N.Y. high court rules certain records about Hudson River contamination can be public

The New York Court of Appeals ruled that communications between a federal and state agency about efforts to decontaminate part of the Hudson River did not qualify as intra- or inter-agency records and are not exempt under the state Freedom of Information Law.

At issue was whether communications between the Environmental Protection Agency, a federal agency, and the New York State Department of Environmental Conservation (DEC) may be withheld from disclosure as "inter-agency or intra-agency" records that would reveal deliberations during the decision-making process, according to the court's ruling. The purpose of the exemption, as the court explained, is to permit agency employees "to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public."

According to the opinion, the EPA and DEC have been working together since 1984 to address the presence of contaminated water in a 200-mile portion of the Hudson River. In 2002, the EPA approved a remediation plan that required General Electric to dredge the river to remove sediment contaminated with polychlorinated biphenyls (PCBs) and prepare an analysis of alternative water supply options for towns in which the water supply might be affected by the dredging project.

The Town of Waterford filed an open records request with the DEC seeking certain records pertaining to the dredging project and contamination, according to court papers. The DEC released some of the records, but claimed it could withhold others under the deliberative process exemption.

The state high court disagreed, ruling that the communications exchanged between the agencies were neither "intra-agency" nor "inter-agency."

First, the court noted, the definition of “agency” under the Freedom of Information Law is limited to state and municipal agencies and does not include those at the federal level.

“Since the EPA is not an 'agency' for purposes of FOIL, the inter-agency exemption does not apply to materials exchanged between these entities,” the court ruled.

Second, the court rejected the argument that because the EPA was basically a consultant for the DEC on the dredging project, the communications were "intra-agency" documents exchanged within a single agency.

The DEC raised the argument that the court had previously considered — in some situations — “documents prepared by a party that is not an ‘agency’" to constitute "intra-agency" materials where the material was prepared by an outside consultant retained by the agency, according to court papers.

However, the court rejected the DEC’s argument that the EPA was an outside consultant for the purposes of the exemption because in order to form an "intra-agency" relationship, the outside consultant must not have its own interest in the project. While the EPA and DEC did have a "collaborative relationship" and were working toward the same goal, the EPA was not functioning as the DEC's agent or employee, and was in fact the lead agency for the project, the court noted.

"Moreover, unlike typical consultants, these agencies represent different constituencies and their interests may diverge," the court said. Therefore, it ruled that the communications were not "intra-agency" material that could be withheld under the exemption.

The court's opinion overturned the ruling of a lower court, which had upheld the applicability of the exemption on the basis that the agencies' "long-term collaborative relationship" made the records inter- or intra-agency records.

The Town of Waterford wanted the documents because people have a right to know how the government reaches decisions and makes policies that affect “tens of thousands of people,” said John Lawler, town supervisor of Waterford.

“At the end of the day, government needs to be held accountable to people" and needs to release information that the people have a right to have, Lawler said.

Representatives for the DEC were unable to comment.

Related Reporters Committee resources:

· News: New York appeals court expands scope of records exemption

· News: Court forces EPA to release GE discussion records

· New York – Open Government Guide: 2. Discussion of each exemption.