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FOIL Appeal Determination for 08-18-0A (John Privitera, July 9, 2008)

New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor

625 Broadway, Albany, New York 12233-1500
PHONE: (518) 402-9522 FAX: (518) 402-9018 or (518) 402-9019
Website: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

July 9, 2008

John Privitera, Esq.
McNamee, Lochner, Titus & Williams, P.C.
677 Broadway
Albany, New York 12207-2503

Re: Freedom of Information Law ("FOIL") Appeal No. 08-18-0A;
FOIL Request No. 08-500 Appeal Determination

Dear Mr. Privitera:

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 pertaining to the Indian Pass Ranch Dam, including archived records, original construction records, permits and memoranda.

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Region 5 office and through the Department's Central Office. These records were referenced in Department staff's letter to you dated June 18, 2008. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On March 5, 2008 you submitted a letter to Anthony London, Esq., General Counsel's Office within the Department, which has been treated as an application for access to records pursuant to FOIL. Within the letter you requested "any and all documents" pertaining to "Indian Pass Ranch Dam."

Your FOIL request was assigned FOIL No.: 08-500 by the Department's Records Access Officer in Albany. By letter dated March 10, 2008, Ruth Earl, Records Access Officer, acknowledged receipt of your FOIL request and was obtaining the requested documents from the appropriate divisions. On June 18, 2008 Ms. Earl indicated that various records were being released, but that "approximately two inches" of records were being withheld in accordance with one or more of the exceptions that are contained in POL §87. These exceptions included:

  • POL §87(2)(a), which exempts records which are specifically exempted by state or federal statutes, more specifically attorney work product [CPLR §3101 (c)], attorney-client privilege [CPLR §4503(a)];
  • POL §87(2)(e), which exempts records which are compiled for law enforcement purposes; and
  • POL §87(2)(g), which exempts records which are inter-agency or intra-agency which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policies or determinations or external audits.

By letter dated June 24, 2008, you filed this appeal from the denial of access to the withheld records referenced in Ms. Earl's June 18, 2008 letter to you with the Department's Office of Hearings and Mediation Services. Within my July 1, 2008 letter to you, I advised you that the Office of Hearings and Mediation Services was no longer hearing FOIL Appeals as I have been delegated the authority as the new FOIL Appeals Officer for the New York State Department of Environmental Conservation. Thus, my de novo review of the records follows:

RECORDS REVIEWED

On this appeal, I have reviewed 131 withheld records, consisting of 472 pages, that were provided to me by Department staff. Based upon my review of those records, I have determined that, of those that were previously withheld, seven (7) of those records (consisting of 125 pages) can be released to you in their entirety. Twenty-two (22) documents (consisting of 47 pages) can be released in redacted form or a portion of the record has been withheld with a portion being released. Thus, 124 records are being withheld in whole or in part based on the determined exemptions listed below. The remaining 102 records consisting of 300 pages, were properly withheld by Department staff in accordance with the provisions of FOIL. A review of the applicable FOIL exemptions follows. See the below summary of records that have been withheld in whole or in part:

11 records: §87(2)(e) and §87(2)(g) - law enforcement provision and inter-agency or intra-agency materials

28 records: §87(2)(a), §87(2)(e) and §87(2)(g) - state or federal statute provision, law enforcement provision and inter-agency or intra-agency materials

23 records: §87(2)(g) - inter-agency or intra-agency materials

38 records: §87(2)(a) and §87(2)(g) - state or federal statute provision and inter-agency or intra-agency materials

14 records: §87(2)(a) - state or federal statute provision

10 records: §87(2)(a) and §87(2)(e) - state or federal statute provision and compiled for law enforcement purposes

7 records released in their entirety

12 records are duplicates of other records withheld and are added into the total number of documents withheld.

Public Officers Law §87(2)(a) provides an exception for records that are "specifically exempted from disclosure by state or federal statute." In the FOIL appeal before me, certain records represent communications between Department staff and Department attorneys or are attorney notes, comments or confidential legal works and accordingly, are subject to the attorney-client privilege (see CPLR §4503(a)) and/or constitute attorney work product (see CPLR §3101(c)). Such records are exempted from FOIL (see also Matter of Orange County Publications, Inc. v. County of Orange, 168 Misc.2d 346, 352 (Orange Cty Sup Ct 1995) attorney-client privilege relating to facts of which attorney was informed, an opinion on law, legal services, or assistance in some legal proceeding).

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 N.Y.2d 131, 132 (1985); see also New York Times Co. v. City of New York Fire Department, 4 N.Y.3d 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")). A number of the records withheld involved are deliberative in nature as they contain internal communications among Department staff or with other state agencies, Department staff notes, and other Department staff analyses that are subject to the intra-agency/inter-agency exception.

Accordingly, consistent with the foregoing, we have determined that twenty-three (23) records withheld by Department staff (including but not limited to correspondence, E-mails and other written communications, memoranda and notes) were properly withheld pursuant to POL §87(2)(g). Another Seventy-seven (77) records are exempt from disclosure pursuant to the intra-agency/inter-agency exemption and another FOIL exemption as listed above.

POL §87(2)(e) provides an exception from FOIL for records that are compiled for law enforcement purposes and which if disclosed would (i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a person of a right to a fair trial or impartial adjudication; (iii) identify a confidential source(s) or disclose confidential information relative to a criminal investigation; or (iv) reveal criminal investigation techniques or procedures, except routine techniques or procedures.

The third exemption, POL §87(2)(e)(i), authorizes the withholding of records or portions thereof compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations. Records relating to agency enforcement activity, including but not limited to consent order negotiations, would be subject to this exemption (see Pride International Realty, LLC v. Daniels, 4 Misc.3d 1005[A][Sup. Ct., New York County, 2004] [holding that POL §87(2)(e)(i) applies to agency investigations of violations of the law]; see also Matter of City of New York v. BusTop Shelters, Inc., 104 Misc.2d 702, 711 [Sup. Ct., New York County 1980]). In accordance with the foregoing, I have determined that eleven (11) of the 124 records exempt in their entirety or in part from disclosure pursuant to the intra-agency/inter-agency exemption are also exempt from disclosure pursuant to the law enforcement exemption in POL §87(2)(e). Ten (10) of the 124 records exempted from disclosure pursuant to the state or federal statute exemption are also exempt from disclosure pursuant to the law enforcement exemption. Finally, twenty-eight (28) records are withheld, in whole or in part, because the record contains inter-agency/intra-agency materials, were compiled for law enforcement purposes and are protected by attorney-client privilege or attorney work product.

Most of the records withheld pursuant to POL §87(2)(e)(i) are forms or statements completed by Department of Environmental Conservation officers or employees of the Department. These records are not subject to release pursuant to Public Officers Law § 87(2)(e)(i) as they are compiled for law enforcement purposes or for preparation of trial and, if disclosed, would interfere with investigations or judicial proceedings. Judicial proceedings in this matter are still pending.

Furthermore, some of the records contain information that was disclosed to investigators, which come within the purview of inter-agency or intra-agency materials that are deliberative in nature. Cornell University v. City of New York Police Dept., 153 A.D.2d 515, 544 N.Y.S.2d 356, N.Y.A.D. 1 Dept.,1989) [NYPD denied the release of requested material, documents pertaining to an investigation, citing the exemptions in the Public Officers Law permitting an agency to deny access to records on the grounds that they would disclose information given in confidence to an investigator (§ 87(2)(e)), endanger the life or safety of a person (§ 87(2)(f)), constitute an unwarranted invasion of privacy (§ 87(2)(b)) and require disclosure of inter-agency or intra-agency material (§ 87(2)(g))]. § 87(2)(e)), endanger the life or safety of a person (§ 87(2)(f)), constitute an unwarranted invasion of privacy (§ 87(2)(b)) and require disclosure of inter-agency or intra-agency material (§ 87(2)(g))]. § 87(2)(e)), endanger the life or safety of a person (§ 87(2)(f)), constitute an unwarranted invasion of privacy (§ 87(2)(b)) and require disclosure of inter-agency or intra-agency material (§ 87(2)(g))]. § 87(2)(f)), constitute an unwarranted invasion of privacy (§ 87(2)(b)) and require disclosure of inter-agency or intra-agency material (§ 87(2)(g))]. § 87(2)(b)) and require disclosure of inter-agency or intra-agency material (§ 87(2)(g))].§ 87(2)(g))].

The records that have been identified for release pursuant to this appeal consist of 172 pages. Of those pages 113 pages are available on our website under Part 830: Lake Champlain Grainage Basin. Enclosed are copies of the documents that can be released to you, except for the 113 pages of the website materials. If you would like to review these records at our office, please feel free to call to set up an appointment. Otherwise, please submit to this office (attn: Jennifer Brantigan) a check made out to the "New York State Department of Environmental Conservation" for $14.75 to cover the copying charges for these records (.25/page). If you have any questions regarding your FOIL appeal, you may contact our office at (518) 402-2793.

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 Procedure Law and Rules, and Public Officers Law §89(4)(b). In any further correspondence relating to this appeal, please refer to FOIL Appeal No. 08-18-0A.

Sincerely yours,

/s/
Dena Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government

Ruth Earl, Records Access Officer

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