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January 25, 1995

 

 

Hon. George L. Cooke
Sullivan County Clerk
100 North Street
Monticello, NY 12701

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

Dear Mr. Cooke:

In conjunction with our telephone conversation on the subject, I appreciate receiving your correspondence and blank copies of pistol license applications. The issue involves the extent to which approved pistol license applications must be disclosed.

By way of background, §400.00 of the Penal Law pertains to the licensing of firearms. Subdivision (3) of §400.00, entitled "Applications", states in relevant part that:

"Blank applications shall, except in the city of New York, be approved as to form by the superintendent of state police. An application shall state the full name, date of birth, residence, present occupation of each person or 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. An application shall be signed and verified by the applicant. Each individual signing an application shall submit one photograph of himself and a duplicate for each required copy of the application. Such photographs shall have been taken within thirty days prior to filing the application. In case of a license as gunsmith or dealer in firearms, the photographs submitted shall be two inches square, and the application shall also state the previous occupation of each individual signing the same and the location of the place of such business, or of the bureau, agency, subagency, office or branch office for which the license is sought, specifying the name of the city, town or village, indicating the street and number and otherwise giving such apt description as to point out reasonably the location thereof."

Subdivision (4) relates to the investigation of statements made in an application before it may be approved. That provision includes a requirement that fingerprints be taken and states in part that "No such fingerprints may be inspected by any person other than a peace officer, who is acting pursuant to his special duties, or a police officer, except on order of a judge or justice of a court of record..."

Subdivision (5), entitled "Filing of Approved Applications", was, as you are aware, recently amended. Until November 1 of last year, §400.00(5) stated in part that: "The application for any license, if granted, shall be a public record." No longer does the statute so state; as amended, it now provides that: "The name and address of any person to whom an application for any license has been granted shall be a public record." Other than the preceding statement and the direction in subdivision (4) concerning fingerprints, I am unaware of any aspect of §400.00 that specifies that the remaining portions of an approved application are available to the public or that they must be withheld. Due to the absence of specific direction in that statute, I believe that those remaining portions of an approved application are subject to the Freedom of Information Law. This is not to say that they must be disclosed; on the contrary, I am suggesting that they may be accessible or deniable, depending on their nature and the effects of disclosure.

In this regard, 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 §87(2)(a) through (i) of the Law.

Section 87(2)(b) authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) describes a series of examples of unwarranted invasions of personal privacy. In my opinion, numerous aspects of an approved application could be withheld based on the provisions cited above, such as personal physical characteristics, social security number, character references, information regarding health and mental condition, alcoholism and drug use, and similar intimate personal information. However, other information must in my view be disclosed, such as the date and county of issue, expiration date, the name and title of the licensing officer, and applicable restrictions. I do not believe that those kinds of items would constitute intimate or personal details regarding a licensee and that they would, therefore, be available under the Freedom of Information Law.

The other ground for denial of potential significance, §87(2)(f), states that an agency may withhold records to the extent that disclosure "would endanger the life or safety of any person." Arguably, the portion of the application describing a pistol or revolver might be withheld under §87(2)(f) based on a contention that disclosure would endanger the life or safety of licensees and potentially others as well.

In sum, while the names and addresses of licensees are clearly available and their fingerprints are clearly confidential, I believe that the remaining portions of approved applications are accessible, in part, under the Freedom of Information Law in accordance with the preceding commentary. Again, highly personal information would, in my opinion, constitute an unwarranted invasion of personal privacy if disclosed. Further, notations regarding particular firearms could likely be withheld due to considerations of safety and security.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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