Third Department Reviews Freedom of Information Law Applicability to Hudson River PCB Cleanup Records

In the Matter of Town of Waterford v. New York Department of Environmental Conservation, __ N.Y.S.2d ___ (2010) the Appellate Division, Third Department addressed the scope of exemptions to New York’s Freedom of Information Law (FOIL), codified in Article 6 of the Public Officers Law (POL).  Specifically, the Court examined whether the “inter–agency and intra-agency communications” exemption to disclosure applied to communications between a state agency, the Department of Environmental Conservation (DEC) and a federal one, the US Environmental Protection Agency (EPA).  The Court also reviewed whether documents created as part of settlement negotiations could be properly withheld from disclosure.

This case involved the Town of Waterford’s FOIL request to the DEC for disclosure of certain information relating to the EPA-directed cleanup of PCB-laden sediment in the Hudson River by General Electric (GE).  Waterford draws its drinking water from the Hudson River downstream of the PCB cleanup area and had expressed to the EPA its concerns over the impact that GE’s dredging of PCBs might have on its drinking water supply.  In response, EPA directed GE to conduct a water supply analysis to evaluate contingency measures available to towns like Waterford in the event the dredging adversely affected their drinking supplies. Waterford sought, through a FOIL request, the disclosure of records relating to GE’s analysis.  DEC released some documents but withheld others, including records relating to communications between DEC and EPA, on the grounds that they contained “opinions, ideas or advice exchanged as part of the consultative or deliberative process of government decision making,” within the FOIL exemption for inter-agency communications.  DEC also asserted that some of the records were withheld because they were created as part of “confidential settlement negotiations.”

Waterford thereafter commenced an Article 78 proceeding seeking the release of these records, arguing that the FOIL exemptions relied upon by DEC did not apply.  The Supreme Court ruled that the inter-agency communication exemption did not apply to communications with a federal entity such as the EPA and ordered the release of those records.  It also ruled that records created as part of settlement negotiations did not have to be disclosed.  Waterford and the DEC both appealed.

The appeals Court first examined the question of whether the “inter-agency communication” exemption can ever apply to communications between a New York State agency (such as the DEC) and a federal governmental agency (such as EPA).  The Court noted that the inter/intra-agency communication exemption was enacted to allow people within an agency to “exchange opinions, advice and criticism freely and frankly without the chilling prospect of public disclosure.”  It reaffirmed the rule that agency records must be released unless the state agency can show that one of the statutory FOIL exemptions specifically apply.  Interestingly, the Court emphasized that this rule should not lead to unreasonable results or be used as a basis to defeat the purpose and policy of FOIL (allowing public access to governmental records) or of the statutory exemptions (encouraging debate within or between agency employees).

In deciding whether the inter-agency communication exemption should apply to DEC communications with EPA, the Court summarized the long history of coordinated and collaborative efforts between the DEC and EPA during their 25-plus year effort to address the Hudson River PCB contamination. The Court stated that given such collaboration, the “need for [DEC and EPA] personnel to be able to engage in an open and frank exchange of ideas as to how to best to achieve [a cleanup] is manifest.” 

Though outside entities, such as EPA, do not fall within the literal definition in the statute of “agency,” the Court found that this exemption had been applied to such entities by other courts. To determine if the exemption should apply to EPA, in this case, the Court stated that its focus must be on the nature of the relationship between the entities and whether the communications at issue are “part of the deliberative process in government decision-making.”  Given the multi-year relationship between the state and federal agencies working on the Hudson River PCB cleanup, the Court ruled that the communications between them “may well be part of the deliberative process,” which qualified for the inter-agency exemption.  The Court sent the matter back to the Supreme Court to conduct an in-camera review of the withheld documents to determine if they qualify as exempt communications. 

The Court also briefly addressed Waterford’s cross-appeal on the issue of whether records of communications between DEC, EPA and GE could be withheld because they were in furtherance of settlement negotiations.   The Court agreed with Waterford that the Supreme Court improperly upheld DEC’s withholding of these records.  Noting that an agency can only deny access to records which are specifically exempted from disclosure by state or federal statue, the Court found that DEC did not identify a single statute which exempted the disclosure of documents created as part of settlement negotiations.  Thus, the Court ruled that DEC failed to show that these records were specifically exempted from disclosure and, therefore, should not have been withheld.

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