June 19, 1995



Mr. Rafael Robles
88-A-8275 C-3-26
Great Meadow Correctional Facility
P.O. Box 51
Comstock, NY 12821

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. Robles:

I have received your letter of May 29. You raised a variety of questions concerning access to records.

The first issue involves a response to a request made in 1994 for a transcript of a hearing conducted by the Division of Parole. In brief, you were informed that the transcript was not in the inmate's file and that he was discharged from the jurisdiction of the Division in August of 1993. You wrote that the person who responded was "not being clear as to what office might have" the transcript.

From my perspective, if the Division of Parole does not have a copy of a transcript of a proceeding that it conducted, it is likely that no transcript exists. It is possible that transcripts of proceedings are destroyed after the time for appealing a determination has passed or after a certain period from the discharge of an individual from the jurisdiction of the Division. It is suggested that you might attempt to ascertain whether the kind of record to which you referred is routinely destroyed after a particular period of time.

The second issue involves access to a ballistic report that may be relevant to your case. In this regard, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. Most relevant to the matter is §87(2)(e)(iv), which permits an agency to withhold records compiled for law enforcement purposes when disclosure would "reveal criminal investigative techniques and procedures, except routine techniques and procedures." According to the courts, the purpose of that provision "is to prevent violators of the law from being apprised of nonroutine procedures by which law enforcement officials gather information" [see Fink v. Lefkowitz, 47 NY 2d 567, 572 (1979); Spencer v. New York State Police, 187 AD 2d 919 (1992)]. In Spencer, although various records involving scientific tests were withheld, it was determined by the court that ballistics tests had to be disclosed. On that basis, it appears that the records in question should likely be made available.

You also asked whether you could obtain notes concerning the incident prepared by a newspaper reporter. Here I point out that the Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In view of the foregoing, the Freedom of Information Law generally applies to records maintained by state and local government in New York; it does not apply to private persons or businesses, such as reporters employed by newspapers.

You asked whether you can obtain pistol license applications of witnesses at your trial and others. By way of background, §400.00 of the Penal Law pertains to the licensing of firearms. Subdivision (3) of §400.00, entitled "Applications", states in relevant part that:

"Blank applications shall, except in the city of New York, be approved as to form by the superintendent of state police. An application shall state the full name, date of birth, residence, present occupation of each person or individual signing the same, whether or not he is a citizen of the United States, whether or not he complies with each requirement for eligibility specified in subdivision one of this section and such other facts as may be required to show the good character, competency and integrity of each person or individual signing the application. An application shall be signed and verified by the applicant. Each individual signing an application shall submit one photograph of himself and a duplicate for each required copy of the application. Such photographs shall have been taken within thirty days prior to filing the application. In case of a license as gunsmith or dealer in firearms, the photographs submitted shall be two inches square, and the application shall also state the previous occupation of each individual signing the same and the location of the place of such business, or of the bureau, agency, subagency, office or branch office for which the license is sought, specifying the name of the city, town or village, indicating the street and number and otherwise giving such apt description as to point out reasonably the location thereof."

Subdivision (4) relates to the investigation of statements made in an application before it may be approved. That provision includes a requirement that fingerprints be taken and states in part that "No such fingerprints may be inspected by any person other than a peace officer, who is acting pursuant to his special duties, or a police officer, except on order of a judge or justice of a court of record..."

Subdivision (5), entitled "Filing of Approved Applications", was recently amended. Until November 1 of last year, §400.00(5) stated in part that: "The application for any license, if granted, shall be a public record." No longer does the statute so state; as amended, it now provides that: "The name and address of any person to whom an application for any license has been granted shall be a public record." Other than the preceding statement and the direction in subdivision (4) concerning fingerprints, I am unaware of any aspect of §400.00 that specifies that the remaining portions of an approved application are available to the public or that they must be withheld. Due to the absence of specific direction in that statute, I believe that those remaining portions of an approved application are subject to the Freedom of Information Law. This is not to say that they must be disclosed; on the contrary, I am suggesting that they may be accessible or deniable, depending on their nature and the effects of disclosure.

Of potential significance is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) describes a series of examples of unwarranted invasions of personal privacy. In my opinion, numerous aspects of an approved application could be withheld based on the provisions cited above, such as personal physical characteristics, social security number, character references, information regarding health and mental condition, alcoholism and drug use, and similar intimate personal information. However, other information must in my view be disclosed, such as the date and county of issue, expiration date, the name and title of the licensing officer, and applicable restrictions. I do not believe that those kinds of items would constitute intimate or personal details regarding a licensee and that they would, therefore, be available under the Freedom of Information Law.

The other ground for denial of potential significance, §87(2)(f), states that an agency may withhold records to the extent that disclosure "would endanger the life or safety of any person." Arguably, the portion of the application describing a pistol or revolver might be withheld under §87(2)(f) based on a contention that disclosure would endanger the life or safety of licensees and potentially others as well.

In sum, while the names and addresses of licensees are clearly available and their fingerprints are clearly confidential, I believe that the remaining portions of approved applications are accessible, in part, under the Freedom of Information Law in accordance with the preceding commentary. Again, highly personal information would, in my opinion, constitute an unwarranted invasion of personal privacy if disclosed. Further, notations regarding particular firearms could likely be withheld due to considerations of safety and security.

You also referred to access to mugshots. In my opinion, if a mugshot pertains to a person who was convicted or against whom criminal charges are still pending, it should be disclosed; on the other hand, if a mugshot pertains to a person against whom criminal charges were dismissed, a mugshot or other records relating to the matter would be sealed pursuant to §160.50 of the Criminal Procedure Law [see Planned Parenthood of Westchester, Inc. v. Town Board of Town of Greenburgh, 587 NYS 2d 461 (1992)].

Lastly, you complained with respect to delays in response to requests. In this regard, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

As you requested, enclosed is the Committee's latest annual report.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director