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FOIL-AO-13544

August 13, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter concerning the disclosure of the contents of an application for a pistol license and related records to peace or police officers and others

As you are aware, the statute that deals with licenses pertaining to firearms is §400.00 of the Penal Law, and subdivision (5) states in relevant part that:

"The application for any license, if granted, shall be filed by the licensing officer with the clerk of the county of issuance, except that in the city of New York, and in the counties of Nassau and Suffolk, the licensing officer shall designate the place of filing in the appropriate division, bureau or unit of the police department thereof, and in the county of Suffolk the county clerk is hereby authorized to transfer all records or applications relating to firearms to the licensing authority of that county. The name and address of any person to whom an application for any license has been granted shall be a public record."

Based on the foregoing, it is clear that the name and address of a person to whom a license is granted are accessible to the public. The decision to which you referred, Sportsmen's Association for Firearms Education, Inc. v. Kane [680 NYS 2d 411, aff'd 266 AD2d 396 (1998)] concluded that other information submitted or acquired in the licensing process is, by implication, beyond the scope of public rights of access. However, there is nothing in §400.00 of the Penal Law that forbids disclosure of that information. That being so, I do not believe that the information in question must be withheld in every instance, but rather that it may be withheld. In short, the custodian of the records in question may, in my view, choose to disclose the records in question, in whole or in part, even though there may be no obligation to do so. I note, too, that the Freedom of Information Law is permissive, and that the Court of Appeals has held that an agency may withhold records in accordance with the grounds for denial, but that it is not required to do so [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. The only instance in which records must be withheld would involve the case in which a statute prohibits disclosure. Again, as I interpret §400.00 of the Penal Law, there is nothing in that statute that precludes the custodian of the records at issue from disclosing the records.

With respect to the situations that you described, as a general matter, the status or interest of persons seeking records under the Freedom of Information Law would be irrelevant in determining rights of access; if a record is accessible, it should be made available to any person [see e.g., Burke v. Yudelson, 51 AD2d 673 (1976); Farbman v. New York City, 62 NY2d 75 (1984)]. Conversely, if it is deniable based on one or more of the grounds for denial of access listed in §87(2), barring unusual circumstances, it should be withheld consistently, regardless of the interest of the applicant. However, when it is clear that a request has been made by a public officer or employee, not under the Freedom of Information Law, but rather in the performance of his or her official duties, it has been suggested that the request should not be equated with a request made by a member of the public. In that case and in the interest of governmental cooperation and efficiency, records may be shared unless there is a statute barring disclosure. To attempt to ensure that disclosures to government officials are appropriate, it has been recommended that requests for records that ordinarily may be withheld be made in writing on the official letterhead of a government agency, and that the disclosure also be made with a writing containing the caveat that the records would typically be withheld and that they are being made available only because they have been sought in the performance of one's official duties.

While the matter is unrelated to the Freedom of Information Law, I believe that a court may order disclosure in appropriate circumstances, i.e., in discovery, unless a statute forbids disclosure. Again, I do not believe that there is statutory direction prohibiting disclosure.

Lastly, I would conjecture that there are items obtained or prepared in the licensing process that are not provided directly by the applicant for the license. For instance, there may be investigative materials, comments offered by neighbors, employers, personal references and others that the applicant has no right to obtain. In my view, if that person does not have a right of access that can be waived or transferred to another person, his or her preference regarding disclosure should be irrelevant. Under §400(5), the only items that must be disclosed are the name and address of a licensee. The licensee's preference regarding disclosure should not be determinative.

I hope that the foregoing will be useful to you and that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

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