Qvernight Detivery April 23, 2024 FOIL Appeal Officer Office of the District Attorney County of New York One Hogan Place New York, NY 10013 Re: — 23FO283 FOIL Request ~ Administrative Appeal of Constructive Denial Dear FOIL Appeal Officer: Citizens United hereby appeals the constructive denial of its April 21, 2023, records request identified by the New York County District Attorney's Office as 23F0283. A year has passed since the request was submitted but to date not a single record has been produced. Instead, Citizens United has received seven response letters, each claiming additional time is required to process the request. April 22, 2024, the deadline of the last letter received has come and gone with no further follow-up. Based on the last correspondence received, the Records Access Officer assigned to the matter had yet to even determine the threshold question of whether any records exist that are subject to release under FOIL. As more fully elaborated herein, the DA Office's extreme stonewalling in this matter is intolerable and constitutes a constructive denial of Citizens United’s FOIL request prompting this appeal. FACTS: On Aprit 21, 2023, | submitted a letter on Citizens United’s behalf to the New York County District Attorney's Office pursuant to New York State’s Freedom of Information Law ("FOIL") requesting the following six categories of records for the period January 1, 2022, through the date of the request (April 21, 2023): -Copies of any and all email or text messages to or from any employee of the Manhattan District Attorney’s office with George Soros, Alexander Soros, Jonathan Soros, Jennifer Soros or any individual affiliated with Open Society Foundations or Color of Change. SEE. + Washington, D.C. 20003 20 + Fax (202) 547-5421 + wwweitizensunited org 1006 Pennsylvania Ave Tel (202) 54-Copies of any and all calendar entries indicating phone calls, meetings or meeting requests with George Soros, Alexander Soros, Jonathan Soros, Jennifer Soros or any individual affiliated with Open Society Foundations or Color of Change. -Copies of any and all email or text messages to or from any employee of the Manhattan District Attorney's office with any Member of the U.S. House or U.S. Senate or staff member of the of the U.S. House or U.S. Senate. -Copies of any and all calendar entries indicating meetings or meeting requests with any Member of the U.S. House or U.S. Senate or staff member of the U.S. House or U.S. Senate. -Copies of any and all email or text messages to or from any employee of the Manhattan District Attorney’s office with any employee of the Biden White House or Executive Office of the President. -Copies of any and all calendar entries indicating phone calls, meetings or meeting requests with any employee of the Biden White House or Executive Office of the President. Citizens United’s straightforward request was acknowledged on April 26, 2023, by FOIL Access Officer Madeline Guilmain. At that time, she stated: Given the complexity and size of your request we will need additional time to locate and identify potentially responsive records, which in turn must be reviewed in order to rule upon your request. You can expect a determination or an update of the process on or before May 26, 2023. Fair enough, thirty days was certainly a reasonable amount of time to locate, identify, review and produce responsive records. But that is not what occurred, not by a long shot. Since the April 26, 2023, acknowledgement letter nearly a year has passed, but not a single record has been produced. According to Ms. Guilmain’s last correspondence, dated March 22, 2024, she had not yet determined even the threshold issue of whether any responsive records exist that are subject to release pursuant to the request, much less produce any records. During the twelve months since Citizens United submitted its request, all that was, received was a series of boilerplate excuses, each insisting that additional time is required to process the request. That's not transparency; it’s instead a classic case of willful stonewalling. The stonewalling began with a letter dated May 25, 2023, which states:Given the size and complexity of your request, we will require significantly more time to gather and review those materials before we can reach a determination on your request. We estimate this process will take at least 90 days. In short, we were told what was initially estimated to require 30 days to process would take four months, if not longer. And sure enough, on August 25, 2023, instead of producing. records, we got another letter with only a slight variation on the prior standardized excuse for delay. This time, Ms. Guilmain claimed an IT search for responsive records had been launched and it would take “at least an additional 60 days” to complete that search, which would be followed by a review to determine if any records would be produced. No explanation was given for why it took four months to initiate the IT key word search. But on October 25, 2023, once again no records were produced. Instead, the matter was further postponed with Ms. Guilmain telling us the IT key word search would require “several weeks” more time to complete. Her letter, however, offered no explanation as to why such a search would take so long. Instead, we were promised an update by December 22, 2023. ‘Once again, when the deadline approached, no records were produced. On December 22, 2028, a full six months after the FOIL request was made, Ms. Guilmain wrote to tell us she “received several thousand records” as a result of the key word IT search, which “must now be reviewed first for responsiveness to your request and then for a determination as to whether responsive records fall under any exceptions to disclosure under FOIL.” Her December 22 letter continued: | am in the process of reviewing these records at this time. Given the volume of records, the number of other, similar FOIL reque: ere received prior to yours, and the amount of time it is taking to review the records, | estimate that | will need another 60 days to complete my review. (Emphasis added.) Besides the repetitious boilerplate language regarding the need for additional time to review the records identified to determine if they are responsive to the request, the letter injects for the first time an additional excuse for further delay - “similar requests that were received prior to yours.” ‘The December letter, however, offered no enlightenment as to why it took eight months for the DA’s office to realize there were prior FOIL requests similar to Citizens United’s pending with the office. Nor does the letter explain why that would lead to further delay in processing our request. If prior similar requests were in the pipeline prior to receiving Citizens United’s request, one would think that would quicken the process of producingresponsive records rather than delay it since at least some of the records Citizens United was seeking would have already been in the process of being identified and produced. But even that failed to end the stalling. Two months later, on February 23, 2024, Ms. Guilmain parrots what she asserted back in December, contending her review would take ‘an additional month to complete: Ihave received several thousand records as the result of those searches. Those records are currently being reviewed first for responsiveness to your request and then for a determination as to whether responsive records fall under any exceptions to disclosure under FOIL. Given the volume of records, the number of other, similar FOIL requests that were received prior to yours, and the amount of time it is taking to review the records, | estimate that | will need another 30 days to complete my review. But the dawaling did not end there either. On March 22, 2024, Ms. Guilmain mimics for a second time her December 2023 excuse ina letter asserting it would take at least another month to process the request: As | previously explained, a search request, submitted to our IT unit for keyword searches of relevant email accounts, pursuant to your request, produced several thousand records. Those records are being reviewed, first for responsiveness to your request, and then to determine whether responsive records fall under any exceptions to disclosure under FOIL. Given the volume of records, the number of other, similar FOIL requests that were received prior to yours, and the amount of time it is taking to review the records, | estimate that | will need another 30 days to complete my review. April 22, 2024, came and went and we received no further communication from Ms. Guilmain or anyone else in the DA’s office regarding the FOIL request. That default, irrespective of the other delay tactics in processing the FOIL request, constitutes constructive denial of Citizens United’s FOIL request prompting this administrative appeal. ANALYSIS New York’s courts have long recognized that an alleged “constructive denial” request based on lengthy delay in processing the request gives rise to an admi appeal on the part of the requester. See e.g., The Empire Center for Public Policy NYC Office of Payroll Administration, 52 N.Y.S.3d 246 (N.Y. Sup. Ct. 2021) (“petitioner properly took respondent’s multiple, lengthy delays in excess of the time periods delineated under the statue to constitute a constructive denial of the FOIL request”); and Taylor v, New York Policy Department FOIL Unit, 806 N.Y.2d 586 (N.Y. App. Div. 1" Dept. 2006) (Article 78 proceeding on account of untimely response to FOIL request properly dismissed on account of petitioner's failure to take an administrative appeal). Inc.v. 4Under FOIL, a governmental entity receiving the request must: within five business days of the receipt of a written request... make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied. Public Offices Law § 89(3(a). Under the regulations governing FOIL. factors to be considered by the governmental unit’s FOIL access officer in determining a reasonable date on which the requested records will be produced include: the volume of the request, the ease or difficulty in locating, retrieving or generating the records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on an agency's ability to grant access to records promptly and within a reasonable time. 21 NYCRR § 1401.5(d). Ifthe FOIL access officer believes additional time is required to process the request, the courts have often allowed a few additional extensions provided a follow-up communication is sent to the requester prior to the anticipated production date providing the reasons why additional time is needed and the new estimated date on which the records production will be made. See e.g., Save Monroe Ave. N.Y. State Dept. of Transp., 2021 NY Slip Op 4639, No 531930 (N.Y. Sup. Ct. Aug 5, 2021). Failure to either produce the records by the self-extended deadline or provide an explanation further extending the deadline prior thereto constitutes a constructive denial of the request. See Binghamton Precast & Supply Corp. v.N.Y.S. Thruway Auth., 64 Misc.3d 1237(A), 118 N.Y.S.3d 365)(Table) (N.Y. Sup. Ct. 2019); and Gajadharv. N.Y. Police Dep't, 61 Misc.3d 1218(A), 111 N.Y.S.3d 518 (Table) N.Y. Sup. Ct. 2018). Moreover, when successive extensions are sought, each additional extension must be weighed on its own merits because a governmental unit cannot indefinitely extend the time for processing a FOIL request. Instead, each successive extension must be justified as reasonable based on the factors set forth in the governing regulation. See e.g. Empire Ctr for Publ. Policy. "t of Health, 150 N.Y.S.3d 497, 505 ( N.Y. Sup. Ct. 2021). Here the DA Office’s failure to produce the requested records by its self-declared April 22, 2024, deadline or seek a further extension prior to that date constitutes a constructive denial of Citizens United's request in violation of FOIL.Further, even if the DA’s office had not defaulted, its year long delay in processing Citizens United's FOIL requests clearly excessive and unreasonable under the circumstances of the request. Based on the “complexity and size of your request,” the FOIL Access Officer assigned to this matter initially estimated it would take approximately one month to process the request on account of the need to “locate and identify potentially responsive records, which in turn must be reviewed in order to rule upon your request.” Under that estimate, records should have been produced around the end of May 2023. But that is not what happened. Over the course of a year, seven estimated deadlines came and went, yet not a single record was produced. Instead, each successive letter sought to further extend the time frame by mimicking the excuses of the predecessor letter, until the DA’s office defaulted on April 22, 2024. Beyond the default, that pattern of stalling constitutes obstruction, making it clear the New York County DA's Office has no intention of producing responsive records any time soon, Itis clearly unreasonable and amounts to a constructive denial of Citizens United’s FOIL request. See Empire Ctr for Publ. Policy, 150 N.Y.S. 3d at 506-507 (six-month delay in processing a “straightforward” FOIL request without providing a definitive date for records production was unreasonable and constituted a constructive denial of the request). REMEDY In light of the default that has occurred here, coupled with the lengthy period of delay that has transpired since the FOIL request was submitted, the appropriate remedy is to direct the FOIL Access Officer to expedite Citizens United’s FOIL request by producing the requested records along with a Vaughn index identifying any records withheld in full or in part no later than 10 days from the decision in this appeal. As an alternative, if the number of records subject to production is voluminous, the FOIL Access Officer should be directed to produce records accompanied by a Vaughn index identifying records withheld in full or in part on a rolling basis with the first production ‘occurring no later than 10 days from the decision in this appeal and successive productions continuing on a weekly basis thereafter for a period of not more than two months. fo. submitted, LU Z— Citizens United By Michael Boos Executive Vice President & General Counsel