Dear Mr. Larson,

See attached letter.

Christine M. Tomczak

Assistant Counsel

New York State Department of Financial Services

1 State Street, New York, New York   10004

 July 15, 2024

Transmitted by Email to g@xny.io

Mr. Gunnar Larson

xNY.io – Bank.org

New York, NY 10001

Re: Freedom of Information Law (“FOIL”) Request No. 2023-095446 August 8, 2023 Appeal of the 

NYS Department of Financial Services’ August 3, 2023 Determination

Dear Mr. Larson: 

I write in response to your correspondence dated August 8, 2023 (“2023 FOIL Appeal”), in which you

appeal the August 3, 2023 determination (the “2023 Determination”) of the New York State Department of 

Financial Services (the “Department”), which denied your FOIL request as duplicative. The 2023 

Determination did not deny you access to any agency records, but instead advised you that since your 

request was duplicative, there is no basis for appeal. As a reminder, a denial of access to records is the 

basis for filing an appeal under Public Officers Law (“POL”) § 89(4)(a), which states that “any person 

denied access to a record may within thirty days appeal in writing such denial….” As further explained 

below, your 2023 FOIL Appeal is deemed moot. 

I. Background

Your FOIL request dated July 11, 2023 (the “2023 FOIL Request”) stated the following: 

Dear Madam or Sir: 

On July 22, 2022 NY-DFS denied xNY.io - Bank.org records access STX custody in 

New York. NY-DFS' memo to our attention suggests STX records were held as secret

given a current investigation: 

https://drive.google.com/file/d/1xfUJA26SBOn_RYIVyo6QefIWy5HgKTH/view?usp=d

rivesdk. Today, xNY.io - Bank.org renews our records access request and/or all NY-DFS 

correspondence regarding approval of Stacks (STX) custody in New York State: 

https://www.dfs.ny.gov/apps_and_licensing/virtual_currency_businesses/approved_entiti

es/num ber”. Such records may include the approval letter sent by the Department 

regarding Blockstacks (STX), the virtual currency of Coinbase Custody Trust Company 

LLC (the “Requested Record”). Furthermore, we seek to learn if NY-DFS has a 

"confidential and shall not release" mandate relating to the STX and NYCCoin 

relationship similar to the Office of the Mayor of New York City. NY-DFS should be 

open to sharing STX records, as the City of Miami has here: https://drive.google.com/file/d/1IrQwP46alrnQXRxIoXxm8kifZMVTRB_x/view?usp=dr

ivesdk. 

As noted in your 2023 FOIL Request, this is duplicative of your previous FOIL request made on February

11, 2022 (the “2022 FOIL Request”). The Department denied the 2022 FOIL Request by letter dated July 

1, 2022 (“2022 Determination”) as the responsive record is exempt from disclosure pursuant to POL §

87(2)(a) by way of New York Banking Law (“NYBL”) § 36(10), which provides that reports of 

examinations and investigations of companies supervised or chartered under the Banking Law, and 

correspondence and memoranda concerning or arising out of such examinations and investigations, are 

confidential and shall not be made public. Following the 2022 Determination, you submitted an appeal on 

July 1, 2022, and your appeal was denied on July 22, 2023 (“2022 Appeal Determination”). The 2022 

Appeal Determination reiterated that the record you requested is required to be kept confidential and exempt 

from disclosure under NYBL § 36(10) because it arose out of the Department’s examination and 

investigation of STX for custody services.

Over a year later on July 11, 2023, and without any change in circumstances, you submitted a duplicate 

FOIL request, which is the subject of your 2023 FOIL Appeal. 

By email dated August 3, 2023 (“2023 Determination”), in response to your 2023 FOIL Request dated July 

11, 2023, the Department issued the 2023 Determination advising you that your 2023 FOIL Request was 

denied as duplicative. Subsequently, you submitted the 2023 FOIL Appeal to the Department stating, “We 

kindly elect to appeal this determination on STX records access.” It is noted that the 2023 FOIL Appeal 

does not include any legal analysis or argument as to why the 2023 Determination is in any way incorrect.

II. Discussion

At the outset, I note that your 2023 FOIL Appeal does not specify any grounds or assertions upon which 

you base your appeal. You simply write that you “elect to appeal this determination.”

As noted above, POL § 89(4)(a) provides for an appeal when a person has been denied access to an agency’s 

records. Specifically, POL § 89(4)(a) states, in pertinent part, that “any person denied access to a record 

may within thirty days appeal in writing such denial.” After reviewing this matter, I find that the 2023 

Determination was not a denial and advised you that your 2023 FOIL request was duplicative of your 2023 

FOIL Request, to the Department has already issued a final determination, and a determination on appeal.

As explained in the 2023 Determination, an agency is not required to address duplicative FOIL requests 

where the agency has already made its final determination as to the records sought, and there has been no 

change of circumstances that would result in a different response. See, e.g., Matter of Walker v. Roque, 137 

A.D.3d 643 (1st Dep’t 2016) (finding that petitioner’s 2012 FOIL request was duplicative of his 1992 FOIL 

request seeking essentially the same materials pertaining to the same criminal case, notwithstanding that 

the prior request was more detailed than the instant request); Garcia v. Div. of State Police, 302 A.D.2d 755 

(3d Dep’t 2003)(finding that petitioner’s 2000 FOIL request was nearly identical to a September 1999 

request, which, in turn, was a more specific list of a 1993 FOIL request, and therefore that the Supreme 

Court has properly determined that the Article 78 proceeding was an improper attempt by petitioner to 

relitigate his prior Article 78 proceeding and respondent’s prior denial of his FOIL request); see also Matter 

of Zarvela v. Banks, 117 A.D.3d 1070 (2d Dep’t 2014), leave to app. denied, 24 N.Y.3d 906 (2014); 

Pennington v. Clark, 1 A.D.3d 912 (4th Dep’t 2003).

Here, your 2023 FOIL Request is duplicative of your previous 2022 FOIL Request for which the

Department has made a final determination. Additionally, I find that there has been no change of

circumstances since the Department issued its 2022 Determination or the 2022 Appeal Determination. The

responsive record remains exempt from disclosure pursuant to POL § 87(2)(a) via BL § 36(10).

Finally, to the extent that you argue the Department should consider waiving any such exemptions, similar

to the City of Miami, that request is outside the scope of FOIL and this appeal determination is limited to

addressing only the matters pertaining to the Department’s determination denying your FOIL request as

duplicative.

1

III. Conclusion

Accordingly for the reasons stated about, your 2023 FOIL Appeal is deemed moot.

Sincerely,

Christine M. Tomczak

Assistant Counsel

cc: NYS Committee on Open Government

One Commerce Plaza

99 Washington Avenue, Suite 650

Albany, NY 12231

Stephanie Mazza

Associate Attorney