Fwd: FOIL Request No. 2022-092267 - Larson

[Gunnar Larson]

SENT VIA EMAIL
(G at xny.io)
January 19, 2023
Gunnar D. Larson
xNY.io – Bank.org
406 West 25th Street
New York, NY 10001
Re: Freedom of Information Law (“FOIL”) Tracking No. 2022-092267
Dear Gunnar D. Larson:
I write in response to the FOIL request that you submitted to the New York
State
Department of Financial Services (“Department”) on September 12, 2022,
which states as
follows:
“Dear Madam or Sir: On May 18, 2022 xNY.io - Bank.org received a copy of a
financial disclosure form for Mr. Richard Weber (General Counsel, NY-DFS)
noting an advisory council role at the Las Vegas Museum of Organized Crime
and Law Enforcement. No address was provided:
https://drive.google.com/file/d/1CCIh9CQiwxVILSv86B54kEcipVRnx1YQ/view
?usp=drivesdk We would like to receive any and all records NY-DFS and Human
Rights hold for this appointment approval for a state associated
represenative.
Warm regards, Gunnar Gunnar Larson xNY.io - Bank.org 646-454-9107.”
Public Officers Law (“POL”) § 89(3) 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. See Matter
of Farbman & Sons
v New York City Health & Hosps. Corp., 62 NY2d 75 (1984); Matter of Wright
v Hippolyte,
2014 N.Y. Misc. LEXIS 1247, 2014 NY Slip Op 30705(U) (Sup. Ct. N.Y. County
March 20,
2014). The Committee on Open Government, which is responsible for, inter
alia, issuing
advisory opinions regarding FOIL, has opined that “[w]hether a request
reasonably describes the
records sought . . . may be dependent upon the terms of a request, as well
as the nature of an
agency’s filing or record-keeping system.” Committee on Open Government
(“Committee”)
Opinion No. FOIL-AO-16073 (July 17, 2006). In the Committee’s Opinion No.
FOIL-AO-11960(February 17, 2000), it opined that a FOIL request that sought
records “‘tending to support’ a
particular statement, or ‘utilized’, ‘used’ or ‘relating to’ various
activities of the Department of
Environmental Conservation” was not a reasonably described request for
records under Public
Officers Law Article 6. The Committee stated that a response to such a
request “would involve
making 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 held 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 [agency] to locate and identify the records in the manner
envisioned by that statute.”
Your FOIL request fails to meet the “reasonably describe” requirement in
POL § 89(3)
because it includes vague and imprecise phrases such as “any and all
records,” and does not
clearly describe the records that you are seeking. Such vague phrases are
imprecise terms that
require Department staff to make subjective judgments as to whether a
document is responsive to
your FOIL request. When such subjective judgments are required of staff,
the FOIL request may
be denied for failure to meet the reasonably describe requirement in POL §
89(3). Additionally,
the Department does not have an indexing system that allows it to search
all of its records by
terms that may appear in such records. Accordingly, the Department is
denying your FOIL
request on the basis that the request is not reasonably described.
Even if your FOIL request was reasonably described, to the extent that your
request can
be interpreted as seeking internal Department records, your request would
be denied pursuant to
POL § 87(2)(g) (the “inter/intra-agency exemption”), 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 POL §
87(2)(g).
Additionally, those records are simultaneously exempt from disclosure
pursuant to POL
§ 87(2)(b) (the “personal privacy exemption”), which exempts records, or
portions thereof, that
“if disclosed would constitute an unwarranted invasion of personal privacy
under the provisions
of subdivision two of section eighty-nine of the [Public Officers Law].”
Determining whether
disclosure would constitute an unwarranted invasion of personal privacy
requires balancing the
competing interests of public access and individual privacy. See Dobranski
v. Houper, 154
A.D.2d 736 (3d Dep’t 1989).
Here, the Department is withholding the personal information mentioned
above because
the interest of keeping that information private outweighs the competing
interest of providing
public access to that information. Such information about private citizens
is of a personal nature
and disclosure of the information would not serve any governmental purpose
consistent with the
intent of FOIL. See Goyer v. New York State Dep’t of Envtl. Conservation,
12 Misc.3d 261
(Sup. Ct. N.Y. County 2005). Consequently, the Department is not disclosing
that information
pursuant to Public Officers Law § 87(2)(b).

In accordance with POL § 89(4), you may appeal this determination within 30
days by
sending an email to FOIL.Appeals at dfs.ny.gov.
Very truly yours,
Pascale Jean-Baptiste
FOIL Officer

---------- Forwarded message ---------
From: JeanBaptiste, Pascale (DFS) <Pascale.JeanBaptiste at dfs.ny.gov>
Date: Thu, Jan 19, 2023, 9:50 AM
Subject: FOIL Request No. 2022-092267 - Larson
To: Gunnar Larson <g at xny.io>
Cc: Garrett, Carmen (DFS) <Carmen.Garrett at dfs.ny.gov>


Good Morning:



Please see the attached determination in response to your FOIL request.
Thank you.
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/html
Size: 9086 bytes
Desc: not available
URL: <https://lists.cpunks.org/pipermail/cypherpunks/attachments/20230119/d624dee7/attachment.txt>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Determination (2022-092267) - 1.19.23 - Final.pdf
Type: application/pdf
Size: 255770 bytes
Desc: not available
URL: <https://lists.cpunks.org/pipermail/cypherpunks/attachments/20230119/d624dee7/attachment-0001.pdf>