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FOIL Appeal Determination for 07-09-0A (Stanley N. Alpert)

October 15, 2008

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-8541
Website: www.dec.ny.gov


October 15, 2008

Stanley N. Alpert, Esq.
Constantine Cannon
450 Lexington Avenue
17th Floor
New York, New York 10017

Re: Freedom of Information Law ("FOIL") Appeal No. 07-09-0A, Clinton MGP Site (No.: 2-43-023), Appeal Determination

Dear Mr. Alpert:

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 by staff of the New York State Department of Environmental Conservation ("Department") of access to certain records concerning the Clifton MGP site on Staten Island, New York (the "Site").

In your FOIL request, you had asked for all e-mails regarding the Site. You noted in your FOIL appeal letter that activity regarding the Site "has gone on for several years" and that additional e-mails should be available pursuant to your FOIL request. Department staff, however, has advised me that it has not archived or otherwise retained e-mails from earlier years. We have also been advised that Department e-mail backup tapes are of limited duration and do not extend back to prior years. Therefore, while Department staff performed additional searches in order to ascertain whether other e-mails subject to your FOIL request existed, those e-mails found generally cover the period from 2006 forward.(1)

FOIL does not address the retention or destruction of records; it only concerns itself with records that the agency may access and provide to a requestor in accordance with its provisions. See, e.g., Advisory Opinions AO 10903 (July 1, 1998), AO 10727 (March 30, 1998), Committee on Open Government, New York State Department of State.

Based upon a review of the 364 e-mails (a number of which included attachments) that Department staff provided to this office for review on this appeal, it has been determined that seventy (70) can be released in whole or in part. Although FOIL does not require that a list of records be released (see Advisory Opinions AO-12924 [August 30, 2001] and AO-11591 [July 27, 1999], New York State Department of State, Committee on Open Government), we have in the circumstances of this appeal prepared a summary chart of the records initially withheld and are forwarding a copy of this chart under cover of this letter. The chart notes whether the records reviewed shall continue to be withheld or released in whole or in part, and which FOIL exemptions are applicable. (2)

The information that we have determined should be withheld is based upon the exemptions in POL § 87(2)(a), (b), (g) and/or (i). Those exemptions apply to records that contain attorney-client privileged communications, relate to settlement negotiations, contain information that if released would result in an unwarranted invasion of personal privacy, contain intra- or inter-agency non-final deliberative materials, and/or if disclosed would jeopardize the security of an agency's information technology assets.

During the period of our review, Division of Environmental Remediation staff identified e-mails that it determined should be released pursuant to your FOIL request. Accordingly, it is my understanding that this material was released to you in April 2007 and those records are not part of this appeal process and review.

A more specific review of the exemptions relied upon in this appeal follows:

POL § 87(2)(a)

POL § 87(2)(a) provides an exception for records that are "specifically exempted from disclosure by state or federal statute." In this FOIL appeal, some of the records are subject to the attorney-client privilege (see CPLR §4503[a]) because they contain communications between an agency program attorney and staff. Accordingly, those records are excepted from disclosure under FOIL. In this regard, a number if the relevant records are to or from Larry Eckhaus, an attorney with the Department's Office of General Counsel who provides legal support to the Division of Environmental Remediation.

Records which relate to providing legal advice or responses to such requests made in the course of a professional attorney-client relationship between Department program and legal staff fall within this exemption. See, e.g., Matter of Morgan v. NYSDEC, 9 AD3d 586 [3d Dept 2004]; Matter of Rye Police Ass'n v. City of Rye, 34 AD3d 591 [2d Dept 2006]). Records which are transmitted to or from a Department attorney on ministerial, or non-legal matters are not withheld pursuant to this exemption but may subject to the intra-agency/inter-agency exemption in POL § 87(2)(g) (see below).

Furthermore, certain of the records relate to settlement negotiations between KeySpan (including its consultants) and the Department. The State Legislature has clearly indicated that settlement negotiations remain confidential. See, e.g., Matter of Kline & Sons, Inc. v. Hamilton County News, 235 AD2d 44, 45 (3d Dept 1997); see also CPLR § 4547; United States of America v. Glens Falls Newspapers, Inc., 160 F3d 853, 857-58 (2d Cir 1998). Accordingly, such records may be withheld pursuant to POL § 87(2)(a).

POL § 87(2)(b)

POL § 87(2)(b) allows for the withholding of records or portions thereof which, if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of POL § 89. With respect to these records, references to home telephone numbers, home e-mail addresses and other related personal information were redacted as appropriate.

POL § 87(2)(g)

Many of the records withheld are exempt from disclosure pursuant to POL § 87(2)(g). An agency may exempt from disclosure records or portions thereof that are inter-agency or intra-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. This exception is intended "to permit people within an agency to exchange opinions, advice and criticism freely and frankly" (The New York Times Co. v. New York City Fire Dept., 4 N.Y.3d 477, 488 [2005]). While I agree with your assertion in your appeal letter that FOIL directs State agencies to make factual materials publicly available, records that involve the deliberative processes of agency staff are excepted by POL §87(2)(g). See, e.g., Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985) (purpose of the exemption in POL § 87[2][g] to protect the deliberative process of government). Furthermore, several of the records contained communications with the City of New York or with other state agencies (such as the New York State Department of Health), and would also, as inter-agency communications, be covered by this exemption.

Non-factual intra- or inter-agency records involving the scheduling of meetings and other mundane matters are similarly exempt from disclosure. See Matter of Tuck-It-Away Associates v. Empire State Development Corp., __ AD3d ___ , 861 NYS2d 51, 60 (1st Dept 2008).

POL § 87(2)(i)

POL § 87(2)(i) allows for the withholding of records which, if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets. On this appeal, a portion of one record (relating to a secure password site) falls within this exemption.

It is our understanding that you preferred to have any records that were determined to be releaseable sent to you by electronic transmission. However, given the state of the Department's current technology, this is not possible to accomplish relative to records that are redacted. Similarly, the ability to forward records released in their entirety by e-mail also poses significant logistical difficulties that preclude transmitting the records in that fashion. However, in light of the circumstances of this appeal, we have determined to waive the duplication fees and, under cover of this letter, are forwarding hard copies of the records being released in whole or in part.

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. 07-09-0A.

Sincerely yours,

Louis A. Alexander
Assistant Commissioner

Dena Putnick, Esq.
FOIL Appeals Officer


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

1 For purposes of this FOIL request (R2-06-1496), the period covered extends up until the receipt of your FOIL request (November 16, 2006).

2 Please note that a number of the e-mails are "e-mail trees" which include a chain or series of e-mails, some of which may be duplicated in part in other records listed on the chart.

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