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Tuesday, February 05, 2013

Appellate Court Rules New York Times Request For Gun Owners Information Violates Law

By Susan Duclos

Many might remember how The Journal News released personal information, including a map showing the addresses of gun permit owners in New York, which was later reported to have been removed but can still be accessed.

The New York Times requested the list and an appellate court has just ruled the request violates the law and from the ruling. Hopefully there may be a legal remedy now for the gun owners' who had their homes targeted by the previous Journal News release.

Via TWS:

A New York appellate court has ruled that the New York Times's request for a list of gun owners in New York City, under the Freedom of Information Law, violates the state's statute. The ruling overturns in part a lower court's ruling.

The appellate court addresses the prior lower court ruling:

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]).


 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.
Petitioners' administrative remedies were exhausted when respondent constructively denied their timely internal appeal of the denial of their request for the crime incident database by failing to respond to the appeal within the statutorily mandated 10-day period (Public Officers Law § 89[4][a]; see also Council of Regulated Adult Liq. Licensees v City of NY Police Dept., 300 AD2d 17, 18-19 [1st Dept 2002]). Petitioners then exercised their statutory remedy by bringing this proceeding for review of the denial under CPLR article 78, and, after learning of its existence, narrowed their request to the Floyd database, which contained 12 of the 16 data fields petitioners had originally requested (see Matter of Williams v Erie County Dist. Attorney, 255 AD2d 863, 864 [4th Dept 1998]).

Read the entire ruling from the