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FOIL Appeal Determination for 08-32-6A (John W. Caffry, November 21, 2008)

November 21, 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

November 21, 2008

John W. Caffry, Esq.
Caffry & Flower
100 Bay Street
Glens Falls, New York 12801

Re: Freedom of Information Law ("FOIL") Appeal No. 08-32-6A; FOIL Request No. 08-221 / 08-1889 Appeal Determination

Dear Mr. Caffry:

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 William C. Whitney, Five Ponds and Lows Lake Wilderness Areas.

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, Region 5 office and Region 6 office. On this appeal, I conducted a de novo review of those records.

BACKGROUND

On September 19, 2008 you 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 you requested the following:

"A. All documents, correspondence and records pertaining to the classification and designation of the William C. Whitney Area as a Wilderness Area, and in particular, pertaining to the management of Little Tupper Lake as Wilderness without motorboat or floatplane use by the public.

B. All documents, correspondence and records pertaining to the adoption of 6 NYCRR §190.33(b)(2) regulating motorized uses by the public of Little Tupper Lake.

C. All documents, correspondence and records pertaining to the approval and adoption of the Unit Management Plan for the Five Ponds Wilderness Area in 1994.

D. All documents, correspondence and records pertaining to the adoption of 6 NYCRR §196.4(b) regulating motorized uses by the public of Lows Lake.

E. All documents, correspondence and records pertaining to the preparation and adoption of the Bog River Complex Unit Management Plan/Environmental Impact Statement as deemed complete and approved by Commissioner Erin M. Crotty on January 30, 2003."

Your FOIL request was assigned FOIL No. 08-221 by the Region 6 FOIL Coordinator and FOIL No. 08-1889 by the Department's Records Access Officer in Albany. By letter dated September 29, 2008, Ruth Earl, Records Access Officer, acknowledged receipt of your FOIL request and informed you that records may be possessed by central office, Region 5 and Region 6. On October 15, 2008 Ronald Novak, Region 6 FOIL coordinator released some records, however withheld others as they contained inter-agency or intra-agency deliberative materials or were exempt from disclosure by state or federal statute. Furthermore, I believe your client has reviewed or has been given notice to review records in all relevant offices of the Department.

By letter dated November 5, 2008, you filed this appeal from the denial of access to the withheld records. The purview of my determination includes all records withheld by central office, Region 5 and Region 6 staff. My de novo review of the records follows:

RECORDS REVIEWED

On this appeal, I have reviewed 802 records, consisting of approximately 5,754 pages, that were provided to me by Department staff. Based upon my review, I have determined to release seventy-nine (79) records in their entirety. Furthermore, I have determined to release thirty-seven (37) records with redactions. The remaining 686 records will be withheld from disclosure based on the following determinations. See the below summary of records reviewed and the determination I have made herein:

629 records: POL §87(2)(g) - inter-agency or intra-agency deliberative materials
29 records: POL §87(2)(a), CPLR §4503(a) and POL §87(2)(g) - state or federal statute provision, attorney-client privileged communications and inter-agency or intra-agency deliberative materials
2 record: POL §87(2)(a), CPLR §3101(c) and POL §87(2)(g) - state or federal statute provision, attorney work product and inter-agency or intra-agency deliberative materials
22 records: POL §87(2)(a), CPLR §4503(a), CPLR §3101(c) and POL §87(2)(g) - state or federal statute provision, attorney-client privileged communications, attorney work product and inter-agency or intra-agency deliberative materials
4 records: POL §87(2)(a), ECL §3-3101 and 11-0535 - locations of endangered species and/or locations of other species or species of flora or fauna and POL §87(2)(g) - inter-agency or intra-agency deliberative materials
37 records released with redactions:
3 records: redactions of POL §87(2)(a), CPLR §4503(a) and POL §87(2)(g) - state or federal statute provision, attorney-client privileged communications and inter-agency or intra-agency deliberative materials
32 records: redaction of POL §87(2)(g) - inter-agency or intra-agency deliberative materials
1 record: redaction of POL §87(2)(a), CPLR §4503(a), CPLR §3101(c) and POL §87(2)(g) - state or federal statute provision, attorney-client privileged communications, attorney work product and inter-agency or intra-agency deliberative materials
1 record: redactions are non-responsive to the FOIL request
79 records released in their entirety.

RELEVANT STATUTORY EXEMPTIONS

Public Officers Law §87(2)(a) provides an exemption for release of 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)) and/or attorney work product (see CPLR §3101(c)). 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)). Fifty-seven (57) records contain either attorney-client privileged communications or attorney work product. These records contain ideas, advice and suggestions regarding the UMP's and the regulations that you sought.

Furthermore, §3-0301(2)(r) of the Environmental Conservation Law ("ECL") provides that "[n]otwithstanding [FOIL]," access may be denied "to inspection of records which identify locations of habitats of species designated endangered. . ., protected. . . or any other species or unique combination of species of flora or fauna where the destruction of such habitat or the removal of such species therefrom would impair their ability to survive. . . ." Similarly, ECL § 11-0539 provides that, "[n]otwithstanding [FOIL], the department may deny access to inspection of records, data or information collected or maintained by the New York natural heritage program that identify locations or habitats of rare, threatened or endangered species of wildlife or rare, threatened or endangered species of plants . . .." Four (4) records contain location information of protected and endangered species of flora and fauna. Release of such information is protected under ECL §11-0535, §9-1503 and §3-0301(2)(r) so as to protect the survival of such species.

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")). Many of the records consist of DEC employee's edits and/or suggested changes to the UMP or issues that were presented within draft versions of the UMP. Also, draft proposed rules, regulations and portions of the UMP make up a majority of the records withheld. Such records contain ideas, suggestions, advice or opinions as to the proposals, thus are exempt from disclosure pursuant to POL §87(2)(g). Regarding the ongoing implementation and issues with the requested wildlife areas, DEC staff expressed questions, concerns, proposals and suggestions in many memorandums and emails between staff to better inform, gather and evaluate information regarding these wildlife areas. Such internal deliberative communications, exempt from disclosure pursuant to POL §87(2)(g), will not be released through this appeal.

Based on our conversation of November 20, 2008, I will not be including copies of the released and redacted records with this decision. Please call me at your earliest convenience to set up a time and date to which you and/or your client would like to review the records at my office prior to photocopying.

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. 08-32-6A.

Sincerely yours,


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

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Ronald Novak
Sheryl Quinn
S. McCrea Burnham

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