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FOIL Appeal Determination for 09-20--1A (Jessica Driscoll, May 26, 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


May 26, 2009

Jessica Driscoll
Law Offices of Mark Cuthbertson
434 New York Avenue
Huntington, New York 11743

Re: Freedom of Information Law ("FOIL") Appeal No. 09-20-1A
FOIL Request No. 09-242
Coastal Distribution, LLC Facility

Dear Ms. Driscoll:

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 your claim that the Department of Environmental Conservation (herein "the Department" or "DEC") improperly withheld records from disclosure. I requested the records that were withheld by the Department's Region 1 staff and on this appeal and I conducted a review of those records and issue my determination herein.

By letter dated March 13, 2009 you requested records "pertaining to the Coastal Facility, including but not limited to any and all submissions, correspondence, filings, applications, reports, and analyses, relating to the Coastal Facility from 2002 to the present." Thereafter, on March 19, 2009 Region 1's FOIL Coordinator acknowledged receipt of your request and stated that a response would be available by April 18, 2009. I understand that Region 1 staff failed to respond by the date stated within their acknowledgment letter, to which you submitted an inquiry as to your request on April 21, 2009. You stated that on May 6, 2009 records from the Division of Environmental Permits, Region 1 Office of General Counsel and the Division of Solid and Hazardous Materials made records available to you for review. The Office of General Counsel withheld certain records pursuant to POL §87(2)(a) as such records were exempt from disclosure by state or federal statute. By letter dated May 29, 2009, received on June 1, 2009, you submitted this appeal with my office seeking the records that were withheld by Region 1 staff.

Records Reviewed
On this appeal I have reviewed thirty-seven (37) records that were provided to me by Region 1 staff. Based upon my review of the records, I have determined to release 5 records in their entirety and 2 records with redactions. The remaining 30 records were properly withheld. Below is the reasoning for my decision.

Discussion of records and relevant statutes on appeal
Under FOIL, all records maintained by an agency are presumptively open for public review unless a specific statutory exemption applies (see Matter of Spencer v. Lombardi, 267 A.D.2d 13, 14 (1st Dept 1999)). Among the statutory bases for withholding records under FOIL is that the records are specifically exempt from disclosure under federal or state law (see POL §87(2)(a)). With respect to confidentiality privileges, an express statutory statement of confidentiality under FOIL is not required (see Matter of Washington Post Co. V. New York State Ins. Dept., 61 N.Y.2d 557, 566-567 (1984)). Where clear legislative intent to establish and preserve confidentiality of records exists, a record may be withheld under FOIL (see id.; Matter of Wm. J. Kline & Sons, Inc. v. County of Hamilton, 235 A.D.2d 44, 46 (3rd Dept 1997)). Thus, a record subject to a confidentiality privilege, including a common law privilege, codified in statute may be withheld pursuant to POL §87(2)(a) (see e.g., Matter of Morgan v. New York State Dept. of Envtl. Conservation, 9 A.D.3d 586, 587 [withholding from disclosure under FOIL documents protected by attorney-client privilege under CPLR §4503(a), and attorney work product privilege under CPLR §3101(c)]; Matter of Westchester Rockland Newspaper, Inc. v. Mosczydlowski, 58 A.D.2d 234, 236 (2nd Dept 1977) [material prepared solely for litigation under CPLR §3101(d)]; CPLR §4547 [confidentiality of settlement discussions]).

POL §87(2)(a) exempts from disclosure any records or portions thereof that are "specifically exempted from disclosure by state or federal statute." The attorney-client communications are exempt pursuant to CPLR §4503(a) which protects confidential communications between an attorney and a client in the course of professional employment (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)). Attorney work product is exempt from disclosure pursuant to POL §87(2)(a) and CPLR §3101(c) and has been defined to include records that constitute "interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs' conducted, prepared or held by the attorney [citation omitted]." (Kenford Company v. County of Erie, 55 A.D.2d 466, 470, 390 N.Y.S.2d 715, 718 (4th Dept, 1977)).

Confidentiality of settlement discussions is necessary to encourage amicable resolutions, protect litigants and to foster an atmosphere of open discussion among the parties and their representatives so that disputes can be settled fairly and efficiently (see Glens Falls Newspapers, 160 F.3d at 856; Hulse v. A.B. Dick Co., 162 Misc.2d 263, 268 [Sup. Ct., NY County (1994)]). In United State of America v. Town of Moreau, 160 F.3d 853, 857-858 (2d Cir. 1998), the Second Circuit Court of Appeals held that draft records generated to aid settlement negotiations are confidential and exempt from disclosure. Furthermore, in The Town of Waterford v. New York State Dept. of Envtl. Conservation, (not cited at time of appeal, New York State Supreme Court, County of Albany, Index No. 6123-08, Dated, March 19, 2009), the Court held that settlement negotiation records were properly withheld, pursuant to CPLR §4547 and POL §87(2)(a), because they contained settlement discussions concerning potential claims asserted by the Environmental Protection Agency and New York State to compel General Electric to dredge the Hudson river of PCB-contaminates which culminated in the signing of a Consent Decree. In adopting FOIL, the Legislature could not have intended to preclude state agencies and other governmental entities from participating in the settlement of disputes with outside entities or persons and thereby force agencies to suffer the costs, delays, and inefficiencies of litigation in every matter subject to an agency's jurisdiction. To conclude that FOIL does not recognize the confidentiality of settlement negotiations creates the anomalous situation that settlement discussions are privileged in courts, but not in administrative settings of a state agency.

Another exemption under FOIL is inter-agency and intra-agency communications, which are deliberative in nature, are 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 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 records before me consist of internal discussions on the permit applied for by Coastal Distribution and settlement discussions regarding an Order on Consent regarding violations by Coastal Distribution. Many of them are back and forward drafts of the Order on Consent along with chain e-mails between Coastal Distribution or their representatives or internal Department deliberation. Here is a list of the statutory exemptions for withholding disclosure of the records on this appeal:

  • 2 records are withheld as attorney-client privileged communications (POL §87(2)(a) and CPLR §4503(a));
  • 6 records are withheld as attorney-client privileged communications and inter-agency deliberative communications (POL §87(2)(a), CPLR §4503(a) and POL §87(2)(g));
  • 1 record is withheld as attorney-client privileged communications, inter-agency deliberative communications and settlement negotiations (POL §87(2)(a), CPLR §4503(a), CPLR §4547 and POL §87(2)(g));
  • 2 records are withheld as attorney work product (POL §87(2)(a) and CPLR §3101(c));
  • 4 records are withheld as attorney work product and inter-agency deliberative communications (POL §87(2)(a), CPLR §3101(c), and POL §87(2)(g));
  • 1 record is withheld as attorney work product and settlement negotiations (POL §87(2)(a), CPLR §3101(c), and CPLR §4547);
  • 10 records are withheld as settlement negotiations (POL §87(2)(a) and CPLR §4547);
  • 2 records are withheld as settlement negotiations and inter-agency deliberative communications (POL §87(2)(a), CPLR §4547 and POL §87(2)(g));
  • 2 record is withheld as inter-agency deliberative communications (POL §87(2)(g));
  • 2 records have been released with redactions. One record was redacted as such material is inter-agency deliberative communications (POL §87(2)(g)). The other record was redacted as the record contained attorney-client privileged communications (POL §87(2)(g) and CPLR §4503(a)).

There are nine (9) records that contain attorney-client privileged communications between DEC attorneys and DEC staff, exempt pursuant to POL §87(2)(a) and CPLR §4503(a). Such communications are privileged in nature as they contain legal analysis and legal advise. Six (6) of those (9) records also contain intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g). One (1) record, a chain e-mail, contains attorney-client communications, intra-agency deliberative communications and settlement negotiations.

Seven (7) records contain attorney work product, exempted from disclosure by POL §87(2)(a) and CPLR §3101(c). The records herein consist of records written and created by a DEC attorney anticipating or in preparation of current litigation.

The records that I have determined to be withheld from disclosure as they contain settlement discussions between DEC and Coastal Distribution for the Order on Consent, consist of draft Orders on Consent along with recommended modifications by Coastal Distribution or DEC and open discussions of the issues. Such records are exempt from disclosure pursuant to POL §87(2)(a) and CPLR §4547, as discussed above. Ten (10) records contain settlement negotiations between the parties and two (2) records contain settlement negotiations and inter-agency deliberative communications. Those two records are chain e-mails to which there was settlement discussions in the beginning and then subsequent forwarding with deliberative discussions on the negotiations between Department staff.

Two records are being released to you with redactions. I redacted one (1) record as it contained inter-agency deliberative communications attached to multiple news articles. The remaining redacted record has had attorney-client communications redacted. I have indicated which records were redacted by placing an "R" in the lower right hand corner of the record.

The records or portions of records that are being released pursuant to this appeal consist of 72 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 $18.00 (72 pages at $0.25 per page), no later than July 3, 2009. If you wish to have these records prepared for review, please contact my office at 518-402-9512, no later than June 26, 2009.

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. 09-20-1A.



Dena N. Putnick, Esq.
FOIL Appeals Officer

Cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, DEC Records Access Officer
Deborah Christian, Corporate Affairs Bureau
Nancy Pinamonti, Region 1 FOIL Coordinator

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