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FOIL Appeal Determination 08-05-0A (Stanley N. Alpert, February 19, 2009)

February 19, 2009

February 19, 2009

OVERNIGHT DELIVERY

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

Re: Freedom of Information Law ("FOIL") Appeal No. 08-05-0A

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").

Based upon a review of the 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 forty-seven (47) can be released in whole or in part. Although FOIL does not require that a list of records withheld be provided (see Advisory Opinions AO-12924 [August 30, 2001] and AO-11591 [July 27, 1999], New York State Department of State, Committee on Open Government), the Department has in the circumstances of this appeal prepared a summary chart that provides an overview 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 apply.

The information that we have determined should be withheld is based upon the exemptions in POL §§ 87(2)(a), (e)(i) and/or (g). Those exemptions apply to records that include attorney-client privileged communications, submission of draft documents for settlement or development of remedial activities, or intra- or inter-agency non-final deliberative material.

The exemptions relied upon in this appeal include:

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 the Department's Office of General Counsel and agency staff on legal-related matters. Accordingly, those records are excepted from disclosure under FOIL. In this regard, a number of records are communications 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 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]). Although records which are transmitted to or from a Department attorney on ministerial, or non-legal matters are not withheld pursuant to this exemption, such records may be subject to the intra-agency/inter-agency exemption in POL § 87(2)(g). Furthermore, certain of the records relate to settlement negotiations between KeySpan (including its consultants) and the Department. The State Legislature has indicated that settlement negotiations remain confidential (see CPLR § 4547; United States of America v. Glens Falls Newspapers, Inc., 160 F3d 853 [2d Cir 1998]; see also William J. Kline & Sons, Inc. v. Hamilton County News, 235 AD2d 44, 45 [3d Dept 1997]). Accordingly, such records may be withheld pursuant to POL § 87(2)(a).

POL § 87(2)(e)(i)
Certain records that KeySpan submitted to the Department regarding remedial activity were draft documents subject to Department review and revision. The release of such draft records would materially impair the resolution of such matters through a non-adjudicatory process and would otherwise frustrate future environmental remediations/investigations (see also United States of America v. Glens Falls Newspapers, Inc., 160 F3d 853, 857-58 [2d Cir 1998][draft records generated to aid settlement are confidential and exempt from disclosure]). In light of the foregoing, the FOIL exception in POL § 87(2)(e)(i) applies.

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 the 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 Attorney General's Office), 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., 54 AD3d 154 , 166 [1st Dept 2008]).

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.

The documents being released contain a total of 134 pages. If you wish to be provided with copies of any or all of these releaseable records, please contact me within 30 days of the date of this letter. Please note that the cost for providing a record is $.25 per page. If you wish to review the releaseable records in our office, please contact Kimberly Sarbo at (518) 402-8537 within 30 days. If you have not contacted our office within 30 days of the date of this letter, the records will be returned to their respective custodians in the agency 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. 08-05-0A.

Sincerely yours,

/s/

Louis A. Alexander
Assistant Commissioner

Attachment

cc: Robert Freeman, Executive Director, Committee on Open Government (w/attachment)
Ruth Earl, Records Access Officer (w/attachment)
Dena Putnick, FOIL Appeals Officer (w/attachment)

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