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FOIL Appeal Determination for 09-22-0A (Albert Dwumahene, July 27, 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 27, 2009

Albert Dwumahene
Sullivan & Worchester, LLP
1666 K Street, NW
Washington, DC 20006

Re: Freedom of Information Law ("FOIL") Appeal Determination 09-22-0A
FOIL Request No. 09-754
Belleayre Mountain Modified Project SDEIS and AIP

Dear Mr. Dwumahene:

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 Department staff to withhold records identified as responsive to your FOIL Request No. 09-754. I requested the records that were withheld by staff and on this appeal, I conducted a review of those records.

On March 27, 2009, you requested seven categories of records "concerning the supplemental draft environmental impact statement ("SDEIS"). . . and the Agreement in Principle ("AIP")" regarding the Belleayre Mountain modified project. On June 5, 2009, Department staff responded to your request by making 2 compact discs and approximately 4 inches of hard copies available. Department staff stated that records were being withheld pursuant to (i) POL §87(2)(c) as disclosure would impair present or imminent contract awards and (ii) POL §87(2)(g) as inter-agency or intra-agency deliberative communications. Furthermore, in a letter dated April 24, 2009, the Department's Office of Hearings and Mediation Services ("OHMS"), released all responsive records held within their office. On July 7, 2009, you filed your appeal from staff's determination to withhold records from disclosure.

You also requested a list of every responsive record and the particular exemptions from disclosure. While such a requirement has been imposed under the federal Freedom of Information Act ("FOIA"), there is no requirement under state law (see Advisory Opinions AO-14311 [October 27, 2003] and AO-12587 [March 19, 2001], New York State Department of State, Committee on Open Government). Therefore, I have not prepared a privilege log of the records withheld.

On this appeal, I have reviewed approximately 1,100 records and a compact disc that were withheld, consisting of approximately 4,500 pages.

I have determined to release two pages that were previously withheld. Those two pages are enclosed. One contains statistical or factual tabulations or data that is required to be released pursuant to POL §87(2)(g). The second is a portion of an e-mail from an outside firm that was sent to the Department. The redacted portions of the e-mail are staff deliberations regarding the initial e-mail. It has come to my attention that staff has released additional records while this appeal was pending.

POL §87(2)(a) provides that an agency may deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute." New York Civil Practice Law and Rules ("CPLR") §§3101(c) and 4503(a) prohibit disclosure of records that were, respectively, attorney work product and confidential attorney-client communications. In the FOIL appeal before me, certain records represent communications between Department staff and Department attorneys or are attorney notes, comments or confidential legal works and accordingly, are subject to the attorney-client privilege and/or constitute attorney work product. Such records are exempted from disclosure under FOIL (see Matter of Orange County Publications, Inc. v. County of Orange, 168 Misc2d 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).

POL § 87(2)(b) authorizes denial of access where the release "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."

POL §87(2)(c) permits an agency to withhold 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 held that the agency appropriately withheld appraisals from disclosure because release of such records would impair present or imminent contract awards. Premature disclosure would enable the public to know the prices the agency sought, thereby potentially precluding the agency from receiving optimal prices.

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. 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 NY2d 131, 132 [1985]; see also New York Times Co. V. City of New York Fire Department, 4 NY3d 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, mundane communications (such as e-mails regarding the scheduling of meetings and the like) are exempt from disclosure pursuant to POL §87(2)(g) (see Tuck-It-Away Associates, LP v. Empire State Development Corporation, 54 AD3d 154, 861 NYS2d 51, 60 [1st Dept 2008]).

Records prepared by or for a consultant of an agency may be withheld pursuant to POL §87(2)(g). "In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants. It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies. Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part of the agency's deliberative process (see Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549; Matter of 124 Ferry St. Realty Corp. v. Hennessy, 82 AD2d 981, 983)" [Matter of Xerox Corporation v. Town of Webster, 65 NY2d at 132-133]. Records prepared by a consultant must be evaluated under FOIL as if the record was prepared by an agency employee.

Your request for records identified seven categories of records. Your first request for an executed AIP with signature pages was provided to you during the Department's initial response to your request.

Your second and sixth categories referenced were for appraisals or similar land evaluations and assessments or evaluations by our consultants. Release of the appraisals would impair any contract awards or negotiations regarding the purchase of the appraised land. If the appraisals were to be released the State would by impaired by reaching the most optimal price for the land. Furthermore, as stated above, records of a deliberative nature between an agency and its consultants can be withheld pursuant to POL §87(2)(g) as intra-agency communications. There are records before me that consist of deliberative communications between consultants and staff. As well as the actual appraisals. Such records were properly withheld from disclosure.

The third category was for "any rulings, analyses or opinions (including Attorney General opinions) that refer or relate to the issue of whether the terms of the modified project (including construction and operation of new or expanded ski trails) are consistent with the language in Article XIV of the New York State Constitution." Even though Department staff stated that this request was for an interpretation requiring a judgment, I have determine that it is an appropriate FOIL request for records and requested staff to search for responsive records. Staff found no records responsive to your specific request. However, there are records containing staff analyses and opinions regarding Article XIV, but are not related to the modified project. Those records have been withheld from disclosure as intra-agency opinion and analyses, exempt from disclosure pursuant to POL §87(2)(g).

The forth, fifth and seventh categories involve notes, correspondence or records relating to the UMP or AIP. These records were properly withheld as inter-agency or intra-agency communications and/or attorney-client communications, attorney work product, records that if released could impair a present or imminent contract award and/or information constituting an unwarranted invasion of personal privacy, all exempt from disclosure.

The records before me consist mainly of internal e-mails, many duplicate or chain e-mails between staff containing opinions, advice and deliberations. Also included are multiple maps with estimates, proposals and preliminary plans and changes, as well as attorney-client communications and records created by attorneys in anticipation of litigation. Reports, maps and e-mails prepared for and by our consultants have also been withheld to the extent they consist of opinions and advice. Release of certain records, such as the appraisals completed by our consultants, reports and some e-mails, would impair contract negotiations and awards. Many of the records that have been withheld consist of scheduling of meetings or other mundane communications between staff. Redacted records released on CD contain personal privacy information, such as personal e-mail addresses and/or home phone numbers.

Please be advised that a large portion of the responsive records that are withheld on this appeal are the subject of ongoing litigation before the Supreme Court of New York. A recent decision and order in that matter is enclosed for your convenience. Once a final decision in that matter is rendered, I will forward any records the Court deems to be releasable.

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. 09-22-0A.

Very truly yours,


Dena N. Putnick, Esq.
FOIL Appeals Officer


cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer
Jeanne Konz, Esq., DEC Central Office
Deborah Christian, Office of General Counsel

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