Feb 5, 2013 No Comments ›› Pat Dollard
Excerpted from The Weekly Standard: 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.
“Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered November 1, 2011, granting the petition to the extent it sought an order directing respondent, under the Freedom of Information Law (Public Officers Law § 84 et seq.) (FOIL), to provide an electronic copy of a database, as redacted, of names and addresses of New York City residents who have been granted handgun licenses, and a database, to be redacted, of hate crimes reported to respondent from January 1, 2005 to the present, and denying the petition to the extent it sought an order directing respondent to provide an electronic copy of its crime incident database, a declaration that respondent’s practices in responding to FOIL requests violate the statute, and an order directing respondent to cease these practices, unanimously modified, on the law, to deny the petition as to the databases of handgun licensees and hate crimes and to reinstate the petition with respect to the demand for the crime incident database, insofar as it seeks production of the electronic crime incident database produced in Floyd v City of New York (08 Civ 01034 [SAS] [US Dist Ct, SD NY]) (the Floyd database), and the matter remitted to Supreme Court for a determination of whether production of the Floyd database should be ordered, and, if so, to what extent and under what conditions, and otherwise affirmed, without costs,” reads the ruling.
“The court correctly declined to declare that respondent’s responses to FOIL requests and rulings on administrative appeals are as a matter of practice untimely and to order respondent to cease this practice. The FOIL requester’s statutory remedy for an untimely response or ruling is to deem the response a denial and commence a CPLR article 78 proceeding “for review of such denial” (Public Officers Law § 89[a],[b]; Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 983 [3d Dept 2009], lv denied 12 NY3d 712 ). Review of a FOIL determination does not provide for mandamus relief (see Matter of Harvey v Hynes, 174 Misc 2d 174, 177 [Sup Ct, Kings County 1997]).”
The appellate court rules that a lower court erred by ordering the release of “the home addresses of handgun licensees in electronic form.” “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, revd on other grounds 15 NY3d 560 ).”