May 24, 2013
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.
This is in response to your request for an opinion regarding the newly enacted provisions of law regarding access to firearm license information maintained at the county and state levels. This will confirm our opinion that as of May 15, 2013, disclosure of records maintained by counties that indicate the names and addresses of those persons who currently licensed to maintain a firearm is required, with certain protections for licensees who have “opted out,” who have requested or been granted an exception from disclosure. Based on our interpretation of the amended provisions of the Penal Law, access to the at issue records is limited to those that are maintained at the county level.
In this regard, the Freedom of Information Law (FOIL) 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 (1) of the Law. Most relevant with respect the matter is the initial ground for denial, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute. Also relevant is §89(6), which 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 a provision of law separate from FOIL, or by means of judicial interpretation, they remain available, and nothing in FOIL may be asserted to deny access. 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, again, except under certain circumstances.
As you know, the legislation known as The SAFE Act (Laws of 2013, Chapter 1) allows firearms licensees to “opt out” of disclosure of their names and addresses. Section §400.00(5)(a) of the Penal Law states that:
“Except as provided in paragraphs (b) through (f) of this subdivision, the name and address of any person to whom an application for any license has been granted shall be a public record.”
Paragraph (b) directs that each application for a license shall include “an opportunity for the applicant to request an exception from his or her application information becoming public record pursuant to paragraph (A) of this subdivision” and includes specific grounds on which the applicant may rely to opt out of disclosure. Paragraph (f) prohibits release of any information for 120 days from the date of enactment, or until May 15, 2013, after which time, information regarding those who maintain or apply for a license may be released only if the applicant did not file a request for an exception during the first sixty days following preparation of a form in which an exemption from disclosure is sought. That paragraph further prohibits the release of information by a licensing authority that has not completed processing requests for exemptions received during the first sixty days following preparation of a form used to opt out of disclosure.
Accordingly, it is our understanding that Penal Law §400.00(5) requires disclosure of the names and addresses of firearm licensees after May 15, 2013, other than those licensees who have applied for and been granted an exemption from disclosure and those whose applications were submitted within the first sixty days following the effective date of the SAFE Act but were not yet processed.
In direct response to your question about access to such information at the county and state levels, we note that §400.00(5) requires duplicate copies of applications to be filed with the State Police for inclusion in a statewide database. Records and data maintained in the statewide database are protected from disclosure as follows:
“Records assembled or collected for purposes of inclusion in the database established by this section shall be released pursuant to a court order. Records assembled or collected for purposes of inclusion in the database created pursuant to section 400.02 of this chapter shall not be subject to disclosure pursuant to article six of the public officers law.”
Article 6 of the Public Officers Law is FOIL. Section 400.02 establishes the statewide license and record database for firearm license information maintained by the State Police and contains identical provisions as those cited above, prohibiting access pursuant to FOIL and permitting disclosure only pursuant to a court order. Although §400.02 is not effective until January 15, 2014, because identical prohibitions concerning disclosure are set forth in §400.00(5), which is effective immediately, we believe that those names and addresses that are required to be made available at the county level are prohibited from being disclosed by the State Police, except pursuant to court order.
Lastly, some government officials have publicly contended that they may withhold names and addresses of licensees even if licensees have not chosen to opt out and prohibit the disclosure of those items. Their contention is based on either of two exceptions to rights of access appearing in FOIL. Section §87(2)(b) authorizes an agency to deny access when disclosure would constitute “an unwarranted invasion of personal privacy, and appeal”, §87(2)(f) permits withholding when disclosure “could endanger the life or safety of any person.”
We respectfully disagree with that contention. As indicated earlier, when records are available under a provision of law separate from FOIL, none of the exceptions in FOIL can serve to enable an agency to deny access. In the context of your inquiry, §400.00(5) specifies that names and addresses of licensees remain accessible, unless a licensee has taken the affirmative step of opting out of disclosure. When a licensee has not opted out, he or she has effectively consented to disclosure of his or her name and address.
It is noted that §400.00(5) required disclosure of licensees’ names and addresses for decades prior to the enactment of the SAFE Act, and the Court of Appeals confirmed that to be so in Kwitny v. McGuire [53 NY2d 968(1981)]. In its decision, the Court suggested that the agency, if dissatisfied with the result, could seek changes in the statute through the legislative process. Changes were made via the enactment of the SAFE Act, which, again, gives licensees the option to permit disclosure of their names and addresses, or to take action to attempt to prohibit disclosure of their names and addresses. The absence of action seeking to prohibit disclosure in our view effectively requires disclosure.
We hope that we have been of assistance. Should further questions arise, please feel free to contact me.
Robert J. Freeman