Cuomo/DFS - Mulrow Correspondence

Dear Mr. Sirota: prefix = "o" ns = "urn:schemas-microsoft-com:office:office" / Attached is a letter acknowledging receipt of your FOIL request. Very truly yours, prefix = "w" ns = "urn:schemas-microsoft-com:office:word" / Dora Lewis Legal Assistant Office of General Counsel
Tracking Number:FOIL-2016-064241-001222

Dear Mr. Sirota:

I write regarding the FOIL request that you submitted to the New York State Department of Financial Services ("Department"), assigned the above-referenced tracking number and seeks correspondence between the records access officer and DFS staff pertaining to FOIL Request No. 2015-063025 (FOIL-2015-063025-000212).

The Department is unable to respond to your FOIL request within the original twenty-day period specified in my previous correspondence. We are still in the process of locating responsive records and will update you on the progress of your request by August 1, 2016.

We appreciate your continued patience.

Very truly yours,
Dora Lewis

Legal Assistant
Office of General Counsel

Dear Mr. Sirota:

I write in response to the FOIL request that you submitted to the NYS Department of Financial Services ("DFS"), which seeks "any and all correspondence between the records access officer and DFS staff regarding FOIL Request No. 2015-063025 (FOIL-2015-063025-000212). This original FOIL request No. 2015-063025 was filed on 12/30/15 by David Sirota of the International Business Times. It regarded correspondence between William Murrow and DFS employees."

The records that you request are exempt from disclosure pursuant to N.Y. Public Officers Law S. 87(g), which exempts from public 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[.]"

The records that DFS has that are responsive to your request consist entirely of pre-decisional, deliberative communications, opinions, recommendations, evaluations, or other subjective commentary between employees of the Department of Financial Services, and do not contain any information that falls within any of the four exceptions to non-disclosure under Public Officers Law § 87(2)(g). These records contain the very kind of information that the exemption in Public Officers Law § 87(2)(g) is designed to protect. In New York Times Co. v. City of New York Fire Dep't, 4 N.Y.3d 477, 488-89 (2005), the Court of Appeals held that "[t]he point of the intra-agency exception is to permit people within an agency to exchange opinions, advise and criticism freely and frankly, without the chilling prospect of public disclosure . . . [and] to permit the internal exchange of candid advice and opinions between agency employees." See also Miller v. New York State Dep't of Transp., 58 A.D.3d 981, 984 (3rd Dep't 2009) (holding that "[t]he interagency and intraagency exemption applies to records that are deliberative, i.e., communications exchanged for discussion purposes not constituting final policy decisions.") Because the records that you request reflect only inter-agency deliberations and opinions, and do not contain "statistical or factual tabulations or data", they fall squarely within the exception to disclosure under Public Officers Law § 87(2)(g).

In accordance with Public Officers Law § 89(4), you may appeal this determination to withhold records within 30 days by writing to D. Monica Marsh, Principal Attorney, NYS Department of Financial Services, One State Street, New York, NY
10004, or by email to FOIL.Appeals@dfs.ny.gov<mailto:FOIL.Appeals@dfs.ny.gov>.

Sincerely,
Sally Geisel
Supervising Attorney
& Records Access Officer