RE: FOIL Records Request of August 22, 2024, Reference # R000433-082224

Dear Gunnar Larson,

The NYS Department of Financial Services received a FOIL request from you on August 22, 2024. Your FOIL request seeks the following records:

"Today xNY.io - Bank.org seeks access to Shelf Charter records from January 1, 2021 to August 22, 2024 that correspond to New York State's Shelf Charter rule changes. Additionally, we seek access to NY-DFS records concerning xNY.io - Bank.org's Shelf Charter dealings with the Department.

Separately to seeking Shelf Charter rule change records, today xNY.io - Bank.org seeks access to NY-DFS policy records concerning the Department’s approach to:

-Harassment and Discrimination Policies

-Conflict of Interest Policy

-Insider Trading Policy

-Records Management Policy

-Corporate Opportunity Policy"

At the outset, please note the Department does not have any records pertaining to statutory amendments or changes in regulations to the Shelf Charter. Next, your request for “access to NY-DFS records concerning xNY.io - Bank.org's Shelf Charter dealings with the Department,” does not clearly describe the specific records that you seek. Therefore, the Department construes this part of your request as seeking the records you submitted to obtain a Shelf Charter with the Department (“responsive records”). Please note that because you never filed a formal application with the Department, there is no final decision for your application. Please log in to the FOIL Records Access Center at the following link to review the responsive records.

FOIL Records Request - R000433-082224

Moreover, to the extent your request seeks the Department’s internal deliberative materials, those are exempt pursuant to Public Officers Law § 87(2)(g), which exempts from disclosure records that are “inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; [or] iv. external audits, including but not limited to audits performed by the comptroller and the federal government[.]” Such internal records contain opinions, recommendations, evaluations, and other subjective commentary by government employees, and do not contain information that fall within any of the four exceptions to non-disclosure under Public Officers Law § 87(2)(g).

The internal opinions, recommendations, and drafts contain the very kind of information that the exemption in Public Officers Law § 87(2)(g) is designed to protect.  In New York Times Co. v. City of New York Fire Dep’t, 4 N.Y. 3d 477, 488-89 (2005), the Court of Appeals held that “[t]he point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure . . . [and] to permit the internal exchange of candid advice and options between agency employees.” (See also, Miller v. New York State DOT, 58 A.D.3d 981, 984 [3rd Dep’t 2009])(holding that “[t]he interagency and intra-agency exemption applies to records that are deliberative, i.e., communications exchanged for discussion purposes not constituting final policy decisions.”)

Because the deliberative materials contain opinions and internal correspondence between Department employees, they fall squarely within the intra/inter-agency exception and, accordingly, are also exempt from disclosure pursuant to Public Officers Law § 87(2)(g). Accordingly, attached please find the responsive records you submitted to the Department regarding xNY.io – Bank.org’s Shelf Charter.

With respect to the second half of your request seeking various policy records, the Freedom of Information Law (“FOIL”) requires a requester to reasonably describe the records sought, providing sufficient detail so that the agency can identify and locate the records requested. See Konigsberg v. Coughlin, 68 N.Y.2d 245 (1986); In re Farbman & Sons v. NYC Health & Hosps. Corp., 62 N.Y.2d 75 (1984); Matter of Wright v. Hippolyte, 2014 N.Y. Misc. LEXIS 1247, 2014 NY Slip Op 30705(U) (Sup. Ct. N.Y. County 2014).

A FOIL request is not reasonably described if the agency cannot locate the requested record using its
indexing or filing system, or, with respect to the agency’s electronic records, there is no single search term or
combination of search terms that will result in the location of the record. See Asian American Legal Defense
& Educ. Fund v. NYC Police Dep’t, 41 Misc.3d 471 (Sup. Ct. N.Y. County 2013), aff’d 125 A.D.3d 531 (1st
Dep’t 2015). Additionally, where an agency must manually review voluminous records simply to locate
responsive records, courts have held that such a request does not reasonably describe the records sought.
Bader v. Bove, 273 A.D.2d 466 (2nd Dep’t 2000), appeal den. 95 N.Y.2d 764 (2000) (finding that a request
for “[a]ll notes, records, correspondence, meeting minutes and other records related to the adoption and/or
revision of the Village Zoning Code’s prohibition of commercial activity” was not reasonably described).

Moreover, when a FOIL request requires an agency to make subjective judgments to determine whether a record is responsive, that request may be found to have not reasonably described the records. For instance, in the Committee on Open Government (“Committee”) Opinion No. FOIL-AO-11960 (February 17, 2000), the Committee opined that a FOIL request that sought records “‘tending to support’ a particular statement, or ‘utilized’, ‘used’ or ‘relating to’ various activities” was not a reasonably described request for records under Public Officers Law Article 6. A response to such a request “would involve making subjective judgments a series of judgments based on opinions, some of which would be subjective, mental impressions”, and require “ascertaining which records might ‘tend to support’ a statement [that] would involve an attempt to render a judgment regarding the use, utility, accuracy or value of records.” The Committee further opined that “for purposes of [FOIL], a request for such materials would not meet the standard of ‘reasonably describing’ the records sought, for such a request would not enable the Department to locate and identify the records in the manner envisioned by that statute.” See also Committee Opinion No. FOIL-AO-12012 (March 28, 2000), in which the Committee opined that a request for “‘documentation utilized by SED to evaluate’ certain needs, actions and functions” was not a reasonably described request for records under FOIL.

Based upon the above, this portion of your FOIL request does not provide a reasonable description of records under Public Officers Law § 89(3). You ask for all records related to the Department’s approach to various policies. Your request does not provide a time frame, nor the types of records you seek, nor where these records may be located. Moreover, searching for records that reflect the Department’s ‘approach’ to certain policies requires the Department to make subjective judgments to answer your request, and does not align with the standard of reasonably describing records for the purposes of FOIL.

FOIL requires a request to reasonably describe the records sought so that they can be readily identified and searched for.  Your request does not provide a reasonable description of records under Public Officers Law § 89(3) because the Department cannot identify where the records that you request are located and therefore cannot search for the requested records. Accordingly, this part of your request is closed.

Please note that the Department stands ready to respond to any new FOIL request that you submit that (i) describes with reasonable specificity records that the Department may determine upon a reasonable search are maintained by it, (ii) does not contain ambiguous terms such as “relating”, “concerning” or “supporting” applied to excessively broad categories, and (iii) does not require the Department to engage in looking for a “needle in a haystack” or require Department personnel to guess whether a given record is responsive to your request.

In accordance with Public Officers Law § 89(4), you may appeal this determination that your request was not reasonably described within 30 days by completing the Appeals form located on the GovQA portal at Online Appeals Form.

Sincerely,

Stephanie Mazza

NYS Department of Financial Services