Copycat New York Times Denied Access to Gun Owner Database

Considering the enormous amount of negative publicity that the gun-hating New York regional newspaper the Journal News generating for itself during its recent crusade to unveil the names of local gun owners, you might think that no one  would attempt to imitate the stunt.

Such concerns are of little concern to the New York Times, however. As NewsBusters and MRC have documented repeatedly over the years, the Times is vehemently anti-gun. Thankfully, however, the Times's attempts to expose innocent New Yorkers who own guns was just denied by a state appellate court.

The ruling was not in response to the recent law passed in New York making gun ownership records private but on different grounds. According to the ruling, the records are not subject to the state's Freedom of Information Law (FOIL) because they are kept for different reasons. Warning: legalese follows. Note when the ruling refers to "the court," it is referring to the court below it that issued the ruling which was being overruled.

The court erred in ordering respondent to release the home addresses of handgun licensees in electronic form. 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 respondent can assert the privacy and safety exemptions to FOIL disclosure, especially when petitioners seek the names and addresses in electronic form (see Matter of New York State Rifle & Pistol Assn., Inc. v Kelly, 55 AD3d 222, 226 [1st Dept 2008]). In addition, "[d]isclosing a person's home address implicates a heightened privacy concern" (Matter of New York State United Teachers v Brighter Choice Charter School, 64 AD3d 1130, 1132 [3d Dept 2009], citing, inter alia, Public Officers Law § 89[7], revd on other grounds 15 NY3d 560 [2010]).

Furthermore, respondent submitted a deputy inspector's affidavit, which petitioners failed to controvert, detailing its privacy and safety concerns implicated by disclosure of the addresses in electronic form. At a minimum, the affidavit demonstrated "a possibility of endanger[ment]" sufficient to invoke the exemption set forth in Public Officers Law § 87(2)(f) (see Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996] [internal quotation marks omitted]).

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" (New York State United Teachers, 15 NY3d at 564-565 [2010] [internal quotation marks omitted]).

Similarly, FOIL does not require disclosure of the home addresses of hate crime victims, even redacted as the court instructed (see Public Officers Law § 87[2][b]). 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. Moreover, respondent's expert's testimony regarding the sensitivity of hate crime victims and their frequent desire to remain private about the
incidents was not controverted.

The court erred when it declined to order respondent to produce to petitioners the on the grounds that petitioners had not exhausted their administrative remedies with respect to those records and that the futility exception to the exhaustion of administrative remedies doctrine did [*3]not apply to FOIL.

Perhaps instead of trying to expose innocent New Yorkers to potential criminals and leftist intolerance, the Times might consider actually investigating the highly controversial rulings coming out of the Obama White House advocating the legality of killing American citizens without trial.