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FOIL Appeal Determination for 08-20-0C (Susan Beaudoin, August 5, 2008)

August 5, 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

VIA E-MAIL & CERTIFIED MAIL, RETURN RECEIPT REQUESTED

August 5, 2008

Susan E. Beaudoin, Esq.
Chief Information Officer
Office of Technology
State Capitol, P.O. Box 2062
Albany, New York 12220-0062

Re: Freedom of Information Law ("FOIL") Appeal No. 08-20-0C;
FOIL Request No. 08-1055
Charts of CIO/OFT of proposed locations for towers for the
Statewide Wireless Network (SWN)

Dear Ms. Beaudoin:

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"]), specifically POL §89(5)(c), from the determination by the Department to release in part two (2) records, consisting of three (3) pages. Your agency submitted the two records to the Department of Environmental Conservation (hereinafter "Department" or "DEC") with claims of: critical infrastructure (POL §86(5)) that could endanger the life or safety of persons (POL §87(2)(f)) and/or would jeopardize security of your information technology asset (POL §87(2)(i)); and non-final inter-agency communications (POL §87(2)(g)).

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were at issue from the Department's Central Office. These records were referenced in Department staff's letter to you dated July 3, 2008. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On May 29, 2008 the New York Times submitted an email request pursuant to FOIL requesting SWN (State Wireless Network) charts for the past two years. DEC's Cental Office staff then contacted the Office of Technology ("OFT"), because of a non-disclosure agreement executed by the Department and OFT and a request by your office that the charts be considered confidential under multiple FOIL exemptions codified under POL §87(2). Thereafter, the Department determined that the charts would be released to the New York Times in redacted form with many sections redacted pursuant to POL §87(2)(f), (g) and (i). On July 17, 2008 you sent me an appeal of this determination again claiming that the charts in questions should not be released because the charts contained critical infrastructure information that could endanger the life and safety of persons or would jeopardize the information technology asset of the agency or that the charts are inter-agency materials exempt from disclosure in toto.

RECORDS REVIEWED

On this appeal, I have conducted a de novo review of the two (2) records, consisting of 3 pages, that were provided to me by Department staff. Based upon my review of those records, I have determined that the charts will be released but with fewer redactions than Department staff determined. My explanation for such redaction and the exemptions relied upon follows.

The Statewide Wireless Network (SWN) is a statewide wireless information technology system that will be used to provide an integrated wireless public safety/service radio network with statewide coverage allowing interagency and intergovernmental communications for first responders. It should be noted that the Department also maintains a first responder safety/service radio network using existing DEC owned towers identified on the contested charts. The SWN site charts at issue consist of the following columns of information: (a) DEC facility number, (b) DEC facility name, (c) SWN Site number, (d) Candidate, (e) SWN site name, (f) site acquisition, (g) APA, (h) county, (i) town, (j) latitude, (k) longitude, (l) tower type, (m) tower height (ft), (n) AMSl (ft), (o) tower owner, (p) building owner, (q) land owner, (r) land classification or tax parcel number, (s) date on list, (t) proposed Mw heights AGL - ft (subject to final) and (u) comments.

OFT has claimed that the SWN site charts are exempt from disclosure under multiple provisions of POL §87(2). Specifically, OFT has asserted that the information contained therein, if disclosed, would jeopardize OFT's capacity to guarantee the security of the SWN information technology asset, system and infrastructure (POL §87(2)(i)). Furthermore, OFT claims that the information contained within the SWN site charts, mainly certain DEC facility location information, could endanger the life and safety of persons who would be served by the SWN public safety system once the system became operational (POL §87(2)(f)). Finally, OFT asserts the exemption of "inter-agency materials which do not reflect final agency policy or determinations or instructions to staff that affect the public." (POL §87(2)(g)).

POL §87(2)(i) permits an agency to deny access to records that "if disclosed, would jeopardize the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures." The only column of information that could jeopardize the security of the information technology is the column of microwave length estimates. It is reasonable to assume that such information could be used to disrupt the normal function of the wireless system. However, the remaining columns of the charts do not contain information regarding the power sources, design information, operational information, encryption figuration or actual equipment. Thus, the column labeled "Proposed Mw Heights AGL - Ft (subject to final) is relatively specific to the operational aspect of the proposed equipment and should be redacted pursuant to the exemption(s) that such information if disclosed, would jeopardize OFT's capacity to guarantee the security of its information technology assets (POL §87(2)(i)) and/or that such information could endanger the life and safety of the public if disclosed (POL §87(2)(f)).

OFT's second argument is that the charts contain information that if disclosed could endanger the life and safety of any person (POL §87(2)(f)). OFT further argues that proposed sites for SWN towers are equally critical to the safety, welfare and security of the SWN system as the final sites of the SWN towers. The proposed SWN tower charts does not contain information that would divulge the operation of the system, unique architectural plans or the like, merely the location, structure height and type of the proposed towers all of which is accessible to the public. Locational information can be released as the towers are visual to the public. Locational information along with the structures height and type alone will not pose a danger to the life and safety of the public.

However, the columns labeled "SWN Site #," "SWN Site Name" and "Proposed Mw Heights AGL (ft)" will be redacted pursuant to POL §87(2)(f) and POL §87(2)(i). Such information could be used to damage or breach security of the information technology asset, thus could endanger the life and safety of the public if such an event occurs. However, the remaining columns of the charts in the aggregate do not pose such a risk in that they contain locational information or structural information that can been seen with the human eye when passing by the towers. Also, the remaining columns have information that is insignificant to the public and would not pose a risk to the public or to the security of the information technology assets.

Finally, OFT argues that the proposed SWN tower charts should be withheld from disclosure pursuant to POL §87(2)(g), claiming that the charts are inter-agency deliberative materials that are not "final agency policy or determinations or instructions to staff that affect the public." 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, without the chilling prospect of public disclosure")).

OFT concedes that the information contained within the chart is factual but not a final agency determination. POL §87(2)(g) is written in the alternative. If the information contained within a record is factual, it must be released, and it is not imperative that the factual tabulations or data be the agency's actual final determination for the information to be released. It needs to be noted that the charts are proposals and not the final determinations of any agency. Also, the Department did not prepare or create the records thus the Department can not verify the accuracy of the information contained therein. Such inability to verify the accuracy does not therein allow the factual information to be exempt pursuant to POL §87(2)(g).

OFT's argument that the charts are deliberative so as to protect those in an advisory role to be able to express their opinions freely to agency decision makers, is adopted by the Department in my decision here to redact the column within the charts labeled "comments." However, the other columns within the charts contain factual information, not opinions, advice, or deliberative materials. I must reiterate that the information contained within the charts is not verifiable as to the accuracy of the information contained therein as the Department has not prepared the charts nor is it ascertainable as to the use of those charts in negotiations as of this date.

Based on the above, the SWN charts will be released in redacted form with the columns entitled "SWN Site #," "SWN Site Name," "Proposed Mw Heights AGL (ft)" and "comments" redacted. I must deny your request to redact the location identifying information of proposed SWN towers as such information in conjunction with the remaining columns within the charts could not endanger the life and safety of any persons. Locations and proposed elevations can be ascertained by all individuals with the naked eye. There is no information contained within the charts that show the actual operational function of the towers (except as mentioned above), the power sources, the actual waves or transmissions released by towers, encryption information or the design information, besides tower types, of the towers. Furthermore, I must deny your request to withhold release in toto based on POL §87(2)(g). The charts contain factual tabulations or data and should be released pursuant to FOIL.

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 further correspondence relating to this appeal, please refer to FOIL Appeal No. 08-20-0C.

Sincerely yours,


/s/
Dena Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
John Sullivan, The New York Times

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