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FOIL Appeal Determination for 08-17-3A (Frank V. Bifera, June 23, 2008)

June 23, 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) 402-8541
Website: http://www.dec.ny.gov/

BY TELECOPY & FIRST CLASS MAIL

June 23, 2008

Frank V. Bifera, Esq.
Hiscock & Barclay
50 Beaver Street
Albany, New York 12207-2830

Re: Freedom of Information Law Appeal No. 08-17-3A
Freedom of Information Law Request 08-280

Dear Mr. Bifera:

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"]) from the denial of access to certain records that were withheld by the Department of Environmental Conservation ("Department").

Initial FOIL Response

In your initial FOIL request dated April 24, 2008, you requested "all public records in the possession or control of the NYSDEC pertaining and/or relating to the [Mirant Lovett, LLC Coal Ash Management Facility] that were not previously provided in response to [a] 2005 FOIL request."

By letter dated May 13, 2008, Ruth L. Earl, the Department's Records Access Officer, advised that Brian Maglienti of Central Office had provided you with indices of files that were maintained in off-site storage, with the understanding that you would identify specific files of interest. These indices had been provided under cover of Mr. Maglienti's letter dated May 1, 2008.

Based on our telephone conversation of June 16, 2008, I am attaching a copy of the indices that Mr. Maglienti previously sent for your review. Based on our conversation, I will be requesting that Mr. Maglienti retrieve the following files from storage:

Container Number 507212: Lovett Generating Station Reconversion to Coal 3/81
Supplemental Hydro Testing Stage III L/F 12/81
Orange and Rockland Utilities/Lovett 360 Renewal App. 11/92

Container Number 507211 Lovett Generating Station Units 4& 5 Reconversion to Coal 11/80 Lovett Generating Station Units 4& 5 Reconversion to Coal 1/83

Please let Ms. Earl know if you would like any of the other files that are referenced on the indices to be retrieved for review. I shall also follow up regarding the records that you referenced in our telephone conversation to determine if these might be located elsewhere in the Department. As mentioned, some of the records you referenced may have been discarded in accordance with the Department's record retention procedures.

In her May 13, 2008 letter, Ms. Earl advised that Region 3 was reproducing groundwater monitoring reports identified as responsive to your request. It is my understanding that you have been provided with those reports. In addition, Ms. Earl made available various responsive records which were reviewed by Ms. Thais Triehy of your office on May 13, 2008. Ms. Earl also advised that approximately 300 pages were being withheld from disclosure in accordance with sections 87(2)(a) and 87(2)(g) of the Public Officers Law ("POL"). These withheld records were designated either as attorney-client privileged materials and/or inter-agency/intra-agency records. The 300 pages withheld represented ninety-four (94) separate records.

FOIL Exceptions: Applicable Law

A review of the exemptions cited by Department staff as a basis to withhold the 300 pages (94 records) 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." Records that are attorney/client privileged or constitute attorney work product, and therefore exempt pursuant to CPLR 4503 and/or CPLR 3101(c), are covered by the exemption in POL § 87(2)(a).

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)" (see 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"]).

FOIL Appeal Review

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 Department staff. On this appeal, we have conducted a de novo review of the records withheld. In the course of our review, we also identified one hundred and three (103) additional records that were not reviewed or otherwise identified in the initial review of your 2008 FOIL request and these records have also been considered in the context of this appeal.

With respect to the ninety-four (94) records that were withheld by Department staff in consideration of your initial request, we have determined that these 94 records were properly withheld: seventy (70) of the records pursuant to POL § 87(2)(g); and twenty-four (24) pursuant to POL § 87(2)(a) and POL § 87(2)(g).

As noted, during our review of your appeal, we also identified one hundred and three (103) additional records that were subject to your initial FOIL request that had not been reviewed or otherwise identified with respect to your 2008 request. Sixty-three (63) of these records are releaseable in their entirety and four (4) of these records are releaseable in part, with minor redactions made pursuant to POL § 87(2)(g) ("Releaseable Documents"). The remaining thirty-six (36) of the one hundred and three (103) additional records are being withheld in their entirety: twenty-four (24) pursuant to POL § 87(2)(a); and twelve (12) pursuant to POL § 87(2)(a) and (2)(g).

If your office is interested in reviewing the Releaseable Documents, please contact Ruth Earl at (518) 402-9223 to schedule an appointment for their review. Alternatively, if you would like copies made of these records, please contact Ms. Earl. Please note that the cost if duplicated by the Department will be twenty-five (25) cents per page. Arrangements with an outside photocopying service may also be made.

With respect to the files from the indices provided under cover of Mr. Maglienti's letter dated May 1, 2008, as noted certain of those files will be retrieved based on our recent conversation. Again, if you would like to have other files on the indices retrieved, please contact Ms. Earl. If, upon review of the (indices) files, any records are withheld, you will be so advised and you are entitled to appeal any such withholding separately. Any appeal regarding the records in the (indices) files is not precluded by this FOIL appeal determination.

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. 08-17-3A.

Very truly yours,

/s/

Louis A. Alexander
Assistant Commissioner

Enclosure

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

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