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FOIL Appeal Determination for 08-03-2A (Jeffrey B. Gracer, February 12, 2008)

February 12, 2008

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

February 12, 2008

Jeffrey B. Gracer, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022-1906

Re: Freedom of Information Law ("FOIL") Appeal No. 08-03-2A
FOIL Request No. 07-26-29

Dear Mr. Gracer:

This is in response to your appeal, pursuant to the Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]), from the denial of access to certain Department records. Your FOIL request, dated November 7, 2007, sought records relating to the Department's determination to deny entry of the 76 Eleventh Avenue Development Site (Site no. C231036) ("site") into the Brownfields Cleanup Program and records relating to eligibility determinations for other sites "that are or were subject to a Voluntary Cleanup Agreement with Con Edison." Your request specifically excluded "any documents filed or otherwise submitted by or on behalf of the Parties [i.e., Consolidated Edison Company of New York, Inc.; HLP Properties, LLC; West 17th Street Development, LLC; and Edison Mini Storage Corp]."

Under cover letter dated December 12, 2007, the Department's Records Access Officer provided copies of certain responsive records and advised that all other responsive records were being withheld in accordance with POL § 87(2)(a), as attorney-client privileged or attorney work product, or POL § 87(2)(g), as intra-agency or inter-agency records.

We received your appeal on January 14, 2008 and requested the Department's Central Office and Region 2 staff provide us with copies of the records that they withheld. Department staff provided us with 202 withheld records and advised that these are all the responsive records that they were able to identify. We have completed our review of the records provided and this letter provides our determination of your appeal.

The vast majority of the records withheld by Department staff involved communications within the Department's Office of General Counsel or between staff counsel and program staff. As such, these records fall within the scope of both POL § 87(2)(g), as intra-agency records, and POL § 87(2)(a), as attorney-client privileged or attorney work product. Pursuant to POL § 87(2)(g), an agency may except from disclosure records or portions thereof that are inter-agency or intra-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. This exception is intended "to permit people within an agency to exchange opinions, advice and criticism freely and frankly" (The New York Times Co. v. City of New York Fire Dept., 4 NY3d 477, 488 [2005] [citations omitted]). Pursuant to POL § 87(2)(a), an agency may except from disclosure records or portions thereof that are specifically exempted from disclosure by state or federal statute. Pursuant to sections 4503(a) and 3101(c) of the Civil Practice Law and Rules, records that contain attorney-client communications or attorney work product are exempt from disclosure.

On the basis of our review of the records provided by Department staff, we have determined that nineteen (19) were nonresponsive because they were submitted to the Department by the Parties or were sent to the Parties by the Department, and five (5) were nonresponsive because they did not relate to the eligibility determination for the site or for other sites subject to a Voluntary Cleanup Agreement with Con Edison. Additionally, ten (10) of the records supplied by staff were duplicates. After eliminating nonresponsive and duplicate records, there are 168 responsive records that were withheld by staff.

Of the 168 responsive records that were withheld by staff, 156 fall within the scope of the inter-agency or intra-agency exception and 130 fall within the attorney-client or attorney work product exception. These two groups of excepted records are, of course, not mutually exclusive. The majority of the withheld responsive records are covered by both of the noted exceptions while some fall within the scope of only one exception (e.g., several records withheld under the attorney work product exception do not appear to have been communicated between staff and, therefore, do not fall within the intra-agency exception).

We have determined that one (1) withheld record (a copy of the Department's Brownfield Cleanup Program eligibility guidance) may be released in redacted form and portions of three (3) other withheld records (photographs that were attached to or part of a Department record) may be released without redaction. These released records are enclosed.

With respect to the records that were withheld, you requested that a detailed log be provided and cited Steele v. New York State Dept. of Health, 119 Misc 2d 963 (Sup Ct, Niagara County 1983) in support of that request. Please be advised that there is no requirement under FOIL relating to preparation of a list or index of the record or records withheld (see Advisory Opinions AO-12924 [August 30, 2001] and AO-11591 [July 27, 1999], New York State Department of State, Committee on Open Government). Although the court in Steele did require the creation of a log for certain withheld records, it did so on the facts and circumstances before the court in that case, and did not hold that such logs were required under FOIL.

This letter constitutes 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 POL § 89(4)(b). In any future correspondence relating to this appeal, please refer to FOIL Appeal No. 08-03-2A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/

By: Richard A. Sherman
Administrative Law Judge

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

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