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FOIL Appeal Determination 09-34-3D (Mike Lee, November 25, 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


November 25, 2009

Mike Lee
Pace Environmental Litigation Clinic, Inc.
78 North Broadway
White Plains, New York 10603

Re: Freedom of Information Law ("FOIL") Appeal No. 09-34-3D
FOIL Request #09-2192 (Regional FOIL Request #716-3/09)
Accord Speedway

Dear Mr. Lee:

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's Region 3 staff to withhold six records that were determined to be responsive to your request. I requested the records that were withheld by staff and conducted a review of those records.

On October 9, 2009, you requested records pertaining to Accord Speedway issued or created from January 1, 2009 to the present. On October 27, 2009 the Department's Region 3 Division of Water responded to your request by releasing 14 pages of records and withholding 9 pages of records as either inter-agency communications or records exempt from disclosure pursuant to state or federal statute. By letter dated November 12, 2009 you filed this appeal with my office.

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]). Thus, a record subject to a confidentiality 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]).
The attorney-client communications are exempt pursuant to POL §87(2)(a) and 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]).

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 disclosure "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 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"]).

The records before me on this appeal consist of four e-mails and two memoranda. I have determined that release to you two e-mail records. The records being released consist of factual or statistical data that shall be released to the public pursuant to POL §87(2)(g)(i).

The remaining four records were properly withheld, but under different grounds than stated in staff's FOIL response of October 27, 2009. Staff stated that four (4) records could be withheld from disclosure pursuant to POL §87(2)(a) and POL §87(2)(g).

I have determined that only two records can be withheld pursuant to both POL §87(2)(a) as attorney work product and/or attorney client communications and POL §87(2)(g) as intra-agency privileged communications. These two records consist of communications between DEC staff and either the Attorney General's office or DEC staff attorneys.

The remaining two records were properly withheld as intra-agency or inter-agency deliberative communications. They consist of requests, ideas and recommendations between and amongt staff. Release of such records would hamper the deliberative process and would not enable staff to freely express their opinions.

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. 09-34-3D.

Very truly yours,


Dena N. Putnick, Esq.
FOIL Appeals Officer

cc: Robert Freeman, Executive Director
Committee on Open Government (w/ copy of FOIL Appeal)
Ruth Earl, Records Access Officer
Michael Knipfing, Region 3 FOIL Coordinator
Beth Zicca, Region 3 Division of Water

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