Air filtration and ventilation guidance enforcement (Mayor's Office Of Operations)

To Whom It May Concern:

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

Records relating to the total number of restaurants inspected for compliance with state pandemic air filtration and ventilating guidance.

Records relating to the total number of inspected restaurants that have installed MERV 13 filters.

Records relating to the total number of inspected restaurants that have installed portable filtration or UVGI instead of MERV 13 filters.

Records relating to the total number of inspected restaurants that were operating the installed filtration or UVGI systems when inspected.

Records relating to the total number of inspected restaurants that have other mitigation measures in place, when MERV 13 filtration, UVGI, and portable filtration, was not in place.

Records relating to the number restaurants that have been found to be or are currently out of compliance with air filtration and ventilating guidance.

Should no such records exist, I request information on what records and/or statistics are collected regarding air filtration and ventilating guidance enforcement.

This is a continuation of my previous efforts to get this data (FOIL Control #: 2021FR01203.). I was informed that one of the named agencies does have ownership of this data.

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,

ALEXANDER RICCIO

This request was submitted nearly TWO years ago. It is likely that it will continue to be delayed indefinitely or to the point where the records are stale, the records are no longer kept, or those involved will die of old age. I believe this constitutes a constructive denial. I am appealing this - and seeking a serious and real response from the agency.

This request was submitted MORE THAN TWO years ago. It is likely that it will continue to be delayed indefinitely or to the point where the records are stale, the records are no longer kept, or those involved will die of old age. I believe this constitutes a constructive denial. I am appealing this - and seeking a serious and real response from the agency.

If the other appeals that I've filed were constructive denials, this must be. Should the city continue to break the law, the next step is to begin litigation. I'm making every attempt to avoid time consuming and costly litigation.

There appear to be multiple issues with this response.

For one, the single returned document appears to contain about 60 inspection records. There are far more licensed established restaurants in this city. Clarify that you intended to respond only with a single page of responsive records. I will return to this below.

There is one column that entirely lacks description. Many cells aren't even correctly formatted.

The rest of the columns have only the most minimal descriptions, which makes the data substantially less meaningful. Four columns in particular, "Adequate HVAC ", "Dining Q9 central air", "Dining Q9A HVAC cert", and "Dining Q9B ventilation", appear relevant. Please explain the meaning of these columns, and expand the search to include records providing any descriptions of these columns and records containing any discussions of these columns.

I had requested "Records relating to the total number of restaurants inspected for compliance with state pandemic air filtration and ventilating guidance". I see no such information in the response.

I had requested "Records relating to the total number of inspected restaurants that have installed MERV 13 filters." I see no such *specific* information, but it's possible that one of those four columns is a partial response.

I had requested "Records relating to the total
number of inspected restaurants that have installed portable filtration or UVGI instead of MERV 13 filters. " I see no such *specific* information, but it's possible that one of those four columns is a partial response.

I had requested "Records relating to the total number of inspected restaurants that were operating the installed filtration or UVGI systems when inspected. " I see no such *specific* information, but it's possible that one of those four columns is a partial response.

I had requested "Records relating to the total number of inspected restaurants that have other mitigation measures in place, when MERV 13 filtration, UVGI, and portable filtration, was not in place. " I see no such *specific* information, but it's possible that columns provided contain partially responsive information, that I may be able to use to construct an answer. I do not see why this would be up to me, it would require parsing into a structured data format from the human readable PDF you've provided, you should absolutely be able to summarize the strongly typed columns in your database.

I had requested "Records relating to the number restaurants that have been found to be or are currently out of compliance with air filtration and ventilating guidance." I see no such *specific* information, but it's possible that columns provided contain partially responsive information, that I may be able to use to construct an answer. I do not see why this would be up to me, it would require parsing into a structured data format from the human readable PDF you've provided, you should absolutely be able to summarize the strongly typed columns in your database.

The second paragraph in your response letter contains the following sentence: "Please note that some records have been redacted pursuant to Public Officer’s Law § 87(2)(b) and (g). "

This is highly concerning for multiple reasons. For one, I have received only one page, there appears to have been a blanket withholding of records instead of mere redaction.

Please clearly articulate the content and volume of records withheld. Please provide a particularized and specific justification for wholesale withholding. An agency cannot refuse to produce a whole record simply because some of it may be exempt from disclosure; agency must make a reasonable effort to determine which parts it has authority to redact.

It appears that the first of the claims of redaction pertain to this section in the law:
"(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;"

Have I correctly identified the relevant text in the statue?

It is unclear to me how my request is invasive to anybody's personal privacy - it pertains only to the operation of businesses who serve the public. Please provide a particularized and specific justification for this redaction, and explain how much information was redacted. An agency cannot refuse to produce a whole record simply because some of it may be exempt from disclosure.

Subsequently, you also claim a redaction under the clause "g" of the same law. I believe this is the following section of the law:
(g) 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;

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government; or

Insofar as records appear to have been withheld wholesale, I cannot even tell which agencies are involved here.

Indeed, the single page of disclosure appears to indicate employees from every agency as diverse as The Department of Transportation and The Taxi and Limousine Commission were assigned to what is essentially an assignment that combines occupation safety and health engineering with public health. My good faith presumption is that this was an attempt to muster adequate staff in a time of emergency, but it would be unreasonable to allow this to be used to construct a new administrative structure from multiple employees from different agencies assigned to work under a common office that is further shielded or otherwise obfuscated from public view under the provisions of FOIL.

Most specifically, considering I requested, specifically, "statistical or factual tabulations or data", I'm confused by this reference.

With regards to "instructions to staff that affect the public;", I cannot emphasize enough how much this affects the public. At least one out of every 283 residents statewide have died as a result of a catastrophic pandemic that's swept across our city several times over the past 3.5 years. These deaths were the direct result of exposure to a pathogen that is predominantly spread through the air, an airborne virus, in aerosols. I cannot propose any greater outcome that may be affected on a member of the public than literal death.

Any instruction that was provided to any employee of the city as part of the restaurant reopening plan had an inherent and indisputable role to play in whether the public inhaled an infectious disease at locations covered by the restaurant reopening plan. Indeed, unlike other indoor spaces, engineering controls like air filtration and ventilation are often the *only* measure that can play a role where people are eating.

Indeed, elected officials made pronouncements of widespread compliance with these measures, FOIL exists in part to allow members of the public to verify these claims by reducing the information asymmetry inherently present in the public/government dynamic.

With regards to "final agency policy or determinations", I imagine choices as to what conditions are considered as a "yes" or a "no" compliance are considered final policy, since it determines penalties and other enforcement actions, which cannot be levied based on draft policy or determinations.

Since you did not specify which of the exact four clauses, please clarify if withholding/redaction was related to "external audits, including but not limited to audits performed bythe comptroller and the federal government; or"

Finally, the last clause in your comments about the records returned was "You may wish to direct your search to the New York City Office of Technology and Innovation".

Please elaborate on this. On 09/20/2021, in response to a FOIL request to DOHMH, I received the following from an employee of DOHMH:

"I apologize for the delay. Please note that out of the limited data DOHMH has which would be responsive to your Freedom of Information Law request (data on the number of restaurants found to be out of compliance with air filtration requirements), this number would not accurately reflect the number of restaurants with violations, because the data does not contain citywide business inspections results.

My understanding is that City Hall is in possession of the complete universe of this data, and is in a best equipped to respond to your request."

Had the OOM responded within a more reasonable time to this request (it's been two years), I would be more willing to submit a request to OTI before asking: please elaborate on what data they may have that you do not? I am presuming good faith and a helpful suggestion here, but the delays in city FOIL administration are such that I might expect knowledgeable employees and other figures to die of old age before addressing my request. I'd love to know more before running off and chasing that agency down.

It is unclear to me why only data for 60 or so restaurants might be in possession of OOM, but not… all the others.

I never received a response to my 10/21/2023 communication.

Hi,

Thanks so much for your help with this request!

I believe your appeal determination to be satisfactory and reasonable, thus concluding the 2+ year journey of this request.

I have since submitted a FOIL to OTI and received the full list of inspections after some haggling. They appear to use similar column names. While their response leaves some questions (why are some establishments missed? Why would OOM have some records but not others?), I believe this is a great step towards fully understanding (and documenting!) the history of our city in the pandemic.

I really appreciate it.

Sincerely,
ALEXANDER RICCIO

Let the record reflect that I think it's kinda ridiculous to redact the "311 SR#" and "Complaint Category" fields (those come from public input!) but that I think it's likely not worth haggling over right now. I do not have the time to fight over every single choice, and expect the complaint categories to all have something to do with reopening.