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FOIL Appeal Determination for 08-28-0A (Alan J. Knauf, October 24, 2008)

October 24, 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

October 24, 2008

Alan J. Knauf
1125 Crossroads Building
2 State Street
Rochester, New York 14614

Re: Freedom of Information Law ("FOIL") Appeal No. 08-28-0A
FOIL Request No. 08-0795/08-1478
Lighthouse Pointe Inland Site & Riverfront Site, Old Rochester City Landfill

Dear Mr. Knauf:

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 records that were not released to you under the cover of letter to you, dated September 3, 2008 from DEC Region 8 staff and from a constructive denial of DEC Central Office records. You claim that there must be records to or from Division Director Dale Desnoyers, Commissioner Alexander B. Grannis or Deputy Commissioner Val Washington that were not within the released records. Furthermore, you request this appeal to address Region 8 staff's determination to withhold certain records that they determined to contain inter-agency or intra-agency materials.

In accordance with the Department's FOIL appeal procedures, I requested copies of all records that were withheld from release by Department staff referencing Lighthouse Point/Old Rochester City Landfill. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On July 30, 2008 the Department received your FOIL request dated July 28, 2008. By letter dated August 6, 2008, the Records Access Officer acknowledged receipt of your FOIL request and stated that you should expect a response to your request by September 4, 2008. On September 3, 2008 Region 8 staff released approximately 36 inches of records held within the Region 8 office that were responsive to your request. Region 8 staff did send you coversheets stating that some records were withheld for the reason that they contained "inter-agency or intra-agency materials."

By letter dated October 8, 2008, received on October 10, 2008, you filed this appeal from the denial of access to records, specifically the correspondence "to or from Dale Desnoyers, Commissioner Grannis or Deputy Commissioner Washington" and the records from Region 8 that were withheld pursuant to POL § 87(2)(g), containing inter-agency or intra-agency deliberative material. You filed your appeal with the Office of Hearings and Mediation Services. My October 13, 2008 letter to you advised 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. My review of the withheld records follows:

RECORDS REVIEWED

On this appeal, I have reviewed fifty-six (56) records that were withheld from release, consisting of 337 pages that were provided to me by Department staff. Based on my review of the records, I have determined to release ten (10) pages from five (5) separate records, either in whole or in part of the records and three (3) redacted monthly reports of the Division of Environmental Remediation consisting of 72 pages. Below is the reasoning for my decision.

Public Officers Law § 87(2)(a)

POL § 87(2)(a) exempts from disclosure any records or portions thereof that are "specifically exempted from disclosure by state or federal statute." The attorney-client communications are exempt pursuant to CPLR § 4503(a) which protects confidential communications between an attorney and a client in the course of professional employment (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)). Attorney work product is exempt from disclosure pursuant to CPLR § 3101(c) and has been defined to include records that constitute "interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs' conducted, prepared or held by the attorney [citation omitted]." (Kenford Company v. County of Erie, 55 A.D.2d 466, 470, 390 N.Y.S.2d 715, 718 (4th Dept, 1977)).

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 also are intra-agency deliberative communications which may be withheld from disclosure (see section below entitled Public Officers Law § 87(2)(g)).

There are four (4) records that were properly withheld that contain attorney-client communications and intra-agency deliberative communications, thus the four (4) records are exempt from disclosure. In addition, three (3) other records contain attorney-client communications, intra-agency communications and attorney work product. (1)

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")). Forty (40) records were properly withheld in their entirety as they contain deliberative communications among Department staff or other State agency staff. Furthermore, communications between Department staff and contractors of the agency, who are or were under contract with the State are also exempt from disclosure. Records which would, if prepared by employees of a public agency, be exempt from disclosure under FOIL, are similarly exempt as intra-agency materials when prepared by outside consultants "at the behest of the agency as part of the agency's deliberative process." (Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S.2d 488, 490 (1985); see also, Matter of Sea Crest Construction Corp. v. Stubing, 82 A.D.2d 546, 549-550 (2d Dept, 1981) (under freedom of information law, correspondence between town and engineers and architects hired as consultants constituted intra-agency communications exempt from disclosure). Of the 40 records withheld pursuant to POL § 87(2)(g), one (1) record consists of a letter from Department staff to an engineering consultant, seeking advice and request for an updated, revised draft of the Phase II report based on comments that were attached.

There are three (3) monthly reports that will be released to you with redactions. The redactions consist of non-responsive material. The monthly reports contain summaries of other remediation sites. I have released the summaries regarding Lighthouse Pointe only. Furthermore, there is an additional record that herein will be released with redactions. This record is the summary of Lighthouse Pointe Applications. The redactions are for intra-agency deliberative material that is exempt from disclosure pursuant to POL § 87(2)(g).

Finally, there is another record that is non-responsive to your FOIL request, in that it is an email containing deliberative communications between Department staff, Department of Health staff and Monroe County that was sent on October 22, 2003. Your request was for "all emails and other electronic documents created after January 1, 2005."

One record that is being released is a series of emails between you and your employees with Deputy Commissioner Washington. Usually, such records would be withheld from disclosure pursuant to POL § 87(2)(a) and CPLR § 4547, as they contain settlement negotiations and discussion. However, since it was your firm who was corresponding with the Department, I have determined to release this record to you. One record will be released as it is a Registry Site Classification decision, and shall be released pursuant to POL § 87(2)(g)(iii). Also, I determined to release portions of two (2) records, consisting of five (5) pages, to which the remainder of the records contain communications that are inter-agency or intra-agency deliberative communications.

Enclosed are copies of the documents that can be released to you. Even though there are a total of eighty-two (82) pages being released to you, only eighteen (18) pages contain information of substance. Sixty-four (64) pages are blank to show redactions from those pages in their entirety. 1Please submit to this office (attn: Jennifer Brantigan) a check made out to the "New York State Department of Environmental Conservation" for $4.50 (18 x .25¢) to cover the copying charges for these records. If you have any questions regarding your FOIL appeal, you may contact our office at (518) 402-9522.

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. 08-28-0A.

Sincerely yours,


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

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


1 One record, within the three records containing attorney-client communications, intra-agency communications and attorney work product, also contains material that is non-responsive to your FOIL request.

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