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FOIL Request Response 08-1689 (Nathan Brown, November 20, 2008)

November 20, 2008

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 1st Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-9003 • FAX: (518) 402-9037
Website: www.dec.ny.gov

BY ELECTRONIC TRANSMISSION AND REGULAR MAIL

November 20, 2008

Nathan Brown
Staff Writer
Adirondack Daily Enterprise
PO Box 318
54 Broadway
Saranac Lake, New York 12983-0318

RE: Adirondack Club and Resort Project
FOIL Request No. 08-1689

Dear Mr. Brown:

By letter dated August 26, 2008 addressed to Records Access Officer, New York State Department of Environmental Conservation ("Department" or "DEC"), you requested access pursuant to New York's Freedom of Information Law (Public Officers Law article 6 ["FOIL"]) to the following:

"all correspondence, including e-mails, between state of Department [sic] Environmental Conservation officials, legal counsel and employees, and all parties to the mediation on the proposed Adirondack Club and Resort project, that is related to the project or its mediation, including but not limited to anyone with the Adirondack Council, the Association for the Protection of the Adirondacks, the Residents' Committee to Protect the Adirondacks, the state Department of Environmental Conservation, the town of Tupper Lake, the village of Tupper Lake, Preserve Associates, Michael Foxman, Administrative Law Judge Daniel O'Connell, Don Dew, Dan McClelland, Jack Delehanty, Thomas Ulasewicz, Chris Lacombe, John Caffrey, David Gibson, Brian Houseal, Charlcie Delehanty, Kyle Ackerman, Paul Maroun, Roger Amell, Marvin Madore, Mickey Desmarais, Tim Larkin, Jay Skiff, Kathleen Lefebvre, John Button, Shawn Stuart, Leon Leblanc and Marty Hughes."

By letter dated September 19, 2008, as the FOIL coordinator for the Department's Office of Hearings and Mediation Services ("OHMS"), I granted you access to several documents responsive to your FOIL request. The remaining responsive records maintained by OHMS, however, are subject to the confidentiality provisions of an April 23, 2008 mediation protocol executed by the parties to the mediation being conducted by Administrative Law Judge ("ALJ") Daniel P. O'Connell on the Adirondack Club and Resort project. The records include:

-- the mediation protocol;

-- notices of intent to participate in the mediation;

-- individual signature pages for the mediation protocol by each participant;

-- agendas (considered confidential per the protocol);

-- sign in sheets from each mediation session;

-- email messages, the content of which includes scheduling of the mediation sessions, draft and final agendas, and sign-in sheets and signature pages for the protocol;

-- Department staff's letter dated May 20, 2008; and

-- three memoranda by Preserve Associates, LLC, with attachments.

Because these records are the subject of the protocol's confidentiality provisions, I applied the Department's procedures applicable to records containing trade secrets, confidential commercial information, or critical infrastructure information to allow the parties to the confidentiality agreement to provide comment on your FOIL request (see 6 NYCRR 616.7[c]). I also allowed you the opportunity to respond to the parties' comments.

I received written comments from the following parties, in order of their receipt: Curtis S. Read, President, Little Simon Properties, Inc.; Michael P. Washburn, Ph.D., Executive Director, Residents' Committee to Protect the Adirondacks; Jon Kopp, Tupper Lake Town Historian, Tupper Lake Chamber of Commerce; Thomas A. Ulasewicz, Esq., The Ulasewicz Law Firm, LLP, on behalf of the Adirondack Club and Resort; Mitchell Goroski, Esq., Senior Attorney, on behalf of staff of the Adirondack Park Agency ("APA"); Christopher A. Lacombe, Esq., Regional Attorney, on behalf of DEC staff; Marc S. Gerstman, Esq., Law Office of Marc S. Gerstman, on behalf of the Adirondack Council and Little Simon Properties, Inc.; David W. Johnson, Esq., Johnson & Noth, PLLC, on behalf of the Town of Tupper Lake; and Kevin E. Jones, Esq. I have not received from you a written response to these comments.

This letter constitutes the complete response from OHMS to the remainder of your FOIL request. As noted in my September 19, 2008 letter, OHMS is a separate and independent office within the Department that conducts administrative adjudicatory hearings on permit applications and enforcement proceedings. OHMS's records and files are maintained separate from the remaining Divisions and Regions of the Department. This response is without prejudice to any other response you may receive from any other Division or Region of the Department.

For the reasons that follow, the remainder of your FOIL request is granted in part, and otherwise denied.

Background

In February 2007, the APA Board issued an order directing that a public adjudicatory hearing be conducted on eleven issues relating to the application of Preserve Associates, LLC, to develop the project known as the Adirondack Club and Resort to be located in the Town of Tupper Lake, Franklin County (see Matter of Preserve Assocs., LLC, APA Project Order, Feb. 15, 2007 [APA Project No. 2005-100]). Pursuant to a 1995 memorandum of understanding between the APA and DEC, DEC ALJ O'Connell was appointed to serve as the hearing officer responsible for conducting the adjudicatory proceedings pursuant to part 580 of title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("Part 580").

Adjudicatory hearings on APA project applications are conducted pursuant to Executive Law § 812 and the State Administrative Procedure Act ("SAPA") (see Executive Law § 812[1]). Under the APA's Part 580 adjudicatory hearing regulations, the hearing officer appointed by the APA Board is responsible for conducting the hearing (see 9 NYCRR 580.14). Unless the APA Board requests that the hearing officer make findings of fact or conclusions of law, the APA Board itself acts as the agency finder of fact and final decision maker (see 9 NYCRR 580.18[c]).

During pre-hearing proceedings in this case, applicant proposed that issues concerning the project be the subject of mediation (see Matter of Preserve Assocs., LLC, Mem and Scheduling Order, Sept. 14, 2007). Discussions among the various parties seeking to participate in the adjudicatory hearing led to the agreement that mediation would be conducted with Judge O'Connell as mediator, and that those parties who would otherwise be entitled to participate in the adjudicatory hearing would be allowed to participate in the mediation (see id., Summary of Conference, Nov. 6, 2007, at 4-6, 14). After Judge O'Connell determined party status for the adjudicatory hearing (see id., Ruling on Party Status, Feb. 14, 2008; id., Supplemental Rulings on Party Status, Feb. 22, 2008), a majority of the parties that were granted party status negotiated and executed the April 23, 2008 mediation protocol and began mediation sessions with Judge O'Connell.

In the mediation protocol, the parties to the mediation agreed that information concerning, and documents developed during, the mediation would be kept confidential. It is understood by the parties, however, that any settlement or agreement developed as a result of the mediation process would be made public and subjected to APA Board review and approval (see id., Summary of Conference, Nov. 6, 2007, at 1-2).

Discussion

The only party filing comments urging release of the mediation records is Residents' Committee to Protect the Adirondacks.

APA staff raises no objection to the release of the mediation protocol itself, the notices of intent to participate in the mediation, and the individual signature pages. APA staff states that it has always treated the protocol as a public document. However, APA staff urges that the remaining documents be kept confidential until a final public document is produced for public review and administrative approval.

The remaining parties filing comments urge that all mediation documents referenced above be kept confidential.

Under FOIL, all records maintained by an agency are presumptively open for public review unless a specific statutory exemption applies (see Matter of Spencer v Lombardi, 267 AD2d 13, 14 [1st Dept 1999]). Among the statutory bases for withholding records under FOIL is that the records are specifically exempt from disclosure under federal or State law (see POL § 87[2][a]). With respect to confidentiality privileges, an express statutory statement of confidentiality under FOIL is not required (see Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 566-567 [1984]). Where clear legislative intent to establish and preserve confidentiality of records exists, a record may be withheld under FOIL (see id.; Matter of Wm. J. Kline & Sons, Inc., v County of Hamilton, 235 AD2d 44, 46 [3d Dept 1997]). Thus, a record subject to a confidentiality privilege, including a common law privilege, codified in statute may be withheld pursuant to Public Officers Law § 87(2)(a) (see, e.g., Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d 586, 587 [withholding from disclosure under FOIL documents protected by attorney-client privilege under CPLR 4503(a), and attorney work product privilege under CPLR 3101(c)]; Matter of Westchester Rockland Newspapers, Inc. v Mosczydlowski, 58 AD2d 234, 236 [2d Dept 1977] [material prepared solely for litigation under CPLR 3101(d)]).

The common law has long protected the confidentiality of a judicial officer's records where the records are generated during proceedings in which the officer acts as a mediator or settlement judge. A judicial officer has the inherent authority and responsibility to foster settlements and to encourage the amicable resolution of disputes (see Randall Elec., Inc. v State of New York, 150 AD2d 875, 876 [3d Dept 1989]; United States v Glens Falls Newspapers, Inc., 160 F3d 853, 856-857 [2d Cir 1998]). The role of a judge as mediator or settlement judge serves the strong public policy in favor of negotiated settlements to resolve disputes without the uncertainty, expense, burden on judicial resources, and delay associated with litigation (see Denburg v Parker Chapin Flattau & Kimpl, 82 NY2d 375, 383 [1993]; Hallock v State of New York, 64 NY2d 224, 230 [1984]). This public policy is no less compelling in the public arena, both civil and criminal, as it is in private civil litigation. Nor is this public policy any less compelling in the context of administrative adjudicatory proceedings.

An important aspect of the judicial authority to foster settlements is the judicial officer's power to restrict access to and otherwise maintain the confidentiality of settlement negotiations, and the documents generated during those negotiations, when necessary to encourage the amicable resolution of disputes (see Lynbrook Glass & Architectural Metals Corp. v Elite Assocs., Inc., 238 AD2d 319 [2d Dept 1997] [maintaining confidentiality of report prepared by county in connection with mediation agreement]; Glens Falls Newspapers, 160 F3d at 856). The confidentiality of settlement negotiations is necessary to protect litigants and foster an atmosphere of open discussion among the parties and their representatives so that litigation may be settled fairly and efficiently (see Glens Falls Newspapers, 160 F3d at 856; Hulse v A.B. Dick Co., 162 Misc 2d 263, 268 [Sup Ct, NY County [1994], affd on other grounds 222 AD2d 381 [1st Dept 1995]). Openness among the parties and with the mediator makes resolution of actions and compromises of disputes possible (see NYP Holdings, Inc., v McClier Corp., 14 Misc 3d 1232[A], 2007 NY Slip Op 50275[U], *4). Thus, it is a valid exercise of a court's discretion to prevent disclosure of documents generated during settlement negotiations to maintain their confidentiality (see Lynbrook Glass, 238 AD2d at 319). Indeed, the central importance of confidentiality to the settlement process is recognized by the Legislature, which has extended confidentiality to mediations and other settlement proceedings conducted by even non-judicial officers (see Family Court Act § 915 [confidentiality of conciliation proceedings under Family Court Act article 9]; Labor Law § 702-a[5] [confidentiality of arbitration conducted by the New York State Employment Relations Board]; Judiciary Law § 849-b[a][6] [confidentiality of mediations conducted by community dispute centers established under Judiciary Law article 21-A]).

Clear legislative intent to maintain the confidentiality of settlement negotiations exists, warranting the withholding of records generated during such negotiations under FOIL. A State administrative law judge's judicial authority is based, at least in part, upon the State Administrative Procedure Act (see, e.g., State Administrative Procedure Act ["SAPA"] § 304 [establishing the powers of a presiding officer under SAPA]). Pursuant to SAPA, a State administrative law judge, such as Judge O'Connell in this case, is required to give effect to the rules of privilege recognized by law (see SAPA § 306[1]; see also Matter of New York Telephone Co. v Public Serv. Commn., 56 NY2d 213, 220 [1982] [agency required to provide the same privileges and protections during an administrative adjudicatory proceeding as a court would in a judicial proceeding]). The confidentiality of settlement negotiations in the context of judicial proceedings is recognized by law, as discussed above. Thus, the statutory requirement in SAPA § 306(1), which is not limited to privileges only recognized by statute, is broad enough to encompass the confidentiality privilege afforded to settlement negotiations and extend that privilege to administrative judicial proceedings. Accordingly, the confidentiality of settlement negotiations preserved by SAPA § 306(1), a State statute, provides a basis for withholding under FOIL documents generated during such settlement negotiations.

Even assuming SAPA § 306(1) does not preserve an administrative judicial officer's inherent authority to protect the confidentiality of settlement negotiations conducted during administrative adjudications, the CPLR provides a basis for withholding documents related to those negotiations. Although the discovery provisions of CPLR article 31 do not provide a blanket exemption from disclosure under FOIL, records subject to a specific evidentiary privilege contained in the CPLR may be exempted from disclosure under FOIL (see Matter of M. Farbman & Sons, Inc., v New York City Health Hosps. Corp., 62 NY2d 75, 81-82 [1984]). Attorney-client communication privileged under CPLR 4503(a) and 3101(b), and attorney work product privileged under CPLR 3101(c), are exempt from disclosure under Public Officers Law § 87(2)(a) (see Matter of Morgan, 9 AD3d at 587). Material which is exempt from disclosure pursuant to CPLR 3101(d) because it is prepared solely for litigation is also exempt from disclosure under FOIL, even if that material is prepared by a governmental entity (see Matter of Westchester Rockland Newspapers, Inc., 58 AD2d at 236). CPLR 3101(b) treats as privileged from disclosure evidence of settlement negotiations that would be inadmissible at trial (see CPLR 4547 [compromises and offers of compromises inadmissible at trial]; CPLR 3101[b] [upon objection by a person entitled to assert privilege, privileged matter shall not be obtainable in discovery]; see also Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:25 [CPLR 3101(b) exempts from disclosure any matter subject to an evidentiary privilege, whether that privilege is contained in CPLR article 45 or any other source of law]). Similarly, CPLR 3101(b) provides a basis for withholding records concerning settlement negotiations in this case from disclosure under FOIL.

In a recent advisory opinion concerning the APA's denial of access to records of the Adirondack Club and Resort project mediation (see APA FOIL Appeal No. 08-08-04, Sept. 15, 2008), the Department of State's Committee on Open Government has concluded that records of settlement negotiations are not exempt from disclosure under FOIL (see Advisory Opinion, Aug. 28, 2008). Citing CPLR 4547 and Matter of Newsday, Inc. v State Dept. of Transp. (5 NY3d 84 [2005], cert dismissed 546 US 930 [2005]), the Committee opined that the privilege afforded settlement negotiations is only an evidentiary privilege that prevents matters raised during settlement negotiations from being offered as evidence at trial, and does not exempt disclosure under FOIL. I disagree with the Committee's narrow interpretation. The Committee's analysis did not consider the issue in its larger context. Even assuming that CPLR 4547 only constitutes an evidentiary privilege and, therefore, does not provide a basis on its own for withholding records of offers of compromise from third parties under FOIL, the Committee did not address the application of CPLR 3101(b), which protects those records from disclosure. Moreover, CPLR 4547 is in any event a clear indication of the legislature's intent to preserve the broader settlement privilege discussed above.

Matter of Newsday does not support the conclusion that records of settlement negotiations are not exempt from disclosure under FOIL. At issue in Matter of Newsday was whether the provisions of 23 USC § 409 exempting reports prepared by the Department of Transportation under a hazard elimination program from disclosure or admission into evidence also exempted such reports under FOIL. The Court of Appeals concluded that because 23 USC § 409 was not intended by Congress to make the subject reports confidential, but only to prevent their use in litigation, section 409 did not provide a basis for withholding the reports under FOIL (see 5 NY3d at 88). In contrast here, as discussed above, confidentiality is a key aspect of the judicial settlement negotiation privilege that the Legislature has preserved by statute. Thus, the confidentiality afforded settlement negotiations conducted in the course of administrative judicial proceedings does provide a basis for withholding records under FOIL.

In addition to SAPA § 306(1), CPLR 3101(b), and CPLR 4547, other statutes indicate a clear legislative intent to maintain the confidentiality of settlement negotiations, including those statutes noted above that extend the privilege to matters mediated by non-judicial officers (see Family Court Act § 915; Labor Law § 702-a[5]; Judiciary Law § 849-b[a][6]). The Public Officers Law itself supports the confidentiality of settlement negotiation records. As noted by the court in Matter of Wm. J. Kline & Sons, the Public Officers Law evinces the clear legislative intent to preserve the confidentiality of discussions concerning proposed or pending litigation conducted by public bodies during executive sessions under the Open Meetings Law (see 235 AD2d at 46 [citing Public Officers Law § 105]). Just as with the minutes of executive sessions, "[i]t makes little sense to permit governmental bodies to meet in private under clearly defined circumstances only to subsequently allow" discussions concerning settlement negotiations "to be publicly accessed under FOIL" (id.). Similarly, it makes little sense to allow a governmental entity's negotiating position to be publicly accessed under FOIL simply because that position is revealed during settlement negotiations before a State administrative law judge. To conclude otherwise would prevent the government from participating in settlement negotiations and prevent the government from providing a State administrative law judge, who in this case is also a trained mediator, to facilitate those negotiations.

In adopting FOIL, the Legislature could not have intended to preclude State agencies and other governmental entities from participating in the settlement of disputes in administrative proceedings, and thereby force agencies to suffer the costs, delays, and inefficiencies of litigation in every matter subject to an agency's jurisdiction. To conclude that FOIL does not recognize the confidentiality of settlement negotiations creates the anomalous situation that settlement discussions are privileged in Town Court, but not in administrative adjudications before an agency with regional jurisdiction, such as the APA, or State-wide jurisdiction, such as the DEC.

Moreover, giving effect to the confidentiality of settlement negotiations conducted during administrative judicial proceedings results in only a limited impact upon the public's access to information. Any settlement reached by the parties to the negotiations will ultimately be made public and, in the case of APA practice, subject to public review and approval by the APA Board. In addition, the State administrative law judge has the discretion to release documents when the confidentiality privilege is waived by the parties (see Hauzinger v Hauzinger, 10 NY3d 923 [2008] [disclosure order not an abuse of discretion when parties to mediation waive confidentiality; Court does not address what, if any, mediation confidentiality privilege exists under CPLR 3101(b) for non-judicial mediator]), or when the judge concludes that the public interest in disclosure outweighs the impact on the settlement process (see, e.g., Hulse v A.B. Dick Co., 162 Misc 2d at 268; Glens Falls Newspapers, 160 F3d at 857-858). Thus, giving effect to the settlement negotiation privilege has only a limited impact on the public's right to access governmental records.

Finally, FOIL arguably does not apply to a State administrative law judge when the judge acts in his or her judicial capacity. FOIL expressly excludes the judiciary from its requirements (see Public Officers Law § 86[3]). The judiciary is defined as "the courts of the state, including any municipal or district court, whether or not of record" (id. § 86[1]). Where a governmental entity, in the discharge of its duties, is exercising a judicial function, it may be considered part of the "judiciary" and, therefore, exempt from the obligation to supply its records to the public under FOIL (see Matter of Pasik v State Bd. of Law Examiners, 102 AD2d 395 [1st Dept 1984], app withdrawn 64 NY2d 886 [1985] [the State Board of Law Examiners performs a function historically performed by the courts and, therefore, is part of the "judiciary" for purposes of FOIL]).

Here, Judge O'Connell, in the exercise of his duties as a State administrative law judge, is performing a judicial function. His role in these proceedings is as the judicial officer presiding over a formal evidentiary hearing conducted on a record and required by due process (see SAPA § 102 [adjudicatory proceedings subject to SAPA are proceedings in which a determination of the legal rights, duties or privileges of named parties thereto is required by law to be made only on record and after an opportunity for a hearing]; SAPA § 302 [Record]). As presiding officer, Judge O'Connell is subject to the obligations, and vested with the broad discretionary powers, of a judicial officer (see SAPA §§ 303, 304). In adjudicatory proceedings under the APA's Part 580 regulations, the presiding officer fulfills the function of a trial judge conducting a jury trial. Moreover, Judge O'Connell, as with all DEC administrative law judges, has received the same training as mediators serving within the court system's community dispute resolution centers established under Judiciary Law article 21-A.

Thus, in every key respect, for purposes of FOIL, Judge O'Connell is acting as a member of the "judiciary" in this mediation and its underlying adjudicatory proceeding and, therefore, is exempt from FOIL's requirements (see Matter of Pasik, 102 AD2d at 399-401). Accordingly, the statutory and decisional law relevant to the settlement negotiation privilege may be applied to Mr. Brown's request for documents without regard to whether an exemption for the privilege exists under FOIL.

Applying the principles discussed above, Judge O'Connell has determined that the mediation protocol, the notices of intent to participate, the individual signature pages, and the DEC staff's May 20, 2008 letter with attachments are not privileged and, therefore, releaseable. However, the remaining records are confidential documents subject to the settlement negotiation privilege, whether pursuant to an exemption under FOIL or in the exercise of the Judge's authority as a judicial office, or both. Judge O'Connell has declined to exercise his discretion to release the remaining documents, and I find no abuse in the Judge's exercise of that discretion. Accordingly, the remaining documents are being withheld on the ground that they are exempt from disclosure by State law (see POL § 87[2][a]).

Any party adversely affected by this determination, including those parties who have objected to the release of any of the above referenced documents, may file an administrative appeal within fifteen (15) days of the date of this determination. Please direct any appeal in writing to:

Louis A. Alexander
Assistant Commissioner
Office of Hearings and Mediation Services
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, New York 12233-1010.

Those records determined to be releaseable will be held for fifteen (15) days. If no appeals are filed challenging their release, the records will be released to Mr. Brown.

Sincerely,


/s/
James T. McClymonds
Chief Administrative Law Judge

cc: Attached Service List
Louis A. Alexander, Asst. Commissioner
ALJ Daniel P. O'Connell
Ruth Earl
Dena Putnick
Robert Freeman, Committee on Open Government

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