[UPDATE BELOW] An appellate court has ruled in favor of the NYPD's decision to deny The New York Times' Freedom of Information Law request for an electronic list of the names and addresses of handgun owners in New York City. "The fact that Penal Law § 400.00(5) makes the name and address of a handgun license holder 'a public record' is not dispositive of whether [the NYPD] can assert the privacy and safety exemptions to FOIL disclosure," the decision reads.
A lower court had initially ruled in favor of the Times, which had filed FOIL requests for the data in 2010. The NYPD provided a list of names and zip codes for New Yorkers with handgun licenses, but withheld their addresses, citing a privacy exemption.
The appellate court ruled that the NYPD's invocation of "a possibility of endanger[ment]" to withhold the addresses was lawful, "especially when [the Times] seek the names and addresses in electronic form," and cited a 2008 opinion noting that "[d]isclosing a person's home address implicates a heightened privacy concern.” The decision also ruled against the Times' request for the names and addresses of hate crime victims. A Times reporter told Capital New York last month that the paper had "no intention" of publishing the addresses.
A spokeswoman for the Times, Eileen Murphy, responded to the appellate court's decision in an email: "We are still reviewing the decision and considering our legal next steps."
“FOIL recognizes privacy and public safety exemptions from disclosure,” Elizabeth Freedman, the lawyer who argued the case for the City said in a statement. "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."
The Journal News removed its map showing the addresses of registered area handgun owners after 27 days. Employees of the paper received death threats after the database was published.
Despite the Times reporter's assertion that the data wouldn't be published, vice president and assistant general counsel of The New York Times Company in 2010, David McCraw explained to the paper why they were suing the NYPD:
“We’ve become increasingly concerned over the last two years about a growing lack of transparency at the NYPD,” said David E. McCraw, a vice president and assistant general counsel of The New York Times Company. “Information that was once released is now withheld. Disclosures that could be made quickly are put on hold for months.”
“The police have performed outstanding service to this city,” Mr. McCraw added, “but it’s important that they also meet their duties under the Freedom of Information Law. People have a right to know what public agencies are doing, and how they are doing it, so that there can be an informed public debate over what policies are pursued and how tax dollars are spent.”
[UPDATE] Bob Freeman, the executive director of New York's Committee on Open Government, said he was puzzled as to why the appellate judges didn't reference the passage of the SAFE Act last month. In addition to some of the strictest gun control legislation in the country, the law exempts the handgun permit records kept in the state database from FOIL requests, and allows future gun permit holders to opt-out of future FOIL requests.
"I'm a little bit mystified as to why they made no mention of those amendments. It seems as if [the judges] are saying that this data can be still exempt from FOIL," Freeman says, "But to me, if gun owners opt-out of exempting themselves from FOIL requests in the future, that's the equivalent of giving their consent to distribute their name and address."
When asked about the contradiction of passing the SAFE Act's FOIL restrictions while a law explicitly making the names and addresses of handgun permit holders public record still exists, Freeman said that the amount of public information flooding the internet and obtained by various other methods might ultimately dull the impact of SAFE's FOIL restrictions. He added that while the state database is now off-limits, county and local records are still subject to records requests.
"My belief is that when you see a shield law like this, if you really think that people's privacy is being protected, I think that's an illusion…that's just the way of the world these days." Freeman said. "The governor may not like me saying that, but I think it's true."
You can read the appellate court's decision below.
