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FOIL Appeal Determination for 07-29-5A (Craig M. Crist)

March 19, 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/

March 19, 2008

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Craig M. Crist, Esq.
Dreyer Boyajian, LLP
75 Columbia Street
Albany, New York 12210

Re: Freedom of Information Law ("FOIL") Appeal No. 07-29-5A

Dear Mr. Crist:

We have completed our review of records to which Department Staff denied you access by letters dated June 13, 2007 (Quinn to Crist; no responsive records identified), June 20, 2007 (Quinn to Crist; no records released), June 27, 2007 (Earl to Crist; 40 pages of records released in partial response) and July 13, 2007 (Earl to Crist; 140 pages of records released, other records withheld).

As referenced in our July 25, 2007 letter to you, your July 16, 2007 letter appealing from denial of records pertaining to your May 20, 2007 FOIL request has been treated as an appeal of denial of records pertaining to both your FOIL requests: May 20, 2007 FOIL request (FOIL Request No. 07-1352); and May 29, 2007 FOIL request (FOIL Request No. 07-1409), although your July 16, 2007 letter references only the June 20, 2007 DEC Staff determination.

As you know, one hundred and eighty pages of records were provided to you pursuant to your FOIL requests. We have found that only two additional records contained in the file and which had been withheld may be released. One record is NYSDEC Division of Water Technical and Operational Guidance ("TOGS") document, 1.3.2, entitled Toxicity Testing in the SPDES Permit Program. The TOGS guidance documents are available on the Department's Division of Water webpage (TOGS 1.3.2 may be found at www.dec.ny.gov/regulations/2652.html). The other record is an Albany Times Union article published on June 5, 2007, a copy of which is enclosed with this letter.

The other withheld records (433 records) are exempt from FOIL for one or more of the following reasons:

1) Various of the records are inter-agency or intra-agency deliberative memoranda, which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits (POL § 87[2][g]).

Among the records included within this exemption are records exchanged between and among New York State Department of Environmental Conservation ("Department" or "DEC") staff, New York State Department of Health staff and corresponding members of DEC's Federal counterpart, the United States Environmental Protection Agency ("EPA"). The records contain opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making.

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"]).

New York courts also construe POL § 87(2)(g) to apply to consultative materials prepared by persons or entities outside an agency, recognizing the practical reality that agency decisionmakers often must rely on outside input and expertise in formulating decisions (see Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131 (1985) (outside appraiser's reports to town agency are intra-agency material); Matter of Sea Crest Construction Corp. v. Stubing, 82 AD2d 546 (2d Dep't 1981) (correspondence between town and its architects and engineers held exempt).

Furthermore, it is the Department's position that materials generated in a deliberative process involving the Department and a federal agency (including but not limited to any consultant-prepared material) would similarly be subject to POL § 87(2)(g). In this regard, the courts in Massachusetts have determined that under the Massachusetts version of FOIL, which is similar in relevant respect to New York's FOIL, deliberative communications between the federal EPA and the Massachusetts Department of Environmental Protection were not disclosable (see General Electric Co. v. Massachusetts Department of Environmental Protection, 429 Mass. 798 [1999]). In that case General Electric Co. ("GE") sought documents shared between the Massachusetts Department of Environmental Protection ("DEP") and EPA regarding the clean up of a site in Pittsfield, Massachusetts. The court held that, even though EPA was not an agency of the Commonwealth, the documents requested could be withheld because EPA and DEP were cooperating agencies that hold concurrent jurisdiction and the sharing of information between the agencies was integral to the internal decision making process.

The facts involved in your request are similar to the Massachusetts matter. DEC and EPA are cooperating agencies implementing the permitting program created by the federal Clean Water Act and both have jurisdiction. In this case, the sharing of ideas and documents with EPA is integral to the DEC Staff's internal decision making processes. The communications which are sought are all non-final, deliberative discussions between staff members of both agencies regarding policy issues and regulatory implementation, and as such fall within the exemption found in POL § 87(2)(g). See also General Electric Co. v. NYSDEC, Albany County Supreme Court, Decision and Order, Index No. 2109-00 (September 14, 2000)("common interest privilege" applicable to exempt records from release as a result of the common legal interest of New York State and the federal government in remediating PCB contamination of the Hudson River); United States v. Allsteel, Inc., 1988 WL 139361 (N.D. Ill., Dec. 21, 1988)(consultation in confidence between Illinois Environmental Protection Agency and federal Environmental Protection within purposes of deliberative process privilege and such records may be withheld).

The communications with EPA are also pre-decisional documents or statements provided to EPA as part of a deliberative process and, therefore, are exempt from disclosure by EPA under the federal Freedom of Information Act (see 5 USC § 552[b][5]). Consequently, they would be exempt from disclosure under FOIL, as records which are specifically exempt from disclosure by state or federal statute (POL § 87[2][a]).

2) Various of the records are subject to the attorney/client privilege or are attorney work product and therefore are exempted from disclosure pursuant to New York state statutes, CPLR
§ 3101(c) and CPLR § 4503 (POL § 87[2][a][specifically exempting records from disclosure which are exempted from disclosure by state or federal law]).

In sum, of the 433 records withheld:

- 173 were withheld based on POL § 87(2)(a) and
POL § 87(2)(g); and

- 260 were withheld based on POL § 87(2)(g).

This letter is a final determination of the agency. 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). In any further communication with this office, please reference FOIL Appeal Number 07-29-5A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

By: /s/

Kevin J. Casutto
Administrative Law Judge

Enclosure

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


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