ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 19, 2012

Another FOIL Lesson: Be mindful of your audience


Another FOIL Lesson: Be mindful of your audience

Source Patrick M. Malgieri, Esq. – Posted on the NYMuniBlog* July 18, 2012 - Reprinted with the permission of NYMuniBlog

Another FOIL Lesson: Be mindful of your audience by Patrick M. Malgieri could be sub-title “Another example of the Doctrine of Unintended Consequences.”

Mr Malgieri writes:

“In a recent decision of the New York Court of Appeals, the state’s highest court determined that records exchanged by a state agency with a federal agency were not entitled to an exemption from disclosure under the state’s Freedom of Information Law set out in Article 6 of the New York Public Officers Law.**  In the case of Waterford v. New York State Department of Environmental Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (March 22, 2012), the town of Waterford sought to obtain from the DEC records relating to the joint DEC and U.S. Environmental Protection Agency project in the Hudson River dredging PCBs deposited in the Hudson River.  While DEC complied with a portion of the request, it denied access to certain records that had been exchanged between it and the EPA, claiming that the “inter-agency” exception set out in Section 87(2)(g) of the Public Officers Law exempted those records from disclosure.

“The court, in an opinion by Chief Judge Lippman, found that the term 'agency' as defined in Section 86(3) of the Public Officers Law included only state and municipal agencies.  As such, the EPA, as a federal agency, did not constitute an agency for purposes of FOIL.  Consequently, the inter-agency exemption did not apply to the materials exchanged between the state and federal agencies.

“DEC also argued that the 'intra-agency' exemption would be applicable to these records.  The Court of Appeals had long ago found that, in furtherance of the deliberative process, the intra-agency exception could extend to records exchanged between a public agency and outside consultants engaged by that agency. 
However, the court in Waterford declined to apply the exemption, finding that, in this instance, the EPA was the lead agency on the project and ‘was not retained by the DEC and does not function as its employee or agent.’

“Public officials would do well to keep in mind that all public records and communications are presumptively subject to disclosure unless the record or the circumstance falls within one of the relative handful of express exceptions set out in the Public Officers Law or an exception to disclosure set out in another statute or is covered under a statutory or common law privilege (such as the attorney-client privilege).  One of the easiest traps in which public officials may fall is when they communicate with or share a record with someone to whom the exception or privilege does not extend.  In Waterford, that someone was a federal agency which, although concededly a governmental entity, was not among the governmental agencies identified in the FOIL statute. 

“Another ready trap is when a record or communication is shared with or made to a group of individuals and/or entities (such as an e-mail to a large number of recipients), not all of whom fall within the exception or privilege. One stray recipient can unwittingly subject the entire record to disclosure.”

* You may register to receive the NYMuniBlogvia e-mail at:

**  NYPPL Notes: The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited or prohibited by statute, are to be made available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to such disclosure permitted by FOIL.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.