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FOI-AO-19087

 

                                                                                    November 19, 2013

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

Dear:

         I have received your letter and the materials attached to it.  You are seeking an advisory opinion concerning records and data requested by your client, the Journal News.  The material involves “pistol permit” data, and the focus involves “the listing of non-exempt permit holders in electronic format…” 

         Several agencies have referred to two exceptions to rights of access appearing in the Freedom of Information Law (FOIL), paragraphs (b) and (f) of §87(2).  The former authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy”; the latter permits a denial of access when disclosure “could endanger the life or safety of any person.”  It has also been contended that judicial precedent suggests that the ability to withhold may be strengthened when the names and addresses of licensees are maintained or requested in electronic format.

By way of background, the Penal Law, §400.00(5), has for years specified that the names and addresses of those to whom firearms licenses have been conferred are accessible to the public.  While that continues to be so, legislation commonly known as the “SAFE Act” includes amendments to that statute that are designed to protect personal privacy and offer an opportunity to licensees and applicants for licenses to prohibit or “opt out” of public disclosure of their names and addresses. 

Specifically, the SAFE Act added the clause appearing in italics to §400.00(5) as follows:

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 his subdivision” and includes specific grounds on which the applicant may rely to opt out of disclosure.  Paragraph (f) prohibited 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 from disclosure.  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 my 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 have not yet been processed.

I 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 offers 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, I 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.

  In short, the SAFE Act creates limitations on rights of access to information that would otherwise be available pursuant to the longstanding provision in §400.00(5) of the Penal Law.

            From my perspective, there is but one instance in which local government agencies may withhold names and addresses of licensees who have not chosen to exercise the option to preclude the disclosure of those items.  That single exception will be considered later in this opinion.  Putting that possibility aside, with the enactment of the SAFE Act, licensees and those who apply for licenses are, for the first time, given the right to choose to preclude the disclosure of their names and addresses.  The choice not to exercise that right, in my opinion, constitutes a waiver of that right, and thereby requires a county to honor a request for the names and addresses of licenses who have not opted out of disclosure.

The ability to choose and to opt out of disclosure is not unique to the SAFE Act.  By means of example, the federal Family Educational Rights and Privacy Act (“FERPA”, 20 USC §1232g) generally prohibits disclosure of records pertaining to students, unless parents of minor students or the subjects of those records who have reached the age of majority, characterized as “eligible students”, consent to disclosure.  An exception to that general direction involves “directory information”, which consists of items that are not considered intimate or highly personal, such as a student’s name, address, participation in sports or extracurricular activities and the like.  An educational agency may disclose directory information, but only after informing parents of students or eligible students that they may opt out of disclosure of any or all of the items indicated as directory information.  When a parent or eligible student does not affirmatively seek to preclude disclosure, that person is deemed to have knowingly waived the right to preclude disclosure of directory information (see 34 CFR §99.37).

In like manner, when a licensee or applicant for a license has chosen not to exercise his or her right to preclude disclosure, I believe that a county is required to disclose that person’s name and address.   The licensee or applicant for a license has, in that circumstance, effectively consented to disclosure and waived the right to confidentiality and, therefore, the ability of a county to deny access.

  I am mindful of judicial decisions rendered prior to the enactment of the SAFE Act, perhaps most notably the holding in New York Times Co. v. City of N.Y. Police Dept.[103 AD3d 405 (2013)] that have imposed limitations on disclosure.

  Based on the legislative history of the Act, the only instance in which names and addresses of those who have waived confidentiality may be withheld involves judicial precedent in relation to §89(2)()b)(iii) of FOIL.  That provision states that a list of names and addresses may be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” when a list would be “used for solicitation or fund-raising purposes.”

  Assuming that a request involves an effort to enhance the news gathering capacity of a
news organization and to provide information in the nature of news to its readers, listeners or viewers, it has been established that the request does not involve solicitation or fund-raising.

  Although members of the news media have no special rights under FOIL, it is clear that
the State Legislature intended that the news media serve as an extension of the public, as the public’s eyes and ears, when it enacted the law.  The legislative declaration, §84 of the law, states in relevant part that “. . .government is the public’s business and that the public, individually and collectively and represented by a free press should have access to the records of government. . .”  The reference to the press as the representative of the public in my view suggests that a request by a newspaper should be equated with a request by a member of the public in a manner fully consistent with the overall intent of the Freedom of Information Law. 

  The legislative history of the federal Freedom of Information Act (5 USC §552) and
judicial interpretations of the Act also indicate that a request by a member of the news media for news gathering purposes does not constitute a commercial purpose, even though his or her employer is a profit-making entity.

  As you are aware, the New York Freedom of Information Law is silent with respect to
fee waivers for copies of records, and it does not distinguish among applicants for records regarding fees to be assessed.  In contrast, the federal Act authorizes the assessment of fees for copying, as well as the cost of searching for and reviewing records, when a request is made “for commercial use” [5 USC §552 (a)(4)(A)(ii)(I)].  However, a federal agency must waive or reduce fees when so doing would be “in the public interest because furnishing the information can be considered as primarily benefitting the general public” [5 USC §552(a)(4)(A)]. As such, fees charged under the federal Act are dependent in great measure on whether a request involves a commercial or non-commercial purpose. 

  A sponsor of legislation designed to clarify the federal Act, Senator Leahy of Vermont, indicated that a primary purpose of the Act is to encourage the dissemination of information in government files and started that:  “It is critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected . . . In fact, any person or organization which regularly published or disseminates information to the public. . .should qualify for waivers as a ‘representative of the news media” (132 Cong.Rec.S14298).

  The House sponsors, Representatives English and Kindness, expressed the same intent, offering that:  “A request by a reporter or other person affiliated with a newspaper, magazine, television or radio station, or other entity that is in the business of publishing or otherwise disseminating Information to the public qualifies under this provision: (132 Cong. Rec. H9463).

In short, the intent of both the State Legislature and Congress in considering requests for records by the news media appears to be based on the recognition that the exercise of first amendment principles cannot be characterized as a commercial use.  Further, federal court decisions have reached the same conclusion.  In a decision involving access to mug shots, “although recognizing that the newspaper would reap some commercial benefit from its access to the mug shots”, it was held that “news interests should not be considered commercial interests” [Detroit Free Press v. Department of Justice, 73 F.3d 93, 98 (6th Cir. 1996); see also Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir 1979); National Security Archive v. Department of Defense, 880 F. 2d 1381, 1386 (D.C. Cir 1989)].

I am mindful of judicial decisions rendered prior to the enactment of the SAFE Act, perhaps most notably, the holding in New York Times Co. v. City of N.Y. Police Dept. [103 AD3d 405 (2013)].  The court in that decision referred to §89(2)(b)(iii), which is discussed above, and §87(2)(f), which permits an agency to deny access insofar as disclosure “could endanger the life or safety of any person.”

I believe that decision as well as others warrant reconsideration in view of the enactment of the SAFE Act.  Again, it is clear that the Act is intended to enhance the ability of licensees to protect their privacy and enhance their safety, and the opportunity to do so is provided in the Act via new provisions contained in subparagraph I of §400.00(5)(B), offering those persons the ability to shield their names and addresses when a person completing an “opt out” application believes that “his or her life or safety may be endangered by disclosure because the applicant “is an active or retired police officer, peace officer, probation officer, parole officer, or correction officer”; “is a protected person under a currently valid order of protection”; “is or was a witness in a criminal proceeding involving a criminal charge”; “is participating or previously participated as a juror in a criminal proceeding, or is or was a member of a grand jury”; “is a spouse, domestic partner or household member of a person identified in this subparagraph or subparagraph (II) of this paragraph due to the reasons stated by the applicant.” Subparagraph II refers to an applicant’s “reason to believe his or her life or safety may be endangered due to reasons stated by the applicant.” And finally, subparagraph (III) offers an opportunity to opt out when an applicant “has reason to believe he or she may be subject to unwarranted harassment upon disclosure of such information.”

In my view, the quoted language clearly provides licensees and those who apply for licenses with the ability to choose, to decide on their own whether they believe that disclosure could or is likely to endanger their lives or safety.  Based on conversations with many licensees, some have chosen to opt out of disclosure due to that belief; others, however, do not feel threatened or endangered and have chosen to permit disclosure of their names and addresses.

That opportunity to choose in my view negates the ability of an agency to assert §87(2)(f), for the licensee or applicant for a license has made or will have the opportunity to determine whether he or she believes that disclosure could endanger his or her life or safety.  When a person has chosen not to opt out of disclosure, that person, in my view, has waived the capacity to deny access to his or her name and address based on that exception.

Lastly, New York Times also suggested that licensees’ names and addresses could be
withheld because they are maintained electronically in digital form in a database.  That contention is, in my view, contrary to numerous judicial decisions, as well as amendments to FOIL that deal directly with information maintained electronically.

Significant is the breadth of FOIL, which pertains to all agency records and defines the
term “record” in §86(4) to mean “any information kept, held, filed, produced or reproduced by, with or for and agency…in any physical form whatsoever…”  That provision has been a critical element of FOIL since 1978, and as early as 1981 and the early days of the use of information technology by government, it was determined that the medium in which information was stored had no impact on rights of access.  In Szikszay v. Buelow, a request for an electronic version of an assessment roll, which had always been available to the public in paper form, was denied.  In rejecting the agency’s denial of access, it was found that “petitioner could obtain the information he seeks if he wanted to spend the time to go through the records manually and copy the necessary information, but that “[a]ssessment records are public information pursuant to other provisions of law and have been for some time.  The form of the records…do[es] not alter their public character or petitioner’s concomitant right to inspect and copy.  It is there for improper for respondent to deny petitioner’s request for copies of the County assessment rolls in computer tape format” (436 NYS2d 558,563).

The court in New York Times appears to have overlooked relatively recent amendments to
FOIL that focus on the reality that records and data are routinely and increasingly maintained electronically.  Section 87(5)(a) of FOIL states that “An agency shall provide records in the medium requested by such person, if the agency can reasonably make such copy…”  Based on the provision, it is clear that a person seeking records may request and obtain records in the information storage medium of his or her choice, perhaps paper, computer tape or disk, and that an agency must honor such a request when it has reasonable ability to do so.

Also significant is the direction provided in §89(3)(a) of FOIL, which states in relevant
part that:

“When an agency has the ability to retrieve or extract a record or data with reasonable effort, it shall be required to do so…Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.

In short, amendments to FOIL do not limit, but rather confirm and enhance the public’s
right and capacity to obtain records in electronic media.

  I hope that I have been of assistance.

 

Sincerely,

 

Robert J. Freeman
Executive Director