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Town of Waterford v. New York State Dep't of Environmental Conservation

August 12, 2010


The opinion of the court was delivered by: Kavanagh, J.


Calendar Date: May 24, 2010

Before: Cardona, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ.

Cross appeals from a judgment of the Supreme Court (McDonough, J.), entered March 30, 2009 in Albany County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent partially denying petitioner's Freedom of Information Law requests.

Petitioner is a Saratoga County municipality located in a water district that draws its drinking water from the Hudson River.*fn1 The Department of Health (hereinafter DOH), the United States Environmental Protection Agency (hereinafter the EPA) and respondent have overlapping jurisdiction and share statutory responsibility for the preparation and subsequent implementation of a hazardous waste remediation plan designed to ameliorate sites in and along the Hudson River identified as contaminated with polychlorinated biphenyls (hereinafter PCBs) (see 42 USC §§ 9601-9628; ECL art 17; Public Health Law § 201 [1] [l]; § 1389-b [1] [a]).

In 2002, almost 20 years after the Hudson River was first placed on the National Priorities List and designated as a Superfund site, a plan was approved by the EPA to dredge the river to remove sediment laden with PCBs (see 42 USC § 9601 et seq.). After the plan was publicly announced, petitioner and other communities located downstream from the dredging project immediately voiced concerns as to the impact dredging the river would have on their water supply. In response to those complaints, the EPA directed General Electric Company to prepare a water supply options analysis, which would evaluate the contingency measures available to provide municipalities with water if their drinking supply was adversely affected by this project. After the final report on this analysis was published, petitioner sought disclosure through the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) of respondent's records regarding how alternate water supplies would be made available during the implementation of the project and the standards to be employed to determine what would constitute an acceptable level of PCBs in a municipality's water supply.*fn2

While respondent provided some documents, it redacted and withheld others claiming that they were exempt from disclosure pursuant to certain exemptions in FOIL (see Public Officers Law § 87 [2] [a], [g]). Petitioner filed an administrative appeal and, in its final determination, respondent provided petitioner with two additional documents that previously were withheld, but concluded that the remaining documents were exempt from disclosure. Specifically, respondent determined that the records being sought contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" and were exempt from disclosure as inter-agency or intra-agency deliberative materials pursuant to Public Officers Law § 87 (2) (g). It also determined that some of the records requested by petitioner contained attorney/client communications or attorney work product, or were confidential settlement negotiations, and were exempt from disclosure pursuant to Public Officers Law § 87 (2) (a) and (g).

Petitioner thereafter commenced this CPLR article 78 proceeding seeking, among other things, a judgment directing respondent to produce those documents it had so far refused to disclose. Concluding that the inter-agency/intra-agency exemption contained in Public Officers Law § 87 (2) (g) did not apply to any communications a state agency might have with a federal entity like the EPA, Supreme Court determined that the documents that were withheld, apart from those that the court designated as records created as part of settlement negotiations, should be disclosed. Both petitioner and respondent now appeal.

The threshold issue raised by respondent's appeal is whether FOIL's inter-agency/intra-agency exemption could ever apply to any communication between state and federal governmental agencies. Petitioner claims -- and Supreme Court agreed -- that the definition of the term "agency" as contained in FOIL established the parameters of this exemption and limits its application to materials exchanged within and between state and municipal governmental agencies.*fn3 Because this interpretation, in our view, is at odds with the fundamental purpose sought to be served by this exemption and, on these facts, ignores the nature of the relationship that has existed for many years between respondent, DOH and the EPA in the planning and implementation of this remediation project, we reverse this part of Supreme Court's judgment and find that, if the other requirements of the exemption have been met, it may apply to records containing communications that have been exchanged between these agencies.

At the outset, we reiterate that the provisions of FOIL must be construed liberally, and that governmental agencies subject to its provisions must, as a general rule, make their records, upon request, public unless the agency can demonstrate that a statutory provision exempting the requested material from disclosure is applicable (see Public Officers Law § 87 [2]; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 417 [1995]; Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 697-698 [1993]; Matter of Stein v New York State Dept. of Transp., 25 AD3d 846, 847 [2006]; Matter of Mingo v New York State Div. of Parole, 244 AD2d 781, 782 [1997]). However, such an interpretation should not "lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted" by the statute or, as in this case, the exemption (Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]; see Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38 [1966]). In our view, the interpretation urged by petitioner -- that this exemption can never be applied to a communication with a federal agency, no matter its content or context -- is dramatically at odds with the very purpose for which this exemption was enacted and one that, on these facts, is not in the public interest.

In deciding to exempt from disclosure under FOIL certain intra-agency or inter-agency materials that contain "communications exchanged for discussion purposes not constituting final policy decisions" (Matter of Russo v Nassau County Community Coll., 81 NY2d at 699), the Legislature recognized the need to "permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure" (Matter of New York Times Co. v City of N.Y. Fire Dept, 4 NY3d 477, 488 [2005]; see Matter of Gould v New York City Police Dept., 89 NY2d 267, 276 [1996]; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132-133 [1985]; Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 984 [2009], lv denied 12 NY3d 712 [2009]).*fn4

Here the issue is not the content or context of the communication; instead, it is the identification of the parties and whether any communication they might have had could qualify for this exemption. In that regard, we believe it important to note that respondent, DOH and the EPA, since 1983, have joined in a collaborative effort to address the environmental threat posed by PCB laden sediments in the Hudson River. Respondent's involvement in this project stems from its statutory responsibility to administer this state's efforts to remediate inactive hazardous waste disposal sites and, with DOH, to assess the risk that contaminants at such sites, like PCBs, pose to human health and the environment. Included in that responsibility is the obligation to design and implement remediation plans for these sites that are funded by the state and are directed at reducing or eliminating the risks that these sites pose to the environment (see Public Health Law § 201 [1] [l]; § 1389-b [1] [a]; 6 NYCRR part 375). The EPA is the federal agency charged with investigating and remediating hazardous waste sites located in the United States, including those that have been contaminated with PCBs (see 42 USC § 9601 et seq.).

After PCBs were found to have contaminated sites in and along the Hudson River, the EPA placed the river on the National Priorities List and, in 1984, entered into the first of a series of Cooperative Agreements with respondent by which these agencies would collaborate in the preparation of a plan designed to address the PCB contamination. Pursuant to these agreements, respondent agreed to "provide support agency activities assistance," which included "furnish[ing] necessary data to the lead agency [i.e., EPA], review[ing] response data and documents, and provid[ing] other assistance to the lead agency" (40 CFR 35.6015 [a]; see 40 CFR 300.05). For its part, the EPA, as the lead agency, agreed that the project as implemented would comply with the state Environmental Conservation Law and, in that regard, would employ the "level or standard of control" established by New York State law with respect to pollutants such as PCBs (see 42 USC § 9621 [d] [2] [A]). Given this relationship -- and the statutory requirement that these governmental agencies collaborate in the formulation and subsequent implementation of a plan to address PCB contamination in the Hudson River -- the need for their personnel to be able to engage in an open and frank exchange of ideas as to how best to achieve this result is manifest. The exemption was enacted in recognition that this type of communication between governmental agencies requires a measure of privacy to insure "'that persons in an advisory role would be able to express their opinions freely to agency decision makers'" on how best to address a problem implicating their statutory responsibilities (Matter of Xerox Corp. v Town of Webster, 65 NY2d at 132, quoting Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546, 549 [1981]; see Ryan v Department of Justice, 617 F2d 781, 789-791 [DC Cir 1980]).

Petitioner has not challenged the relationship that respondent maintains it has with DOH and the EPA, or that all three agencies are obligated by statute, as well as contract, to collaborate on this remediation project. Instead, petitioner contends that this exemption does not apply because "agency," as defined in FOIL, is limited to state and municipal governmental entities and, therefore, this exemption cannot be used to protect communications that these agencies might have with an outside entity like the EPA.*fn5 However, this definition, given its placement in the statute, was obviously ...

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