Queens Bus Network Redesign Web Page Comments March 29-August 31, 2022

To Whom It May Concern:

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

Copies of all rider comments collected by the Metropolitan Transit Authority pertaining to the Queens Bus Network Redesign, submitted electronically via the project web page at the following URLs:

https://mta-nyc.custhelp.com/app/comments_queensbus (This was the original Queens Bus Network Redesign comment page which was later replaced with the URL below)

https://contact.mta.info/s/forms/bus-network-redesign

Please limit this request to comments submitted between March 29, 2022 and August 31, 2022

In the interest of complying with the Freedom of Information Law’s privacy requirements, please limit this request to the “comment” text only, withholding entries for name, address & contact information. As the data was collected via electronic web form with separate entry fields, it’s possible to extract the "comment" text by means of existing computer programs.

Please provide the requested raw data in machine-readable form, such as a CSV or Excel file.

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,

Douglas Breitbart

I am writing in response to your May 19, 2023 portal message re: FOIL request 03398573.

"This is to advise you that we are in the process of reviewing our files for the records you requested and anticipate being able to furnish you with your response within sixty (60) business days."

Pursuant to the NY Public Officers Law Ch. 47 Art. 6 § 89(3a), you are required to provide, in writing, both the reason for your inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.

Please provide the reason for the delay and a date, as the statute requires.

Thank you.

To Whom It May Concern:

I'm writing in response to the document you provided in response to my FOIL request (03398573).

Thank you for this document; however it appears to be a 1-page summary of customer comments for the Queens Bus Network Redesign.

I had requested copies of ALL rider comments collected by the Metropolitan Transit Authority pertaining to the Queens Bus Network Redesign, submitted electronically via the project web page at the following URLs:

https://mta-nyc.custhelp.com/app/comments_queensbus (This was the original Queens Bus Network Redesign comment page which was later replaced with the URL below)

https://contact.mta.info/s/forms/bus-network-redesign

I specified that my request be limited to comments submitted between March 29, 2022 and August 31, 2022

In the interest of complying with the Freedom of Information Law’s privacy requirements, I had asked that you limit this request to the “comment” text only, withholding entries for name, address & contact information. As the data was collected via electronic web form with separate entry fields, it’s possible to extract the "comment" text by means of existing computer programs.

I also asked that you provide the requested raw data in machine-readable form, such as a CSV or Excel file.

Per my original request, the complete comments should be available under FOIL.

Please refer to The Committee on Open Government advisory opinion letter (FOIL-AO-19157). I've pasted relevant quotes from the letter below.
Here is the link to the full advisory opinion letter: https://docs.dos.ny.gov/coog/ftext/f19157.html. I've also attached a PDF for your reference.

"if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by the Law [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)]."

"Although an agency need not create new records to comply with FOIL, §89(3)(a) states that, “when an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” In that kind of situation, the agency would merely be retrieving data that it has the capacity to retrieve. Disclosure may be accomplished either by printing out the data on paper or perhaps by duplicating the data on another storage mechanism, such as a computer tape or disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would be the equivalent of creating a new record."

"We believe that there is a clear distinction between extracting information and creating it. If an agency's database consists of 10 items or "fields", and a request involves items 1, 3 and 5, but the agency has never produced that combination of data, would it be "creating" a new record? The answer is dependent on the nature of the agency's electronic information system. If the agency has the ability to retrieve or extract those items by means of its existing programs, i.e., entering queries, it would not be creating a new record; it would merely be retrieving what it has the ability to retrieve in conjunction with its electronic filing system. An apt analogy may be to a filing cabinet in which files are stored alphabetically and an applicant seeks items "A", "L" and "X". Although the agency may never have retrieved that combination of files in the past, it has the ability to do so, because the request was made in a manner applicable to the agency's filing system."

Thank you in advance for providing the records I originally requested, which should be available under FOIL.

Sincerely,
Douglas Breitbart
FOIL request 03398573

To Whom It May Concern:

I'm writing in response to the document you provided in response to my FOIL request (03398573).

Thank you for this document; however it appears to be a 1-page summary of customer comments for the Queens Bus Network Redesign.

I had requested copies of ALL rider comments collected by the Metropolitan Transit Authority pertaining to the Queens Bus Network Redesign, submitted electronically via the project web page at the following URLs:

https://mta-nyc.custhelp.com/app/comments_queensbus (This was the original Queens Bus Network Redesign comment page which was later replaced with the URL below)

https://contact.mta.info/s/forms/bus-network-redesign

I specified that my request be limited to comments submitted between March 29, 2022 and August 31, 2022

In the interest of complying with the Freedom of Information Law’s privacy requirements, I had asked that you limit this request to the “comment” text only, withholding entries for name, address & contact information. As the data was collected via electronic web form with separate entry fields, it’s possible to extract the "comment" text by means of existing computer programs.

I also asked that you provide the requested raw data in machine-readable form, such as a CSV or Excel file.

Per my original request, the complete comments should be available under FOIL.

Please refer to The Committee on Open Government advisory opinion letter (FOIL-AO-19157). I've pasted relevant quotes from the letter below.
Here is the link to the full advisory opinion letter: https://docs.dos.ny.gov/coog/ftext/f19157.html. I've also attached a PDF for your reference.

"if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by the Law [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)]."

"Although an agency need not create new records to comply with FOIL, §89(3)(a) states that, “when an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” In that kind of situation, the agency would merely be retrieving data that it has the capacity to retrieve. Disclosure may be accomplished either by printing out the data on paper or perhaps by duplicating the data on another storage mechanism, such as a computer tape or disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would be the equivalent of creating a new record."

"We believe that there is a clear distinction between extracting information and creating it. If an agency's database consists of 10 items or "fields", and a request involves items 1, 3 and 5, but the agency has never produced that combination of data, would it be "creating" a new record? The answer is dependent on the nature of the agency's electronic information system. If the agency has the ability to retrieve or extract those items by means of its existing programs, i.e., entering queries, it would not be creating a new record; it would merely be retrieving what it has the ability to retrieve in conjunction with its electronic filing system. An apt analogy may be to a filing cabinet in which files are stored alphabetically and an applicant seeks items "A", "L" and "X". Although the agency may never have retrieved that combination of files in the past, it has the ability to do so, because the request was made in a manner applicable to the agency's filing system."

Thank you in advance for providing the records I originally requested, which should be available under FOIL.

Sincerely,
Douglas Breitbart
FOIL request 03398573

Attn: FOIL Appeals Officer
FOIL Team

MTA Legal Department
2 Broadway, 4th Floor

New York, NY 10004

Re: Freedom of Information Law Appeal re: MTA FOIL Request #03398573

Dear FOIL Appeals Officer,

I hereby appeal the denial of access regarding my FOIL request (#03398573), which was received by the MTA on May 16, 2023 via the MTA’s online FOIL Request portal.

On August 14, 2023, the MTA responded to my request by emailing me a one-page PDF document instead of the data I requested - and immediately marked my case as “Completed.” In essence, the MTA chose not to respond to my request, and there is no legal basis for an agency being unresponsive. No explanation was given for why the records I requested could not be produced, as is dictated by the MTA’s legal obligations under the New York Freedom of Information Law. Consequently I consider the request to have been denied and I’m appealing on that basis.

My FOIL request asked for the following records:
- Copies of all rider comments collected by the Metropolitan Transit Authority pertaining to the Queens Bus Network Redesign, submitted electronically via the project web page at the following URLs:
https://mta-nyc.custhelp.com/app/comments_queensbus (This was the original Queens Bus Network Redesign comment page which was later replaced with the URL below)
https://contact.mta.info/s/forms/bus-network-redesign
- I limited my request to comments submitted between March 29, 2022 and August 31, 2022
- In the interest of complying with the Freedom of Information Law’s privacy requirements, I asked to limit the request to the “comment” text only, withholding entries for name, address & contact information. As the data was collected via electronic web form with separate entry fields, it’s possible to extract the "comment" text by means of existing computer programs.
- I requested raw data in machine-readable form, such as a CSV or Excel file.
- I explained that the documents will be made available to the general public, and this request is not being made for commercial purposes.
- In the event that there were fees, I asked to be informed of the total charges in advance of fulfilling my request.
- I specified a preference that the request filled electronically, by e-mail attachment if available or CD-ROM if not.

In response to my request, the MTA sent me the attached document (03398573-Responsive Record).

As far as I know, there is no legal basis for the MTA to deny my request. The records I requested were collected by the MTA via its own website, presumably stored on the agency’s own computer systems, allowing for redaction of personal information to comply with privacy requirements. Please refer to the attached Committee on Open Government advisory opinion letter (FOIL-AO-19157). It can also be viewed online at: https://docs.dos.ny.gov/coog/ftext/f19157.html.

I've pasted relevant quotes from the attached advisory opinion letter below:

"if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by the Law [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)]."
"Although an agency need not create new records to comply with FOIL, §89(3)(a) states that, “when an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.”
"We believe that there is a clear distinction between extracting information and creating it. If an agency's database consists of 10 items or "fields", and a request involves items 1, 3 and 5, but the agency has never produced that combination of data, would it be "creating" a new record? The answer is dependent on the nature of the agency's electronic information system. If the agency has the ability to retrieve or extract those items by means of its existing programs, i.e., entering queries, it would not be creating a new record; it would merely be retrieving what it has the ability to retrieve in conjunction with its electronic filing system."

Additionally, the MTA has a history of providing records in response to similar FOIL requests. Please refer to these two FOIL requests for electronic records submitted online.

- MTA FOIL Request #17695 submitted by J.K. Trotter via Muckrrock on December 3, 2013. This request asks the MTA to extract “Comments” and claims text entries for lost or stolen Metrocards submitted to the Metropolitan Transit Authority’s Balance Protection Program MetroCard eFix website:
https://www.muckrock.com/foi/new-york-16/mta-balanceprotection-comments-9399/

- MTA FOIL Request #00066415 submitted by J.K. Trotter via Muckrock on May 31, 2016. This request asks to extract demographic data submitted via the MTA’s online surveys while redacting any personal data to comply with privacy requirements.
https://www.muckrock.com/foi/new-york-16/responses-to-mta-surveys-25929/

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, please be advised that the Freedom of Information Law directs agencies to send all appeals and the determinations that follow to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.

Sincerely,

Douglas Breitbart

November 16, 2023

Harris Berenson
Deputy General Counsel
Metropolitan Transportation Authority
2 Broadway
New York, NY 10004

Re: Freedom of Information Law (“FOIL”) Appeal Response re: MTA FOIL Request #03398573

Dear Mr. Berenson,

I’m writing to follow up on your letter dated September 8, 2023, in which you granted my FOIL appeal. You wrote that the MTA FOIL Team should complete the process of locating and reviewing the records I requested and provide a supplemental response within forty-five (45) business days from the date of your letter.

It’s been more than 45 business days and I’ve not received a supplemental response from the MTA FOIL team.

Thank you.

Sincerely,

Douglas Breitbart

Hello,

The response has still not been located after checking the spam folder. Could you please resend the response from November 13th?

I appreciate your help.