Court of Appeals Limits the Application of New York FOIL “Inter-Agency” Disclosure Exemption
By Jesse Sommer, Associate (2012) | Posted on July 18, 2012
When a statute’s “definitions” section introduces more ambiguity to a term’s meaning, courts are often called on to determine not what the word means, but rather what it doesn’t mean. So it was in March 2012, when New York’s highest court examined the state’s Freedom of Information Law (FOIL) and held that an “agency” isn’t always an “agency.” The court’s ruling that FOIL’s “inter-agency” disclosure exemption was inapplicable to records shared between state and federal agencies is likely to alter the nature of state and federal collaborations in the future.
In Town of Waterford v New York State Department of Environmental Conservation (18 NY3d 652 [2012]), the New York Court of Appeals overturned a Third Department decision that had sanctioned the application of FOIL’s “inter-agency/intra-agency disclosure” exemption to communications between federal and state agencies. That exemption, codified in Public Officers Law § 87[2][g], directs “[e]ach agency [to] . . . make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that are inter-agency or intra-agency materials. . . .” While the provision lists certain types of agency materials that are themselves exempt from the exemption (e.g., “statistical or factual tabulations or data” and “final agency policy or determinations”), it makes clear that records (as defined by Public Officers Law § 86[4]) shared between agencies are generally protected from public disclosure. The question litigated in Waterford pertained to the meaning of the word “agency” and, more specifically, whether an “inter-agency record” referenced material shared exclusively between state agencies, or also referred to documents shared between state and federal agencies.
The Waterford decision concerned the United States Environmental Protection Agency (EPA) and the New York State Department of Environmental Conservation (DEC), which had been working in tandem to remediate the decades-old polychlorinated biphenyl (PCB) contamination of the Hudson River. The dispute arose when the Town of Waterford (the “Town”) submitted a FOIL request to the DEC seeking “information relating to the Hudson River dredging project and the availability of alternative water supplies for local residents” (18 NY3d at 655). As the Court reported in its decision, “[t]he DEC denied access to certain records exchanged with the [the EPA] by invoking the FOIL exemption for inter-agency or intra-agency materials;” the Town responded by commencing an Article 78 proceeding to challenge the DEC’s decision to withhold those records (id.).
The trial court ruled that the EPA was not an “agency” within the meaning of the Public Officers Law and directed the DEC to release several additional records. On appeal, however, the Appellate Division, Third Department modified the order, holding that the “communications between the federal and state agencies could be considered deliberative material subject to exemption as ‘intra-agency or inter-agency materials’” (id.) Both EPA and DEC were agencies, after all, and the records shared between them seemingly constituted “deliberative material” generated in furtherance of the joint mission. The Town then appealed as of right to the Court of Appeals (id. at 656).
Before delving into its analysis, the Court of Appeals reiterated that New York’s Freedom of Information Law was “based on the overriding policy consideration that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government’” and that, “[a]s a result, . . . FOIL ‘[is] liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (id. at 656-57). With this principle in mind, the Court reviewed Public Officers Law § 86[3], which defines an “agency” as “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. . . .”
Acknowledging that “the EPA would be an agency within the definition of that term as it is commonly understood,” the Court nonetheless held that in the context of FOIL, the “plain terms” of the statutory “definition of ‘agency’ is limited to state and municipal entities” (id. at 657). According to the Court, although the phrases “inter-agency” and “intra-agency” were not specifically defined in the statute, the term “agency” was too narrow to permit the characterization of the EPA as an “agency” for purposes of FOIL requests. The Court thus affirmed the Supreme Court’s direction to the DEC to release several pertinent records, since the inter-agency exemption did not apply to materials exchanged between a state and a federal agency, and therefore could not block the disclosure (id. at 657).
Despite its ruling, the Court of Appeals recognized that not all communications between state and federal agencies automatically fell outside the protections afforded by § 87[2][g], i.e., not all such communications would be automatically subject to disclosure; for example, where a federal agency is serving a state agency in a consulting capacity, any records generated under that arrangement would likely be characterized as “intra-agency” materials and therefore be exempt from disclosure (id. at 658). Yet where a federal agency and a state agency “have a collaborative relationship” and do not operate as an employee or agent of the other, the Court’s holding established that the § 87[2] exemption would not apply (id.).
This decision raises two questions. First, does the Court’s interpretation of New York’s Freedom of Information Law gut the corresponding provision in the federal Freedom of Information Act (FOIA)? In other words, where a federal and state agency are working together on a project, are records that would be protected from disclosure under the federal FOIA law now accessible through FOIL instead? And second, will the Court’s ruling in Waterford lead state and federal agencies to engineer “consultancy relationships” when jointly working on projects in the future, so as to enjoy the benefits of the FOIL disclosure exemptions?
The answer to the first question is “no”: the decision in Waterford does not alter the accessibility of documents withheld by federal agencies. Just as New York’s FOIL defines “agency” as referencing only state agencies (in the wake of the Waterford decision), so too does the term “agency” as it appears in the Freedom of Information Act refer only to federal agencies (5 USC § 551[1][C], stipulating that “agency means each authority of the Government of the United States . . . but does not include . . . the governments of the territories or possessions of the United States”). The federal FOIA establishes that its provisions mandating disclosure do not apply to matters that are “inter-agency or intra-agency memorandums or letters which would not be available by law to a party. . . .” (5 USC § 552[b][5]). The records in question in Waterford were from the outset accessible through a FOIA request; the Court of Appeals merely confirmed that the state’s FOIL provisions also allowed access.
The answer to the second question – whether state and federal agencies will tailor the nature of their working relationships on joint projects in the future so as to enjoy the benefits of the FOIL exemption and avoid compelled disclosure – remains to be seen. The Court of Appeals dicta in the Waterford decision not only leaves open that possibility, but in fact provides guidance as to how to structure a more “airtight” relationship.