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Court Holds Documents Exchanged Between Federal and State Agencies May Be Exempt From FOIL, But Settlement Documents Exchanged WIth Corporation Are Not

By Steven Silverberg and Katherine Zalantis

A court held that documents exchanged between the EPA and the New York DEC may be exempt from disclosure under the Freedom of Information Law (FOIL) as inter-agency communications, but additional documents exchanged as part of the settlement negotiations with General Electric are subject to disclosure. In Town of Waterford v. New York Department of Environmental Conservation, the lower court held that the exemption from disclosure of inter-agency communications, contained in Public Officers Law section 87 (2)(g), does not apply to communications between state and federal agencies, but that documents prepared for settlement purposes were not subject to disclosure. The Appellate Division disagreed on both points. With respect to the issue of inter-agency exemption applying to communications between state and federal agencies, the Court held, while generally the law favors disclosure of documents, the claim that "this exemption can never be applied to a communication with a federal agency, no matter its content or context ? is dramatically at odds with the very purpose for which this exemption was enacted and one that, on these facts, is not in the public interest...continue to full post

Full post as published by New York Zoning and Municipal Law Blog on September 19, 2010 (boomark / email).