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City Does Not Have to Give Handgun Data to New York Times, Panel Rules
New York Law Journal
New York City does not have to turn over a database showing the names and addresses of residents with handgun permits to The New York Times in response to a Freedom of Information Law request, a unanimous appellate panel has ruled, reversing a lower court.
The unanimous decision of the Appellate Division, First Department, in New York Times v. City of New York Police Department, 116449/10, also held that the city does not have to disclose the addresses of hate crime victims.
The Feb. 5 ruling reversed an earlier decision by Manhattan Supreme Court Justice Jane Solomon (See Profile), who ruled that the city had to turn over the handgun licensees' names and addresses and redacted addresses of the hate crime victims.
Their unsigned decision comes less than a month after the state Legislature passed a law allowing registered handgun owners to opt out of having their names and personal information made public. The privacy measure, part of a broader gun control package, was intended to address privacy concerns after The Journal News, a suburban newspaper covering Westchester, Rockland and Putnam counties, published an online map of licensed gun owners in Westchester and Rockland. The feature appeared after mass shootings in December at a Newtown, Conn., elementary school.
The First Department's decision, however, makes no mention of the new law.
The panel said, instead, that the fact that the state's Penal Law "makes the name and address of a handgun license holder 'a public record' is not dispositive of whether respondent can assert the privacy and safety exemptions to FOIL disclosure." And it observed that the disclosure of addresses raises heightened privacy concerns.
Public Officers Law §87(2)(f) provides an exemption to FOIL where disclosure of records would endanger life or safety. Here, the panel concluded that the affidavit of a policy deputy inspector established the possibility of endangerment if the information sought by the Times in 2010 was provided.
"Nor, since the zip codes of the license holders were disclosed, would the additional disclosure of their exact street addresses appear 'to further the policies of FOIL, which are to assist the public in formulating intelligent, informed choices with respect to both the direction and scope of governmental activities,'" the panel said, quoting a Court of Appeals ruling in New York State United Teachers v. Brighter Choice Charter Schools, 15 NY3d at 564-565 (2010).
As for the record of hate crime victims, the panel said that even redacting the last digit of the victims' addresses, as Solomon ordered, did not ensure their privacy.
"Even the partial disclosure of an address can reveal the identity of a victim, if, for example, he or she resides in a single family house or is the only member of a particular minority group who resides in a small apartment building," the panel wrote.
Robert Freeman, executive director of the New York State Committee on Open Government, which advises state and municipal governments on freedom of information issues, said he believes the holding on gun permits is moot in light of the new law.
Elizabeth Freedman, senior counsel in the city's Law Department's appeals division, disagreed. She said the ruling would apply to people who did not opt out of having their gun registrations made public.
"This decision is critical for a number of reasons," she said in a statement. "For example, a handgun licensee might be concerned that someone could steal a gun from his or her house if the owner's name and address were widely disseminated. Or a victim of domestic violence who had a handgun license might be concerned that his or her abuser would be able to locate him or her and cause further injury. In the case of hate crime victims, the court recognized the sensitivity of these crimes and these victims' privacy concerns."
Corporation Counsel Michael Cardozo welcomed the decision in a statement.
"The ruling protects important privacy interests and allows an appropriate balance between privacy and safety concerns versus the public's right to know," he said.
Freeman did not agree that the decision would apply to gun owners who do not opt out under the new law.
"People have made their choices," he said. "In my view, if people don't opt out, that implies consent" to make the information public.
Freeman also said he disagreed with the court's holding that the hate crime victim information should not be released.
"If an event occurs at 200 Main St., why is it that we should not know about it?" he said.
The New York Times was represented by its assistant general counsel, David McCraw. Eileen Murphy, a spokeswoman for the Times, said the paper is still reviewing the decision and evaluating how to proceed.
@|Brendan Pierson can be contacted at firstname.lastname@example.org.