April 6, 1998

Robert J. La Reddola, Esq.
28 East Old Country Road
Hicksville, NY 11801-4207

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The ensuing staff advisory opinion is based solely upon the
information presented in your correspondence.

Dear Mr. La Reddola:

I have received your letter of March 20, as well as the materials
attached to it. You have sought an advisory opinion concerning the propriety
of a denial of access to records by the Nassau County Police Department for
a variety of records relating to pistol licenses.

As I understand the matter, in brief, you are interested in knowing the
basis used by the Department for determining whether to issue a pistol license
without administrative restrictions and in reviewing the licenses issued without
such restrictions for the past ten years. According to the correspondence,
although certain aspects of your request were granted, several categories of
the documentation that you requested are apparently not maintained by the
Department, notably standards concerning the issuance of a pistol license and
the establishment of proper cause for obtaining a pistol license or certain kind
of such license. The Department has contended that only the names and
addresses of licensees are accessible under law, and consequently, it has
denied access to the remainder of the information contained in licenses.

From my perspective, various aspects of your contentions are
accurate; I disagree, however, with some of your conclusions or demands. In
this regard, I offer the following comments.

First, as you are aware, this office advised in an opinion rendered on
January 25, 1995, that the Penal Law, §400.00(5) as recently amended,
requires that the names and addresses of licensees must be disclosed, and that
since that provision does not specify whether other aspects of approved pistol
licenses must be disclosed or withheld, rights of access to the remaining
portions of such records should be determined pursuant to the Freedom of
Information Law. This is not to suggest that the remainder of the records
must be disclosed, but rather that they would be accessible or deniable, in
whole or in part, based on the extent to which one or more of the grounds for
denial appearing in §87(2) of that statute may properly be asserted. In short,
while I disagree with the Department's stance that only names and addresses
are available, various aspects of the records might nonetheless be withheld.

It was suggested in the 1995 opinion that numerous aspects of
approved applications could be withheld pursuant to §§87(2)(b) and 89(2)(b)
on the ground that disclosure would constitute "an unwarranted invasion of
personal privacy." Additionally, depending on the content of the record,
§87(2)(f) might also be pertinent, for that provision authorizes an agency to
withhold records to the extent that disclosure would "endanger the life or
safety of any person." If, for example, disclosure of the nature of a licensee's
work related duties would place that person in jeopardy, that kind of
information might justifiably be withheld. It was also advised, however, that
other information in an approved application would be available, such as the
date and county of issuance, the expiration date of the license, the name and
title of the licensing officer, and any restrictions.

Second, notwithstanding the foregoing, a potentially significant issue
involves the extent to which the request "reasonably describes" the records
sought as required by §89(3) of the Freedom of Information Law. I point out
that it has been held by the Court of Appeals that to deny a request on the
ground that it fails to reasonably describe the records, an agency must
establish that "the descriptions were insufficient for purposes of locating and
identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245,
249 (1986)].

The Court in Konigsberg found that the agency could not reject the
request due to its breadth and also stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as
suggested by the Court of Appeals, may be dependent upon the terms of a
request, as well as the nature of an agency's filing or record-keeping system.
In Konigsberg, it appears that the agency was able to locate the records on the
basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the
Department, to the extent that the records sought can be located with
reasonable effort, I believe that the request would have met the requirement
of reasonably describing the records. On the other hand, if the records are not
maintained in a manner that permits their retrieval except by reviewing
perhaps hundreds or even thousands of records individually in an effort to
locate those falling within the scope of the request, to that extent, the request
would not in my opinion meet the standard of reasonably describing the
records. If, for example, the Department maintains license records only
alphabetically or chronologically, and staff would be required to review each
such record in order to locate those of your interest, I do not believe that the
request would reasonably describe the records. On the other hand, if the
Department maintains the records, whether manually or electronically, in a
manner that permits staff to retrieve those of your interest based on certain
identifiers, filing methods or fields in a computer, I believe that the request
would have reasonably described the records.

Third, in an appeal of December 10, it was concluded by your client
that the Department "must produce a descriptive index of withheld documents
identified as responsive to any denied request and prove the applicability of
the claimed exemption(s)." Similarly, in the initial request of October 20,
your client asked, with respect to any document that is withheld in whole or
in part, that the Department "provide for each such withheld document the
date and title of document, the identity of every person who prepared, signed
or participated in its preparation, a description of its subject matter, the names
and addresses of all persons to whom the document has been shown or
disseminated, and the basis asserted for withholding or redacting the
documents..." In short, the Freedom of Information Law does not require
that an agency provide that degree of detail in response to a request or an
administrative appeal. Further, I am unaware of any provision of the Freedom
of Information Law or judicial decision that would require that a denial at the
agency level identify every record withheld or include a description of the
reason for withholding each document. Such a requirement has been imposed
under the federal Freedom of Information Act, which may involve the
preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D
820 (1973)]. Such an index provides an analysis of documents withheld by
an agency as a means of justifying a denial and insuring that the burden of
proof remains on the agency. Again, I am unaware of any decision involving
the New York Freedom of Information Law that requires the preparation of
a similar index. Further, one decision suggests the preparation of that kind of
analysis might in some instances subvert the purpose for which exemptions are
claimed. In that decision, an inmate requested records referring to him as a
member of organized crime or an escape risk. In affirming a denial by a lower
court, the Appellate Division found that:

"All of these documents were inter-agency or
intra-agency materials exempted under Public
Officers Law section 87(2)(g) and some were
materials the disclosure of which could
endanger the lives or safety of certain
individuals, and thus were exempted under
Public Officers Law section 87(2)(f). The
failure of the respondents and the Supreme
Court, Westchester County, to disclose the
underlying facts contained in these documents
so as to establish that they did not fall 'squarely
within the ambit of [the] statutory exemptions'
(Matter of Farbman & Sons v. New York City
Health and Hosps. Corp., 62 NY 2d 75, 83;
Matter of Fink v. Lefkowitz, 47 NY 2d 567,
571), did not constitute error. To make such
disclosure would effectively subvert the
purpose of these statutory exemptions which
is to preserve the confidentiality of this
information" [Nalo v. Sullivan, 125 AD 2d
311, 312 (1987)].

Lastly, since the County has indicated that it does not maintain certain
records that you requested, I note that when an agency indicates that it does
not maintain or cannot locate a record, an applicant for the record may seek
a certification to that effect. Section 89(3) of the Freedom of Information
Law provides in part that, in such a situation, on request, an agency "shall
certify that it does not have possession of such record or that such record
cannot be found after diligent search." If you consider it worthwhile to do so,
you could seek such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779
(1994)], it was found that a court could not validly accept conclusory
allegations as a substitute for proof that an agency could not locate a record
after having made a "diligent search". However, in another decision, such an
allegation was found to be sufficient when "the employee who conducted the
actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for
the documents had been made" [Thomas v. Records Access Officer, 613 NYS
2d 929, 205 AD 2d 786 (1994)].

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Richard Baribault, Deputy Chief, Legal Affairs
Detective Sergeant Thomas J. King