By: Daily Record Staff//August 16, 2010
By: Daily Record Staff//August 16, 2010//
Appellate Division, Third Department
Freedom of Information
Matter of Town of Waterford v. New York State Department of Environmental Conservation
Article 78 Proceeding; Supreme Court, Albany County
Background: The parties appeal from a judgment of the supreme court, which partially granted the petitioner’s application to annul a determination of the respondent partially denying petitioner’s Freedom of Information Law requests. The petitioner is a Saratoga County municipality located in a water district that draws from the Hudson River. For many years, a hazardous waste remediation plan was in the works that would ameliorate sites in and along the river identified as contaminated with polychlorinated biphenyls. In 2002, a plan was approved to dredge the waterway and litigation ensued. The petitioner sought disclosure through the Freedom of Information Law of the 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. While the respondent provided some documents, it redacted and withheld others, claiming they were exempt from disclosure pursuant to certain exemptions in FOIL. The petitioner filed an administrative appeal and, in its final determination, the respondent provided the petitioner with two additional documents that previously were withheld, but concluded the remaining documents were exempt from disclosure. The respondent determined that the records being sought contain “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).
Ruling: Under the circumstances, communications among the agencies may well be part of the deliberative process and qualify for protection of the intra-agency or interagency exemption. Since the supreme court limited its decision to an interpretation of the phrase “intraagency/inter-agency materials,” the court must remit the matter to conduct an in camera review of the materials at issue and determine whether they otherwise qualify as exempt communications under Public Officers Law §87(2)(g). The judgment is modified by reversing so much thereof as granted that part of the petitioner’s application for disclosure of certain records as not falling within the inter-agency/intra-agency exemption, and dismissed that part of the petitioner’s application for disclosure of portions of Records 228 and 239 and the entirety of Records 242 and 243; the petition is granted to the extent of disclosing those records, and the matter is remitted to the supreme court for further proceedings.
Paul Groenwegen, assistant New York State Attorney General, for appellant-respondent; Craig M. Crist of Dreyer Boyajian LLP for respondent-appellant