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Court Of Appeals Finds EPA Is Not An “Agency” for Purposes of Exemption of Communications From Disclosure Under FOIL

The New York Court of Appeals issued a decision today finding that the inter-agency/intra-agency exemption under the Freedom of Information Law (FOIL) does not apply to Federal Agency communications with State Agencies. The case of Matter of Town of Waterford v New York State DEC, was extensively discussed in a post on this Blog when the Appellate Division (77 A.D.3d 224 (3rd Dept. 2010)) held that such communications could be exempt. Today’s decision reverses that holding.

The Court noted that while there is an exemption for “pre-decisional inter-agency or intra-agency materials” (Public Officers Law § 87(2)(g)) the term agency has a specific definition and under FOIL
“‘[a]gency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature’ (Public Officers Law § 86 [3])”

The Court thus concluded that the EPA, as a Federal Agency, is not included within the definition of agency for purposes of FOIL and therefore does not fall within the exemption. In addressing the Town’s arguments that there have been cases where the intra-agency exemption has been applied to outside parties, the Court drew a clear distinction:

“We have held that the purpose of the intra-agency exception is to allow individuals within an agency to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]; Matter of Xerox Corp. v Town of Webster (65 NY2d 131, 132 [1985]). In Xerox, we determined that real estate appraisal reports prepared by a private consulting firm at the agency’s request were exempt from disclosure as intra-agency material (see 65 NY2d at 133). We observed that ‘[i]t would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies’ (Xerox, 65 NY2d at 133).”

While the court noted that the DEC and EPA were working in a collaborative manner on the particular matter at issue, this was not the same as an outside consultant, as the EPA was not retained by the DEC and was not an employee or agent of DEC.

-Steven M. Silverberg