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FOIL Appeal Determination for 07-38-0A (Jack and Jan Hirschfeld)

November 5, 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

November 5, 2007

Jack and Jan Hirschfeld
43 Lake Joseph Drive
Forestburgh, New York 12777

Re: Freedom of Information Law ("FOIL") Appeal No. 07-38-0A
Appeal Determination

Dear Mr. and Mrs. Hirschfeld:

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 certain records that were withheld in their entirety by the Department's Central Office. These records, which were referenced in your FOIL appeal dated October 9, 2007, pertain to the St. Josephs Lake Dam (State ID # 163-0163) located in the Town of Forestburgh, Sullivan County, New York.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from disclosure by the Department's Office of General Counsel. 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.

BACKGROUND

By electronic mail dated August 16, 2007, you submitted an application for access to records to the Department's Central Office and requested the following information for the above-referenced dam:

"Notice of Hearing";
"Proposed consent order";
"Notes from pre-hearing conference"; and
"Any and all additional correspondence or other documents
pertaining to this matter subsequent to Scott M. Braymer's
letter of January 2, 2007, including but not limited to any
new documentation submitted to or created by the Region
3 Permits Office subsequent to February 15, 2007."

By letter dated August 23, 2007, the Department's Record Access Officer, Ruth L. Earl, advised you that your FOIL request was being referred to the Divisions of Environmental Enforcement, and Water, as well as the Department's Region 3 office in New Paltz. Ms. Earl advised you that a response to your FOIL request could be expected by September 21, 2007.

In a letter dated September 11, 2007, Robyn M. Adair, Esq., an attorney in the Department's Office of General Counsel, provided you with 19 pages of records responsive to your FOIL request from the files of the Division of Water and the Office of General Counsel. Ms. Adair also advised you that "[d]ocuments totaling approximately half an inch are being withheld" as being exempt from disclosure because they constituted inter-agency or intra-agency correspondence and privileged confidential settlement negotiations.

By letter dated October 9, 2007 (and received on October 11, 2007), you timely filed this appeal from the denial of access to the records referenced in Ms. Adair's September 11, 2007 letter to you with the Department's Office of Hearings and Mediation Services.

RECORDS REVIEWED

At the outset it should be noted that Department staff has complied with a portion of your FOIL request by providing you with a total of 19 pages of records for the subject dam as noted above. Department staff withheld 54 records (consisting of 144 pages).

Based upon our review of the records withheld by the Office of General Counsel, we have concluded that all but two of them 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[2][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 [1985]; see also New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005] ["(t)he 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 22 records (consisting of 44 pages) withheld by the Department's Office of General Counsel (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.

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 Misc3d 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 Misc2d 702, 711 [Sup Ct, New York County 1980]). We have determined that 49 of the records (consisting of 134 pages) are exempt from disclosure pursuant to the law enforcement exemption in POL § 87(2)(e)(i).

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 ("CPLR") provides an exemption for attorney-client communications in the course of professional employment and CPLR 3101 provides an exemption for attorney work product. In addition, we do not interpret the provisions of FOIL to require the release of records that are subject to negotiation with the Department (see United States v. Town of Moreau, 979 F Supp. 129 [NDNY 1997]), aff'd, United States of America v. Glens Falls Newspapers, Inc., 160 F3d 853 [2d Cir 1998]; see also CPLR 4547).

In accordance with the foregoing, we have determined that 49 of the records (consisting of 134 pages) are exempt from disclosure pursuant to the state statute exemption in POL § 87(2)(a).

We have identified two records (certificate of amendment of the certificate of incorporation, and an amendment to a declaration) that are responsive to your FOIL request which were previously withheld from disclosure by the Office of General Counsel. Copies of these two records, consisting of seven pages, are enclosed. Due to the limited number of pages being provided, the applicable photocopying fee for these records is being waived.

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. 07-38-0A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

By: /s/

Mark D. Sanza
Administrative Law Judge

Enclosures

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

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