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FOIL-AO-16005

 

June 7, 2006

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

I have received your letter and the correspondence relating to it. You have questioned the propriety of a denial of a request for "copies of all records held by the New York City Police Department Licensing Division for gun registrations and handgun licenses for the following individuals: Howard Stern, Charles Schumer, Robert DeNiro and William Cosby." The Department denied your request "on the basis of Public Officers Law section 87(2)(f) as such records/information would endanger the life or safety of witnesses." In response to your appeal, several other grounds for denial were cited.

From my perspective, the Department's position is contrary to law, for it represents a failure to give effect to a decision in which it was involved rendered by the Court of Appeals, the state’s highest court, and a refusal to recognize 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 names and addresses of licensees must be disclosed.

By way of background, until November 1 of 1994, §400.00(5) of the Penal Law stated in part that: "The application for any license, if granted, shall be a public record." As amended, it 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.

The contention offered by the Department 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 amended §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 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.

While it is clear that the name and address of a person to whom a license is granted are accessible to the public, 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 additional information of your interest 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 additional items of your interest, 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 more than a name and address of a licensee.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:jm
cc: Jonathan David
Sgt. James Russo