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FOIL Appeal Determination for 09-15-3A (Robert Feller, April 21, 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: www.dec.ny.gov

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

April 21, 2009

Robert H. Feller
Bond, Schoeneck & King, PLLC
111 Washington Avenue
Albany, New York 12210-2211

Re: Freedom of Information Law ("FOIL") Appeal No. 09-15-3A; FOIL Request No. 09-532
Appeal Determination

Dear Mr. Feller:

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 records pertaining to appraisals or contracts to perform appraisals for land identified within the Agreement in Principle (AIP) and results of a pump test on two wells.

In accordance with the New York State Department of Environmental Conservation's (hereinafter "DEC" or "Department") FOIL appeal procedures, I requested copies of the records that were withheld from disclosure by the Department. On this appeal, I conducted a de novo review of those records.

BACKGROUND

By letter dated March 4, 2009 you submitted a request for records to the Records Access Officer of the Department seeking the following:

  1. "Any and all appraisals or contracts to perform appraisals(s) for lands identified in paragraphs 25 and 26 of the September 5, 2007 Agreement in Principle (AIP) entered into between the State of New York, Crossroads Ventures, LLC (Crossroads) and other parties, namely:
    1. approximately 1216.5 acres of the Big Indian Plateau which is identified and labeled as "Lands to be Acquired" in Exhibit I to the AIP.
    2. approximately 78 acres formerly part of the Highmount Ski Center labeled as "Parcel C" and "Parcel B" in Exhibit J of the AIP.
  2. Any and all results of pump tests performed on behalf of Crossroads Ventures, LLC of two wells on the south side of State Route 28, just east of the Village of Fleishmanns. It is believed that such tests were performed in late October or early November 2008."

By letter dated March 12, 2009 the Department's Records Access Officer acknowledged receipt of your request and assigned it FOIL No. 09-532. Furthermore, the Access Officer stated that you "may expect a response to your request by April 9, 2009." On April 10, 2009 Jeanne Konz, attorney for the Department contacted you via e-mail requesting clarification of your request regarding time frames of the appraisals that you were looking for. Also on April 10, 2009, Ms. Konz issued a partial response to your request, releasing one record, and stated that a formal response would be forthcoming. On April 13, 2009 you responded to Ms. Konz by stating that you thought your requests was "quite clear" and that you were seeking anything that occurred from September 2007 to the present. On April 13, 2009 the Department's Records Access Officer issued a formal FOIL response to your request. Therein, the Department states that your request was unclear, in that you referenced certain paragraphs of the AIP, however the remainder of your requests would not correspond to the stated paragraphs of the AIP. However, the Records Access Officer interpreted your request as per the AIP. The FOIL response stated that one record was released and two records were withheld pursuant to POL §87(2)(g). Furthermore, after a search of Department records there are no records responsive to your second request.

On April 13, 2009, my office received your letter dated April 9, 2009, seeking an appeal because the Department failed to respond by the estimated date, thus was a constructive denial of your request. I acknowledged receipt of your appeal on April 13, 2009 and stated that I was informed that a response to your FOIL request was forthcoming. I further learned that one record, a purchase order for an appraisal, was released and two records, appraisals from two consultants, were withheld from disclosure pursuant to POL §87(2)(g) as inter-agency or intra-agency communications exempt from disclosure.

I have received the appraisals that were withheld by staff and I have conducted a de novo review. Following is my determination:

RECORDS REVIEWED

On this appeal, I have reviewed three records, consisting of 627 pages. Based upon my review, I have determined that the withholding of two appraisals and one unsigned purchase order for an appraisal was appropriate pursuant to POL §87(2)(g) as inter-agency or intra-agency communications. Furthermore, I determined that the appraisals will be withheld pursuant to POL §87(2)(c) as release of the appraisals would impair present or imminent contract awards.

RELEVANT STATUTORY EXEMPTIONS
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")).

Furthermore, the Court of Appeals has held that appraisals and other reports prepared by consultants retained by agencies may also be considered as intra-agency materials subject to the provisions of POL §87(2)(g) (see Xerox Corporation v. Town of Webster, 65 N.Y.2d 131 (1985); see also Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 442 N.Y.S.2d 130)). The purpose of POL §87(2)(g) is to protect and ensure agency employees are able to express their opinions and recommendations freely to others in the agency. Agency personnel must also rely on the opinions and recommendations of consultants to the agency. Such use of consultants and the work that they do are part of the work of the agency and are part of the deliberative process. The information within the appraisals, including comparable sales data that the consultant obtained and relied upon within their appraisal are exempt from disclosure, even though such records are factual in nature and obtainable by other means (Matter of General Motors Corp., GM Powertrain Div. v. Town of Massena, 180 Misc.2d 682, 693 N.Y.S.2d 870). The use of such comparable sales data by the appraiser evolved from a thought process and professional judgment and subjective determinations.

The unsigned purchase order for an appraisal will also be withheld as non-final agency determinations and deliberative in nature. The record was prepared during deliberation of consultants, however, one purchase order was not signed, thus can be withheld from disclosure to the public.

POL §87(2)(c): impair present or imminent contract awards
POL §87(2)(c), permits an agency to deny access to records if disclosure of the record "would impair present or imminent contract awards or collective bargaining negotiations." The issue then becomes whether or the extent to which disclosure would "impair" a contracting or bargaining process by diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers. Consideration of the effects of disclosure is the primary factor in determining the extent to which §87(2)(c) may justifiably be asserted.

In Murray v. Troy Urban Renewal Agency (56 NY2d 888 (1982)), the Court of Appeals and the Appellate Division both stated that the agency appropriately withheld appraisals from disclosure because release of such records would impair present or imminent contract awards. Premature disclosure would enabled the public to know the prices the agency sought, thereby potentially precluding the agency from receiving optimal prices (see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)).

In regards to the present state of the AIP and the use of the appraisals, release of the appraisals would impair any contract awards or negotiations regarding the purchase of the appraised land. If the appraisals were released the State would by impaired by reaching the most optimal price for the land.


FINAL DETERMINATION
I am upholding the determination to withhold release of the appraisals and the purchase order on the ground that they are inter-agency or intra-agency deliberative communications, pursuant to POL §87(2)(g). Furthermore, I am withholding the same appraisals in that release of the appraisals would impair any contracts to purchase the appraised land, pursuant to POL §87(2)(c). I have received no records to review in regards to your request for "pump test results" as stated within the Record Access Officer's response, no records are responsive to this request.

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. 09-15-3A.

Sincerely yours,


/s/

Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Jeanne Konz, Esq.

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