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FOIL Appeal Determination for 08-08-0A (Yvonne E. Marciano, June 30, 2008)

June 30, 2008

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Public Protection, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8552 • FAX: (518) 402-9016
Website: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

June 30, 2008

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

Re: Freedom of Information Law ("FOIL") Appeal No. 08-08-0A
Appeal Determination - FOIL Request No. 07-2884

Dear Ms. Marciano:

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"). These records, which were specifically referenced in your initial FOIL request dated December 12, 2007, pertain to the proposed Belleayre Resort at Catskill Park located in Highmount (Ulster County), New York.

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. A brief review of your FOIL request, and Department staff's response thereto, follows.

BACKGROUND

By electronic mail dated December 12, 2007, you submitted a written FOIL request for access to records (Request No. 07-2884) to Ms. Ruth Earl of the Department's Central Office seeking:

"1. any and all documents concerning any and all property taxes incurred and/or paid by Belleayre for the last ten years;

2. all costs estimates for the proposed trail expansion to [Belleayre] as depicted in Exhibit M to the Crossroads Ventures' Agreement in Principle, dated September 5, 2007;

3. all costs estimates for the planned acquisition of Big Indian Plateau;

4. any and all documents concerning the manner in which the proposed expansion to Belleayre will be, or is proposed to be, paid for, including but not limited to any budgetary allocations; and

5. any and all documents concerning any requests for funding for the proposed expansion to Belleayre, including the status of the requests."

By letter dated January 25, 2008, the Department's Records Access Officer, Ruth L. Earl, advised you as follows:

"In response to the portions of your request that seek records concerning
property taxes at Belleayre for the last 10 years and requests for funding
of the proposed expansion to Belleayre, a search of Department records
produced nothing responsive.

Be advised that some of the records (1)
responsive to the balance of your
request concerning trail expansion cost estimates as depicted in Exhibit
M of the Crossroad's Agreement in Principle, cost estimates for the
acquisition of Big Indian Plateau and funding for the proposed expansion
are withheld in accordance with one or more of the following provisions
of the Public Officers Law (POL):

• POL § 87.2(a), more specifically Civil Practice Law & Rules
(CPLR) § 4547, as some of the documents relate to negotiation
of a settlement of the administrative proceeding adjudicating the
permit applications for Crossroads Ventures, LLC

• POL § 87.2(c), as disclosure would impair present or imminent
contract awards or collective bargaining negotiations

• POL § 87.2(g), inter-agency or intra-agency documents which
are not statistical or factual tabulations or data, instructions to staff
that affect the public, final agency policy or determinations, or
external audits"

By letter dated February 22, 2008, you timely filed this appeal with the Department's Office of Hearings and Mediation Services from Department staff's denial of your December 12, 2007 FOIL request with respect to the documents withheld as particularized in Ms. Earl's January 25, 2008 letter to you.

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, we have reviewed the records that Department staff determined were potentially responsive to your FOIL request (No. 07-2884), including those that staff ultimately determined were exempt from disclosure in its January 25, 2008 response to you. In that review, we have considered the various FOIL exemptions expressly cited by staff in its January 25, 2008 determination, as well as others under POL § 87(2). A review of the exemptions cited by staff 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, Department staff referenced three (3) separate state statutes as being applicable to, and providing a basis for withholding, records responsive to your FOIL request. Specifically, Department staff noted in its determination that New York Civil Practice Law and Rules ("CPLR") 4547 prohibited disclosure of records that were settlement negotiations or offers to compromise among parties in an ongoing, disputed administrative permit proceeding before the Department.

POL § 87(2)(c) provides that an agency may deny access to records or portions thereof that "if disclosed would impair present or imminent contract awards or collective bargaining negotiations." In this instance, Department staff noted in its determination that various records responsive to your FOIL request were exempt because, as a result of ongoing settlement negotiations or offers to compromise among parties in an administrative permit proceeding before the Department, disclosure of such records would impair present or imminent contract awards by the state.

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"]).

PROCEDURAL HISTORY AND RELATED MATTERS

As you know, the proposed Belleayre Resort at Catskill Park, has been the subject of an ongoing multiparty permit proceeding pending with the Department's Office of Hearings and Mediation Services. This proceeding, entitled Matter of Crossroads Ventures, LLC (DEC Project Nos. 0-9999-00096/00001, /00003, /00005, /00007, /00009, and /00010) was assigned to Administrative Law Judge ("ALJ") Richard R. Wissler in 2003.

On September 7, 2005, ALJ Wissler issued a Ruling on Issues and Party Status in Matter of Crossroads Ventures, LLC ("Ruling") which, among other things, identified twelve issues from the proposed project requiring adjudication including water supply, groundwater and surface water impacts, aquatic habitat impacts, stormwater impacts, impacts to the Catskill Forest Preserve, impacts to wildlife, noise impacts, traffic impacts, visual impacts, impacts to community character, secondary and induced growth impacts, cumulative impacts, and alternatives (see Ruling at http://www.dec.ny.gov/docs/legal_protection_pdf/crossroads3.pdf). As a result of appeals taken from the Ruling by various parties to the proceeding, on December 29, 2006, then-Deputy Commissioner Carl Johnson issued an Interim Decision in Matter of Crossroads Ventures, LLC which, among other things, modified the Ruling and clarified issues for further adjudication by the parties (see Interim Decision at http://www.dec.ny.gov/docs/legal_protection_pdf/crossroads3.pdf).

Following the Interim Decision, on March 1, 2007, ALJ Wissler established a discovery and adjudicatory hearing schedule for the parties in Matter of Crossroads Ventures, LLC. At the request of the parties, that schedule was thereafter periodically adjourned. As a result of ongoing negotiations among the parties to the proceeding, as well as others, on September 5, 2007, an Agreement in Principle ("AIP") was reached related to issues identified in the Matter of Crossroads Ventures, LLC proceeding and from the proposed Belleayre Resort at Catskill Park. The September 5, 2007 AIP was identified as a:

"Multiparty agreement endorsing an integrated development project
including construction and operation of the Wildacres Resort and
Highmount Spa Resort complex by Crossroads Ventures LLC
('Crossroads'); expansion of the Belleayre Mountain Ski Center by
the New York State Department of Environmental Conservation
('DEC'), including ski-in-ski-out public access to the proposed
Highmount Spa Resort; acquisition by DEC on behalf of the People
of the State of New York of a 1200 acre +/- parcel referred to as
the Big Indian; and acquisition by DEC on behalf of the People of
the State of New York of a 78 acre +/- parcel referred to as the
Former Highmount Ski Center and a related 21 acre +/- Highmount
Spa Easement."

(see http://www.dec.ny.gov/enb/20071121_not3.html or http://www.dec.ny.gov/permits/6061.html).

Thereafter, by motion dated September 27, 2007, the permit applicant in Matter of Crossroads Ventures, LLC sought to suspend the adjudicatory hearing previously scheduled for that proceeding noting that the parties had entered into the AIP on September 5, 2007. The applicant argued in its motion that the AIP had resulted in a modified project having a lower environmental impact than the previous proposal that was the subject of Matter of Crossroads Ventures, LLC. The applicant asserted that the signatory parties to the AIP acknowledged that the alternative project would require the preparation of a supplemental draft environmental impact statement and the filing of new or modified Department permit applications, all of which would be subject to full public review.

On October 19, 2007, ALJ Wissler issued a ruling granting the applicant's motion to suspend the Matter of Crossroads Ventures, LLC proceeding and holding in abeyance, without date, further adjudicatory proceedings in the matter pending supplementation of the administrative record as described above (see Ruling on Motion to Suspend Adjudicatory Hearing at http://www.dec.ny.gov/hearings/39340.html). Upon reconsideration, the motion to suspend the proceeding was granted by Commissioner Grannis on November 9, 2007 (see Ruling of the Commissioner at http://www.dec.ny.gov/hearings/39685.html).

RECORDS REVIEWED AND APPEAL DETERMINATION

Department staff has advised that no records were found with respect to items 1, 4 and 5 of your FOIL request. With respect to item 2 of your FOIL request, Department staff withheld thirty-nine (39) records, consisting of 90 pages. Based upon our review, one (1) of the thirty-nine (39) records identified by Department staff was not responsive to the FOIL request.

Of the remaining thirty-eight (38) records, we have determined that all are exempt pursuant to the inter-agency/intra-agency exemption contained in POL § 87(2)(g). In addition, seven (7) of the thirty-eight (38) records are also exempt pursuant to POL § 87(2)(a), as settlement negotiation records (see CPLR § 4547), and three (3) are also exempt pursuant to POL § 87(2)(a), as attorney client privileged (see CPLR § 4503).

With respect to item 3 of your FOIL request, Department staff withheld thirty-seven (37) records, consisting of 89 pages. Based upon our review, seven (7) of those records are releaseable in their entirety and one (1) of those records may be released in part, and they are being forwarded to you under cover of this letter. Photocopying costs are being waived. With respect to the one (1) record being redacted, the remaining portion is being withheld pursuant to POL § 87(2)(g), as intra-/inter-agency records, and POL § 87(2)(a), as settlement negotiation records. Of the remaining twenty-nine (29) records, we have determined that all of those records are exempt pursuant to POL § 87(2)(g), as intra-/inter-agency records, and POL § 87(2)(a), as settlement negotiation records (see CPLR § 4547). Three are also exempt pursuant to POL § 87(2)(a) as attorney client privileged (see CPLR § 4503).

We have determined that the exemption contained in POL § 87(2)(c) would not apply to any of the withheld records.

Assistant Commissioner for Hearings and Mediation Services Louis A. Alexander has delegated decision making authority in this appeal to Henry L. Hamilton, Assistant Commissioner for Public Protection.

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. 08-08-0A.

Sincerely yours,

/s/
Henry L. Hamilton
Assistant Commissioner

/s/
Mark D. Sanza, Esq.

Enclosures

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

1 We have been advised that the statement that "some of the records" were withheld needs to be corrected, and that, in fact, all of the records responsive to the balance of your request were withheld.

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