FOIL AO 19721
April 12, 2019
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
This is in response to your letter dated April 9, 2019 regarding the manner in which the New York City Police Department (NYPD) has responded to your Freedom of Information Law (FOIL) request.
On January 8, 2019, you submitted a FOIL request to multiple agencies, including the NYPD, for records relating to your clients. Your request identified ten categories of records being sought. In response, on March 21, 2019, the NYPD issued a blanket denial on the ground that disclosure would interfere with law enforcement investigations or judicial proceedings. The Committee on Open Government has previously opined on the appropriateness of such blanket denials on several occasions. See particularly FOIL AO 14554 relating to the NYPD, enclosed.
On March 27, 2019, you filed an administrative appeal with the NYPD. It appears that you are combining an appeal of NYPD’s affirmative denial of access with appeals of the other agencies’ constructive denials. Your appeal does not dispute the NYPD’s assertion that disclosure of the requested records would interfere with an ongoing law enforcement investigation or judicial proceeding.
On April 2, 2019, the NYPD responded to your appeal and affirmed the agency’s denial of access on two grounds. The NYPD advised you that:
“First, the appeal is denied because your appeal does not reasonably describe a specific record in a manner that could lead to its retrieval. Public Officers Law Section 89(3) requires that a FOIL request describe the records it seeks in a manner that can reasonably lead to the retrieval of records maintained by the entity to which the request was directed.”
As you are likely aware, the Committee has addressed the issue of “Reasonably Describing Records” on numerous occasions. Enclosed is a copy of the opinion (FOIL AO 18949) referenced in the agency’s appeal determination which describes the standard set by the Court of Appeals over 30 years ago in Konigsberg v. Coughlin, 68 NY 2d 245 (1986).
While I am unfamiliar with the recordkeeping systems of the NYPD, to extent that the records sought can be located with reasonable effort, I believe that the request would have met the requirement of reasonably describing the records. On the other hand, if the records are not maintained in a manner that permits their retrieval except by reviewing perhaps thousands of records individually in an effort to locate those falling within the scope of the request, to that extent, the request would not in my opinion meet the standard of reasonably describing the records.
I note that each of the ten discreet requests contained in your January 8, 2019 letter start with the words “all records” and are often followed by the caveat “included but not limited to…” several broad types of records. Each request then specifies that you are seeking all records concerning either: your clients, a docket number, or in one instance, a street address. In my opinion, requests of this nature may make it difficult, if not impossible, for agency staff to identify and locate the responsive records based on the nature of the agency’s filing system. I recommend amending your request to include specific types of records (i.e., incident reports, witness statements, arrest records, etc.) as well as a specific date range or any other details which you believe would narrow the scope of your request to the records you are most interested in obtaining.
I point out that regulations promulgated by the Committee on Open Government, which have the force and effect of law, state that an agency’s designated records access officer has the duty of assuring that agency personnel "assist persons seeking record to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records." (21 NYCRR 1401.2(b)(2)). I encourage the NYPD’s records access officer reach out to you to assist you in this process.
Finally, you question whether it was inconsistent for the NYPD to simultaneously assert that your request did not reasonably describe the records sought and that the records sought were being withheld on the ground that disclosure would interfere with an ongoing judicial proceeding. In my opinion, these two statements are not necessarily mutually exclusive. When an agency is asserting that a request does not reasonably describe the records in a manner that would allow for retrieval with reasonable effort, the agency often knows that the records likely exist and are in the agency’s possession, but they are unable to be located with reasonable effort based on the agency’s recordkeeping system. Here, the agency is advising you that even if the records could be located, it is the agency’s belief that disclosure would interfere with an ongoing judicial proceeding involving the prosecution of one of the defendants. As I indicated above, a blanket denial of access is, in our view, inconsistent with the requirements of FOIL.
However, if an agency is unable to locate the records sought based on the description provided in the request, it would be unable to conduct an individual review of the records to determine whether each record needs to be disclosed in whole or in part. It may be that the agency, knowing the possibility that at least some of the records are subject to the “law enforcement” exception, made the decision to preserve this argument since as you point out in your March 27, 2019 appeal “[i]t is settled law that judicial review of an administrative determination is limited to the grounds invoked by the agency and a court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.”
I hope this information proves useful.
cc: Jordan S. Mazur