Handgun license applications for Donald J. Trump & current list of handgun licensees

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

- Any applications for a handgun license, or renewals of an existing license, submitted by Donald J. Trump (DOB 6/14/1946) between Jan. 1, 2000, and the date your office processes this request.
- The current list of handgun licensees, including name and address. Please note that, under N.Y. Penal Law § 120.05(5)(a), "the name and address of any person to whom an application for any license has been granted shall be a public record."

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by email attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,
Joshua Eaton

Dear Lieutenant Mantellino,

Thank you for your response. One question: In paragraph two, you say, "Records responsive to the first point of your request, if in existence, are exempt from disclosure pursuant to Public Officers Law Section 87(2) and/or other statutes."

Section 87(2) of the Public Officers Law is a list of 10 specific FOIL exemptions. Would you please let me know the specific exemption from Section 87(2) under which NYPD is withholding potentially responsive records? I need this information in order to pursue administrative and judicial appeals.

Thank you for your time and help.

Sincerely,
Joshua Eaton

To Whom It May Concern:

I'm writing to appeal the New York City Police Department's (NYPD) denial of my request for records under the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933).

On June 27, 2017, I requested the following records:

- Any applications for a handgun license, or renewals of an existing license, submitted by Donald J. Trump (DOB 6/14/1946) between Jan. 1, 2000, and the date your office processes this request.
- The current list of handgun licensees, including name and address. Please note that, under N.Y. Penal Law § 120.05(5)(a), "the name and address of any person to whom an application for any license has been granted shall be a public record."

On August 11, 2017, I received a letter from NYPD rejecting my request on two grounds.

First, NYPD claims the records I am requesting are exempt under Public Officers Law § 87(2)(f), which exempts from disclosure records that "if disclosed could endanger the life or safety of any person." However, this exemption does not apply because another statute specifically requires that the records I am requesting be made public. Under New York State Penal Law Section 400.00(5)(a), "[T]he name and address of any person to whom an application for any license has been granted shall be a public record."

NYPD cannot apply a specific FOIL exemption to records that are required to be made public under a separate statute. Under Public Officers Law § 89(6), “Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.” Therefore § 87(2)(f) cannot apply.

Second, NYPD claims the records I am requesting are exempt under New York State Penal Law § 400.00(5)(f). That section exempts the name and address of any handgun licensee from disclosure from the date of enactment of the SAFE Act until May 15, 2013. However, I made my request on June 27, 2017 — more than four years after May 15, 2013, deadline in that section. Therefore § 400.00(5)(f) cannot apply.

The New York Department of State Committee on Open Government specifically addressed this issue in a May 24, 2013, advisory opinion (FOIL-AO-19039) (https://docs.dos.ny.gov/coog/ftext/f19039.html). As that opinion states:

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Lastly, some government officials have publicly contended that they may withhold names and addresses of licensees even if licensees have not chosen to opt out and prohibit the disclosure of those items. Their contention is based on either of two exceptions to rights of access appearing in FOIL. Section §87(2)(b) authorizes an agency to deny access when disclosure would constitute 'an unwarranted invasion of personal privacy, and appeal,' §87(2)(f) permits withholding when disclosure 'could endanger the life or safety of any person.'

We respectfully disagree with that contention. As indicated earlier, when records are available under a provision of law separate from FOIL, none of the exceptions in FOIL can serve to enable an agency to deny access. In the context of your inquiry, §400.00(5) specifies that names and addresses of licensees remain accessible, unless a licensee has taken the affirmative step of opting out of disclosure. When a licensee has not opted out, he or she has effectively consented to disclosure of his or her name and address.

It is noted that §400.00(5) required disclosure of licensees’ names and addresses for decades prior to the enactment of the SAFE Act, and the Court of Appeals confirmed that to be so in Kwitny v. McGuire [53 NY2d 968(1981)]. In its decision, the Court suggested that the agency, if dissatisfied with the result, could seek changes in the statute through the legislative process. Changes were made via the enactment of the SAFE Act, which, again, gives licensees the option to permit disclosure of their names and addresses, or to take action to attempt to prohibit disclosure of their names and addresses. The absence of action seeking to prohibit disclosure in our view effectively requires disclosure.

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Thank you for your time and help.

Sincerely,
Joshua Eaton