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FOIL Appeal Determination for 09-21-9A (Jackie James-Creedon)

July 8, 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


July 8, 2009

Jackie James-Creedon
Executive Director
Clean Air Coalition of Western New York
2840 Delaware Avenue, Suite 202
Kenmore, New York 14217

Re: Freedom of Information Law ("FOIL") Appeal No. 09-21-9A
Tonawanda Coke Corporation

Dear Ms. James-Creedon:

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 requested from the Department of Environmental Conservation (herein "the Department"). I have reviewed the records that were withheld by the Department's Region 9 staff and made a determination as to whether these records should be released on this appeal.

By letter dated April 6, 2009, you requested all records contained within the NYDEC-Region 9 Air Division "Plant File" for the Tonawanda Coke Corporation. By letter dated June 17, 2009, Region 9 staff responded to your request. Region 9 staff withheld records pursuant to POL §87(2)(a), (d), (e) and (g). By letter dated June 24, 2009, you submitted this appeal with my office seeking the withheld records.

Records Reviewed
I have reviewed twenty-one (21) records that were withheld by Region 9 staff. Based upon my review of the records, I have determined that 8 records should be released in their entirety and 5 records with redactions. The remaining 8 records were properly withheld.

Discussion of records and relevant statutes on appeal
FOIL is based upon a presumption of access. All records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in POL §87(2)(a) through (i). An agency may deny 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, advice or evaluations by agency staff are exempt from release under 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"]).

An agency may also deny access to records that are compiled for law enforcement purposes and which, if disclosed, would (i) interfere with law enforcement investigations or judicial proceedings, or (iii) identify a confidential source(s) or disclose confidential information relative to a criminal investigation (POL §87(2)(e)(i) and (iii)). This agency routinely withholds the identities of complainants, as to do otherwise would likely result in loss of vital information regarding environmental violations. Judicial decisions have upheld this position. (See Pride International Reality v. Daniels, 4 Misc3d 1005(A)(Sup Ct NY Co 2004) [holding that POL § 87(2)(e)(i) exemption is not limited to criminal law enforcement agencies and that name of complainant in a departmental agency investigation may be withheld]; see also Advisory Opinion No. 13971 of the New York State Committee on Open Government, March 27, 2003 [POL § 87(2)(e) (iii) potentially relevant with respect to complaints to law enforcement agency]).

Finally, information identifying a confidential source may also be withheld from public disclosure, if disclosure could cause an unwarranted invasion of personal privacy pursuant to POL §87(2)(b). It has long been held that portions of a record that identify a complainant by name or provide other identifying details may be redacted because disclosure would result in an unwarranted invasion of personal privacy. (See, e.g., Pennington v. Clark, 16 AD3d 1049 [4th Dept. 2005]; Advisory Opinion No. 10982 of the New York State Committee on Open Government, August 4, 1998 [portions of a complaint that identify a complainant by name or provide other identifying details may be deleted because disclosure would result in an unwarranted invasion of personal privacy]).

All of the withheld records in whole or in part, with the exception of one, the Tonawanda Police Report, contain intra-agency deliberative communications, exempt from disclosure pursuant to POL §87(2)(g). The records are internal memoranda and notes taken from internal meetings or meetings with confidential sources. The records contain opinions, evaluations, deliberation and personal conclusions as part of the deliberative process between those involved in the investigation and those in advisory roles. Portions of the redacted records contain intra-agency communications; the remaining portions contain factual or statistical tabulations or data, which shall be disclosed pursuant to POL §87(2)(g)(i). Furthermore, three (3) records, one which was withheld and two that were redacted, contain identifying information on confidential sources, which information can be withheld pursuant to POL §87(2)(e)(iii) and §87(2)(b). Release of the source information or any other identifying information as to a source could cause individuals to not report environmental violations to the Department. Collection of information relevant to a source of information is reported in confidence and is not relevant to the ordinary work of the Department, thus can be withheld pursuant to FOIL.

The records or portions of records that are being released pursuant to this appeal consist of 35 pages. If you wish to receive copies, please send a check made payable to the "New York State Department of Environmental Conservation" to my attention in the amount of $8.75 (35 pages at $0.25 per page = $8.75). Please submit payment for the records by July 29, 2009 or 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 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. 09-21-9A.



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
Cheryl Webster
Maureen Brady
Peter Grasso
Mary Barren

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