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FOIL Appeal Determination for 09-12-5A (James Cranker, March 23, 2009)

March 23, 2009

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

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

March 23, 2009

James S. Cranker
P.O. Box 162
Ray Brook, New York 12977

Re: Freedom of Information Law ("FOIL") Appeal No. 09-12-5A
FOIL Request No. 08-2467
Affirmative action

Dear Mr. Cranker:

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 staff to withhold records identified as responsive to your FOIL Request No. 08-2467. I requested the records that were withheld by Department staff and on this appeal, I conducted a review of those records.

On November 23, 2008 you sent your FOIL request to the Department's Records Access Officer, to which she acknowledged receipt of your request on December 8, 2008. Your request was for records from October 1, 2006 through December 1, 2008 (the date of receipt of your FOIL request) relating to a hostile work environment investigation and/or allegations of discrimination that include your name. On January 8, 2009 Department staff issued a partial response to your request by releasing responsive records. A second and third response were issued on January 20, 2009 and January 27, 2009, respectively. Finally, on February 23, 2009 a fourth and final response was issued. The four responses in total released approximately four inches of records, consisting of approximately 570 pages of records. Portions of the released records were redacted and records were withheld from disclosure pursuant to POL §87(2)(g) as inter-agency or intra-agency deliberative communications and/or POL §87(2)(b) as disclosure of certain records would constitute an unwarranted invasion of personal privacy. On March 5, 2009 you sent your appeal to the Office of Hearings and Mediation, appealing Department staff's determination to withhold from disclosure certain records. Your appeal was received within my office on March 9, 2009. I have received the released and withheld records on this appeal. My review of those records follows.

On this appeal, I have reviewed 870 records, consisting of 1,933 pages. These records are all of the records that were within the Department's affirmative action file regarding the case at hand. These records represent released records, withheld records, redacted records and non-responsive records to your request. Approximately 570 pages of those records were previously released to you. Most of the records before me consist of duplicate and multiple copies of records and records that are non-responsive to your request. Also, contained within the records are multiple copies of DEC policies, multiple copies of the complaint filed with the Department, personnel records such as pay rates and time sheets and duplicate copies of e-mails between the persons involved in the affirmative action complaint. I have determined to release additional records, however, based on the volume of duplicate records and the amount of records already released, some records released on appeal may be duplicates of records already released. On this appeal I have determined to release 79 pages of records. Below is a breakdown of the records reviewed, followed by my determination on the withheld records.

RECORDS REVIEWED
  • Approximately 254 records are being withheld from disclosure
  • 246 records are withheld in that the records are inter-agency or intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g).
  • Eighty-nine (89) records are duplicates.
  • Five (5) records are withheld from disclosure in that they are inter-agency or intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g) and contain personal privacy information, exempt from disclosure pursuant to POL §87(2)(b). Two (2) records are duplicates.
  • Three (3) records are withheld from disclosure in that they are specifically exempt from disclosure by state or federal statute, specifically CPLR §3101( c) as attorney-work product and are exempt from disclosure pursuant to POL §87(2)(g) as inter-agency deliberative communications.
  • Approximately 286 records are non-responsive to your request. Even though these records are not responsive to your request, they were reviewed by me as they were within the affirmative action file on this matter. These records can also be withheld based on the same statutes stated above.
  • Approximately 433 records have been released or will be released on appeal either in whole or in part. Again some of these records are duplicates or non-responsive to your request, however were determined to be disclosed.

DISCUSSION
First, there is nothing in the Freedom of Information Law that deals specifically with personnel records or files. Furthermore, each agency and division of an agency may have personnel records or files that vary in nature and content. The context of the information that you have sought were compiled within an Office of Affirmative Action file regarding a complaint of a hostile work environment and/or discrimination. The file consists of the complaint, draft interview questions, interviews with employees, internal memoranda, notes, e-mails of an evidentiary nature, e-mails from the investigation, rules and regulations, DEC policies, time sheets of employees, employee fact sheets and other miscellaneous records.

A few of the records withheld will not be disclosed as such records consist of material that if disclosed would constitute and 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: . . . (i) disclosure of employment, medical or credit histories or personal references of applicants for employment; ... (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; (v) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

Public employees have been found to have a lesser degree of privacy than other employees. Furthermore, it has been found that public employees are required to be more accountable to others for their actions within employment. Courts have found that records relevant to the performance of a public employee's official duties are available, for disclosure would result in a permissible rather than an unwarranted invasion of personal privacy (see e.g, Farrell v. Village Board of Trustees, 372 NYS2d 905 (1975), Gannett Co. v. Country of Monroe, 59 A.D.2d 309 (1977)). However, if records that are irrelevant to the performance of one's official duties or where the allegations of misconduct were pending or unfounded, it has been found that disclosure would constitute an unwarranted invasion of personal privacy (see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977), Herald Company v. School District of City of Syracuse, 430 N.Y.S.2d 460 (1980)). Furthermore, the personal privacy exemption could be invoked to withhold the identity of alleged victims and perhaps witnesses (Committee on Open Government, Advisory Opinion 12802, July 13, 2001). Records within the Affirmative Action file contain employee fact sheets containing an employee's home address and/or telephone number. Even though the remainder of the record could be released, they are non-responsive to your FOIL request and will not be released on appeal.

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, a few records represent attorney work product (see CPLR §3101(c)). Such records are exempted from FOIL. Records within the Affirmative Action file are draft legal documents that were created by an attorney within the Office of General Counsel regarding a suit before another state agency. These records will not be released on appeal.

The remaining records have been withheld from disclosure as they are deliberative communications between agency personnel 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 person 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")). Thus, while the determination of discrimination or a hostile work environment can be, and was, released, the records leading to the determination can be withheld from disclosure. Determinations on discrimination and inappropriate work environment that results in action towards offenders, may be released to requesters (see Powhida v. City of Albany, 147 A.D.2d 236 (1989)). Also, there are internal memoranda that consist solely of opinions, evaluations and recommendations that will not be released, because release of such records would hinder and discourage open and frank discussions of investigations and determinations.

NEW FOIL REQUEST
I received your latest FOIL request, dated March 17, 2009, for records that are part of this appeal. In your letter of March 17, 2009 you specifically request an eleven (11) page record generated by Juan Abadia regarding a hostile work environment where you are named as the respondent. That record has been included in this appeal and was discussed above. This specific record was written by Mr. Abadia to staff and executive staff regarding the allegations and the investigation. The record contains opinions, recommendations, advice, evaluations of the allegations and deliberations amongst staff. Such a record will not be released as it is clearly intra-agency deliberative communications.

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 No. 09-12-5A.


Very truly yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

Attch.

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Juan Abadia, DEC Central Office
Ann Lapinski, DEC Central Office

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