Union Carbide Corp. v. N.Y.S. Dep't of Envtl. Conservation

• Decision Date: 10 December 2020
• Docket Number: 530766
• Citation: 138 N.Y.S.3d 209,189 A.D.3d 1805
• Parties: In the Matter of UNION CARBIDE CORPORATION et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1805

138 N.Y.S.3d 209

In the Matter of UNION CARBIDE CORPORATION et al., Appellants,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

530766

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 21, 2020

Decided and Entered: December 10, 2020

Bryan Cave Leighton Paisner LLP, New York City (Courtney J. Peterson of counsel), for appellants.

Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from a judgment of the Supreme Court (Young, J.), entered September 16, 2019 in Albany County, which partially dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioners' Freedom of Information Law requests.

In 2017, petitioner Union Carbide Corporation and two other entities were sued in federal court by commercial and residential property owners as a result of respondent's public declarations that radioactive slag was placed on their properties by Union Carbide's predecessor in the early 1960s. The properties at issue in the litigation are removal sites, which include, but are not limited to, sites located on Niagara Falls Boulevard in the City of Niagara Falls, Niagara County (hereinafter the NFB site) and at Holy Trinity Cemetery located in the Town of Lewiston, Niagara County (hereinafter the HTC site). In 2008, respondent conducted a study (hereinafter the fingerprinting study) that showed that the composition of the slag produced at the predecessor's facility in the 1960s was markedly different from, and thus was not, the source of the slag found at the NFB site and the HTC site. However, respondent continued to maintain that Union Carbide's predecessor was the source of the radioactive slag at these sites, which resulted in Union Carbide being named a defendant in the federal action. Petitioners learned of the fingerprinting study and its conclusions as a result of a Freedom of Information Act (see 5 USC § 552 ) request made to the Environmental Protection Agency (hereinafter EPA) and the response by the EPA, which included the production of documents (hereinafter the fingerprinting documents) as well as the EPA's determination that the slag from the 1960s did not match the slag found at the NFB site and the HTC site. In order to establish its defense in the federal litigation, petitioners made three related Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) requests to respondent in 2017 and 2018. The requests included, among other things, various categories of documents relating to the fingerprinting documents (hereinafter documents relating to the fingerprinting documents) and communications sent or received by Tom Papura (hereinafter the Papura communications), respondent's radiation specialist who headed the fingerprinting study and authored some of the fingerprinting documents.

Petitioners' initial FOIL request was submitted in June 2017 and sought 10 categories of documents related to, among other things, any investigation, remediation or removal activities of radioactive material located at or under certain named removal sites. In December 2017, petitioners received a partial response, which included records that were redacted pursuant to Public Officers Law § 87(2)(g). At the suggestion of respondent's Records Access Officer, petitioners agreed to narrow their request to expedite an "initial production" and submitted a modified request (hereinafter the modified June 2017 FOIL request) that significantly narrowed the original FOIL request and excluded emails. Respondent released certain records in January 2018, and notified petitioners that "portions of responsive records have been redacted or withheld pursuant to [Public Officers Law] § 87(2)(g) as they contain deliberative intra-agency communications, and [Public Officers Law] § 87(2)(b) to prevent an unwarranted invasion of personal privacy." The records provided to petitioners in February 2018, in response to the modified June 2017 FOIL request, did not contain documents relating to the fingerprinting documents or emails. Moreover, respondent did not state that documents relating to the fingerprinting documents had been withheld under any exemption or privilege or could not be located after a diligent search. Petitioners then asked that documents relating to the fingerprinting documents be produced and were advised that all records in respondent's files relative to the NFB site and the HTC site had been produced or could be accessed in hard copy records. Again, respondent did not state that documents relating to the fingerprinting documents had been withheld under any exemption or privilege or could not be located after a diligent search. On February 13, 2018, petitioners received hard copy documents that contained the fingerprinting documents themselves but did not contain any documents relating to the fingerprinting documents or any emails. No other documents were released that purported to be responsive to petitioners' June 2017 FOIL request or the modified June 2017 FOIL request.

Petitioners' second FOIL request, submitted on February 14, 2018, sought to recover email communications, documents and the Papura communications that had not been obtained from the modified June 2017 FOIL request. The second request also sought production of documents relating to a third site. On February 15, 2018, respondent claimed that "any records in possession of [respondent] responsive to the request have already been furnished to you." Less than a week later, only records relating to the radioactive slag found at the third site were released. Petitioners were informed that no additional responsive records were found with respect to the February 2018 FOIL request. In March 2018, petitioners submitted a third FOIL request, which mirrored the February 2018 FOIL request, seeking documents relating to the fingerprinting documents and Papura communications that had not previously been provided. In the months that followed, respondents produced a few Papura communications but no documents relating to the fingerprinting documents.

In August 2018, petitioners filed an administrative appeal, contending that, with respect to all three FOIL requests, respondent improperly denied access to the fingerprinting documents and other communications relating to the fingerprinting study. Respondent's FOIL Appeals Officer determined that the first two FOIL requests had been administratively closed since records responsive to those requests had been uploaded to GovQA, the state's online records management system for FOIL. The Appeals Officer further determined that, while the third request was properly before the Appeals Officer, additional records had been uploaded in response to the appeal and the third FOIL request, rendering petitioners' administrative appeal moot.

In February 2019, petitioners commenced this CPLR article 78 proceeding seeking, among other things, to annul respondent's determination with respect to all three FOIL requests, to compel respondent to perform a diligent search for and to provide all records sought and for an award of counsel fees. Respondent answered and simultaneously moved to dismiss the petition. Respondent also submitted for Supreme Court's in camera review copies of all documents withheld or redacted in response to the three FOIL requests, along with a privilege log that purported to justify its actions pursuant to Public Officers Law § 87(2)(b) and (g). Respondent also claimed that the proceeding was untimely commenced and that petitioners failed to exhaust their administrative remedies.

As an initial matter, Supreme Court found that, because respondent's responses to the FOIL requests were ongoing and nonfinal, the proceeding was timely commenced and that petitioners did not fail to exhaust their administrative remedies. After reviewing the withheld documents, Supreme Court granted the petition to the extent of directing respondent to disclose a 17–page site classification report, but otherwise dismissed the petition, finding that the remaining submitted documents were statutorily protected from disclosure....