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RECLAIM THE RECORDS
"Public data for public use"
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Our seventh newsletter:
The New York City Clerk's Office gets served

 

Once upon a time, in a mighty state called New York, the Gannett chain of regional newspapers liked to publish details about any upcoming marriages in the little communities whose news they covered. Their reporters would go to the local city clerks' offices and look at the log books of everyone who had recently applied for marriage licenses, so that they could write about the impending or recently completed nuptials in their newspapers: "Local teacher Miss Jane Doe to wed local butcher Mr. John Smith". You get the idea.

Well, also once upon a time, the Rochester City Clerk's Office was Not Having It. They blocked the Gannett newspaper reporters from seeing the Rochester marriage log books, claiming that this information was infringing on the privacy of the couples. After all, marriage certificates in New York State, as in most states, have privacy restrictions. In New York, marriage certificates are usually not open to the public for at least fifty years.

Well, the people at Gannett were Not Having That either. They were not going to just sit and wait around for fifty years to report the weekly news. And so, in 1993, they took the Rochester City Clerk's Office to court under everyone's favorite law, the New York State Freedom of Information Law (FOIL), to enforce public access to the names in the marriage log books. And they won.

(For the legal nerds out there, the full citation is Gannett Co. v. City Clerk's Office, 596 N.Y.S.2d 968 [N.Y. Sup. Ct. 1993].)

 

The legal nuts and bolts

In Gannett, the New York court reasoned that since a marriage license is a state-granted license, much like a business license or a fishing license, then most of the information in such a marriage log could be considered open to the public, even if the actual marriage certificates were restricted. But the court also conceded that any really private information in the log had to be omitted.

For example, the couple's names and the license date and the county where they were applying for a license were clearly all public information, while other details such as the couple's exact street addresses or their parents' names were clearly private information, as they were irrelevant to the question of whether or not the couple were qualified for such a license in the first place.

That 1993 Gannett case was later upheld by a higher court.

In other words, it has been the law in New York for going on twenty-three years now, that marriage "logs" or indices are supposed to be open to the public under FOIL, as long as all of the this-is-too-personal data gets stripped out first. And yet...

In 1998, the New York State Committee on Open Government (COOG) wrote a pivotal memorandum known as FOIL-AO-f10608a concerning the rights of public access to marriage logs in New York. Relying on the 1993 Gannett case, COOG delineated the probable legal status of marriage infornation in the state under the state Freedom of Information law -- which is to say, they agreed that most of the information should be open.

COOG's memo did point out that some items of information which might be contained in a marriage log were never explicitly ruled to be either available or unavailable by the courts. Some of these items were things like the applicant couple's ages, or their dates of birth, or places of birth. These pieces of information were probably private, unless the person who was making a FOIL request for the marriage log could show a "proper purpose" for wanting to see that data. This left the availablility of these bits of information open to the discretion of the city clerks, and possibly for future judges to interpret.

Finally, COOG made a note at the bottom of this memo: "The New York State Department of Health has agreed to use the parameters described in this memorandum as the basis for its consideration of requests for marriage records." In other words, the state knew that most of this information was supposed to be open to the public. And yet...

 

And yet...

And yet, to the dismay of genealogists and researchers everywhere, New York State still does not have a public statewide marriage index. And neither does New York City, which is a totally separate vital records jurisdiction because of a weird historical quirk, but still subject to the same statewide Freedom of Information law. We're not even talking about public access to the actual certificates, which still have that fifty-year privacy restriction; we just mean the plain basic marriage index: who (x 2), where, and when.

Sure, a few years of the statewide index are available to researchers on scratched-up microfiche, but only if that researcher is also physically inside a select few upstate libraries. And yes, a little bit of the City marriage index exists, but only up through 1937, and that online searchable version is only available due to the kindness of the hundreds of volunteers who work with awesome non-profit groups like ItalianGen.

There are still millions and millions of records out there, decades worth of data from one of the most populous states in the country, and from its biggest city, and they've never been available to the public.

At least, not yet. But then, one day, Reclaim The Records found out about the Gannett case, which had just been sitting there unnoticed by the genealogical community for twenty-three years.

 

It's On Like Donkey Kong

In the middle of 2015, Reclaim The Records had a short phone call with the New York City Clerk's Office, inquiring about the possibility of finally getting a copy of the New York City marriage index, up through the present day, released to the public as open data. We talked to their FOIL Officer, Mr. Patrick Synmoie, who is also their attorney. We specifically asked them about the Gannett case.

He seemed to have never heard of it, and insisted that all marriage-related records, including marriage indices, were closed for at least fifty years in New York.  We knew that was probably bogus, but we were busy dealing with a case against the NYC Municipal Archives (part of DORIS) at the time, and let it slide.

In September 2015, we filed our case against DORIS and then quickly won a settlement of all the records we had requested, forty-eight microfilms. Forty-six of them arrived quickly and the final two followed a few months later, since they had to be pulled from a different vault.

On December 14, 2015, we sent a friendly "heads up" e-mail to the City Clerk's Office, reminding them of our previous phone conversation, and pointing them to the 1993 Gannett decision, and to COOG's website. We let them know we'd be submitting a FOIL request soon, asking for the full NYC marriage index under the Gannett case and the 1998 COOG memo, plus their follow-up Advisory Opinions that referenced the case and the memo. You can read that whole e-mail we sent to them, because we also posted it publicly to our Facebook page.

Mr. Synmoie at the City Clerk's Office never responded to the e-mail.

On December 30, 2015, we submitted our FOIL request to the City Clerk's Office, asking for the entire New York City marriage index, 1930-2015. That's eighty-five years worth of data. You can read our request, because we also posted it publicly to our MuckRock page.

Under New York State FOIL, an agency must at least acknowledge the receipt of your records request within five business days of receiving it. The New York City Clerk's Office never even managed to make it past that first step.

On January 14, 2016 and January 29, 2016 we sent follow up letters to the City Clerk's Office. They did not reply to those either. We called their office a few times and left voicemails. They did not reply to those either.

At this point, their refusal to acknowledge the FOIL request at all meant that our request was as good as denied (i.e. "a Contructive Denial"). That meant that we could move on to our FOIL Appeal.

So we called our attorneys at Rankin & Taylor, the same awesome group who had handled our successful case against DORIS last year. (Hint: their specialty is governmental misconduct, and they particularly like going after agencies that withhold public records from the public. Not that we know anyone like that.)

Our attorney called the City Clerk's Office, and left voicemails, and also received no reply. So on February 10, 2015, our attorney drafted our Appeal, and sent it in. The City Clerk's Office now had ten business days to reply.

And on February 23, 2016, literally the day they were about to run out of time, Mr. Patrick Synmoie, who is the attorney for the City Clerk's Office and their FOIL Officer, finally called us back.

 

Offering only 25% and thinking that's a good deal

And this is where it gets pretty interesting. Mr. Synmoie offered up to our attorney that maaaaaybe Reclaim The Records could get the 1930-1951 microfilm indices to the NYC marriage index under FOIL, in exactly the same format as the 48 films we won from DORIS last year. This would be about 67 new microfilms, never before released to the public.

He said that once that was taken care of, we could then discuss the possibility of acquiring the index for the other years, meaning 1952-2015.

In other words, this was a possible offer for twenty-one years of data, rather than the full eighty-five years of data, or about one quarter of what we believed we were entitled to under the law.

Our attorney asked what we thought of that proposal. We told her that it would work for a start, but that:

  1. The City Clerk's Office needed to absolutely confirm to us whether or not there was any form of already-digitized images or searchable database format they could give us for any of those twenty-one years of data, instead of these 67 microfilms. We would take the microfilms if that's really all they had, but access to scanned images or a searchable text database would probably be better.
  2. If there are indeed only microfilms available for 1930-1951, we needed to know from their office an exact description of what is on each of those 67 rolls. The reason is that there may be a tiny bit of content overlap between the data/years on these films and the ones we already won from DORIS last fall; remember that two of the 48 rolls we won from DORIS were quite late in coming to us last fall because those two had been pulled from a different location, the City Clerk's Office's vaults. Obviously we don't want to have to pay for the same data/years twice, so they needed to send over a full inventory so we could double check everything first.
  3. Then, once we determine how many of those 67 rolls we actually needed to get (perhaps only 65?), we wanted the City Clerk's Offic to send an itemized invoice right away and provide an easy way to pay, preferably via credit card, and then immedicately send us the rolls, via expedited and insured shipping.

We thought this was pretty reasonable. And that's what we told the City Clerk's Office that same day that they had finally called us back, February 23, 2016.

But the City Clerk's Office never responded again. As our attorney put it:

11. Between February 23 and March 7, 2016, Petitioner Ms. Ganz made requests over the telephone and four (4) requests over email to Respondent City Clerk and Mr. Synmoie for written and specific details regarding records to be produced, or alternately, for confirmation that the requested records would be produced in full.

12. Petitioner also made three (3) requests for a detailed description of the contents of the microfilm rolls dated 1930 through 1951 and for information regarding the manner of production.

13. Respondent City Clerk failed to respond to these requests, and therefore to respond to the December 30, 2015 request made pursuant to FOIL.

14. Respondent City Clerk should have made a written determination regarding the Administrative Appeal within 10 business days of receipt by the agency.

It was like déjà vu, a flashback to dealing with DORIS last September. Although the exact circumstances of the case were different, this was yet another New York City government agency that had decided to blatantly ignore their duties under New York's forty-year-old Freedom of Information law, in an attempt to withhold genealogical records from the public.

It wasn't even that they were disagreeing with the release of the records on some specific legal point, or expressing a concern for privacy. They just couldn't even be bothered to follow the required timeline of how to interact with a member of the public (and their attorney) who were making a public records request. They just blew us off.

Well, you can guess what happened next. (And really, the City Clerk's Office should have guessed, too.)

We filed our "Article 78" legal petition in the Supreme Court of the State of New York, County of New York (Manhattan) last Wednesday, April 16, 2016, and served the City Clerk's Office with the papers the next day. You can read our entire twenty-five page legal petition here. It includes copies of our FOIL request, the 1993 Gannett case, and the 1998 COOG memo, among other things.

The index number is 100397/2016, in case you want to follow the case through automatic alerts from New York's online court tracking system eCourts.

Our first court date is scheduled for April 7, 2016. We'll let you know how it goes, of course. But for now, we'll let the Dowager Countess have the last word:

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