Christopher Philippo

I was considering making a NY FOIL request to the NYS Department of Health to try to find any records pertaining to the unsealing of original birth certificates of adoptees - not interested in names of people, dates or places of birth, etc. or copies of the birth certificates themselves, but any records relating to DoH receiving orders from courts to unseal original birth certificates under NY Domestic Relations Law § 114 or NY Public Health Law § 4138, any records relating to the processing or fulfilling of those orders. In NY the law providing for amending birth certificates and sealing the originals passed in 1936, but I don’t know how far back they’d necessarily retain records of such orders to unseal original birth certificates.

I saw someone had made a somewhat similar request in Massachusetts: In reading the agency’s reply I get the impression it may have been pettifogged somewhat - that they read the request in a very narrow, specific way; that a request worded differ? The response given seemed to indicate, however, that the agency does in fact receive requests - but seems to deny that it retains any record of receiving or responding to those requests. The response also indicated they send a form letter explaining why such requests cannot be fulfilled - the mere existence of which would suggest they must have received enough of those requests to justify directing that such a form letter be written and subsequently sent out in relevant cases. The text of the form letter itself, and the agency regulations or guidelines or instructions on when/how to use it I would have thought would have been responsive to the FOI request, even under a very narrow reading.

What might be a good, broad way of making a request that would be less likely to be defeated by pettifogging?

Russ Kick

If it were me, I’d probably start off with general “all documents” phrasing, then name some specific types of documents that do or *might* exist along these lines. For example, govt agencies and their components love to create annual reports about their activities, even when those reports aren’t released to the public. If those exist, they might contain some info you’re seeking. Maybe ask for memos and reports specifically about the topic. You could try asking for copies of all court orders for unsealing that they’ve received in a certain time frame. So, something like:

“I hereby request all documents relating to the court-ordered unsealing of adoptee birth certificates. This would include, but not be limited to:

• Copies of such court orders received by NYSDH

• Letters sent to adoptees informing them of the unsealing and release of their birth certificates (it is of course perfectly fine to redact all personally identifying information)

• All policies, procedures, and guidelines regarding the court-ordered unsealing of adoptees’ birth certificates

• All reports and memos created by the Adoption Registry or Vital Records Section regarding the court-ordered unsealing of adoptees’ birth certificates

• All annual reports created by the NYSDH’s Adoption Registry

• All annual reports created by the NYSDH’s Vital Records Section

The time frame for my request is January 1, [year], to the present.”

Christopher Philippo

Thanks! That seems pretty reasonable. I’d probably omit mention of the NYS DoH Adoption Information Registry as it handles non-identifying information, not the unsealing of original birth certificates for a petitioner.

I’m tempted to apply for 1936-present, and would want that eventually, but that might result in a very slow response from the agency. Probably better to start with just a decade or two, maybe?

Russ Kick

One approach would be to limit it to a few years for a faster response. But you could go ahead and ask for 1936-present just to see what they say about page count and fees. If those numbers are astronomical (most likely), you can talk to them about reducing the time frame to make it manageable. Also, it could be that due to records retention schedules, they no longer have documents going back that far, which would be good to know.

Christopher Philippo

I tried a 1936-to-present request with the NYS DoH and a 1960-1969 request with NYC DoH. The former has been taking forever, the latter was just rejected.On their first point, I *had asked them* if they needed more info describing the sort of records sought. In spite of that, they then* never sought that clarification from me* prior to denying my request on the basis of the records allegedly not being adequately described.\ \ Also on the first point, when original birth certificates (OBCs) were unsealed for an adoptee pursuant to court order, the OBCs did not magically become unsealed for everyone and get refiled with all other birth certificates as they appear to claim. They then reasoned, falsely, that the only way they could find unsealed OBCs would be to look at every single birth certificate of every single person during the time frame requested.

I’m not quite sure how to appeal when their denial, and their additional arguments for rejecting the request, were all based on a false premise they’d constructed. They wrote about potential privacy violations for each and every person, when something like a DoH procedure manual, or an index of court orders received to unseal records, or individual court orders received and anonymized, or boilerplate text sent to adoptees to accompany an OBC that had been unsealed, would not violate anyone’s privacy. I had even specifically asked for no identifying information!

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