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May 5, 1993

 

Mr. Don Stepka
34 Dugan Place
Rochester, NY 14612

Dear Mr. Stepka:

I have received your letter of April 23 in which you referred
to a request for an advisory opinion made by John Manning Regan of
the Monroe County Department of Law concerning pistol permit
records.

Although this office has received no such request, according
to your letter, Mr. Regan has apparently contended that the
Personal Privacy Protection Law "may be construed to deny general
access to pistol permit applications." Despite the absence of
receipt of a request for an opinion on the matter from him, I offer
the following comments.

First, the Personal Privacy Protection Law is applicable only
to state agencies. For purposes of that statute, §92(1) defines
the term "agency" to mean:

"any state board, bureau, committee,
commission, council, department, public
authority, public benefit corporation,
division, office or any other governmental
entity performing a governmental or
proprietary function for the state of New
York, except the judiciary or the state
legislature or any unit of local government
and shall not include offices of district
attorneys."

Based on the foregoing, the Personal Privacy Protection Law
excludes from its coverage "any unit of local government", such as
Monroe County. Consequently, the Personal Privacy Protection Law
would not be applicable or serve as a barrier to disclosure of
records maintained by a unit of local government.

Second, as you are aware, the Court of Appeals in Kwitny v.
McGuire [53 NY 2d 968 (1981)] found that approved pistol license
applications are available under §400.00(5) of the Penal Law. That
provision states in relevant part that "The application for any
license, if granted, shall be a public record." It is noted that
in a dissenting opinion, it was contended that only the information
submitted by an applicant should be disclosed. That information,
according to subdivision (3) of §400.00 includes:

"the full name, date of birth, residence,
present occupation of each person of
individual signing the same, whether or not he
is a citizen of the United States, whether or
not he complies with each requirement for
eligibility specified in subdivision one of
this section and such other facts as may be
required to show the good character,
competency and integrity of each person or
individual signing the application."

The dissent referred to additional information that may be acquired
by the licensing officer and apparently included in an application,
for it was found that "...applications in the record show,
applications often, if not always, contain data concerning times
when cash is, or other valuables are, transported by the
prospective licensee" (id. 970). From there, it was contended that
disclosure of those kinds of data should be withheld on the ground
that disclosure would endanger the lives or safety of applicants
and perhaps others pursuant to §87(2)(f) of the Freedom of
Information Law.

Nevertheless, the majority opinion considered the dissent and
stated that:

"In response to the position advanced by the
dissent it suffices to observe that while
subdivision 3 of section 400.00 of the Penal
Law prescribes the inclusion in the
application of certain described data, nothing
in that subdivision precludes expansion of the
application by the licensing officer to
require submission of additional relevant
information. Nor does anything in subdivision
5 suggest that the 'application' thereby made
a 'public record' is limited to the data
required to be furnished under subdivision 3.
Whether as a matter of sound policy disclosure
of the contents of applications should be
restricted is a matter for consideration and
resolution by the legislature."

Moreover, in its introductory commentary, the majority stated its
affirmance of the Supreme Court decision in the matter in which it
was found that "the legislature must have been deemed to consider
the risks [of disclosure] and to have determined the merits of
disclosure outweighed the dangers", and that "all applicants had
statutory notice that their applications would be a matter of
public record" [442 NYS 2d 867, 868 (1979)].

Since the application is a public record under the Penal Law,
nothing in the Freedom of Information Law can "limit or abridge"
rights of access to those records [see Freedom of Information Law,
§89(6)]. Further, even if the Personal Privacy Protection Law
pertained to Monroe County, I point out that one of the situations
in which that Law permits disclosure involves cases in which
disclosure is "specifically authorized by statute..." [i.e., Penal
Law, §400.00(5)].

In sum, it is my view that approved pistol license
applications are clearly public records, and that the Personal
Privacy Protection Law has no impact upon public rights of access
to those records.

For purposes of offering clarification of the matter, a copy
of this letter will be sent to Mr. Regan.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John Manning Regan