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FOIL Appeal Determination for 08-23-0A (Stephen M. Dorsey, August 18, 2008)

August 18, 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

August 18, 2008

Stephen M. Dorsey
Saratoga County Municipal Center
40 McMaster Street
Ballston Spa, New York 12020

Re: Freedom of Information Law ("FOIL") Appeal No. 08-23-0A; FOIL Request No. 08-1159 Appeal Determination

Dear Mr. Dorsey:

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 Saratoga County Sewer District No. 1 ("SCSD").

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Central Office. These records were referenced in Department staff's letter to SCSD of July 23, 2008. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On June 9, 2008, received by the Department on June 11, 2008, James DiPasquale of SCSD #1 submitted a letter to the Records Access Officer of the New York State Department of Environmental Conservation which has been treated as an application for access to records pursuant to FOIL. Within the letter Mr. DiPasquale requested "all records in possession of the New York State Department of Environmental Conservation (NYSDEC) documenting and/or relating to the 887 violations alleged by NYSDEC to have been committed by Saratoga County Sewer District No. 1 (SCSD) of SCSD's SPDES permit effluent limitations, as alleged in the paragraph marked and numbered 6 in the attached proposed Order on Consent."

Mr. DiPasquale's FOIL request was assigned FOIL No. 08-1159 by the Department's Records Access Officer in Albany. By letter dated June 18, 2008, Ruth Earl, Records Access Officer, acknowledged receipt of Mr. DiPasquale's FOIL request and was obtaining the requested documents from the appropriate divisions. On July 23, 2008 Ms. Earl indicated that various records were being released and were ready for inspection or photocopying, but that "15 pages" 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-client privilege [CPLR §4503(a)]; 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 August 1, 2008, you filed this appeal, on behalf of SCSD, from the denial of access to the withheld 15 pages referenced in Ms. Earl's July 23, 2008 letter to you with me, the Department's FOIL Appeals Officer. My de novo review of the records follows:

RECORDS REVIEWED

On this appeal, I have reviewed the 15 pages of the three withheld records that were provided to me by Department staff. Based upon my review of those records I have determined that all 15 pages were properly 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, comments or confidential legal works and accordingly, are subject to the attorney-client privilege (see CPLR §4503(a)). 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")).

The first record, consisting of 1 page, that was withheld is communication between Department staff and a Department attorney that falls squarely within the exemptions of disclosure as attorney-client communications (POL §87(2)(a)) and intra-agency communications (POL §87(2)(g)). The record consists of guidance and suggestions in regards to the SCSD #1 matter. There are no factual or statistical tabulations or data or instructions to staff that affect the public. Nor is the record a final agency policy or determination.

The second record, consisting of 12 pages, that was withheld is a compilation of attorney-client communications, from Department staff to a Department attorney and communications between and among Department staff. The record was properly withheld pursuant to POL §87(2)(a) and POL §87(2)(g). The record is deliberative in nature as it is a draft which is predecisional and deliberative as it was prepared in order to assist an agency decisionmaker in arriving at his/her decision. This record consists of a case report for review and signature which was circulated among staff and counsel for comment and advise. Such information contained within this records is deliberative material that staff exchanged with other staff and attorneys for the Department in exchange for opinions, advice, legal advice, recommendations and criticism freely and frankly.

The third record, consisting of 2 pages, that was withheld is a letter of January 2008 to James DiPasquale from Steven Brewer, Assistant Regional Attorney for the Department. It has come to my attention that this letter is a copy of the final letter that was sent to Mr. DiPasquale. However, the record contains staff notes, marginalia and questions that was written on the letter after it was sent to Mr. DiPasquale. Furthermore, due to the manner in which such notes, marginalia and questions are written on the draft copy, it would be unfeasible to redact and release. The notes, marginalia and questions, present intra-agency deliberations, exempt from disclosure under POL §87(2)(g).

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. 08-23-0A.

Sincerely yours,


/s/
Dena N. Putnick, Esq.
FOIL Appeals Officer


cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
James DiPasquale, SCSD #1

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