Mr. Gunnar Larson
Re: Freedom of Information Law request No. 2022-092039: Appeal dated November 3, 2022
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-
In your appeal, you state “[p]lease find a copy of the corresponding financial disclosure form, that
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
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
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