FOIL request for four sets of microfilmed historical records

Dear Mr. Cobb,

Pursuant to the New York State Freedom of Information Law (FOIL), our non-profit organization Reclaim The Records hereby requests copies of the following four important historical record sets that are held by your agency:

1) Indices to Accession Records of New York City Medical Examiner case files, 1918-1945, microfilm numbers #52001-52021.


2) Burial records, New York City Department of Corrections - Potter’s Field [Hart Island], 1881-1985, microfilm numbers #6702-6710, #10705-10722, and #4135-4136. We believe that approximately 73 volumes of extant burial records are all or mostly included on those specific microfilms; however, this request includes all microfilmed burial records your agency might hold from New York’s “Potter’s Field” on Hart Island, including any that we may have not specified. More information about this record collection appears on ArchiveGrid: https://researchworks.oclc.org/archivegrid/collection/data/122346015


3) “Special” and delayed New York City birth certificates for all boroughs, for all years, including all of those stored offsite at the DORIS “warehouse.”  This request includes but is not limited to the 134 microfilms of special births that are cataloged on ArchiveGrid: https://researchworks.oclc.org/archivegrid/?p=1&q=contributor%3A60+Special+Births. That database does not list any special or delayed births from the Bronx, but that may be an oversight, so any extant microfilms of special or delayed birth certificates from the Bronx are duly requested as well.


4) New York County [Manhattan] District Attorney indictment papers, 1879-1938, but only the already-microfilmed ones, microfilm numbers unknown. There may actually be two duplicate sets of these records stored at DORIS, one from the Court and one from the DA. If this is the case, please provide us with copies of only one of the sets, although if there are meaningful differences between the two sets, please explain the discrepancies, as we would probably seek copies of both. Please provide us with an estimate of how many microfilms this will be before fulfilling this part of our request, as there is no published inventory for how large this collection is.


These historical records would all be freely available to the general public for research in your agency’s Reading Room at 31 Chambers Street, were that room not currently closed due to the pandemic. Therefore, there should be no problem making copies of the records available to us, under FOIL. We will be happy to pay for them.

Please provide us an invoice for the costs of the duplication and shipping of these new microfilms. As in past requests we have made of your agency, our new copies should preferably be made from the “master” microfilm versions you keep in your warehouse, and not from the somewhat worn second generation circulation copies that are used in the Reading Room. And all shipping should be made through a trackable and insured carrier, such as FedEx or UPS, with extra shipping insurance purchased equal to the actual cost of the films. We will gladly pay for those extra expenses.



However, there are some potential expenses in this request that we will probably not want to pay. In 2015, I personally paid your agency approximately $35 per microfilm roll for 48 copies of the 1908-1929 marriage license indices, which I eventually received—after first suing your agency under FOIL. And then in 2017, our non-profit organization paid your agency approximately $25 per microfilm roll for approximately 125 microfilms of the New York City “geographic” birth index that we requested under FOIL; the larger total number of films in that order meant that there was a discounted price per roll, which was nice.

But our organization has recently discovered, through the wonders of FOIL and its reach into your agency’s e-mails and contracts, that you personally told a representative of the corporation Ancestry.com in an e-mail on March 31, 2016 that it would probably cost your agency $11.75 per microfilm roll for you to make Ancestry copies of the same marriage license microfilms. This was far lower than the price that you had charged me the previous fall for the same materials, and an oddly specific number to provide for an e-mail estimate.



I certainly hope you didn’t overcharge me or our non-profit organization, or undercharge Ancestry.



So please, do ensure that the cost of reproduction of these newly-requested materials, whatever it may be, is compliant with the law, which mandates that requestors under FOIL are only charged the actual costs, without any mark-up. And furthermore, please be sure that your agency will not be providing any unusual discounts to multi-billion-dollar commercial conglomerate requestors that you do not also provide to taxpaying members of the public or to non-profit organizations.

Finally, if DORIS should happen to have any digitized/scanned image copies of any of these rolls of microfilm, regardless of whether or not they have yet been published on any website or any publicly accessible system (such as on an internal file share server), then please send us those digital images instead of creating the new and more expensive microfilm-to-microfilm physical copies. We would be happy to pay for the hard drives for those images, and for their insured and trackable shipping, again preferably through UPS or FedEx.



However, if those digital images do exist, then we would insist that you only provide those image copies to us in their full-size, un-compressed, un-edited, and un-watermarked format, exactly as you hold them on your own hard drives. After all, if your agency took the time and effort to resize, compress, edit, and/or watermark those image files before making them available to us under FOIL, that would be very silly indeed.

We look forward to reclaiming these important historical records for the public, and intend to publish our digitized versions online freely, without any kind of paywalls or usage restrictions. We also intend to offer them for both individual and bulk download to anyone who wants them, for any purpose, without requiring people to tediously right-click and “save as” for each image, one by one. We’re nice like that.



We look forward to receiving your agency’s official reply to this request in the next few days, as is required by law. Please be advised that if, as is apparently your agency’s common procedure, you ignore this request and refuse to respond within a reasonable time period, and instead just fiddle around with your estimated response date listings in the New York City OpenRecords web portal without actually doing anything to provide the records, then it will legally be construed as a constructive denial of our request. In that case, we would quickly move on to the FOIL appeal process for our request, and then likely onwards to yet another lawsuit filed by our organization against your agency.

Or maybe the Department of Records will actually provide some records. Let’s find out!

cheerfully yours,

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

Hi Ken,

Thank you for your reply to our FOIL request.

For item #1, the Indices to Accession Records of New York City Medical Examiner case files, you say there are 21 rolls of 35 mm microfilm. We will gladly pay for those film copies, and their insured and trackable shipping, preferably through a carrier such as FedEx or UPS.

For item #2, the Department of Corrections City Cemetery Burial Records [Hart Island], you say there are 30 rolls of 35 mm microfilm. We will gladly pay for those film copies, and their insured and trackable shipping, preferably through a carrier such as FedEx or UPS.

For item #3, the “Special” and delayed New York City birth certificates for all boroughs, for all years, including all of those stored offsite at the DORIS “warehouse", including but not limited to the 134 microfilms currently catalogued on ArchiveGrid, you say that we cannot have any of the records at all, from any year, because some small number of these birth records are for births that took place post-1909.

We believe you are incorrect.

We know from our first-hand use of these records in your agency's reading room that the vast majority of these records are for births that took place in or prior to 1909, usually births to poor or immigrant families in the late nineteenth century, which were finally legally recorded much later. For example, there are many records in this set that were created in the 1940's when an adult New York City resident needed to provide proof of birth to enlist in the armed forces during World War II, or in the 1950's-1960's when they needed to get proof of age to claim their Social Security benefits.

We estimate that there are at least 120,000 birth records in this records set. There may be a small number of records in this set that were accidentally included for people who were born post-1909, but they are a tiny percentage of the entire records set, maybe a few hundred records at most. We also believe that this sprinkling of post-1909 births might be constrained to just a few of the microfilms, perhaps just the ones that are have a higher (that is, later) master microfilm number assigned to them in the record series.

Therefore, for this records set, we request that you provide to us all the records which clearly do not have any legal restrictions, meaning all births that took place in or prior to 1909 (even if the record was created much later), and that you should segregate out and withhold just the specific individual records of people born post-1909. But your agency cannot legally withhold the whole records set in its entirety.

Under FOIL, it is an agency's requirement to redact only the specific records or the specific parts of records (even single sentences) that must be withheld, but not to withhold entire record sets from public release if they contain some disallowed content. For reference, please see the New York State Committee on Open Government (COOG) Advisory Opinion FOIL-AO-16659, from 2007, which is available on their website at this URL:

https://docsopengovernment.dos.ny.gov/coog/ftext/f16659.htm

To quote some of the relevant parts:

"Most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that referenced in response to your requests. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.)."

(end quote)

In short, New York government agencies are required to review records sought in their entirety to determine which portions, if any, may properly be withheld. Therefore, please fulfill our FOIL request for item #3, the "Special" and Delayed birth records, to the extent that most of the specific records have no legal restraints because they are for births that took place in or prior to 1909, as those individual records clearly do not have any legal restrictions on them, and are already the property of your agency and in the possession of your agency. If you think you need to withhold or redact certain specific and individual records within the set, by all means do so, but you cannot simply withhold the entire records set.

Furthermore, we reiterate that the vast majority of these microfilmed "Special" and delayed birth records are already freely available to the public for both viewing and copying in your agency's reading room, and have been so for many decades. We would like to point out that any attempt at "retroactive classification" of historical records which were already purposely made available to the public is not allowed under the New York State Freedom of Information Law. These records are not "still under the jurisdiction of the Department of Health & Mental Hygiene" as you put it, because they are literally in the possession of your agency, and are open to the public within your own reading room in your building. These books and microfilms may have originated with the DOHMH years ago, but under FOIL, they are indeed your agency's records, and they have been for decades.

Furthermore, if we really wanted to get into the nitty-gritty of this particular records set, we could point out that the DOHMH only legally controls the issuance of *certified* copies of post-1909 New York City birth certificates. They do not control these slightly blurry black-and-white microfilmed *non-certified* images which are also known as "informational copies" or "genealogy copies", which do not bear an official seal nor an apostille, and which are not accepted as an official government document for identification purposes by any government agency. New York State law clearly distinguishes between certified and uncertified copies of genealogical documents. And we also point out that our organization coincidentally has a long-running lawsuit against the DOHMH and other NYC government agencies for public access to this exact kind of non-certified "information only" digital image copy of NYC vital records, albeit death certificate images from the mid-twentieth century rather than birth certificate images. While that lawsuit is still awaiting a ruling, we will point out that the city attorneys did not raise an objection or a defense to our claims that the non-certified digital images of the old certificates are subject to FOIL, and instead they chose to argue over other issues within that suit.

Nevertheless, simply for the purposes of expediting this particular FOIL request, we will simply ask you here for the subset of "Special" or delayed birth records that are indisputably open to the public under FOIL because they concern birth records for 1909 or earlier years. We reserve the right to discuss the issue of the non-certified copies of the post-1909 records, which are already in possession of your agency, and which are already available to the public, for some other time.

And we also reiterate from our original FOIL request that some number of these type of "Special" and delayed birth records might also be stored offsite at your agency's "warehouse", particularly for the birth records from the Bronx that unfortunately seem to be missing from the record set description on ArchiveGrid. Those warehouse records, too, would have to be checked, reel by reel, and the older individual birth records therein must be provided to us, while the post-1909 birth records can remain segregated or withheld. We will be happy to pay for the copies of those records from those warehouse microfilms, too, and for their trackable and insured shipping, preferably through a carrier such as FedEx or UPS.

For item #4, the New York County [Manhattan] District Attorney indictment papers for 1879-1938, we would like to clarify our FOIL request: we were asking about the basic index or indices to this records set, not for the full set of indictment papers. We think that is why there is a discrepancy in the date we provided and the date you found -- we think the microfilm index runs up through 1938, while the original papers are only microfilmed up to 1895. Obviously, we think that this index will be contained on fewer microfilm reels, perhaps only a handful, rather than the 594 rolls that contain the full papers.

Please let us know how many microfilm rolls there are for just the index to those DA indictment papers. And as noted in our FOIL request, there might actually be two sets of this type of index, one from the Court and one from the DA's Office. If this is the case, please let us know if there appear to be any notable difference in the two sets.

Finally, you note that "[t]he Department obtained a price quote of $36.50 per roll from a reputable vendor to provide this [microfilm copying] service." This is not a bad price, and we're willing to pay it if necessary. But we reiterate that we have in the recent past gotten significant price discounts on this type of microfilm copying, from the exact same agency (yours) and the exact same vendor, because the number of microfilms being copied in the job totaled more than one hundred microfilms. We still have a copy of that invoice and would be happy to share it with you.

And we also reiterate that we have copies of your own e-mails where you recently told the multi-billion dollar company Ancestry.com that you would only charge them $11.75 per microfilm roll copy. We would be happy to provide a copy of your own e-mailed words back to you to refresh your memory, if you like. We are still waiting to hear why there would be such a discrepancy in that price quote, which is less than half the cost of the per-reel price you just gave us in this FOIL request. For the record, Ancestry was just purchased last year by the private equity firm Blackstone for $4.7 billion, so they really do not need a special discount from a government agency on records access, especially a special discount that does not appear to be available to the general public nor to a non-profit organization such as ours.

In any case, once we eventually figure out the exact number of microfilms we're talking about copying here, for items #1-4 inclusive, we would then like to explicitly confirm with the vendor directly whether there will once again be a bulk discount provided to us based on the number of reels being copied.

But that can wait until we first hear your responses to item #3 and item #4 as discussed above, and we look forward to your providing those responses to us shortly.

sincerely,

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

Okay, we are going to order just items #1 and #2, and hold off on the other records for the time being.

So that is...

1 – Office of Chief Medical Examiner Records, indices, 1918-1945
master negative numbers 52001-52021 – total 21 rolls 35mm microfilm.

2 – Department of Corrections City Cemetery Burial Records, 1872-1985
master negative numbers 351; 4135, 4136; 6702-6710; 10705-10722 – total 30 rolls 35mm microfilm.

Total number of microfilm rolls in items 1 and 2: 21 + 30 = 51 rolls of 35 mm microfilm
Total cost of the duplication: 51 rolls x $36.50 per roll = $1,861.50
Total likely cost of shipping a big box of 51 35mm microfilms from NY to CA, via UPS or FedEx, with extra insurance purchased to cover the actual costs of the materials in the box: $50-$100 (please confirm the actual price)
Grand total for this FOIL request: about $1,961.50

Please confirm this is acceptable, send us an invoice, let us know how to provide payment, and let's get this started. Thank you.

- Brooke Schreier Ganz

Yes, that should be fine, thank you. Our contact e-mail is info@reclaimtherecords.org, as always.

- Brooke

Hi, it’s been another two weeks and we still have no invoice or communication from either you or the vendor. Please send us the invoice so we can get our records.

- Brooke

This looks fine; please sign it, and we will pay IMR directly as soon as we get the invoice from them.

- Brooke

Hi, any news from IMR? I would like to pay for the records.

- Brooke

Hi Ken,

It's been another five weeks now - happy new year. Any updates on the microfilm duplication? And I still need the final invoice from IMR, including the FedEx or UPS shipping costs to California.

Thanks.

- Brooke