Reclaim the Records v. N.Y.S. Dep't of Health

• Decision Date: 16 July 2020
• Docket Number: 530220
• Citation: 128 N.Y.S.3d 303,185 A.D.3d 1268
• Parties: In the Matter of RECLAIM THE RECORDS et al., Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1268
128 N.Y.S.3d 303

In the Matter of RECLAIM THE RECORDS et al., Appellants,
v.
NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.

530220

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 12, 2020
Decided and Entered: July 16, 2020

128 N.Y.S.3d 305

Oliver Law Office, Albany (Lewis B. Oliver Jr. of counsel), for appellants.

Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

185 A.D.3d 1268

Appeal from a judgment of the Supreme Court (Ferreira, J.), entered March 27, 2019 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent partially denying petitioners' Freedom of Information Law request.

Petitioner Brooke Schreier Ganz is the founder and president of petitioner Reclaim the Records, a not-for-profit organization that seeks to facilitate genealogical and historical research by providing free online access to public records held by government agencies. In January 2016 and October 2016, petitioners filed requests under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) for copies, preferably electronic, of certain death indexes held by respondent on microfiche. Over a period of months, Ganz and respondent exchanged multiple communications discussing the high costs associated with transferring the microfiche to an electronic format and various potential methods for conducting the transfer. In March 2017, while these discussions were ongoing, respondent received a FOIL request for the same records from Ancestry.com (hereinafter Ancestry), a for-profit corporation specializing in genealogical research. Ancestry specified that it would perform and pay for the transfer of the records from microfiche to an electronic format, and then return the microfiche to respondent with a copy of the "digital product." Two months later, respondent sent an email to Ancestry confirming Ancestry's receipt of the requested death indexes, and provided a digital copy of the death indexes to petitioners at no charge.

In October 2017, petitioners filed the subject FOIL request asking respondent to provide a broad array of documents related to Ancestry within a time period from January 2015

185 A.D.3d 1269

through October 2017. Respondent acknowledged the request and ultimately answered by providing some related documents, denying part of the request on the ground that no such records could be located, and denying the remainder of petitioners' request for failure to reasonably describe the records sought (see Public Officers Law § 89[3][a] ). Petitioners' administrative appeal was denied in February 2018. Petitioners commenced this CPLR article 78 proceeding seeking a judgment directing respondent, among other things, to produce all records responsive to their FOIL request. Respondent answered, submitting the affidavits of its records access officer (hereinafter access officer) and its records access appeals officer (hereinafter appeals officer). Supreme

128 N.Y.S.3d 306

Court dismissed the petition; as pertinent here, the court found that respondent's partial denial of the FOIL request based upon petitioners' failure to reasonably describe the records sought was not improper. Petitioners appeal.¹

"The requirement of Public Officers Law § 89(3)(a) that requested documents be ‘reasonably described’ serves to enable an agency to locate and identify the records in question" ( Matter of Pflaum v. Grattan, 116 A.D.3d 1103, 1104, 983 N.Y.S.2d 351 [2014] [citations omitted]; see Matter of M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 82–83, 476 N.Y.S.2d 69, 464 N.E.2d 437 [1984] ). The statute places the initial burden on the person or entity making a FOIL request to provide a reasonable description of the records sought for this purpose (see Public Officers Law § 89[3][a] ; Matter of Bader v. Bove, 273 A.D.2d 466, 467, 710 N.Y.S.2d 379 [2000], lv denied 95 N.Y.2d 764, 716 N.Y.S.2d 38, 739 N.E.2d 294 [2000] ; Mitchell v. Slade, 173 A.D.2d 226, 227, 569 N.Y.S.2d 437 [1991], lv denied 78 N.Y.2d 863, 578 N.Y.S.2d 877, 586 N.E.2d 60 [1991] ). In turn, when an agency denies a FOIL request on this ground, the agency bears the burden to "establish that the descriptions were insufficient for purposes of locating and identifying the documents sought" ( Matter of Konigsberg v. Coughlin, 68 N.Y.2d 245, 249, 508 N.Y.S.2d 393, 501 N.E.2d 1 [1986] [internal quotation marks and citation omitted] ).²

Here, petitioner requested "copies of all correspondence,

185 A.D.3d 1270

e-mails, proposals, drafts, notes, agreements, contracts, meetings and calendar entries, phone logs, meeting minutes, budget items, receipts, vendorization forms or data, bids, evaluation materials, [FOIL] records requests and their associated correspondence and any appeals, and any other documentation or communications between [respondent] and Ancestry.com, or such materials within [respondent's possession] about Ancestry.com. Ancestry.com might also be listed as Ancestry, Ancestry LLC, Ancestry.com LLC, Ancestry.com Holdings, Ancestry.com Holdings LLC, or similar terms." In response, respondent produced Ancestry's FOIL requests and related correspondence, stated that there were no records of any FOIL appeals, and noted that the death indexes requested in petitioners' prior FOIL requests had been provided. As for the remaining categories, respondent stated that the records had not been described with sufficient detail to enable respondent to locate them, and added, "Given the considerable number of individuals

128 N.Y.S.3d 307

employed by [respondent], a list of specific employees whose communications [petitioners] are seeking, as well as the subject matter of the types of records [petitioners] seek would be required in order for [respondent] to perform a diligent search."

Upon the administrative appeal, petitioners asserted that they had provided enough keywords to permit respondent to conduct an electronic search of the emails of respondent's employees. They claimed that, "[g]iven the subject matter of the request – business and contracts between [respondent] and Ancestry[ ] –" the email accounts searched should include employees of respondent's Office of Vital Records and Division of Legal Affairs who might have worked on contracts or projects with Ancestry and its employees. Petitioners reiterated their request for all remaining categories of documents sought, but failed to provide any further description of the subject matter requested.

Respondent's appeals officer denied the administrative appeal, finding that respondent had properly denied the relevant portion of petitioners' FOIL request for failure to reasonably describe the records sought. The appeals officer found...