“Upstate Medical’s blanket denial in the Denial Letter indicates that Upstate Medical did not make a good faith effort to comply with the FOIL Request, or that Upstate Medical took any steps to try to locate the records sought.”
Legal Insurrection Foundation (“LIF”) has begun its investigation regarding the infiltration of “identity politics” and Critical Race Theory at SUNY Upstate Medical University (“Upstate Medical”).
The Office of Diversity and Inclusion at Upstate Medical published its 164-page Report of the 2020 Diversity Task Force on August 31, 2020, and has established the “Diversity Task Force” and five (5) “Implementation and Oversight Tiger Teams” “to further evaluate, prioritize, develop, and coordinate the action items proposed in the Task Force report.”
LIF, along with The Free Beacon, served a Freedom of Information Law (“FOIL”) Request for specific records to further analyze this concerning, racially-charged situation, as originally reported on December 8, 2020:
…LIF and the Free Beacon have served a FOIL request for records to get a deeper understanding of what is happening at Upstate Medical than is publicly available. Among other things, we seek the records of the Diversity Task Force and Tiger Teams, and the associated persons and groups, regarding these racial identity education issues for prospective students, students, faculty, and staff.
We received a response to our FOIL request from Upstate Medical on December 11, 2020 (the “Denial Letter”), in which Upstate Medical denied the FOIL Request in its entirety, with Upstate Medical supporting its blanket denial by stating the FOIL Request was “too broad in scope” and did not “reasonably describe the records sought”.
On December 22, 2020, LIF and the Free Beacon filed an Administrative Appeal with the SUNY FOIL Appeals Officer, noting that the FOIL Request was not too broad in scope and did reasonably describe the records sought:
The availability of statutory attorney’s fees is intended to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of Freedom of Information Law (FOIL). South Shore Press, Inc. v. Havemeyer (2 Dept. 2016) 136 A.D.3d 929, 25 N.Y.S.3d 303. In order to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that the descriptions were insufficient for purposes of locating and identifying the documents sought. N.Y. State Comm Open Govt. AO 11543.
Upstate Medical’s blanket denial in the Denial Letter indicates that Upstate Medical did not make a good faith effort to comply with the FOIL Request, or that Upstate Medical took any steps to try to locate the records sought. Moreover, in the Denial Letter, Upstate Medical did not indicate that the records sought could not be located or identified, and, given the specific description of the records sought in the FOIL Request, it is highly likely that Upstate Medical would be able to locate and identify the records sought. Upstate Medical has not identified any other specific information it would need to perform the searches.
As required by statute, please fully explain in writing the reasons for denial in response to the points raised in this appeal, or provide access to the record sought, pursuant to N.Y. Pub. Off. Law § 89(4)(a) (McKinney).
LIF and the Free Beacon limited the FOIL Request by specifying a narrow time frame, a focused subject matter, and even listed specific individuals from whom documents were sought. Further, Upstate Medical did not demonstrate in the Denial Letter any effort to make a good faith attempt to locate the records requested. Instead, Upstate Medical brushed off the FOIL Request, relying on inaccurate and unsubstantiated claims that the FOIL Request is not sufficiently specific.
We would certainly be in our right to seek redress from the court; however, we hope that Upstate Medical will take this opportunity to reconsider and rescind its denial of the FOIL Request. If need be, we are prepared to go to court after exhausting our required administrative remedies.
We will continue to keep you updated.
Leah M. Baldacci, Esq. is the Investigations Counsel at the Legal Insurrection Foundation.
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