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June 11, 1997

 

 

 

Ms. Eve Burton
Assistant General Counsel
Daily News
450 West Thirty-Third Street
New York, NY 10001-2681

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

Dear Ms. Burton:

I have received your letter of May 23, as well as the
correspondence related to it. You have sought an advisory opinion
in your capacity as Assistant General Counsel to the Daily News
concerning a denial of access to "certain information about gun
license holders."

By way of background, you indicated that your client several
months ago requested and obtained a "hard copy" of license
information that included licensees' names, addresses, zip codes,
and type of gun held. In response to a recent request, however,
you were informed that the New York City Police Department had
"reconsidered" its position "in light of the exemptions contained
in the Freedom of Information Law" and would not disclose the
street addresses of licensees. Susan Petito, Special Counsel to
the Department, wrote that "[t]here is a potentially profound
danger to the life or safety of pistol license holders, and their
families and associates, where their street addresses become known,
placing this information well within the exemption provided in
Freedom of Information Law section 87(2)(f)." She also contended
that disclosure of street addresses would constitute "an
unwarranted invasion of personal privacy as exempted by Section
87(2)(b)." When you questioned the change in the Department's
practice concerning disclosure, you were informed by Deputy Police
Commissioner George Grasso that it is the Department's belief that
§400.00(5) of the Penal Law, which requires the disclosure of a
licensee's address, is, in your words, "satisfied by the
production of the licensee's town and zip code only."

From my perspective, the Department's position is contrary to
law, it represents a failure to recognize a decision rendered by
the Court of Appeals in which it was involved, and it evidences a
refusal to give effect to clear and unequivocal statutory language.
In this regard, I offer the following comments.

First, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to
limit or abridge any otherwise available right
of access at law or in equity of any party to
records."

Stated differently, when records are available as of right under
some other provision of law or by means of judicial interpretation,
they remain available, notwithstanding the provisions of the
Freedom of Information Law. In the context of your inquiry, a
statute other than the Freedom of Information Law clearly requires
that the addresses of licensees must be disclosed. Specifically,
subdivision (5) of §400.00 of the Penal Law, entitled "Filing of
Approved Applications", was, as you are aware, recently amended.
Until November 1 of 1994, §400.00(5) stated in part that: "The
application for any license, if granted, shall be a public record."
As amended, it now provides that: "The name and address of any
person to whom an application for any license has been granted
shall be a public record." Because the statute quoted above
requires the disclosure of the names and addresses of licensees,
nothing in the Freedom of Information Law may be cited to withhold
that information.

I point out that the argument offered by Ms. Petito that
certain exceptions to rights of access, notably paragraph (f) of
§87(2) of the Freedom of Information Law, was raised by the Police
Department years ago and was rejected by the Court of Appeals. In
the dissent in Kwitny v. McGuire [53 NY2d 968 (1981)], it was
suggested that §87(2)(f) might properly be asserted to enable
agencies to withhold certain aspects of approved pistol license
applications. In fact, the dissent referred to an advisory opinion
that I prepared in which the potential danger to gun license
holders was recognized but in which it was advised that the
information must nonetheless be disclosed, absent "amendatory
legislation" (id. at 970). The majority, however, construed the
statute as I did then and continue to view it, stating that the
information in question is available, and "[w]hether as a matter of
sound policy, disclosure of the contents of applications should be
restricted is a matter of consideration or resolution by the
Legislature (id. at 969).

As indicated above, the State Legislature did indeed amend
§400.00(5). However, it did not in any way limit the disclosure of
the names and addresses of the holders of gun licenses. In short,
the Police Department made the same argument sixteen years ago that
it is making now, and that argument must, in my view, fail for the
same reason that it was rejected then by the State's highest court.

Second, with respect to the issue of the "address", the Court
of Appeals has held that "statutory language should be interpreted
consistent with 'its natural and most obvious' meaning" [Russo v.
Nassau Community College, 81 NY2d 690, 698 (1993); see also
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)]. According to Black's Law Dictionary, an address is "the
place where mail or other communications will reach person." In
Webster's Seventh New Collegiate Dictionary, an address is "a place
where a person or organization may be communicated with." In New
York City, an attempt to reach an individual by means of a zip code
will not serve to accomplish the goal of delivery. In short, an
"address" must, according to the natural and obvious meaning of
that term, mean a street address and not only a zip code.

In an effort to enhance compliance with law, copies of this
opinion will be forwarded to Ms. Petito and Mr. Grasso.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Petito, Special Counsel
George Grasso, Deputy Police Commissioner