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FOIL Appeal Determination for 08-33-5C (Yasha Melanie Husain, December 1, 2008)

December 1, 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

December 1, 2008

Yasha Melanie Husain
811 South Ott Road
Columbia, South Carolina 29205

Re: Freedom of Information Law ("FOIL") Appeal No. 08-33-5C
FOIL Request No. 08-143 / 08-942
MCA Records / Universal Music and Video Distribution Corp.

Dear Ms. Husain:

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 of Region 5 staff to withhold records identified as responsive to your FOIL Request No. 08-143 / 08-942. I requested the records that were withheld by the Department's Region 5 staff and on this appeal and I conducted a review of those records.

Background

On May 12, 2008 you sent a FOIL request to the Department's FOIL e-mail address. On May 20, 2008 your request was acknowledged by the Department's Records Access Officer. Previously, on May 15, 2008 Central Office staff released all responsive records. Then on June 3, 2008 Region 5 staff released 418 pages of records and withheld other records as they contained inter-agency or intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g). Through your letter of November 6, 2008, received by my office on November 12, 2008, you filed this appeal from Region 5's denial to access to those records. Furthermore, as noted in my letter dated November 13, 2008, I accepted this appeal even though under statutory guidelines your appeal was filed late, based on the promises of Region 5 staff that you could file the appeal after your review of the records, which appears to have taken quiet some time. My review of the withheld records follows herein.

RECORDS REVIEWED

On this appeal I have reviewed 82 records, consisting of 237 pages, that were provided to me by Region 5 staff. Based upon my review of the records, I have determined to release certain records in their entirety and some with redactions. The remaining records will remain to be withheld based on my determination that two applicable exceptions apply to those records. The applicable exempts include; intra-agency or inter-agency communications (POL §87(2)(g)) and 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

POL §87(2)(g): Inter-agency or intra-agency communications

Inter-agency (DEC and another state or municipal agency's communications) or intra-agency (internal DEC communications) communications, which are deliberative in nature, are exempt from disclosure pursuant to POL §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")).

POL §87(2)(a): Disclosure is exempt by state or federal statute

POL §87(2)(a), provides an exception for records that are "specifically exempted from disclosure by state or federal statute." There are five (5) records subject to this FOIL appeal that are communications to and from attorneys within the Department. Accordingly, those records are subject to the attorney-client privilege (see §4503(a) of the New York Civil Practice Law and Rules ["CPLR"]) and/or constitute attorney work product (see CPLR §3101(c)) and are exempt from disclosure pursuant to POL §87(2)(a) (see, e.g., United Policyholders v. Serio, 298 AD2d 286 (1st Dept 2002) (memorandum from agency staff attorney to two agency employees exempt from FOIL disclosure pursuant to POL §87(2)(a)); Turner v. Dept. of Finance, 242 AD2d 146, 148 (1st Dept 1998) ("Public Officers Law §87(2) exempts attorney-client communications that are confidential under CPLR §4503(a) and attorney-work product under CPLR §3101(c) in subdivision (a)"); 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)).

Withheld records reviewed on appeal and determination

There are 82 records before me, consisting of 237 pages. Of these records, I have determined to release 17 records. Also, I have determined to release 7 records with redactions. The redactions consist of inter-agency or intra-agency deliberative communications as discussed above.

The remaining 58 records are being withheld because they contain inter-agency or intra-agency deliberative communications or they enclose attorney-client privileged communications. Five (5) records are the legal opinions and advice of Department attorneys to staff which are exempt and will not be released. Please note also that the aforementioned exemptions are not exclusive. The records which are attorney-client communications are exempt from FOIL pursuant to POL §87(2)(a) and are also exempt as intra-agency records pursuant POL §87(2)(g). Fifty-three (53) records are being withheld from disclosure as they contain solely intra-agency or inter-agency communications. The records consist of internal requests for review of documents, internal memorandums between staff or recommendations by and for Department staff, which if disclosed would have a chilling effect on communications amongst staff.

The records or portions of records that are being released pursuant to this appeal consist of fifty-eight (58) pages. If you wish to be provided with copies, please send a check made payable to the "New York State Department of Environmental Conservation" to my attention in the amount of $14.50 (58 pages at $0.25 per page), within thirty (30) days of the date of this letter. If I do not hear from you by January 1, 2009, the records will be returned to their respective files and the FOIL appeal file will be closed.

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. 08-33-5C.

Sincerely,


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


Cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC Records Access Officer
Sheryl Quinn, Region 5 FOIL Coordinator

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