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June 17, 1994

 

 

Ms. Sarina Roffé
News Editor Nassau Herald
379 Central Avenue
Lawrence, NY 11559-1616

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 Ms. Roffé:

I have received your letter of June 1, as well as the correspondence attached to it. The materials relate to your continuing efforts to "physically see approved gun license applications" maintained by the Nassau County Police Department "or obtain a listing of licensed gun owners in [your] coverage area and the types of guns they own, etc."

In your initial request you sought information regarding people licensed to carry guns in communities within your coverage area, as well as other data related to the licenses and licensing. In addition, you specified that the information involved a series of zip codes that you identified in the request. In response, you were informed that it had been determinated that "a new program would be needed to facilitate the recalling of the information you requested", and that the Freedom of Information Law does not require that an agency create a new program. Thereafter, you reiterated a portion of the first request suggesting that the information might be located by means of zip codes. You were informed that the Department does not maintain records by community or zip code but rather that it "maintains physical files, in alphabetical order." It was also stated that "to complete the search your request would require physical inspection of thirty thousand files to ascertain their home address." Most recently, you asked to review all of the Department's approved pistol license files. Although the Department acknowledged that pistol license applications are public records and offered to make those records available if you supplied names and addresses of licensees, your request was denied, because "other documents that are also part of the files are not [public]." Consequently, the Department determined "that review of the applications will be permitted only with requests for specific licenses." In your letter addressed to me, you stated that you "don't know who those people are since [you] cannot see the applications."

You have requested an advisory opinion on the matter. In this regard, I offer the following comments.

First, as indicated in response to your requests, the Freedom of Information Law pertains to existing records and §89(3) of the Law states in part that an agency need not create a record in response to a request. It is emphasized, however, that §86(4) of the Freedom of Information Law defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the language quoted above, if information is maintained in some physical form, it would in my opinion constitute a "record" subject to rights of access conferred by the Law. Further, the definition of "record" includes specific reference to computer tapes and discs, and it was held more than ten years ago that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)].

When information is maintained electronically, in a computer, for example, it has been advised that if the information sought is available under the Freedom of Information Law and may be retrieved by means of existing computer programs, an agency is required to disclose the information. In that kind of situation, the agency in my view would merely be retrieving data that it has the capacity to retrieve. Disclosure may be accomplished either by printing out the data on paper or perhaps by duplicating the data on another storage mechanism, such as a computer tape or disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would, in my opinion, be the equivalent of creating a new record. As stated earlier, since §89(3) does not require an agency to create a record, I do not believe that an agency would be required to reprogram or develop new programs to retrieve information that would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].

In this instance, if the information that you sought cannot be retrieved or extracted without significant reprogramming, the Department would not, in my opinion, be obliged to develop new programs or modify its existing programs in an effort to generate the data you seek.

Second, among the issues is whether the request "reasonably describes" the records sought as required by §89(3) of the Freedom of Information Law. It has been held by the State's highest court that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In the context of your requests, the Department apparently does not maintain the records sought by means of address or zip code. Therefore, I do not believe that its staff would be required by the Freedom of Information Law to review all of the approved applications individually in order to locate those pertaining to licensees in particular geographic areas within the County.

Nevertheless, I believe that your final request in which you sought to inspect all of the approved applications did reasonably describe the records. In Konigsberg, the request was characterized as "voluminous" (id., 248), but the Court found that an agency "cannot evade the broad disclosure provisions of the statute...upon the naked allegation that the request will require review of thousands of records" (id., 249). Moreover, the responses to your requests in my opinion serve to defeat the purposes of the Freedom of Information Law by essentially requiring you to do the impossible, that is, to request records by means of the names of licensees. Since you cannot know the names without seeing the records, it appears that the conditions set forth by the Department effectively preclude you from making an appropriate request.

I point out, too, that the Freedom of Information Law as originally enacted required that an applicant seek "identifiable" records. The problem that arose then was analogous to the problem that you are facing now: without the ability to name the licensees, you cannot "identify" the records of your interest. In changing the standard by merely requiring that an applicant "reasonably describe" the records sought, I believe that the Legislature sought to avoid the kind of situation that you have encountered.

For the reasons expressed earlier, while a request for records by location or zip code would not have reasonably described the records, it appears that your most recent request to review all of the approved applications, met that standard.

Lastly and perhaps most significantly, in a case decided by the Court of Appeals dealing specifically with a request for approved pistol license applications, the facts were similar to those that you presented. In Kwitny v. McGuire, the Supreme Court, the lowest court that dealt with the matter, described the facts as follows:

"Petitioner is a newspaper reporter employed by the Wall Street Journal. In this Article 78 proceeding he seeks a judgment compelling respondent police commissioner to permit him to inspect approved license applications on file with the New York City Police Department, presumably as the predicate for research and publication of findings" [422 NYS 2d 867 (1979)].

In brief, the court cited two advisory opinions rendered by this office, applicable statutory law, and found that the records must be disclosed. The Appellate Division affirmed (77 AD 2d 839), as did the Court of Appeals "for the reasons stated in the opinion of Justice Richard W. Wallach at Supreme Court" [53 NYS 2d 968, 969 (1981)].

The state's highest court found that approved pistol license applications are available under §400.00(5) of the Penal Law, which 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 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, as indicated previously, 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 approved applications are a public records 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)].

In sum, based upon the decisions rendered by the Court of Appeals in Konigsberg and Kwitny, as well as the provisions of the Freedom of Information Law and the Penal Law, it is my view that the Department is obliged to allow you to inspect and copy all approved pistol permit applications. Insofar as the files in which those records are kept include records that need not be disclosed, I believe that the Department may, if it so chooses, withhold or remove those records prior to inspection.

In an effort to resolve the matter and avoid litigation, copies of this opinion will be forwarded to officials of the Police Department.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Donald F. Kane, Commissioner of Police
Detective Sgt. Thomas J. King