ALBANY, New York. (OIC) The OIC has won its appeal against the New York Governor’s Office in an appeal over a request investigating communications from both former Governor of New York, Andrew Cuomo, and former Lieutenant Governor (now Governor) Kathy Hochul, regarding the sexual harassment scandal that lead to his resignation.
On October 13, 2023, the OIC filed a FOIL (Freedom of Information Law) request (identifier: R000804-101323) with the Executive Chamber, the official name of the New York State Governor’s Office, asking for emails from the two which contained any of several keywords:
All emails from former Governor Cuomo’s (and, when from when she held the office, former Lieutenant Governor Kathy Hochul’s) official New York State email addresses/accounts from December 1, 2020 to August 23, 2021, containing any of the keywords “claim”, “allegation”, “charge”, “charges”, “sex”, “sexual”, “assault”, “harassment”, “behavior”, “women”, or “woman”, with any FOIL-exempt parts redacted.
OIC request R000804-101323 to NYS Executive Chamber, 2023/10/13
While the Chamber sent an automatic email which they claim constituted an initial response to the request, it had no real human evaluation, and in no way truly confirmed true receipt by the Chamber. Only on November 7, did they provide a response:
Please note that your request for “all emails from…former Lieutenant Governor Kathy Hochul…from December 1, 2020 to August 23, 2021, containing any of the keywords “claim”, “allegation”, “charge”, “charges”, “sex”, “sexual”, “assault”, “harassment”, “behavior”, “women”, or “woman” is denied pursuant to Public Officers Law 89(3) as it fails to meet the requirement that the requester reasonably describe the records requested. Your request for every email over a period of a year and a half which contains the word “woman,” for example, is not a reasonable request. “Agency staff are not required to engage in herculean or unreasonable efforts in locating records to accommodate a person seeking records.” (Committee on Open Government, FOIL-AO-18949 (2012); Konigsberg v. Coughlin, 68 N.Y.2d 245 (1986)). The Committee on Open Government has opined that for requests in which there could be, “… thousands of email communications involving scores of topics… [r]eview of those communications to ascertain rights of access would, in the words of [Fisher v. Davidson], ‘transcend a normal request[.]” Committee on Open Government, FOIL-AO-18863 (2012) (quoting Fisher v. Davidson, No. 8772, slip op. (N.Y. Sup. Ct., N.Y. County. Sept. 27, 1988) (“Petitioner’s actual demand transcends a normal or routine request by a taxpayer. It brings in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already burdened bureaucracy.”).
NYS Executive Chamber Records Access Office, 2023/11/07
There are several issues with what the Chamber concluded:
- They cut out that the request included records by former Governor Cuomo himself, which will likely prove to be more important.
- Using such broad search terms, while increasing the work burden, is a critical part of public records searches relating to emails, especially for situations like this where the core details may not be known and need to be filled in. Making terms more specific is only something that can be done once baseline evidence has been collected, like with the CSULB flag case.
- The Chamber got the duration of the request completely wrong. December 1, 2020 to August 23, 2021 is not a year and a half, but rather under nine months.
- Even if it was the correct duration, a year and a half of emails for two people is not a “herculean” search. In fact, it is fairly standard, both in NYS and in other jurisdictions; under the doctrine of parallel construction, due to NY’s FOIL being developed based on the federal FOIA, general principles underlying FOIA apply if no statute contradicts them, and in this case no such statute was cited. This also perils the claim that this “transcend[s] a normal request” under Fisher v. Davidson.
- The burden placed onto the Chamber is not “enormous” in this request. In fact, the Chamber should be continuously preparing itself for such requests. To presume that they would never occur, that the government would never need to be investigated at such scale, and thus to be unprepared to handle such large requests appropriately, is to be at best naive and at worst corrupt. The United States’ history, and especially the State of New York’s, has been plagued by corrupt government officials; it is the primary reason of existence for the federal Freedom of Information Act, and for New York’s FOIL. In fact, New York agencies have previously been called out (such as in Konigsberg v. Coughlin) for not making their archives detailed enough to be able to reasonably respond to requests.
Interestingly, in their citation of Konigsberg v. Coughlin, they failed to recognize that they were engaging in behavior prohibited both by New York and by federal rulings:
In sum, because respondents used the requirement that documents be “reasonably described” as a “device to withhold records” (National Cable Tel. Assn. v Federal Communications Commn., 479 F.2d 183, 191, supra), we reverse the order of the Appellate Division[…]
Konigsberg v. Coughlin, 68 N.Y.2d 245 (N.Y. 1986)
They also cited the NYS Committee on Open Government’s decision FOIL-AO-18863, which also goes directly against their case. That decision reviewed Konigsberg‘s decision in the context of searching for physical records, showing how the law doesn’t allow the reasonable description denial to be really applied in this context:
An analysis of that nature applies well, in our view, in relation to requests for records that are not maintained or retrievable electronically. What if the information equivalent to that contained in a paper telephone directory is maintained electronically, and by entering queries on a keyboard or engaging in a similar exercise, an agency employee can quickly extract all of the listings pertaining to those people whose first name is John? Based on judicial precedent, as well as relatively recent amendments to FOIL, an agency would be required to dos o. Section 89(3)(a) of FOIL now includes a provision indicating that when an agency has the ability to extract information contained in an electronic information system with reasonable effort, it is required to do so.
FOIL-AO-18863, NYS Com. O.G.
They also directly dispel the idea of “herculean” searches being a barrier:
The point is that, to give effect to FOIL< and to respond to a request that identifies thousands of email communications, each email must be read and reviewed individually in order [sic] determine rights of access. The time and effort needed to do so is more than substantial. Nevertheless, based on the standard prescribed by Konigsberg, it is possible, if not likely, that a court would determine that an agency is required to engage in an effort of that magnitude.
FOIL-AO-18863, NYS Com. O.G.
It would appear that the Chamber did not even read the precedents it cited before citing them, attempting to just rush to “close a case” instead of actually evaluating the request. They also ignored other sections of New York law, which expressly prohibit them from denying a request based on its volume alone:
An agency shall not deny a request on the basis the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming, or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article.
New York State, Public Officers Law, Article 6, § 89(3)(a)
In response, on November 10, the OIC filed an appeal with the Executive Chamber’s FOIL Appeals Officer, Bella Satra. In addition to the judicial appeal options granted in most jurisdictions by writs of mandamus for public records requests, New York has a right to a cost-free appeal within an agency itself. To our surprise, on November 21, we received a response from Satra, indicating that we were in the right and that our appeal had been won:
Based on my further review of the matter, I am granting the appeal and remanding this matter back to the RAO. I am directing the RAO to conduct a search for documents that were sent during the time frame of December 1, 2020 to August 23, 2021, by the former Governor Cuomo and Governor Hochul when she was in the position of Lt. Governor, for emails containing the words “claim”, “allegation”, “charge”, “charges”, “sex”, “sexual”, “assault”, “harassment”, “behavior”, “women”, or “woman”. I am further directing the RAO to provide to you a status update within twenty business days of the date of this letter, and periodically thereafter, as needed.
Bella S. Satra, Assistant Counsel to the Governor, FOIL Appeals Officer
This determination was also CC’ed by Satra to Shoshanah Bewlay, the Executive Director of the NYS Committee on Open Government, which should help to stop these issues from occurring both at the Chamber and across the state, and to serve as precedent for future appeals. While individual guidance like this does not carry the weight of a Committee on Open Government determination, and definitely not like a judicial determination, it is still important precedent, and may contribute to future actions by the Committee.
We look forward to the Chamber’s Records Access Officer providing us with the requested documents. Under New York law, the OIC should not have to pay, as the only time-based or physical fees are for the copying of documents, which would not apply here:
[P]reparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested.
New York State, Public Officers Law, Article 6, § 87(1)(c)(iv)
These documents are also of even more recent importance. Just a few days ago, one of the most well-known individuals who reported former Governor Cuomo’s conduct, Brittany Commisso, filed a lawsuit against him. She also notes conduct by now-Governor Kathy Hochul which, if determined to be true, would constitute retaliation; this led to the state being named as a defendant. They also come of importance due to the potential of former Governor Cuomo running for mayor of New York City if the current mayor, Eric Adams, declines to face reelection due to his ongoing federal investigation and sexual harassment scandal.
If any major developments occur in this case, this page will be updated, and our Files page will have the end results of this case. We also post updates about this case on the OIC Matrix chat. If you’d like to help fight for victories like these, and for open government, join us today!