January 8, 1993
Mr. Ralph Pelligrini
Dover Plains, NY 12582
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.
Dear Mr. Pelligrini:
I have received your letter of December 23, which reached this office on January 4.
According to your letter and the materials attached to it, your pistol permit was recently suspended. Thereafter, you requested records pertaining to the suspension from Putnam County. The County Executive denied the request, citing §400.00(5) of the Penal Law, which states in part that an "application for any license, if granted, shall be public record." He indicated that a "court order is needed to open the rest of the file."
You have sought an opinion on the matter. In this regard, I offer the following comments.
First, while it is clear that an approved application for a pistol license is a public record, I am unaware of any aspect of §400.00 of the Penal Law stating that other records relating to the licensing, suspension or revocation process must be kept confidential or may be obtained only by means of a court order, with the exception of fingerprint records [see §400.00(4)]. If that is so, those other records would in my view be subject to the Freedom of Information Law. That is not to suggest that all such records must be disclosed, but rather that rights of access would be governed by that statute.
Second, 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 section 87(2)(a) through (i) of the Law. Since I am unaware of the contents of the records in which you are interested or the effects of their disclosure, I cannot offer specific guidance. However, the following paragraphs will review the provisions that may be significant in determining rights of access to the records in question.
Of potential significance is section 87(2)(b) of the Freedom of Information Law, which permits an agency to withhold records or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy". That provision might be applicable in a variety of situations, i.e., where a record identifies a confidential source, a neighbor, an employer, etc.
Also of possible relevance is section 87(2)(e), which permits an agency to withhold records that:
"are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."
In my view, the foregoing indicates that records compiled for law enforcement purposes can only be withheld to the extent that disclosure would result in the harmful effects described in sub- paragraphs (i) through (iv) of section 87(2)(e).
Another possible ground for denial is section 87(2)(f), which permits withholding to the extent that disclosure "would endanger the life or safety of any person". The capacity to withhold on that basis is dependent upon the facts and circumstances concerning an event.
The last relevant ground for denial is section 87(2)(g). The cited provision permits an agency to withhold records that:
"are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or iv. external audits, including but not limited to audits performed by the comptroller and the federal government... "
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial applies. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
Records prepared by employees of an agency and communicated within that agency or to another agency would in my view fall within the scope of section 87(2)(g). Those records might include opinions or recommendations, for example, that could be withheld.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Hon. Robert J. Bondi