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FOIL Appeal Determination for 09-01-1A (J. Lee Snead)

February 2, 2009


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: http://www.dec.ny.gov/

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

February 2, 2009

J. Lee Snead, Esq.
155-C South Country Road
Second Floor
P.O. Box 489
Bellport, New York 11713

Re: Freedom of Information Law ("FOIL") Appeal No. 09-01-1A; FOIL Request No. 08-1181 Appeal Determination

Dear Mr. Snead:

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 Town of Southampton and 818-820 Dune Road, Westhampton Dunes.

In accordance with the Department's FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department's Region 1 office. On this appeal, I conducted a de novo review of those records.

BACKGROUND
On November 10, 2008 you submitted a letter to the Region 1 Records Access Officer of the New York State Department of Environmental Conservation (hereinafter "DEC" or the "Department") which sought certain records of the Department relating to the Town of Southampton, 818-820 Dune Road and other specified records. Your request encompassed 15 separate and distinct sets of records pertaining to the above.

DEC's Region 1 FOIL Coordinator assigned FOIL No. 08-1181 to your request. By letter dated November 20, 2008, Nancy Pinamonti, Region 1's FOIL Coordinator, acknowledged receipt of your FOIL request and informed you that a response to your request may be expected by December 16, 2008. During the time of your FOIL request there was a simultaneous enforcement action before an Administrative Law Judge within the Department's Office of Hearings and Mediation. On December 4, 2008 DEC's Assistant Regional Attorney, Susan Schindler, requested a conference call to sort out intertwining matters of the enforcement action, discovery and FOIL. On December 6, 2008 you penned a letter to the Chief Administrative Law Judge of DEC requesting that the FOIL request be processed immediately. On December 15, 2008 assigned ALJ Goldberger issued a letter stating that Region 1 staff shall complete the FOIL request by December 16, 2008, as stated previously within Ms. Pinamonti's letter of November 20, 2008. On January 5, 2009 you filed this appeal with Chief ALJ McClymonds, which was appropriately referred to me. Through my letter to you, dated January 12, 2009, I acknowledged receipt of your FOIL appeal and stated that I was in the process of obtaining the withheld records from Region 1 staff. While having discussions with staff regarding your request it was determined that Central Office staff within the Division of Forest Protection may be in possession of a few of the requested records. On January 20, 2009, Colonel Andrew Jacob released all records that were in the Division of Forest Protection's possession. I have been informed by the Region 1FOIL Coordinator that your FOIL request has been completed and that all non-exempt responsive records are available for review within their office. Furthermore, Region 1 staff withheld a small amount of records responsive to your request claiming that the records were exempt from disclosure pursuant to POL §87(2)(g) as they contain inter-agency or intra-agency communications.

I have received the records withheld by Region 1 staff and I have conducted a de novo review. Following is my determination:

RECORDS REVIEWED
On this appeal, I have reviewed 35 records, consisting of 64 pages, that were provided to me by Department staff. Additionally, there was one record consisting of time sheets for Matthew Richards that were redacted and released to you. Based upon my review, I have determined that the redactions of Mr. Richard's time sheets were appropriate and within the exemptions of POL §87(2)(b) as they contain personal privacy information. I have determined to release two (2) records in their entirety. Furthermore, I have determined to release one (1) record with redactions. The remaining 32 records will be withheld from disclosure based on the following determinations.

  • 21 records: POL §87(2)(g) - inter-agency or intra-agency deliberative materials
  • 4 records: POL §87(2)(g), POL §87(2)(a) and CPLR §4547 - inter-agency or intra-agency deliberative materials and settlement negotiations, consisting of penalty calculations in anticipation of litigation.
  • 1 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
  • 6 records: POL §87(2)(a), CPLR §4503(a) and POL §87(2)(g) - state or federal statute provision, attorney work product and inter-agency or intra-agency deliberative materials
  • 1 record released with redactions
  • 1 record: redactions of POL §87(2)(b) and POL §87(2)(g) - unwarranted invasion of personal privacy and inter-agency or intra-agency deliberative materials
  • 2 records released in their entirety.

RELEVANT STATUTORY EXEMPTIONS
POL §87(2)(a): Specifically exempt by state or federal statute
Public Officers Law §87(2)(a) provides an exemption for release of records that are "specifically exempted from disclosure by state or federal statute." Certain records that were withheld represent communications between Department staff and Department attorneys and a draft consent order 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)). Of the thirty-five (35) records, six (6) records contain attorney-client privileged communications and inter-agency deliberative communications. One (1) record, a draft consent order, is attorney work product, thus exempt from disclosure. Five (5) records are legal referrals from staff to the Regional attorney. Also, one additional record contains notes of a conversation between staff and the Regional attorney.

POL §87(2)(g): inter-agency or intra-agency deliberative communications
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 withheld records before me consist of DEC employee opinions, suggestions and ideas in regards to the condition and progression of the property is question. These records also contain ideas, evaluations and deliberation on the permits, violations and requests made by the parties involved. Such internal deliberative communications, exempt from disclosure pursuant to POL §87(2)(g), will not be released through this appeal.

Furthermore, there are four (4) records that contain inter-agency deliberative communications or notes of an agency employee expressing their opinion or interpretation of a meeting. Also, three of those four records intertwine inter-agency exempt material and preliminary penalty calculations undertaken in anticipation of litigation. Such calculations are exempt from disclosure as they are the conduct of the Department prior to negotiations or settlement in a violation or enforcement matter. Release of such information may hinder possible settlement between parties. Finally, the State Legislature has clearly indicated its intent that settlement negotiations remain confidential (see Matter of Kline & Sons, Inc. v. Hamilton County News, 235 AD2d 44, 45-47 [3d Dept't 1997]; see also Miller v. Sanchez, 6 Misc3d 479, 484 [NY Civ Ct 2004]; United States of America v. Glens Falls Newspapers, Inc., 160 F3d 853, 857-858 [2d Cir 1998][draft records generated to aid settlement negotiations are confidential and exempt from disclosure]).

POL §87(2)(b): Unwarranted invasion of personal privacy
POL § 87(2)(b) authorizes withholding information where the release of that information "would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." POL §89(2)(b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: . . . (iv.) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it." Matthew Richards' time sheets have been released with redactions of his social security number, line item number (another identification number of an employee) and bargaining unit.

There is one record that will be redacted and released to you that contains personal privacy information. The information that has been redacted consists of a home telephone number of Mayor Vegliente. Such information will not be released to the public. I have redacted another portion of this record, as well, as it contains opinions and advice of a DEC employee, exempt from disclosure pursuant to POL §87(2)(g).

The records that have been identified for release pursuant to this appeal consist of 6 pages. Enclosed are copies of the documents that are being released to you. I have waived the copying charges for the 6 pages being released on appeal. If you have any questions regarding your FOIL appeal, you may contact my office at (518) 402-9512.

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. 09-01-1A.

Sincerely yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Nancy Pinamonti
Susan Schindler, Esq.
Chuck Hamilton
Matthew Richards
Colonel Andrew Jacobs

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