Transmitted by Email to
Mr. Gunnar Larson
406 West 25th Street
New York, New York 10001
g@xny.io
Re: Freedom of Information Law request No. 2022-092039: Appeal dated
November 3, 2022
of the Department of Financial Services’ November 3, 2022 response
Dear Mr. Larson:
By email dated November 3, 2022, you are appealing pursuant to New York
State Public Officers
Law Section 89, the Department of Financial Services’ (the “Department”)
November 3, 2022
response (the “Determination”) to your Freedom of Information Law (“FOIL”)
request No. 2022-
092039
1 which the Department construed as
“Any and all documents concerning the Superintendent’s said role with Brex
(Declaration on said disclosure form)”
In your appeal, you state “[p]lease find a copy of the corresponding
financial disclosure form, that
was also included in the FOIL request: https://drive.google.com/file/d/1m1
ikLnjkr7lwt2pKqIxnnUKkgzBz7dh/view?usp=drivesdk. Question 4(a), ‘Positions
of Authority’
lists an advisory role at ‘Brex, Inc.’ Furthrtmore, the role’s “State or
Local Agency” is indicated
as ‘DFS’.’ Our request is not intended to be vague, however, we seek
records specific to the DFS
role with Brex, Inc.” [Sic]
The Determination informed you that your FOIL request does not meet the
standard set forth in
Public Officers Law (“POL”) § 89(3), which requires a FOIL request to
reasonably describe the
records sought. This means that the description of the documents sought
must be sufficient to
allow the agency to locate and identify the documents requested and that
agency employees are
not required to engage in unreasonable efforts to locate records.2
I concur with the
Determination’s conclusion that your request does not reasonably describe
the records that you
seek.
As was explained to you in the Determination, 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. Badar v. Bove, 273 A.D.2d 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).
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
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 futher
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 Commttee opined that a request for
“documentation utilized
by SED to evaluate ‘certain needs, actions and functions’ was not
reasonably described request for
records under FOIL.
Accordingly, I affirm the Department’s Determination.
Sincerely,
Christine M. Tomczak
Assistant Counsel
cc: NYS Committee on Open Government
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231;l
---------- Forwarded message ---------
From: Tomczak, Christine (DFS)
