Index to Buffalo death records, through December 31, 1945

To Whom It May Concern:

Hi, my name is Brooke Schreier Ganz, and I am the president and founder of a non-profit organization called Reclaim The Records. We use Freedom of Information laws and open data laws to get copies of inaccessible archival record sets released back to the public, for free use.

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

I would like to receive a copy of the index to all Buffalo death and burial records, from as early as such records are available through December 31, 1945, inclusive. I have been told by other genealogists that there is an existing burial permit index from 1852-1877, and a more complete death index from 1878-1945, all already in digitized image format on CD-ROM and even transcribed into a text database. Please note that this request is for the photos/scans of the index and any transcribed text database of the index, but I am not asking for any copies of the actual death certificates. Our organization is hoping to make it easier for genealogists to learn which records your office may have on file in the first place, so that they can order copies of their relatives' death certificates from your office or from the state.

While vital records, including actual death certificates, are subject to privacy laws, the basic index to the records is required to be open to the public under the New York State Freedom of Information Law (FOIL). Almost two years ago, I filed this same request with the New York State Department of Health in Albany, asking for copies of their statewide death index. At that time, they only maintained their statewide death index copy in old-fashioned microfiche format, and only at a small number of upstate libraries. After a seventeen-month-long fight with them, including legal discussions with my attorneys and their Records Access Officers, the state finally conceded that an index to these records must be made available to the public under FOIL. I received my copy of the state death index from them a few months ago and our organization has recently put it online for free public use, at the Internet Archive. Having this digital copy of the index will help millions of people with New York State roots research their ancestors and order more record copies from the state.

However, that statewide death index we won, which runs from 1880-1956, does not include any deaths for Albany, Buffalo, or Yonkers prior to about 1914 or 1915, because those cities weren't great about compliance with the law. I would like to try to fill in the gaps in the online statewide file with your city's information, so that people can track down their ancestors' records and order copies from you.

Please let me know in which formats you have this death and burial index. As mentioned, I have been told that images of the index already exist in digital format on CD-ROM, and there is a transcribed text database too. Because this is a FOIL request, I recognize that I will be required to reimburse your fair costs for making copies of the data, either by using in-house staff at your office, or perhaps hiring an outside vendor to do the scanning or photography for you. I will also pay for the insured shipping of the record copies to California, if necessary.

Please be advised that if you ignore or deny this request, our organization will take your office to court, under the New York Freedom of Information Law. In the past three years, we have already sued two different New York City agencies for copies of genealogical records and won settlements both times, and even won our attorneys fees the second time. And we are currently engaged in litigation against the Missouri Department of Health and Senior Services, fighting for copies of their statewide birth index and death index. Hopefully, that kind of legal action will not be required in this case, but we did just want to point it out to you from the outset, so you would at least have fair warning. A FOIL request like this is not a favor, it's the law, and we are willing and able to use the law.

Please feel free to reach out to me directly if you have any questions or concerns about any part of this FOIL request. My phone number is 917-572-3834 and my e-mail is info@reclaimtherecords.org . Please inform me of any potential charges in advance of fulfilling my request.

Please also be advised that this FOIL request is being filed publicly through the website MuckRock.com, and all correspondence about this request will be immediately published to the general public.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within five business days, as the statute requires.

Sincerely,

Brooke Schreier Ganz
Founder and President, Reclaim The Records
https://www.ReclaimTheRecords.org/

Hi Sharon,

Thank you for your reply. I called back and left phone messages with you and Gerald yesterday and today, but I haven't heard back yet, so I am following up by e-mail.

I did speak to Rosemarie Hewig, the Records Access Officer for the New York State Department of Health in Albany, by phone yesterday. She said that it would be inappropriate for her, or anyone in her department, to offer you any kind of legal guidance or "permission" to copy the Buffalo city death index for us, as they are an entirely separate agency. She says that you should talk to your FOIL Officers and your own attorneys, as their office cannot make this determination for you. You are welcome to check with her yourself if you want to hear this straight from her.

The records you are referencing at your local library are the exact ones that I already got from the state through an earlier FOIL request I made, which I filed in January 2016 and finally received in May 2017. I have copies of all of those microfiche sheets, and they are now digitized, and I put them online for free public use. As you might imagine, it's much easier to use the digital copies than the old microfiche! And I live across the country in California and now I don't have to travel to do research in the index, which is nice.

But the whole reason I am reaching out to your office is that the statewide index, from 1880-1956, does not include Buffalo deaths before about 1915. Buffalo was one of three cities (the others being Albany and Yonkers) that just didn't submit their deaths to the state until that point; they only kept the copies locally. That's why this FOIL request to you was filed, to fill in the record gaps of that statewide index by acquiring the missing years' names. (I have almost identical FOIL requests pending with the Albany and Yonkers city clerks right now, too; you're all in the same boat.)

Therefore, my FOIL request to you in Buffalo remains open and active, and you will need to give me a legal response directly.

I look forward to your office either fulfilling or rejecting this FOIL request in the near future. Please be advised that you are already past the five business day deadline as required by the statute, but I'm willing to wait a little longer for your office to make a determination. However, if this request is rejected or ignored, our organization Reclaim The Records will move on to legal remedies, and under FOIL there is the potential for your office to be responsible for our attorneys fees, too. Hopefully we won't need to get to that point, though.

Feel free to call me if you have any questions. Thanks.

- Brooke Schreier Ganz

Dear Sharon,

It sure sounds like your office -- not me, your office -- should see about getting that permission from Albany, or not, so that you can either formally approve or formally deny my request. That's part of your job as a FOIL officer, not mine as a FOIL requestor. And as I mentioned, I did already try by contacting the Records Access Officer directly, even though I was under no legal obligation to do so.

Also, FOIL does not merely require your office to answer an e-mail in five business days; it requires your office to actually approve or deny the request in five business days, or else to a provide an estimated date within twenty more business days when that will happen. See section §89(3)(a) of the Freedom of Information Law. I still do not have an estimated date.

May I direct you to the New York State Committee on Open Government's very informative website? https://www.dos.ny.gov/coog/

They're a group of attorneys funded by the New York State legislature just for situations like this, to help both FOIL requestors and government agencies deal with the law and stay compliant. They will consult with you for free over the phone if you have any questions about this request. I've used their services before many times and they've always been very helpful. I suggest you give them a call, after you're done asking Albany for permission for the copies.

- Brooke

Dear Mr. Chwalinski,

Thank you for agreeing to fulfill our Freedom of Information Law (FOIL) request.

However, you are estimating that each CD will cost ten dollars. This is not acceptable. New York FOIL clearly states that agencies can only charge the actual costs of materials. See §87(1)(c)(ii): "the actual cost of the storage devices or media provided to the person making the request in complying with such request".

You can buy a pack of 25 CD's at Staples for $9.99. That's ten dollars for 25 CD's, not ten dollars per individual CD, as quoted in your response.

Alternately, I would accept the files on a single 16 GB USB thumb drive, which costs $12.99 at Staples.

Please let me know which storage media you would prefer to use, and what that cost would be. The two billable hours and the shipping costs are fine. Once I know the revised costs, I will send you out the payment right away.

Finally, does your office really only accept money orders? No checks or credit cards?

- Brooke

Thank you for the quick response! I am sending you the money order in the mail today, so you should probably receive it on Monday. Have a great weekend.

- Brooke

Hi Sharon,

I have been able to read all the data on all of the thirteen CD's except for one that seems to be corrupted. It's the disc for 1909-1914; it just won't load and my computer can't read it at all. I even tried having disc utility try to save a copy, but no luck. Could you please send a new copy of the 1909-1914 disc? Or upload the data to a file sharing site like Dropbox or Google Drive, if that is easier for you?

Thank you.

- Brooke