18 N.Y.3d 652
N.Y.2012Background
- Town of Waterford sought FOIL records relating to Hudson River dredging and alternative water supplies for residents.
- DEC withheld some records, relying on the inter-agency or intra-agency materials exemption (Public Officers Law § 87 (2) (g)).
- EPA placed a portion of the Hudson River on the NPL in 1984; EPA leads remediation, with DEC and DOH sharing duties.
- EPA approved a 2002 remediation plan; GE agreed to perform remedial action under EPA supervision and consent decree.
- Town requested materials exchanged among DEC, DOH, and EPA about PCB levels and Water Supply Options Analysis.
- Supreme Court and Appellate Division rulings differed on whether EPA communications fall within FOIL exemptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is EPA an 'agency' for FOIL purposes? | EPA not an 'agency' under FOIL. | EPA should fit within inter/agency framework. | EPA not an 'agency'; exemption inapplicable. |
| Does inter-agency exemption apply to federal-state communications? | Inter-agency exemption should not cover federal communications. | Inter-agency exemption should apply to pre-decisional material. | Inter-agency exemption does not apply to EPA–DEC records. |
| Can intra-agency exemption cover communications involving outside federal actors? | EPA-like parties could be protected as intra-agency deliberations. | EPA is not a retained consultant; may have divergent interests. | EPA not an agency or retained consultant; exemption not extended. |
Key Cases Cited
- Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246 (1987) (FOIL should be liberally construed to maximize access)
- Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359 (2002) (exemptions narrowly interpreted; burden on agency)
- Matter of Fink v Lefkowitz, 47 NY2d 567 (1979) (statutory exemptions narrowly construed)
- Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477 (2005) (deliberative process protections apply to internal material)
- Xerox Corp. v Town of Webster, 65 NY2d 131 (1985) (outside consultants may be exempt when conducting deliberative process)
- Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001) (consultant characteristics affect deliberative-process protection)