Kenneth S

Kenneth S. Kamlet

Attorney at Law

3101 Shippers Road, P.O. Box 678

Vestal, New York 13851-0678

This is an appeal of the partial denial of my FOIL Request (sent by Fax on February 7, 2002) to the DEC Records Access Officer. In a response letter (“DEC Denial Letter”) dated February 8, 2002 (received today) from Elissa Armater, DEC Division of Environmental Enforcement Legal Assistant, one of two requested documents was withheld under the exemption for certain inter-agency or intra-agency materials (Public Officers Law § 87(2)(g)). A copy of this denial letter is attached.

The document to which I was denied access is DEC’s “Voluntary Cleanup Program Internal Procedures” (latest version) [“VCP Procedures”]. The DEC Denial Letter characterized this document as “a non-final agency document falling within the 87(2)(g) exemption.”

1. THE CITED FOIL EXEMPTION DOES NOT APPLY TO INTRA-AGENCY MATERIALS OR NON-FINAL AGENCY DOCUMENTS THAT ARE “INSTRUCTIONS TO STAFF THAT AFFECT THE PUBLIC” (Public Officers Law §87(2)(g)(ii)).

a. The § 87(2)(g) exemption only applies to certain inter-agency or intra-agency materials. Such materials are not exempted from disclosure if they fall into any one of three enumerated categories. Even if it were true, as argued by DEC staff, that the requested VCP-Procedures-document does not constitute “final agency policy or determinations” under § 87(2)(g)(iii), it would still be subject to disclosure because it most assuredly does constitute “instructions to staff that affect the public” under § 87(2)(g)(ii). By the clear terms and intent of the § 87(2)(g) exemption, inter- or intra-agency materials—whether or not they represent “final agency policy or determinations”—may not be withheld if they are “instructions to staff that affect the public” (under subparagraph (g)(ii)), or if they are “statistical or factual tabulations of data” (under subparagraph (g)(i)). Any one of the three enumerated exceptions to non-disclosure is sufficient to defeat denial of access.

b. In this case, the requested VCP-Procedures-document without doubt constitutes “instructions to staff that affect the public.” To my personal information and knowledge (I am prepared to set this forth in a sworn affidavit, if necessary), numerous provisions of the VCP-Procedures-document directly and significantly “affect the public.” They especially affect members of the public who entered into Voluntary Cleanup Agreements (VCAs) with DEC prior to the effective date of the VCP Procedures. Let me be specific. The VCP-Procedures-document affects the regulated public in at least the following respects:

· It establishes procedures for internal and external coordination that will have a direct bearing on the length of time it will take for VCP applicants to be notified of their eligibility and/or approval to participate in the program. (Part II.)

· It specifies that remediation-VCAs “must include” requirements for appropriate engineering and/or institutional controls that may be deemed necessary. (Para. III.A.1.b.) Not only does this preclude “No Further Action”-type VCAs, where low levels of contamination are found, but it may also contradict previously negotiated VCAs that contain no similar prescription.

· It specifies that “written concurrence” must be obtained from the Health Department(s) on remediation work plans (Para. III.A.3.b.), despite the lack of any comparable requirement in previously negotiated VCAs. The State Department of Health is not typically (or ever?) a party to Voluntary Cleanup Agreements. Cleanup volunteers, in negotiating a VCA with DEC, commit to implement certain circumscribed requirements vis-à-vis DEC. They do not agree to comply with open-ended, unspecified wants and desires on the part of DOH.

· It requires cleanup volunteers, in the case of remediation VCAs, to “submit an engineering report certified by a professional engineer registered in New York State” that identifies the contamination problems and demonstrates that the remedy can achieve the cleanup objectives. (Para. III.A.3.c.) Not only is this a new requirement, but it is an unprecedented one. No other State or territory requires a P.E. certification as a prerequisite to accepting a remediation work plan in the context of a Voluntary Cleanup Program.

· It requires the cleanup remedy to be evaluated “against the factors given in 6 NYCRR 375-1.10(c). (Para. III.A.3.c.) The Part 375 factors were designed to, and by their terms, apply to State Superfund Sites. The VCP-Procedures-document makes these factors applicable for the first time to voluntary cleanups—even where they may conflict with previously negotiated, legally enforceable voluntary cleanup agreements. (This is particularly true in the case of the Part 375 factor that requires the remedy to conform to State Standards, Criteria and Guidance [SCGs] that go beyond the cleanup goals specified in the applicable VCA.)

· It introduces new statewide “consistency” requirements that inappropriately (without the benefit of notice-and-comment rulemaking) require the same stringent cleanup standards that apply to high-value downstate properties to be applied to much lower-value upstate properties—and regardless of risk factors that make different properties in different parts of the state non-comparable. (Part III.B.) It also requires written concurrence by DOH (Para. III.B.3.), which gives that agency the unbridled ability to exceed its statutorily-limited authorities as the price for its concurrence—to the detriment of the cleanup volunteer.

· It requires written DOH concurrence before the DEC project manager may approve submittals by the cleanup volunteer. (Para. V.A.2.) Since DOH is not a party to VCAs, and has no obligation to comply with time limits and other requirements (e.g., providing a written rationale for negative comments or additional testing or cleanup recommendations) imposed by an applicable VCA, this often results in long delays and unexplained comments and requirements.

c. The DEC Denial Letter gives no rationale or explanation for its denial decision but merely makes the conclusory general statement that the VCP-Procedures-document “is a non-final agency document falling within the 87(2)(g) exemption.” Furthermore, the Denial Letter does not even contend that the VCP-Procedures-document does NOT “affect the public” within the meaning and intent of Public Officers Law § 87(2)(g)(ii). It is thus insufficient on its face to support the denial decision.

Under FOIL, “[i]n the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two.” (Public Officers Law § 89(4)(b).) Miracle Mile Assoc. v. Yudelson, 68 A.D. 2d 176, 180 (4^th Dept. 1979) (held: in camera inspection was properly ordered “where the agency fails to give sufficiently detailed information with respect to the material allegedly exempt to permit the trial court to decide the issue”; “merely general statements worded in conclusory fashion” were deemed “insufficient”).

2. CONTRARY TO THE CONCLUSORY ASSERTION OF THE DEC DENIAL LETTER, THE WITHHELD VCP-PROCEDURES-DOCUMENT WOULD NOT BE A PROTECTED NON-FINAL AGENCY DOCUMENT—EVEN IF THE DOCUMENT DID NOT “AFFECT THE PUBLIC.”

a. The DEC Denial Letter provides no documentation or support for its contention. It merely makes a conclusory general statement which is insufficient on its face. (See above.)

b. The non-final document exception was intended to protect the free exchange of ideas among government policy-makers and to protect the deliberative process. “[I]t does not authorize an agency to throw a protective blanket over all information by casting it in the form of an internal memo.” Wu v. National Endowment for Humanities, 460 F.2d 1030, 1033 (___ Cir. ____), cert. den. 410 U.S. 926, cited in Miracle Mile Assoc., supra, at 183. “The question in each case is whether production of the contested document would be injurious to the consultative functions of government that the privilege of non-disclosure protects.” Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (U.S. ___), cited in Miracle Mile Assoc., supra, at 183. There is absolutely no basis for believing that disclosure of the VCP-Procedures-document would interfere in any way with the deliberative process of DEC, the free exchange of ideas among government policy-makers, or the consultative functions of government. Instead, it would appear that the only rationale for non-disclosure is to protect DEC from the embarrassment of disclosing to the public that it is unilaterally altering important Voluntary Cleanup Program policies, adopting what amount to “rules” without adhering to formal rulemaking procedures, and establishing indefensible new policies that are making the Voluntary Cleanup Program less and less attractive to potential cleanup volunteers.

c. The Voluntary Cleanup Program Internal Procedures at issue here are intended in part to fill a vacuum that exists because of the absence of formal VCP regulations or published guidance. To the best of my information and belief, the current version of these Procedures has been in effect since 11/30/99—a period of 2-1/2 years. (Predecessor versions were in effect for an unknown period prior to that time.) There are no plans to my knowledge to promulgate a further iteration of these Procedures as formal regulations or guidance. Clearly, this is not a draft document that should not be released to the public until it is finalized. It is as final is it is going to get (although it may be further fine-tuned periodically). As discussed in the advisory opinions of the Committee on Public Access to Records (the State agency charged with administering the Freedom of Information Law), the non-final document exception was never intended to deny access to records “which contain any… factual information, policy or determinations upon which the agency relies.” Matter of Sheehan v. City of Binghamton, 59 A.D.2d 808, 809. I can personally attest to the fact that DEC project managers, in interacting with cleanup volunteers and carrying out their responsibilities under the Voluntary Cleanup Program, rely (and are required by their superiors to rely) on the procedures and requirements set forth in the Voluntary Cleanup Program Internal Procedures. If the requirements of the Procedures conflict with provisions of a duly executed VCA, they are obliged to adhere to the Procedures—if they want to stay in the good graces of their superiors. That can have (and is having) very detrimental impacts on cleanup volunteers and on the purposes and objectives of the Voluntary Cleanup Program.

For all of the foregoing reasons, the February 8^th DEC denial decision should be reversed and access should be provided forthwith to the requested VCP-Procedures-document.