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New York’s Highest Court Expands FOIL Disclosure of Federal Documents Held by State Agencies

By: Michael Lesser

In Matter of the Town of Waterford v. New York State Department of Environmental Conservation, decided on March 22, 2012, the New York Court of Appeals held that New York State must disclose deliberative documents in its possession that had been created by the United States Environmental Protection Agency (“EPA”).   Specifically, the Court held that EPA was not an “agency” subject to the deliberative process exception under New York’s Freedom of Information Law (“FOIL”).  That exception had previously been used by the state to deny access to certain federal data in its files that had been received from EPA.

Since 1984, EPA, the New York State Department of Environmental Conservation, (“DEC”) and the New York State Department of Health (“DOH”) have been jointly engaged in a remediation program to address contamination in the Hudson River.  EPA has been recognized by law as the lead agency.

The Town of Waterford challenged DEC’s denial of portions of its request for information under FOIL.  The Town wished to review alternative water supply analyses for local residents and other deliberative but not final information exchanged between the EPA and state agencies. The information sought included the federal agency’s deliberative analysis of various cleanup options for the project.  The DEC denied access to certain records received and exchanged with the EPA by invoking the FOIL exception for inter-agency or intra-agency materials otherwise known as the deliberative process exception.

Ensuing litigation focused on whether documents originally generated by the EPA, a federal agency, were within the statutory exemption for pre-decisional inter-agency or intra-agency materials.  The Court held that the statutory definition of “agency” does not include federal agencies, consistent with prior determinations of the New York State Committee on Open Government, which has also interpreted the definition of “agency” under applicable New York law to exclude federal agencies. 

 This decision is significant because records previously withheld by federal agencies under federal law, but that have been provided to state agencies, may now be subject to release in FOIL requests directed to state agencies.   Many environmental enforcement and regulatory matters routinely involve agency interaction and the exchange of information between state and federal agencies.   One practical consequence of the ruling going forward may be that federal agencies will be less likely to provide deliberative documents to DEC and other state agencies.

For more information on the Waterford decision, please contact Michael Lesser.

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