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FOIL Appeal Determination for 07-33-0A (John Fritschie)

November 15, 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 15, 2007

John A. Fritschie, Esq.
Senior Attorney
Delaware Riverkeeper Network
300 Pond Street, Second Floor
Bristol, Pennsylvania 19007

Re: Freedom of Information Law ("FOIL") Appeal No. 07-33-0A
Appeal Determination

Dear Mr. Fritschie:

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 Delaware Riverkeeper Network from the denial of access to certain records that were withheld in their entirety by the Department of Environmental Conservation ("Department"). These records, which were specifically referenced in your FOIL appeal dated October 1, 2007, pertain to LaBelle Farms, Inc. (and related operations) located in 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. 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 letter dated June 25, 2007, Tracy Carluccio, Deputy Director for Delaware Riverkeeper Network, submitted an application for access to records to the Department's Central Office requesting:

"1. . . . the following documents related to the LaBelle Farms and
related operations trading as shown above:

All memorandums, studies, e-mails, letters, communications,
documents, reports, grants and grant applications, and appendices
generated, produced, obtained, and/or included in the files
for this facility from September 18, 2006 to the present.

A copy of the facility's State Pollution Discharge Elimination
System permit (SPDES Permit No. NY-0247944 and NYDEC
no. 3-4836-00129/00001) and any documents monitoring reports,
public notices, and documents related to this permit subsequent
to January 5, 2007 to the present.

A copy of the general CAFO permit and any and all applications,
notices of violation, non-compliance reports, annual compliance
reports, inspection reports and any records related to LaBelle
Farms, Abel Farm, Goyin Farm or related operations CAFO general
permit and/or Nutrient Management Plan from September 18, 2006
to the present.

A copy of air-related documents, permits, reports, complaints, files,
related to compliance with the Clean Air Act from September 18,
2006 to the present.

Any and all toxics-related records, including any communications
related to RCRA or any other toxics related program from September
18, 2006 to the present."; and

"2. . . . the following documents related to the CAFO permit:

The Nutrient Management Plan and any related Conservation Plan,
all documents and appendixes and maps associated with the Nutrient
Management Plan and any related Conservation Plan and all records
and reports maintained by the facility to document compliance with
the Nutrient Management Plan and the CAFO permit."

By letter dated July 6, 2007, Elizabeth Zicca from the Department's Division of Water in Region 3 (White Plains), advised Ms. Carluccio that the Division had 20 pages of records responsive to the original FOIL request available for copying and inspection.

By letter dated August 6, 2007, the Department's Central Office Records Access Officer, Ruth L. Earl, advised Ms. Carluccio that "[a]dditional responsive documents maintained by the regional office have been compiled and prepared for your review." Ms. Earl further advised Ms. Carluccio that other records identified by the Department as responsive to her original FOIL request were being withheld from disclosure in accordance with certain provisions of the POL. Specifically, Ms. Earl advised that the withheld records consisted of the following:

"documents which constitute inter-agency or intra-agency correspondence
not falling within a small number of exemptions [POL § 87.2(g)];

documents which 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)]; and

documents which, if disclosed, could endanger the life or safety of any
person [POL § 87.2(f)]."

By letter dated September 5, 2007, you advised Louis A. Alexander, Assistant Commissioner for the Department's Office of Hearings and Mediation Services, that due to the purported "incomplete nature" and ambiguity of Ms. Earl's August 6, 2007 letter to Ms. Carluccio, the Delaware Riverkeeper Network was unable to "properly appeal this denial because it fails to specifically describe which documents have been withheld." Further, your letter of September 5, 2007 to Mr. Alexander sought "clarification as to whether this denial includes the nutrient management plan for the facility."

By letter dated September 11, 2007, Mr. Alexander responded to your September 5, 2007 letter to him regarding the Department's response to Ms. Carluccio's original FOIL request. Mr. Alexander advised you that "[a]lthough no obligation exists to provide a list of withheld records, I am exercising my discretion in this matter to provide such a list" (along with references to the POL exemptions utilized by Department staff to withhold such records) as follows:

List of Records
Description of Records Withheld
(Staff Categorization)
POL Exemption as Determined by Staff
6 site plan figures prepared by IES trade secret/confidential business information ("CBI"), POL § 87(2)(f)
LaBelle Farms Expansion figure trade secret/CBI, POL § 87(2)(f)
5 permit application process sheets inter- or intra-agency, POL § 87(2)(g)
2 cross section views of effluent pump chamber trade secret/CBI, POL § 87(2)(f)
20 Department staff records (e-mail communications, notes, etc.) inter- or intra-agency, POL § 87(2)(g)
4 communications with IES trade secret/CBI, POL § 87(2)(f) [3 records];
inter- or intra-agency, POL § 87(2)(g) [in part, 1 record]
manure storage facility information [7 records] trade secret/CBI, POL § 87(2)(f)
5 site plan diagrams trade secret/CBI, POL § 87(2)(f)

Mr. Alexander's September 11, 2007 letter also advised that if you wished to appeal from Department staff's determination on the records withheld based upon the information furnished above, such appeal was to be submitted by October 1, 2007.1 Lastly, Mr. Alexander's September 11, 2007 letter to you indicated that the requested nutrient management plan for the facility was subject to ongoing review by Department staff.

By letter dated October 1, 2007, you filed this appeal with the Department's Office of Hearings and Mediation Services from the partial denial of Delaware Riverkeeper Network's June 25, 2007 FOIL request of withheld documents as particularized in Mr. Alexander's September 11, 2007 letter. Specifically, you stated that you wished "to appeal those exemption determinations and are seeking the release of all the following unlawfully withheld documents: 6 site plan figures prepared by IES, LaBelle Farms Expansion Figure, 5 permit application process sheets, 2 cross section views of effluent pump chamber, 20 Department staff records, 4 communications w/ IES, manure storage facility information, and 5 site plan diagrams."

RECORDS REVIEWED

At the outset it should be noted that Department staff has complied with a substantial portion of your client's FOIL request by providing Delaware Riverkeeper Network with a number of records for the subject facilities noted above.

We have reviewed the records withheld by staff. Based on our review, we have found that fifty-one (51) rather than fifty (50) records, as reported by staff, were withheld. The difference is that 6 site plan diagrams, rather than 5, were withheld. We have determined in this appeal that seven (7) of the withheld records should be released, while forty-four (44) should continue to be withheld. A summary of our determination utilizing the staff categorization follows on the following page:

Summary of our Determination
Description of Records Withheld
(Staff Categorization)
POL Exemption as Determined by Staff Appeal Determination
6 site plan figures prepared by IES trade secret/confidential business information ("CBI"), POL § 87(2)(f) Withhold all 6 records:
Basis: 5 site plan figures,
POL § 87(2)(d); 1 site plan figure,
POL §§ 87(2)(d) and 87(2)(f).
LaBelle Farms Expansion figure (1 record) trade secret/CBI, POL § 87(2)(f) Release (1 record). Exemptions cited by staff would not apply to this record.
5 permit application process sheets inter- or intra-agency,
POL § 87(2)(g)
Withhold (5 records).
Basis: Intra-agency,
POL § 87(2)(g).
2 cross section views of effluent pump chamber trade secret/CBI, POL § 87(2)(f) Release (2 records). Figure had been included as part of facility's SPDES permit and, therefore, any such exemptions were waived.
20 Department staff records (e-mail communications, notes, etc.) inter- or intra-agency,
POL § 87(2)(g)
Withhold (20 records).
Basis: Intra-agency,
POL § 87(2)(g).
4 communications with IES trade secret/CBI, POL § 87(2)(f) [3 records]; inter- or intra-agency, POL § 87(2)(g) [in part, 1 record] Release (4 records).
Manure Storage facility information (7 records) trade secret/CBI, POL § 87(2)(f) Withhold (7 records).
Basis: POL §§ 87 (2)(d) and 87(2)(f).
5 site plan diagrams trade secret/CBI, POL § 87(2)(f) Withhold (6 records).
Basis: POL §§ 87 (2)(d) and 87(2)(f).

A review of the applicable exemptions follows.

The first exemption, POL § 87(2)(d), authorizes the denial of 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."

While FOIL does not define the phrase "substantial injury," in Matter of Encore College Bookstores, Inc. v. Auxillary Service Corporation of the State University of New York at Farmingdale, et al., 87 NY2d 410 (1995), the Court of Appeals looked to federal case law interpreting the federal Freedom of Information Act, which contains a similar exception to disclosure (see 5 USCA § 552[b][4]). A substantial injury is unlikely to occur from the release of records, or information derived therefrom, if the information is available from other sources at little or no cost; however, if the information is costly and difficult to obtain, competitors may gain a potential windfall if valuable information is released (see, e.g., Worthington Compressors v. Costle, 662 F.2d 45 [DC Cir] [1981]). Based on our review, nineteen (19) of the records constitute confidential business information and, accordingly, the POL § 87(2)(d) exemption applies.2

The second exemption, POL § 87(2)(f), authorizes the denial of access to records or portions thereof that "if disclosed could endanger the life or safety of any person." As you know, the Department examines the information it holds to ensure that its release could not endanger the life or safety of any person. In addition, the information that the Department possesses on a facility is evaluated to determine the extent to which it constitutes or is otherwise related to critical infrastructure and would be exempt on such grounds (see POL § 86[5]).

Based on our review we have determined that none of the records should be withheld based on critical infrastructure. However, we note that foie gras facilities have been the subject of threats and violence, as evidenced by media reports, and release of certain of these records could lead to potential endangerment of the facility operations and injury to its personnel. We have determined that fourteen (14) of the records should be withheld on this basis (please note that each of these fourteen records is also being withheld pursuant to POL § 87(2)(d) as trade secret/confidential).

A third applicable 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] ["The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly"]).

We have determined that twenty-five (25) of the records withheld by Department staff (including but not limited to internal correspondence, e-mails and other written communications, memoranda and notes) are exempt from disclosure pursuant to the intra-agency exemption.

As noted, of the fifty-one (51) records that were initially withheld, we have determined on this appeal that seven (7) records should be released. These records are being transmitted under cover of this letter. The photocopying charges for the seven records are 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. 07-33-0A.

Sincerely yours,

/s/
Louis A. Alexander
Assistant Commissioner

/s/
Mark D. Sanza
Administrative Law Judge


Enclosures


cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Herman Lee, President, La Belle Farms, Inc.

1 Notably, Mr. Alexander's September 11, 2007 letter did not review the merits of the exemptions that Department staff applied to the records withheld.

2 By letter dated August 17, 2007, Herman Lee, the President of LaBelle Farms, Inc. outlined the extent to which various aspects of its processes for raising poultry and producing foie gras, including manure disposal, involved sensitive proprietary information.

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