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FOIL Appeal Determination for 09-14-0A (Robert Henke, April 6, 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: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

April 6, 2009

Robert A. Henke
Custom Writing Services
P.O. Box 173
Argyle, New York 12809

Re: Freedom of Information Law ("FOIL") Appeal No. 09-14-0A
FOIL Request No. 09-61
Reynolds Game Farm

Dear Mr. Henke:

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. 09-61. I requested the records that were withheld by Department staff and on this appeal, I conducted a review of those records.

On January 8, 2009 you sent your FOIL request to the Department's Records Access Officer, to which she acknowledged receipt of your request on January 16, 2009. Your request was for

  • "DEC internal documents originated by or directed to personnel above the level of Division Director regarding the closure of pheasant rearing activities at the Reynolds Game Farm or regarding the pheasant stocking program between the dates of January 1, 2008 and present, including email messages, and
  • Documents originated by or directed to members of the Governor's staff to or from DEC personnel above the level of Division Director regarding any aspect of DEC's pheasant rearing or stocking program between the dates of January 1, 2008 and present including email messages."

Furthermore, you requested that the records be sent in electronic format, preferably on CD. On February 23, 2009 the Records Access Officer responded to your FOIL request by releasing certain records in whole or in part and also withholding records on three statutory exemptions for disclosure. The records were claimed to be exempt from disclosure on the following exceptions:

  • POL §87(2)(a), records that are exempt from disclosure by state or federal statute, more specifically Civil Practice Laws and Rules (CPLR) §4503(a), as they are attorney-client privileged communications,
  • POL §87(2)(b), as disclosure would constitute an unwarranted invasion of personal privacy, and
  • POL §87(2)(g), records that are inter-agency or intra-agency which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits.

On March 17, 2009 you sent your appeal to my office, appealing staff's determination to withhold from disclosure records to your request. You state within your appeal that your "purpose was to ascertain how the chain of command functioned and articulated with the decision-making process in the proposed closing of the game farm." Your appeal was received within my office on March 19, 2009, to which I acknowledged receipt on the same day. I have received the withheld records and my review of those records follows.

On this appeal, I have reviewed 306 records, consisting of 434 pages. Most of the records before me consist of e-mail chains and/or duplicate records or duplicate portions therein. I have determined to release additional records on this appeal, however, many records fall squarely within the narrowly interpreted statute of POL §87. On this appeal I have determined to release 39 records, consisting of 55 pages, either in whole or with proper redactions. Next to the bate stamp in the bottom right hand corner of the records I have written an "R" on those that have been redacted. Below is a breakdown of the records reviewed, followed by my determination on the withheld records.

RECORDS REVIEWED

  • 264 records are being withheld from disclosure
  • 244 records are withheld in that the records are inter-agency or intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g).
  • Approximately ninety (90) records are duplicates.
  • Seven (7) 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.
  • Thirteen (13) records are withheld from disclosure in that they are specifically exempt from disclosure by state or federal statute, specifically CPLR §4503(a) as attorney-client privileged communications and are exempt from disclosure pursuant to POL §87(2)(g) as inter-agency deliberative communications.
  • Three records were previously released to you in either entirety.
  • Fourteen (14) records will be released in their entirety on this appeal.
  • Twenty-five (25) records will be released with proper redactions. Such redactions are exempt from disclosure pursuant to POL §87(2)(g) and §87(2)(b).

DISCUSSION
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 accordingly, are subject to the attorney-client privilege (see CPLR §4503(a)). 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 306 records, thirteen (13) records contain attorney-client privileged communications and inter-agency deliberative communications.

POL §87(2)(b): Unwarranted invasion of personal privacy
POL § 87(2)(b) authorizes withholding information from disclosure 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." Seven (7) records have been withheld from disclosure as they contain personal privacy information, specifically telephone numbers of individuals that have called the Department regarding the Governor's announcement to close the Reynolds Game Farm. Also, records that have been redacted and released on appeal contain information that is exempt from disclosure, specifically personal home e-mail account information of public employees. Such information is irrelevant to the performance of one's official duties, thus Courts have held 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)).

POL §87(2)(g): inter-agency or intra-agency communications exempt from disclosure
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, recommendations and the like from 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")).

The most of the records that I determined to withhold from disclosure are deliberative communications between and among agency personnel or between agency personnel and other state agency staff, exempt from disclosure pursuant to POL §87(2)(g). Thus, while the determination of the Governor to close the farm was released, the records of the Department's opinions, evaluations and recommendations surrounding the Governor's determination can be withheld from disclosure. The records that have been redacted, release to you the factual statements or statistical tabulations that are not exempt from disclosure. However, there are many records between the Department and other state agencies containing solely opinions or recommendations or deliberations on the announcement of closing the Reynolds Game Farm. I again point to your appeal letter where you state why you filed your appeal, "to ascertain how the chain of command functioned and articulated with the decision-making process in the proposed closing of the game farm." Such records, would generally fall within the intra-agency deliberative communications, which are exempt from disclosure. Factual information, final agency determinations or instructions to staff that affect the public that were within the responsive records have either been released in their entirety or released with redactions.

The records or portions of records that are being released pursuant to this appeal consist of 55 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 $13.75 (55 pages at $0.25 per page). Submit payment prior to April 24, 2009 for payment of these records. Once payment is received, I will release all releasable records to you. If no payment is received by my office by the deadline set above 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 No. 09-14-0A.

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

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