Data and Research on the Existence of COVID-19 Variant BA.2.86 (New York State Department of Health)

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

all data, research, and correspondence related to the existence and characteristics of the COVID-19 variant BA.2.86, as mentioned by Governor Kathy Hochul, for the period from January 1, 2023, to August 31, 2023.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Jackson Parker

David Harvey, Esq.
Records Access Officer
New York State Department of Health
Empire State Plaza, Corning Tower
Albany, NY 12237

Re: FOIL Request for Data and Research on the Existence of COVID-19 Variant BA.2.86 (NYSDOH)
FOIL #: 23-08-474

Dear Mr. Harvey,

I am writing to follow up on my Freedom of Information Law (FOIL) request dated August 31, 2023, concerning data and research on the existence of COVID-19 Variant BA.2.86.

Given the significant public health implications of this variant and the actions being taken by the Governor, I respectfully request that the processing of this FOIL request be expedited. The information sought is crucial for the public to understand the basis of governmental actions that have wide-ranging impacts on health and safety.

While I understand that FOIL allows for a reasonable time to process requests, the urgency of this situation warrants an expedited review. I kindly request that you provide a rolling release of records as they become available, rather than waiting for the entire request to be fulfilled.

Thank you for your attention to this matter. I look forward to your prompt response given the urgent nature of this request.

Re: Appeal for FOIL Request #PARKER_DOH_20230830223427885

Dear Records Access Officer,

I am writing to appeal the extended timeframe for fulfilling my Freedom of Information Law (FOIL) request submitted on August 30, 2023, concerning all data, research, and correspondence related to the existence and characteristics of the COVID-19 variant BA.2.86.

The Department's extension letter dated September 7, 2023, indicates that the request is being delayed until November 13, 2023 and subsequently another extension letter dated September 8, 2023 indicates that the request is being delayed further until November 14, 2023. This extended delay is inconsistent with the statutory timeframes outlined in New York's Freedom of Information Law, which generally requires a response within 5 business days, or a reason for any delay and a date by which the request will be fulfilled.

In *Rattley v. New York City Police Department*, the court emphasized the importance of agencies certifying that they have conducted a "diligent search" for requested records when they cannot be located. While I understand that some records may require time to locate, the law mandates that agencies act diligently in these matters.

Given the significant public health implications of this variant and the actions being taken by the Governor, the information sought is crucial for the public to understand the basis of governmental actions that have wide-ranging impacts on health and safety. Therefore, I respectfully request that the processing of this FOIL request be expedited.

I kindly request that you provide a rolling release of records as they become available, rather than waiting for the entire request to be fulfilled. This approach is consistent with the spirit of FOIL, which aims to maximize public access to government records.

Thank you for your immediate attention to this matter. I look forward to your prompt response.

Subject: Appeal of FOIL Request No. 23-08-474

Dear FOIA Appeals Officer,

I am writing to appeal the response to my Freedom of Information Law (FOIL) request, identified as No. 23-08-474, which sought data and research on the existence of the COVID-19 variant BA.2.86 from the New York State Department of Health.

On August 31, 2023, I received an acknowledgment of my request (Reference: https://cdn.muckrock.com/foia_files/2023/08/31/Acknowledgement_Letter_23-08-474.pdf). Subsequently, on September 29, 2023, I was informed of an extension to the response time (Reference: https://cdn.muckrock.com/foia_files/2023/10/01/9.29.23_Ext._Letter_23-08-474.pdf). While I understand the need for occasional extensions, the reasons provided for the delay have not been adequately justified, and the statutory timeline for response has not been adhered to.

The Public Officers Law § 89(3)(a) requires that an agency must grant access to or deny access to records within twenty business days of receipt of a request. The extension letter cites the voluminous nature of the request and the need for consultation, which are understood. However, the law also requires that the reason for the delay be explained and that a date be provided by which a determination is expected to be made. The extension letter provided does not specify a date, which leaves the request open-ended and does not comply with the statutory requirements.

The linguistic vagueness in the extension letter does not conform to the adequate justification as required by law. Phrases such as "voluminous nature" and "need for consultation" are not substantiated with specific details that would warrant such an extension. This lack of specificity fails to meet the standard set forth in the case of Konigsberg v. Coughlin, 68 N.Y.2d 245 (1986), where the court held that the agency must articulate particularized and specific justification for denying access to records.

In light of the above, I respectfully request that this appeal be considered and that the FOIL request No. 23-08-474 be remanded to the FOIL officer for immediate processing. I also request that the information be provided in a rolling release to expedite the availability of records.

I appreciate your attention to this matter and look forward to a prompt resolution. Please do not hesitate to contact me if you require any further information or clarification regarding this appeal.