New York appeals court expands scope of records exemption

A New York appellate court in Albany on Thursday ruled that the "deliberative process" exemption to the state's freedom of information law ("FOIL") applies to communications between federal and state officials. At issue in the case were records sought by a Saratoga County water district relating to a water supply option report developed by General Electric Co. as part of its efforts to remediate contaminated portions of the Hudson river. New York state officials, in conjunction with the U.S. Environmental Protection Agency, had co-regulatory authority over the cleanup project.

Water district officials expressed concern that plans to dredge upriver portions of the Hudson river to remove hazardous PCB sediments could negatively affect the local water supply. They therefore requested the disclosure of a variety of documents under FOIL related to the proposed remediation plan, including some communications between EPA and state officials.

The state refused to disclose certain records, claiming that they constituted intra-agency or inter-agency pre-decisional deliberative materials that were exempt from disclosure under the law. FOIL provides for such an exemption on the grounds that pre-decisional communications exchanged internally purely for discussion purposes should be protected in order to promote frank and open discussion.

The water district argued that the inter-agency and intra-agency confidentiality protections only covered an "agency" as that term was defined under FOIL. FOIL limits the definition of an "agency" to state and municipality entities thus arguably not covering communications with federal bodies such as EPA. The lower court agreed with the water district's reading of the law.

The appeals court, however, disagreed. It first recognized that neither "inter-agency" nor "intra-agency" were defined under FOIL and that prior case law has interpreted these terms to include certain non-state entities despite how the term "agency" is defined under the same law. The court went on to rule that the proper test to uphold the intent of the deliberative process exemption "can only be served by focussing on the nature of the relationship that exists between the entities, and asking whether the communication in question is exchanged as part of the deliberative process in government decision-making."

Applying that test, the court noted that the relationship between federal EPA and state officials "has existed for more than 25 years" and was in place due to statutory and contractual obligations that required cooperation. "In terms of this project, [New York state] and the EPA share a common objective, and by law as well as by contract are required to work as one unit to achieve that objective," the court stated.

The court then ordered the lower court to conduct a review of the documents at issue to determine which, if any, of the withheld documents constituted deliberative process communications. In addressing a separate claim, the court also ruled that certain settlement negotiation documents were improperly withheld, finding that the state failed to provide any specific legal basis supporting non-disclosure.

In dissent, one member of the court noted that the majority's decision "thwarts the basic premises that FOIL is to be construed liberally, that government records are presumptively available for public inspection, and that exemptions are to be construed narrowly." The dissent goes on to highlight the limited definition of an "agency" under FOIL and notes that the state Committee on Open Government (a persuasive but non-binding authority) has previously — and correctly — found that communications between the state and EPA are not covered under the deliberative process exemption.

The dissent also distinguishes prior case law holding that certain non-state, non-municipality entities can qualify for deliberative process protection by stating that such inclusion had previously only applied when the non-state actor was in a consulting position. Here, the dissent found the EPA to be acting with independent authority.