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FOIL Appeal Determination for 08-24-1A (Jeffrey Weitzman, September 4, 2008)

New York State Department of Environmental Conservation
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
FAX: (518) 402-9018 or (518) 402-9019
Website: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

September 4, 2008

Jeffrey Weitzman
418 East 59th Street
Apt. 9B
New York, New York 10022

Re: Freedom of Information Law ("FOIL") Appeal No. 08-24-1A
FOIL Request No. 08-0780 / A-08-1435
Lakeside Subdivision, Westhampton, New York

Dear Mr. Weitzman:

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 determination to withhold records identified as responsive to your FOIL Request No. 08-0780 / A-08-1435 (seeking a copy of the NYS-DEC permit #10-86-0427).

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld by the Department's Region One office. These records were referenced in Department staff's letter to you dated July 28, 2008. On this appeal, I conducted a de novo review of those records.

BACKGROUND

By electronic mail, dated July 23, 2008 you requested "a copy of NYS-DEC permit # 10-86-0427." On July 24, 2008 the Department acknowledged receipt of your FOIL request. By letter dated July 28, 2008, the Region One Records Access Officer released certain records for your review and withheld records pursuant to POL § 87(2)(g), which exempts records which are inter-agency or intra-agency communications which are not statistical or factual tabulations, instructions to staff that affect the public, final agency policy or determinations, or external audits.

By letter dated August 6, 2008, received on August 11, 2008, you filed this appeal from the denial of access to the withheld records referenced in Region One's July 28, 2008 letter to you with the Department's Office of Hearings and Mediation Services. My August 18, 2008 letter to you 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. Furthermore, I contacted Region One's Records Access Officer who advised me that you had never reviewed or called for copies of the records that were determined to be releasable to you. At the time of this appeal, such steps had still not been taken. Notwithstanding the above and in accordance with my duties as FOIL Appeals Officer, my de novo review of the withheld records follows.

RECORDS REVIEWED

On this appeal, I have reviewed 14 records, consisting of 15 pages, that were provided to me by Department staff. Based upon my review of the 14 withheld records, I have determined that the records were properly withheld. I have determined to withhold such records on more than the applicable exception of intra-agency communications, but also attorney-client communications pursuant to POL § 87(2)(a) and New York Civil Practice Law and Rules § 4503(a) (hereinafter "CPLR § 4503(a)"). Below is the reasoning for my decision.

Relevant Statutes on Appeal
Public Officers Law §87(2)(g)

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")). Furthermore, it has long been understood that correspondence between a state agency and an outside consultant, or reports prepared by a consultant for such an agency, constitute intra-agency material under FOIL when exchanged in a deliberative process (see Matter of Sea Crest Construction Corp. v. Stubing, 82 AD2d 546, 549-550 (2d Dept 1981) (applying POL § 87(2)(g) to consultant records).

Public Officers Law §87(2)(a)

POL §87(2)(a), provides an exception for records that are "specifically exempted from disclosure by state or federal statute." Attorney-client communications are exempted from FOIL (see 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)).

Withheld Records Reviewed on Appeal

In the FOIL appeal before me, one record represents communications between Department staff and a Department attorney which is subject to the attorney-client privilege (see CPLR §4503(a)). The record contains a request for a legal opinion and advice. The 13 remaining withheld records will be withheld pursuant to POL §87(2)(g) as they contain intra-agency communications amongst staff and communications from a consultant with Department staff. The records consist of internal requests for review of documents, internal memorandums between staff and one with an outside consultant, attorney-client communications and internal transmittal slips. The records contain requests, opinions, comments and suggestions of staff that are deliberative communications between staff that went into the decision making process regarding permit #10-86-0427. Notwithstanding the above, I must note that the records that were withheld are not responsive to your limited request for "a copy of the NYS-DEC permit #10-86-0427."

My review finds that Department staff properly withheld the records from disclosure. Accordingly, your appeal is denied. However, I continue to encourage you to communications with Region One staff in regards to the released records available to you through your request.

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. 08-24-1A.

Sincerely yours,


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

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Nancy Pinamonti, Region 1 FOIL Coordinator

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