‘STATE OF NEW YORK EXECUTIVE CHAMBER [ALBANY 12226 November 24, 2017 Via email: cbragg@timesunion.com Chris Bragg. ‘Times Union Dear Mr. Bragg: This letter responds to your November 9, 2017, appeal of the Executive Chamber's (the Chamber”) determination regarding your Freedom of Information Law (FOIL) request dated August 30, 2017 1. Background ‘On August 30, 2017, the Chamber received your FOIL request for: Any email exchanged between Danie! Loeb (also known as Dan Loeb) and any of the following people since Jan. 1, 2011 Andrew Cuomo Joe Percoco Joseph Percoeo Larry Schwartz, William Mulrow Bill Mulrow Melissa DeRosa James Malatras Jim Malatras Alphonso David ‘On October 5, 2017, the Chamber advised you that after conducting a diligent search, the Chamber was unable to locate any documents that were responsive to your request. In addition, you were informed that you had thirty days to take an appeal. On November 9, 2017, the Chamber received an appeal of its October 5" determination 2. Analysis The New York Freedom of Information Law's legislative declaration sets forth that “government is the public's business,” and thus imposes upon the State a broad responsibility to make its recordsavailable to the public so that citizens may obtain information relating to the day-to-day functions of the government, POL § 84, Fink v. Lefkowitz, 47 N.Y.2d 367, 571 (1979). However, the law slso specifies, that a government agency is not required to create records in response to a request pursuant to FOIL if it does not possess or maintain the materials requested. POL § $9(3) (“Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity.”) Public Officers Law §89(4) states, in pertinent part,“ .. any person denied access to a record may within thirty days appeal in writing such denial ...” Thirty days from the date of the Chamber's initial determination would require you to file an appeal with the Chamber by November 6, 2017. Based on the foregoing information this appeal is untimely. However, even if the Chamber were to deem your appeal as timely made, the fact remains that after a diligent search, there are no documents within the Chamber's possession that address your intial request. When an agency has certified that it has conducted a diligent search, speculation about the presence of responsive materials in the agency"s possession is not sufficient to require any action on the agency's part. See Daum v. Tessler, 804 N.Y S.2d 920 (Ist Dep't 2005) (declining to find violation of FOIL where “[pletitioner has offered no persuasive reason to reject respondents’ statement of diligent efforts to locate the subject documents”), New York Environmental Law & Justice Project v, City of New York, 730 N.Y,S.2d 285, 286 (Ist Dep't 2001) (there was “no demonstrable basis to support a finding that further documents responsive to petitioner's request were in [the agency"s] possession”), Sorce v. Noll, 672 NY S.2d 718, 778 (2d Dep't 1998X"petitioner’s mere conjecture and speculation as to what was held in the respondents’ files” found “insufficient to even raise a factual question as to whether respondents feiled to tum over any documents in light of respondents’ certification ... and ... prior tumover of ‘numerous documents”) ‘The Chamber conducted a diligent search for the reconds you requested, and its certification that it did so is sufficient. FOIL. does not specify the manner in which an agency must certify that documents, cannot be located. An agency satisfies POL. § 89(3}(a) “by averring .... that it hafs] conducted a diligent search for the documents it could not locate.” Rattley v. New York City Police Dep't, 96 N.Y.2d 873, 875 (2001); In Re: He’ron v, Office of the Dist, Attorney, Bronx Cty. 96 A.D.3d 531, 531 (Ist Dep't 2012), 3. Conclusion The Chamber's response and determination was proper and is hereby affirmed, Very tly yous,- David Pering Assistant Counsel to the Governor FOIL Appeals Officer ce: Robert J. Freeman (via email) NYS Committee on Open Government