Town of Waterford v. New York State Department of Environmental Conservation

77 A.D.3d 224, 906 N.Y.S.2d 651
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 12, 2010
StatusPublished
Cited by11 cases

This text of 77 A.D.3d 224 (Town of Waterford v. New York State Department of Environmental Conservation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Waterford v. New York State Department of Environmental Conservation, 77 A.D.3d 224, 906 N.Y.S.2d 651 (N.Y. Ct. App. 2010).

Opinions

OPINION OF THE COURT

Kavanagh, J.

Petitioner is a Saratoga County municipality located in a water district that draws its drinking water from the Hudson River.1 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] [1]; § 1389-b [1] [a]).

[226]*226In 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.2

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 [227]*227and, 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.3 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.

[228]*228At 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. ofTransp., 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]).4 Here the issue is not the content or context of the communication; [229]*229instead, 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Ryan v. Watershed Agric. Council of the N.Y. City Watersheds, Inc.
Appellate Division of the Supreme Court of New York, 2026
Padgett v. Winslow
2025 NY Slip Op 50895(U) (New York City Court, 2025)
McQueen v. Bank of New York
57 Misc. 3d 481 (New York Supreme Court, 2017)
City of Newburgh, N.Y. v. Hauser
126 A.D.3d 926 (Appellate Division of the Supreme Court of New York, 2015)
Smith v. New York State Office of Attorney General
116 A.D.3d 1209 (Appellate Division of the Supreme Court of New York, 2014)
Hayes v. Chestertown Volunteer Fire Co.
93 A.D.3d 1117 (Appellate Division of the Supreme Court of New York, 2012)
TJS of New York, Inc. v. New York State Department of Taxation & Finance
89 A.D.3d 239 (Appellate Division of the Supreme Court of New York, 2011)
Chevere v. City of New York
31 Misc. 3d 337 (New York Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
77 A.D.3d 224, 906 N.Y.S.2d 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-waterford-v-new-york-state-department-of-environmental-nyappdiv-2010.