March 6, 2008
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.
I have received your letter in which you criticized the Journal News concerning its publication on its website of the names of the pistol license holders in Westchester and Rockland Counties.
I note that the Journal News is not the first or the only entity to have requested and obtained the kinds of records to which to you referred. Further, the agencies in possession of those records are, in my view, as well as that of the state’s highest court, required to disclose them to the public. In this regard, I offer the following comments.
First, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.
Second, §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."
Therefore, 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 remarks, 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", is most pertinent. 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 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 contention that you offered that certain exceptions to rights of access, notably paragraph (f) of §87(2) of the Freedom of Information Law, was raised by the New York City Police Department years ago and was rejected by the Court of Appeals. That provision authorizes an agency to withhold records insofar as disclosure “could endanger the life or safety of any person.” 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, 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.
Lastly, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), in my opinion, the use of the records is irrelevant.
I hope that the foregoing serves to enhance your understanding and that I have been of assistance.
Robert J. Freeman
cc: Henry Freeman