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FOIL Appeal Determination for 07-40-0A (Herman Lee)

January 4, 2008

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

January 4, 2008

Mr. Herman Lee
La Belle Farms, Inc.
504 Stanton Corner Road
Ferndale, New York 12734

Re: Freedom of Information Law ("FOIL") Appeal No. 07-40-0A
Appeal Determination

Dear Mr. Lee:

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 La Belle Farms, Inc. (and related operations), from the denial of exception to disclosure of certain records comprising the Comprehensive Nutrient Management Plan ("CNMP") prepared in conjunction with the facilities' state pollutant discharge elimination system ("SPDES") permit for a concentrated animal feeding operation ("CAFO"). This exception denial was contained in a letter to you from the Department's Records Access Officer, Ruth L. Earl, dated October 4, 2007.

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were denied exception from disclosure by the Department. On this appeal, we have conducted a de novo review of those records. A brief review of your request, Department staff's response thereto, and related FOIL determinations 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 various specified documents relating to La Belle Farms, Inc. (and related operations) located in Ferndale (Sullivan County), New York. Among the records requested by Ms. Carluccio was a copy of the CNMP for LaBelle Farms, Abel Farm, and Goyin Farm (or related facilities). In conjunction with Ms. Carluccio's FOIL request to the Department, by letter dated July 30, 2007, Daniel Briggs, of Dairy Nutrition, Inc. (Millerton, New York), requested Department staff attorney Scott Crisafulli, Esq. to except from public disclosure certain "documents and drawings for manure storage," including the CNMP, for the La Belle poultry facilities as trade secret/confidential commercial information (see POL § 87[2][d]; see also 6 NYCRR 616.7).

Thereafter, by letter dated August 10, 2007, Department Records Access Officer Ruth L. Earl advised Mr. Briggs that his July 30th letter to Mr. Crisafulli did not provide sufficient detail to enable Department staff to render a determination on the request for confidential commercial information protection, and requested additional written justification for making such a determination (see 6 NYCRR 616.7[c]).

Subsequently, in a letter to Ms. Earl dated August 17, 2007, you requested that "documents and drawings for manure storage as well as La Belle Farms, Inc. Comprehensive Nutrition Management Plan [CNMP] be excepted from disclosure because it would violate our facilities trade secrets and will cause substantial injury to the competitive position of La Belle. Additionally, our storage facility is a critical infrastructure." You maintained that the basis of your request was due to the "highly sensitive proprietary business information" that had been developed by various experts for your facilities' process/plan for the production of poultry and foie gras. This included elements of your facilities' CNMP such as housing, growth rate, specialized feeding programs and timelines, as well as storage and removal of manure.

By letter dated October 4, 2007, Ms. Earl advised you that certain specified sections of your facilities' CNMP were "not excepted from disclosure under the provisions of POL §§ 87(2)(d) or 87(2)(f), as disclosure would neither cause substantial injury to La Belle Farm's competitive position, nor endanger the life and safety of any person." Ms. Earl's letter also informed you that "[a]ll other portions of the CNMP as well as certain specific information contained in the [CNMP] sections [noted] meet the criteria for withholding documents from disclosure" pursuant to POL §§ 87(2)(d) and 87(2)(f), and 6 NYCRR Part 616.

As a result, Ms. Earl advised you that the Department had determined that those portions of your facilities' CNMP that were not specifically identified in her October 4, 2007 letter would continue to be excepted from disclosure by the Department as information that "is either trade secret or confidential business information that is unknown outside of La Belle's business and/or may not easily be obtained by others, and disclosure of information relative to cost factors and plan development would cause injury to La Belle's competitive position in the market. Furthermore, the Department concludes that certain components of the CNMP are critical infrastructure as defined in POL § 86(5), and disclosure could jeopardize health, safety and welfare of residents and the economy."

By letter dated August 16, 2007 - later corrected to October 13, 2007- (and received October 22, 2007), you timely filed this appeal with the Department's Office of Hearings and Mediation Services from the October 4, 2007 denial of your request for exception to disclosure of certain specified sections of your facilities' CNMP. Specifically, you requested to appeal the determination that the following sections of La Belle Farms' CNMP were not excepted from disclosure under the provisions of POL §§ 87(2)(d) or 87(2)(f):

"2. Plan Summary - pages 1, 7-13, 16-25
3. NRCS Standards - no actual pages exist in this section
4. Concentrated Sources - all pages
5. Manure - pages 6, 14-18
7. Nutrient Management - all pages
8. BMP's - pages 9-24, 28-46
9. Record Keeping - all pages
10. Emergency Plans - pages 1-5, 12-16, 18-54
12. Maps - all pages
13. Conservation Assistance Notes - all pages."1

In a letter dated November 2, 2007 (and received November 5, 2007), you provided the Office of Hearings and Mediation Services with additional written information in support of your appeal.

PRIOR RELATED DETERMINATIONS

1. Hudson Valley Foie Gras, Inc. - October 2007 Determination

Previously, by letter dated August 22, 2006, Delaware River Network submitted a FOIL request to the Department seeking seven categories of information related to the Hudson Valley Foie Gras, Inc. facility located in Ferndale, New York. As you know, Hudson Valley Foie Gras, Inc. is also a CAFO engaged in the production of poultry and foie gras. One of the categories of information requested by Delaware River Network was that facility's CNMP.

Thereafter, by letter dated January 4, 2007, The Humane Society of the United States submitted a separate FOIL request to the Department also seeking various records related to Hudson Valley Foie Gras, Inc., including a copy of its CNMP.

Following the Department's respective denials of access to certain of the records requested by Delaware River Network and The Humane Society of the United States, including copies of Hudson Valley Foie Gras, Inc.'s CNMP, separate FOIL appeals followed (see FOIL Appeal Nos. 06-23-0A and 07-14-0A). Prior to a determination on those FOIL appeals, Hudson Valley Foie Gras, Inc. submitted two letters to the Department (dated January 22, 2007 and February 8, 2007, respectively) in which the facility maintained that its CNMP constituted a "trade secret" and "confidential commercial information" which was exempt from release. In addition, Hudson Valley Foie Gras, Inc. argued that its CNMP 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, as such, should be withheld on that basis.

In a letter dated October 22, 2007 from Louis A. Alexander, Assistant Commissioner for the Department's Office of Hearings and Mediation Services, to both John A. Fritschie, Esq. of Delaware River Network, and Sarah Uhlemann, Esq. of The Humane Society of the United States, Mr. Alexander advised as follows:

"The Department's position is that comprehensive nutrient management plans [CNMPs] 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.

. . . Where the Department has a [CNMP] 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."

In accordance with the foregoing, and in conjunction with the separate FOIL appeals by Delaware River Network and The Humane Society of the United States involving, among other things, the CNMP for Hudson Valley Foie Gras, Inc., Assistant Commissioner Alexander determined that portions of the CNMP constituted either confidential commercial information (trade secrets) exempt from disclosure pursuant to POL § 87(2)(d) or were specifically protected from disclosure by State statute under POL § 87(2)(a) [see Agriculture & Markets Law § 151-g].

Assistant Commissioner Alexander did not, however, accept Hudson Valley Foie Gras, Inc.'s economic argument that the entire CNMP constituted "critical infrastructure information" and could be withheld on that ground. Nevertheless, Mr. Alexander did recognize that various specified sections of the CNMP did identify certain facility infrastructure (such as location of tanks and treatment systems), which, if interfered with, could endanger human life or safety. Accordingly, the facility's CNMP was evaluated taking those considerations into account and certain pages of the CNMP were withheld from disclosure on the grounds of being "critical infrastructure information" (see POL § 87[2][f]).

2. La Belle Farms, Inc. - November 2007 Determination

As previously noted, in a June 25, 2007 FOIL request to the Department, Delaware Riverkeeper Network sought various records relating to La Belle Farms, Inc. (and related operations), including a copy of its CNMP. As you know, this application for records resulted in your request to the Department for exception from disclosure of the CNMP and your present FOIL appeal. In addition, Delaware Riverkeeper Network's June 2007 request for La Belle Farms' records also resulted in a November 15, 2007 FOIL appeal determination by the Department for records other than the facilities' CNMP. A copy of that determination was provided to you at that time.

As you know from that determination, the Department concluded that certain FOIL exemptions were applicable to information for a CAFO such as La Belle Farms (and related operations). These exemptions included POL § 87(2)(d), POL § 87(2)(f), and POL § 87(2)(g). In addition, it was noted with respect to critical infrastructure information and the exemption in POL § 87(2)(f), 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
[certain] of the records should be withheld on this basis."

FOIL EXCEPTIONS: APPLICABLE LAW

As noted in your appeal, pursuant to POL § 87(2), various statutory exceptions to disclosure under FOIL are set forth. In accordance with your request, and in keeping with prior determinations noted above, we have reviewed the pages from the CNMP that Department staff determined to be releaseable. In that review, we have considered the various exemptions under FOIL, including specifically POL § 87(2)(a), POL§ 87(2)(d), and POL § 87(2)(f). A review of these exemptions follows.

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 instance, portions of your facilities' CNMP could be exempt pursuant to New York State Agriculture & Markets Law § 151-g, which provides that agricultural environment management plans "shall be considered confidential and not subject to public disclosure."

Also applicable to the CNMP is the exception relating to trade secrets and confidential business information found in POL § 87(2)(d). 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 POL does not define the term "trade secret," the Department's FOIL regulations do provide such 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" (see 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 Department's FOIL regulations also provide a definition for "confidential commercial information." Specifically, "confidential commercial 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" (see 6 NYCRR 616.7[c][2][i][b]).

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 the following:

"(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 a March 31, 2005 Advisory Opinion of the Committee on Open Government (FOIL-AO-15236), the Committee 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 U.S. 470 (1974), citing this United States Supreme Court decision for the principle that the subject of a trade secret must be kept 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 (see Advisory Opinion, at 3).

In addressing the meaning of substantial competitive injury, the March 31, 2005 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, 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 Worthington Compressors v. Costle, 662 F.2d 45 [DC Cir] [1981]).

The third relevant exception to your facilities' CNMP is POL § 87(2)(f) which relates to "critical infrastructure." The Department's FOIL 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" (see 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, "could endanger the life or safety of any person" (see also Advisory Opinion of the Committee on Open Government, March 31, 2005 [FOIL-AO-15236] [noting that POL § 87(2)(f) may be relevant in relation to matters involving critical infrastructure]). With respect to the facilities at issue, the information that the Department possesses, namely the CNMP, is evaluated to determine the extent to which it constitutes or is otherwise related to critical infrastructure and would be exempt on public safety grounds (see POL § 86[5]).

REVIEW OF THE CNMP AND APPEAL DETERMINATION

In accordance with the foregoing, we have reviewed the sections of your facilities' CNMP as delineated in your appeal (and as specified in Ms. Earl's October 4, 2007 letter to you) that Department staff determined to be releaseable. At the outset, it should be noted that we found instances where the page numbering for certain sections of the CNMP delineated in your appeal (as originally designated by staff) was incorrect and, as such, we have renumbered those pages for purposes of this determination.

Based on our review of the CNMP records subject to this appeal (that is, the materials in the CNMP which Department staff determined to be releaseable), we have modified Department staff's determination. We have concluded that a few of the pages noted in your appeal, or as renumbered herein, should continue to be excepted from disclosure by the POL provisions deemed applicable herein. We have determined that two pages may be released but in redacted form only as they contain information exempt from disclosure by POL § 87(2)(b) as an unwarranted invasion of personal privacy (see POL § 89[2]), i.e., individual cellular telephone numbers. We have, however, determined that most of the CNMP pages subject to this appeal should not be excepted from disclosure and, accordingly, are releaseable. We note that some pages of the CNMP to be released upon this determination were not actually prepared by the CNMP planner but, instead, consist of articles or materials obtained from publicly available documents and sources.

Consistent with the foregoing and upon review of all FOIL exemptions (including the provisions of POL §§ 87[2][d] or 87[2][f] which you referenced in your appeal), we have made the following determination concerning Department staff's denial of exception from disclosure of the facilities' CNMP:

CNMP
Section
No.
Title of Section Section Pages
Subject to Appeal
Determination on this Appeal2 Basis to Withhold
(POL §§)
2 Plan Summary 1, 7-13, 16-25 1, 7-13 to be released; renumbered page 16 to be withheld; renumbered pages 17-25 to be released § 87(2)(d)
3 NRCS Standards no actual pages exist no pages subject to determination not applicable
4 Concentrated Sources all pages all pages to be released none
5 Manure 6, 14-18 original 6 was a blank page and should not have been included in page count; renumbered 6 to be withheld; renumbered 13 and 14 to be withheld; renumbered 15-17 to be released (no 18 exists as renumbered) § 87(2)(a)
§ 87(2)(d)
7 Nutrient
Management
all pages all pages to be released none
8 BMP's 9-24, 28-46 9-24, 28-46 to be released none
9 Record Keeping all pages all pages to be released none
10 Emergency Plans 1-5, 12-16, 18-54 1, 4 and 5 to be released; 2 and 3 to be released in redacted form; 12-16, and 18-54 to be released § 87(2)(b)
§ 87(2)(d)
12 Maps all pages all pages to be released none
13 Conservation Assistance Notes all pages all pages to be released none

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 (15) days following the service of this determination letter upon you and Delaware Riverkeeper Network. Following the expiration of the fifteen day period, the information will be made available upon request by the Department unless otherwise restrained by a court of competent jurisdiction.

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. 07-40-0A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By:
Mark D. Sanza
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government
John A. Fritschie, Esq., Delaware Riverkeeper Network
Tracy Carluccio, Delaware Riverkeeper Network
Ruth Earl, Records Access Officer

1 Numbering as in the appeal (see pp. 3-4 of October 2007 appeal).

2 On this appeal, we have not reviewed the merits of the exemptions that Department staff applied to the pages in the CNMP that staff determined should be withheld. As noted, we have only reviewed the exceptions with respect to the pages in the CNMP that Department staff determined should be released.

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