOIL exceptions relating to trade secret, confidential business information and critical infrastructure, and exceptions based on other statutes.

Based upon my review, portions of the plan would constitute confidential business information, the release of which would likely cause substantial injury to the competitive position of the Hudson Valley facility. We have also concluded that some of that confidential business information would fall within the regulatory definition of trade secret. Based upon further review, the section (chapter) in the plan entitled AEM Tier II Summary would be exempt from disclosure pursuant to POL § 87(2)(a) in light of the confidentiality language contained in Agriculture & Markets Law § 151-g.

I do not, however, accept the Hudson Valley facility's economic argument that the entire plan constitutes "critical infrastructure information" and can be withheld on that ground. However, I recognize that various sections of the plan identify infrastructure (such as location of tanks and treatment systems), which, if interfered with, could endanger life or safety. In this regard, I note that intense opposition has been expressed with respect to the operations of the Hudson Valley facility, and release of this type of location information could pose potential risks. The plan has been evaluated taking those considerations into account and certain pages are being withheld on those grounds as "critical infrastructure."

In sum, we have determined that the plan may be released except for those pages that are listed on the chart attached to this letter. The attached chart identifies the pages that are being withheld, the relevant subject matter and the basis for withholding the pages.

RELEASEABLE MATERIAL

The following table summarizes, by section (chapter), the number of pages to be released and the number of pages to be withheld:

Pages Released and Withheld
SECTION (CHAPTER) PAGES TO BE RELEASED PAGES TO BE WITHHELD
Cover Page 1 page None
Introduction 14 pages None
Plan Summary 3 pages 4 pages
NRCS Standards 2 pages None
Concentrated Sources 2 pages 7 pages
Manure/Waste Treatment 7 pages 14 pages
Soil 14 pages None
Nutrient Management 36 pages None
BMP's 17 pages 3 pages
Record Keeping 13 pages None
Emergency Plans 25 pages 21 pages
AEM Tier II Summary None 20 pages
Maps 15 pages None
Conservation Assistance Notes None 1 page
Agreements (no pages in section/chapter) None None
Reference 9 pages 8 pages
Front Cover 14 pages Note: Two reports to be withheld with 14 pages therein to be released

Based upon our review, a total of 172 pages are identified to be released.1

CONCLUSION

This letter is the final determination of the New York State Department of Environmental Conservation with respect to the above-referenced 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).

Because this appeal addresses issues relating to claims of confidential business information, critical infrastructure and trade secrets, pursuant to POL § 89(5)(d) and section 616.7(d)(2) of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, the Department will hold the information identified for release for a period of fifteen days following the service of this determination letter upon you and Hudson Valley Foie Gras, Inc. Following the fifteen day period, the information will be made available to you, unless otherwise restrained by a court of competent jurisdiction. If you wish to be provided with copies after the fifteen day period (unless a court of competent jurisdiction has directed otherwise), 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 $43.00 (172 pages at $0.25 per page) within thirty days thereafter. If we do not hear from you within that time frame, the records will be returned to the appropriate agency file and this FOIL appeal will be deemed closed.

Sincerely,


/s/

Louis A. Alexander
Assistant Commissioner

Attachment (chart)

cc: Robert Freeman, Executive Director,
Committee on Open Government (w/attachment)
Ruth L. Earl, Records Access Officer (w/attachment)
David Lenefsky, Esq. (w/attachment), attorney for Hudson Valley Foie Gras, Inc.
Hudson Valley Foie Gras, Inc. (w/attachment)

1 Please note that the Department has not determined the extent to which the comprehensive nutrient management plan that the Hudson Valley facility has submitted satisfies applicable requirements. The Department, based on its review, may direct that the content of certain of the pages or sections be revised by the facility in order to meet relevant standards.

Hudson Valley FOIE GRAS-- Comprehensive Nutrient Management PlanPOL § 87(2) & 6 NYCRR PART 616-- FOIL REVIEW
Section Page Title of Document Document Subject Matter Reason for Withholding
2 Page 3 Duck Production System Production process CBI & Trade Secret
2 Page 4 Liquid Waste Waste transfer as part of the WWTP CBI & Trade Secret
2 Page 5 Growth Plan for Ducks Growth Plan formula CBI & Trade Secret
2 Page 6 Growth Plan (cont.) Growth Plan formula CBI & Trade Secret
4 Page 1 Concentrated Sources Activities performed at each facility CBI & Trade Secret
4 Page 2 Concentrated Sources (cont.) Activities performed at each facility CBI & Trade Secret
4 Page 5 Brooks Road Facility Aerial colorcoded photograph Critical Infrastructure & CBI
4 Page 6 Brooks Road Facility Aerial coded photograph Critical Infrastructure & CBI
4 Page 7 Airport Road Facility Aerial colorcoded photograph Critical Infrastructure & CBI
4 Page 8 Fittkau Road Facility Aerial colorcoded photograph Critical Infrastructure & CBI
4 Page 9 Wastewater Lagoon Color photograph Critical Infrastructure & CBI
5 Page 1 Liquid Waste Mgmt Plan Liquid waste management CBI & Trade Secret
5 Page 2 Pg. 2, Liquid Waste Mgmt Plan Liquid waste management CBI & Trade Secret
5 Page 3 Pg. 3, Liquid Waste Mgmt Plan Liquid waste management CBI & Trade Secret
5 Page 4 Integrity Nutrient Control CAD Drawing of WWTP CBI
5 Page 5 Integrity Nutrient Control CAD Drawing of WWTP CBI
5 Page 6 Integrity Nutrient Control CAD Drawing of WWTP CBI
5 Page 13 Manure Treatment System Letter to M. Henley from T. Rensch Trade Secret & CBI
5 Page 14 Pg. 2 Manure Treatment System Letter to M. Henley from T. Rensch Trade Secret & CBI
5 Page 15 Letter of Engagement Contract between HVFG & NCS CBI
5 Page 16 Pg. 2 Letter of Engagement Contract between HVFG & NCS CBI
5 Page 17 Pg. 3 Letter of Engagement Contract between HVFG & NCS CBI
5 Page 18 Pg. 1 Manure Treatment Facilities Corporate Background Information CBI
5 Page 19 Pg. 2 Manure Treatment Facilities Corporate Background Information CBI
5 Page 20 Pg. 3 Manure Treatment Facilities Corporate Background Information CBI
8 Page 3 Brooks Road Facility- BMPs Aerial colorcoded photograph Critical Infrastructure & CBI
8 Page 4 Airport Road Facility- BMPs Aerial colorcoded photograph Critical Infrastructure & CBI
8 Page 5 Fittkau Road Facility- BMPs Aerial colorcoded photograph Critcal Infrastructure & CBI
10 Pages 1-9 Farm Emergency Plan Emergency response CBI
10 Page 10 Brooks Road Facility... Emergency response- aerial photo Critical Infrastructure & CBI
10 Page 11 Manure Treatment System Emergency response- CAD drawing CBI & Trade Secret
10 Page 12 PBS UST Locations Emergency response- CAD drawing Critical Infrastructure & CBI
10 Page 13 Airport Road Facility... Emergency response- aerial photo Critical Infrastructure & CBI
10 Page 14 PBS AST Locations Emergency response- CAD drawing Critical Infrastructure & CBI
10 Page 15 Fittkau Road Facility... Emergency response- aerial photo Critical Infrastructure & CBI
10 Page 16 Farmstead Site Compressed oxygen storage Critical Infrastructure & CBI
10 Page 17 Location of USTs Location of PBS tanks Critical Infrastructure & CBI
10 Page 18 Location of ASTs Location of PBS tanks Critical Infrastructure & CBI
10 Page 19 Untitled Handdrawn map of Brooks Rd Facility Critical Infrastructure & Trade Secret & CBI
10 Page 20 Untitled Handdrawn map of Brooks Rd Facility Critical Infrastructure & CBI
10 Page 21 CNMP Map Emergency Plan- Airport Rd Handdrawn map of PBS tanks Critical Infrastructure & CBI
11 Pages 1-20 AEM Tier 2 Summary Report Comprehensive Background Agriculture & Markets Law § 151-g, CBI
13 Page 1 Conservation Assistance Notes Notes CBI
15 Pages 1-8 The Economic Importance of the New York State Foie Gras Industry Report prepared by Consultant CBI
Front Cover Evaulation of Undesigned Waste Storage and Treatment Facilities Waste water treatment system CBI
Front Cover Filter Strip Design Waste water treatment system CBI
Note: specified pages from the Front Cover reports to be released.
Further note: For reference, four pages from Section (Chapter) 2 to be withheld, seven pages from Section (Chapter) 4 to be withheld, etc.
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