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FOIL Appeal Determination for 07-46-0A (Yvonne E. Marciano)

April 8, 2008

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 1st Floor

625 Broadway, Albany, New York 12233-1550
Phone: (518)402-9003 FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

April 8, 2008

Yvonne E. Marciano, Esq.
The West Firm
677 Broadway, 8th Floor
Albany, New York 12207-2990

Re: Freedom of Information Law ("FOIL") Appeal No.07-46-0A

Dear Ms. Marciano:

This letter constitutes the decision of the Department regarding the above-referenced appeal. After reviewing the records that are the subject of your FOIL appeal we are affirming, with the two exceptions noted below, the determination of Jeanne Konz, Esq. that the withheld documents are exempt from disclosure pursuant to relevant provisions of FOIL. For your convenience, the FOIL chart that was previously furnished to you as part of Ms. Konz's initial determination is enclosed, and has been modified to include our determinations on this appeal.

We are reversing Ms. Konz's determination with respect to two documents: (1) an attachment to an intra-agency email from Andrew Niles to Tom Folts dated June 20, 2007; and (2) an attachment to a second June 20, 2007 intra-agency email from Mr. Niles to Mr. Folts. Although the emails themselves are exempt from disclosure, the attachments are spreadsheets entitled "Belleayre Existing Trails" and in our view constitute factual tabulations or data that are not exempt from disclosure. Both attachments are enclosed.

With respect to the remainder of the records, we affirm Ms. Konz's determination that they are exempt from disclosure pursuant to Public Officers Law §87(2) (a) and/or (g).

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 exempted 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 Department, 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"]).

POL§87(2)(a) addresses documents specifically exempted from disclosure by state or federal statute. A number of the withheld documents are attorney/client communications and therefore exempt from disclosure. Attorney-client communications are exempt pursuant to CPLR 4503 which protects confidential communications between the attorney and client in the course of professional employment. The withheld documents are communication between Department Staff, DEC counsel acting in a legal capacity, and the New York State Attorney General's Office, counsel for the Department.

Assistant Commissioner for Hearings and Mediation Services Louis A. Alexander has recused himself in this matter. He has delegated decision making authority regarding this appeal to Christopher Amato, Assistant Commissioner for Natural Resources.

This letter is the final determination of the Department of Environmental Conservation. 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).

Sincerely yours,

Christopher Amato
Assistant Commissioner
for Natural Resources

By: /s/
Molly T. McBride
Administrative Law

cc: Robert Freeman, Executive Director
Committee on Open Government

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