It's premature adjudication!
The Department of Transportation has asked a state judge to dismiss Streetsblog's lawsuit over the agency's dysfunctional response to freedom of information requests by arguing our lawsuit is premature because none of our requests has been denied yet — despite the agency's six-month pause before providing, or in its case, not providing, the information we are seeking.
"A party," the DOT wrote in its response to our suit, "cannot challenge an administrative determination without first exhausting all available administrative remedies. Thus, where an agency’s efforts to respond to a FOIL request are ongoing and no final adverse determination has been rendered ... any such proceeding must be dismissed."
The DOT also argued that its slow response time before providing or not providing information is "reasonable."
Agencies, according to the court papers signed by the city's $234,000-a-year Corporation Counsel Muriel Goode-Trufant, are "permitted to advise of an approximate date, which shall be reasonable under the circumstances of the request, by which a determination will be made."
But that's exactly what Streetsblog's suit challenges: the DOT consistently violates the state's Freedom of Information Law by delaying for six months nearly all of the requests for public information from journalists — and must be ordered to end the practice of imposing these uniform, half-year delays that prevent the public from learning, in a timely fashion, what its government is up to.
And we've built up a trove of evidence: Since June 2021, Streetsblog has submitted at least 33 FOIL requests to DOT to which the DOT has responded in the same way: “Due to the volume of FOIL requests which DOT receives per year ... we expect to provide you with a response on or about the date indicated above.”
In each request, the DOT said, without the required specific justification or explanation, that it would respond in six months, regardless of the nature of the request.
The DOT did not offer a reasonable defense for its tardiness, arguing in its court brief that it receives a "high volume of FOIL requests."
But "high" is subject to definition; the agency says it received "more than 7,000 FOIL requests" in 2023, up from 6,000 the year before. Is that a high number? That depends on whether you sit in a reporter's chair or a lawyer's chair, of course.
For example, according to court papers, the DOT's flawed FOIL operation comprises "approximately 16 individuals, most of whom are responsible for conducting database searches, contacting other units within DOT to locate and assemble responsive records, analyzing data and records retrieved in response to FOIL requests, conducting reviews of responsive records, and ultimately responding to the FOIL requests."
If an office receives 7,000 requests for information, yet has only a staff of 16, it means that each FOIL officer juggles 437 requests per year — clearly insufficient staffing.
Nonetheless, the agency's court papers suggest that "we're doing the best we can" is a reasonable response to failure to provide public information in a timely fashion ... to the public.
"Considering the numerous factors that bear on the ability to grant access to records within a reasonable time including the complexity of pending FOIL requests, the number of requests received by DOT annually, and resources available to the FOIL Unit, Respondent’s estimated response time — approximately 120 business days — is reasonable," the city government claimed.
By comparison, the Department of Transportation in Washington, D.C. told Streetsblog that it received 591 FOIL requests in the 12 months between Oct. 1, 2023 and Sept. 30. The office handling those requests comprises two full-time staffers — or roughly 300 requests per staffer.
A similar ratio of FOIL requests to FOIL officers exists in Seattle, where the DOT there said it receives roughly 600 public disclosure requests per year — and has two full-time staffers to deal with the influx.
Our lawyers at the Cornell Law School First Amendment Clinic, declined to comment for this story, citing pending litigation, but in the past, they have said that a six-month delay for "public information" undermines both words because the information grows stale from a perspective of newsworthiness and is, indeed, not really public if the public has to wait so long for it.
These "across-the-board, six-month-long delays violate both the spirit of FOIL and its text, as the boilerplate delays are not 'reasonable under the circumstances of the request,'" argued our filing, officially, Gersh Kuntzman, Jesse Coburn, Kevin Duggan and Open Plans, Inc. v. New York City Department of Transportation. "The law assumes that most requests will be completed within 20 business days, but for requests that cannot be, it requires delays to be 'reasonable under the circumstances of the request,' and the agency must explain in writing why it is unable to meet the 20-day cut-off for the particular request under consideration.
And Streetsblog is not the only victim of the DOT's failure to respond to reporters' request in a timely fashion.
According to our lawsuit, out of 21,298 information requests submitted to DOT between June 2021 and August 2024, 98 percent of the requests suffered a delay of longer than 170 days. And the average time frame between the initial request and DOT’s predicted date of response was more than 182 days.
"DOT fails to provide the required individualized explanations for its delays," our initial suit continued. The failure to provide a written explanation for its inability to respond within 20 days, constitutes a denial of the request." (Streetsblog reached out to several reporters in town, all of whom confirmed the DOT's tardiness, but none of whom wanted to go on record out of fear of adversely affecting their relationship with the agency.)
At issue is not merely the answers to Streetsblog's or other city reporters' backlog of legitimate questions, but the agency's role in weakening the Freedom of Information Law, which codifies that the “people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society."
As such, "DOT’s actions have caused and continue to cause irreparable harm to the rights guaranteed to Streetsblog and to the public at large under FOIL," our lawsuit states.
