Opinion
105989/04.
Decided October 16, 2006.
McMahon, Martine Gallagher, NY, NY, By: Patrick W. Brophy, Petitioner.
Michael A. Cardozo, Corp. Counsel of the City of NY, Stephen L. Hammerman, Esq, Deputy Comm., Legal Matters, NYC Police Dept NY, NY, By: Dora Tamari, Respondent.
This is an application by petitioner New York State Rifle Pistol Association, Inc. (NYSRPA) pursuant to CPLR Article 78, Public Officers Law (POL) Article 6 (the Freedom of Information Law [FOIL]), and Penal Law § 400.00 (5), seeking to vacate and annul the determination by respondents (collectively, the Police Department) which denied petitioner's request for the names and addresses of all pistol licensees in New York City, and that such records be produced in digital format. Petitioner also seeks an award of attorneys' fees, pursuant to POL § 89 (4). Respondents, in their verified answer, seek dismissal of this proceeding. BACKGROUND
The Court acknowledges the assistance of Court Attorney Howard G. Leventhal and law interns Tionnei Thompson and Richard Min.
The Court notes that this matter was conferenced and several interim orders were issued requiring the submission of additional papers, prior to final submission and the rendering of this decision.
Petitioner was incorporated in 1871, and claims to be the oldest and largest organization in New York State for the advancement of the safe and skilled exercise of the people's right to keep and bear arms. NYSRPA seeks the Police Department's database of 45,741 active handgun licensees in order to communicate with them on proposed gun control legislation and reforms, which petitioner asserts will adversely affect their Second Amendment rights and individual freedoms.
On or about July 12, 2003, petitioner submitted to the Police Department a FOIL request, No. 03-PL101804, pursuant to POL §§ 87, 89 and Penal Law § 400.00 (5), for the following records: "in digital format, a copy of the names and addresses of pistol licensees in New York City (i.e., so much of the successful applications that Penal Law § 400.00 (5) mandates shall be a public record)". [Exh. A, Notice of Petition]. On July 16, 2003, the Police Department sent a preliminary response, which neither granted nor denied the request. On August 6, 2003, the Police Department's Record Access Office denied petitioner's request on the sole ground that "I am unable to provide access to these documents on the basis that the New York City Police Department does not index the information you're requesting in a digital format."
On September 5, 2003, petitioner administratively appealed the denial. On December 17, 2003, the Police Department denied NYSRPA's appeal on the following grounds: (1) the request was duplicative of petitioner's prior request under file number 02PL101535; (2) disclosure of the denied material would create an unwarranted invasion of personal privacy pursuant to POL § 87 (2) (b) and POL § 89 (2) (b); and (3) on the grounds stated by the Records Access Officer in his letter dated August 6, 2003. Thereafter, petitioner commenced this Article 78 proceeding.
DISCUSSION
The basic firearms licensing statute in New York State is Penal Law § 400.00 ( Sewell v. City of New York, 182 AD2d 469, 472 [1st Dept], appeal denied 80 NY2d 756). The former Penal Law § 400.00 (5) provided that "the application for any license, if granted, shall be a public record." It had been held that the entire application of those applicants granted firearms licenses were public records discoverable under FOIL ( Kwitny v. McGuire, 102 Misc 2d 124 [Sup Ct, New York County 1979], affd 76 AD2d 839 [1st Dept 1980], affd 53 NY2d 968). The statute was amended in 1994, however, to read as follows: "The name and address of any person to whom an application for any license has been granted shall be a public record" (L. 1994, ch. 332 [emphasis added]). The Legislature's use of the peremptory word "shall," rather than the permissive "may," strongly evidences its intent that the provisions of the statute are mandatory ( Podolsky v. Narnoc Corp., 196 AD2d 593, 594 [2nd Dept 1993]; (McKinney's Cons Laws of NY, Book 1, Statutes § 193, at 345, 357-358). Thus, by its terms, the current statute provides that the names and addresses of all persons to whom an application for any license has been granted shall be a public record, but that the remainder of the application is not. POL § 89 (6) provides that nothing contained therein "shall be construed to limit or abridge any otherwise available right of access . . . to records. . . ."
Respondents argue that the FOIL request at issue was denied because it is duplicative of petitioner's 2002 request for the same records, also in digital format. In response to petitioner's 2002 request, petitioner accepted the Police Department's offer to supply paper computer printouts, paying $125.25 to photocopy 502 pages. NYSRPA did not appeal the Police Department's rejection of its request for the records in digital format. Respondents now contend that petitioner failed to exhaust its administrative remedies by filing an administrative appeal with respect to their 2002 request, and, therefore, petitioner cannot make a "second request for the same information" ( McGriff v. Bratton, 293 AD2d 401 [1st Dept 2002]; Corbin v. Ward, 160 AD2d 596 [1st Dept 1990]). However, it is not disputed that the names and addresses of pistol licensees change constantly. According to figures obtained from the Police Department's own computerized records, the following changes have occurred in carry business renewal applications: 35% cancelled; business owners, 18% cancelled; corporate executives, 18% cancelled; doctors, 35% cancelled; dentists, 41% cancelled; jewelers, 21% cancelled; private investigators, 19% cancelled. Thus, although petitioner's 2003 request seeks the same type of records as it had requested in 2002, unlike the cases cited by respondents, petitioner is not seeking the identical documents. Therefore, petitioner's 2003 request is not duplicative of its 2002 request.Respondents' argument that Penal Law § 400.00 (5) does not require disclosure of the home addresses of license holders is contrary to the clear language of the statute and is therefore without merit. Similarly without merit is respondents' argument that such disclosure could jeopardize the lives and safety of licensees. This argument is speculative, conclusory and without basis in the record. Moreover, it is contrary to both Penal Law § 400.00 (5) and POL § 89.
The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 92). "Laws are made by the law-making power and not by the administrative officers acting solely on their own ideas of sound public policy . . ." ( Picone v. Commissioner of Licenses of New York City, 241 NY 157, 162). Administrative agencies have no authority to create a rule out of harmony with the statute ( Jones v. Berman, 37 NY2d 42, 53). The Police Department's construction of POL § 89 (2) (b), that disclosure of the names and addresses of pistol licensees would create an unwarranted invasion of privacy and render nugatory Penal Law § 400.00 (5), has been judicially rejected since Kwitny v. McGuire ( supra) was decided over two decades ago.
Respondents also assert that there is a subset of licensees whose home addresses are absolutely privileged from disclosure under FOIL. POL § 89 (7) provides, in pertinent part, as follows:
Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system. . . .
As respondents correctly point out, the home addresses of current and former police and corrections officers and government employees are exempt from disclosure ( New York Veteran Police Assn. v. New York City Police Dept. Art. I Pension Fund, 61 NY2d 659). When a document subject to FOIL contains both confidential and nonconfidential information, agencies are required to prepare a redacted version with exempt material removed ( Matter of Gould v. New York City Police Dept., 89 NY2d 267, 277). Thus, the home addresses of such licensees may be redacted by respondents, as provided by POL § 89 (7).
Respondents' argument that it can satisfy petitioner's FOIL request by merely providing paper photocopies of the names and addresses of licensees, as it had in 2002, is also not persuasive. In a nearly identical case, the Appellate Division, First Department in Matter of Brownstone Publishers, Inc. v. New York City Dept. of Buildings, 166 AD2d 294, 295, required the City agency "to have the information, presently maintained in computer language, transferred onto computer tapes", rather than permit the City to "provide the information only in hard copy, i.e., printed out on over a million sheets of paper, at a cost of $10,000 for the paper alone, which would take five or six weeks to complete", in an attempt to "apparently. . . . discourage this and similar requests". In so doing, the Appellate Division, First Department, stated:
The files are maintained in a computer format that Brownstone can employ directly into its system, which can be reproduced on computer tapes at minimal cost in a few hours time — a cost Brownstone agreed to assume ( see, Public Officers Law § 87 [1] [b] [iii]) . . .
Public Officers Law § 87 (2) provides that, "Each agency shall . . . make available for public inspection and copying all records". Section 86 (4) includes in its definition of "record", computer tapes or discs. The policy underlying the FOIL is "to insure the maximum public access to government records" (Matter of Scott, Sardano Pomeranz v. Records Access Officer of City of Syracuse, 65 NY2d 294, 296-297). Under the circumstances presented herein, it is clear that both the statute and its underlying policy require that the DOB comply with Brownstone's reasonable request to have the information, presently maintained in computer language, transferred onto computer tapes.
( Matter of Brownstone Publishers, Inc. v. New York City Dept. of Bldgs., 166 AD2d at 295.
Similarly, in Matter of New York Public Interest Research Group, Inc. v. Cohen ( 188 Misc 2d 658, 662 [Sup Ct, New York County 2001]), Justice Edward H. Lehner held that redacting confidential information from the City's computerized data should not be deemed a preparation of a record not "possessed or maintained" by the City. The court observed:Over 20 years ago it was recognized that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" ( Babigian v. Evans, 104 Misc 2d 140, 144 [Sup Ct, NY County 1980], affd 97 AD2d 992; see also, Matter of Szikszay v. Buelow, 107 Misc 2d 886 [Sup Ct, Erie County 1981] [holding that information in computer format does not alter the right of access]). In Matter of Brownstone Publs. v. New York City Dept. of Bldgs. ( 166 AD2d 294 [1st Dept 1990]), it was held that a public agency must make available its computer files containing statistical information in computer format if requested. FOIL does not differentiate between records that are maintained in written form and those maintained in electronic form ( Matter of Guerrier v. Hernandez-Cuebas, 165 AD2d 218 [3rd Dept 1991]) . . .
It is undisputed that providing the requested information in electronic format would save time, money, labor and other resources — maximizing the potential of the computer age.
It makes little sense to implement computer systems that are faster and have massive capacity for storage, yet limit access to and dissemination of the material by emphasizing the physical format of a record. FOIL declares that the public is entitled to maximum access to public records ( Matter of Fink v. Lefkowitz, 47 NY2d 567, 571). Denying petitioner's request based on such little inconvenience to the agency would violate this policy. (See also, Matter of Russo v. Nassau County Community Coll., 81 NY2d 690.)
Matter of New York Public Interest Research Group, Inc. v. Cohen 188 Misc 2d 661-663.In accordance with such rationale, petitioner herein is entitled to have the records reproduced in a digital format, as requested. While it is clear that FOIL does not require an "entity to prepare any record not possessed or maintained by such entity" (POL § 89), the reprogramming of a City Agency's database to produce fields of information possessed and maintained within its database for the purpose of redacting confidential information does not constitute requiring the agency to prepare "any record not possessed or maintained by such entity", within the meaning of POL § 89 (3) ( see Matter of New York Public Interest Research Group, Inc. v. Cohen, 188 Misc 2d at 663).
Unlike in Matter of Linz v. Police Dept., (Sup Ct, New York County, Dec. 27, 2001, Richter, R., Index No. 117729/01, at 4), where some of the requested information was not stored in the respondent's computer mainframe and therefore was denied by the court, here, it is undisputed that respondents currently store the requested information in their computer system.
Moreover, respondents' reliance on Guerrier v. Hernandez-Cuebas, ( 165 AD2d 218 [3rd Dep't 1991], lv denied 78 NY2d 853), is misplaced. In Guerrier, the court rejected an inmate's request for statistical information showing the number of inmates sentenced for the crime of murder placed in a work release program. The Guerrier court held that, although correctional services maintained data in its computerized records from which the requested statistical information could be gathered, because it did not "compile or maintain in any form the specific statistical information requested" ( Guerrier, 165 AD2d at 219), the agency was not required to produce the requested information. Conversely, in the present case, it is not disputed that the requested information is maintained in respondents' computer database and that respondents have the capability to supply the information in a digital format. [ See Tamari Supplemental Affirmation, ¶ 5].
Additionally, it is significant that respondents previously supplied to petitioner, in paper format, much of the data sought in the subject FOIL request. Respondents do not adequately explain how they were previously able to supply such information by providing a computer printout, yet, to supply similar information in a digital format now, involves significant computer work; there is no allegation by respondents that the previously supplied information included redactions which were manually performed.
The court has considered respondents' remaining arguments and case law relied upon in support thereof and finds them to be without merit and/or distinguishable.
Respondents' determination denying petitioner's FOIL request was affected by an error of law, was arbitrary and capricious, and an abuse of discretion (CPLR 7803). Furthermore, in making such a determination, respondents failed to perform a duty enjoined upon it by law (CPLR 7803). Thus, the motion by petitioner is granted as detailed below.
POL § 89 (4) (c) vests the court with discretion to award reasonable attorney's fees and other litigation costs reasonably incurred by a petitioner where such person has substantially prevailed, and the court finds: (i) the record involved was, in fact, of clearly significant interest to the general public; and (ii) the agency lacked a reasonable basis in law for withholding the record.
As indicated previously, respondents lacked a reasonable basis in law for withholding the records sought by petitioner. However, the subject records are not of clear significant interest to the general public and, thus, petitioner's request for attorney's fees is denied.
Accordingly, it is hereby
ORDERED and ADJUDGED that the application of petitioner is granted to the extent of directing that, within 30 days of service of a copy of this decision/order/judgment with notice of entry, respondents shall furnish petitioner with the names and addresses of all current pistol licensees in New York City, with the exception of the home addresses of current and former police, corrections officers and government employees as provided in POL § 89 (7), which shall be redacted by respondents prior to disclosure, and that such records be produced in digital format; petitioner shall be responsible for the reasonable cost associated with the reproduction of the requested information in digital format, with such cost to be paid by petitioner within 5 days of receipt from respondents of an itemized bill, and prior to the release of the information as outlined above.
As the cost associated with the reproduction is somewhat disputed in that petitioner has supplied an expert's affidavit stating that the number of hours to complete petitioner's request would not exceed three (3) hours, and respondents only submitted an attorney affirmation, with no personal knowledge, in which it is asserted that plaintiff's request would require 18 hours of computer work, respondents' bill shall not exceed three (3) hours of work (as stated by petitioner's expert); however, respondents may bill for additional hours, not to exceed 15 hours (as stated in respondents' counsel's affirmation), if such bill is accompanied by an affidavit/s with certified contemporaneous time sheets from the computer technician/s who performed the work detailing the exact work performed and the time spent on each specific task associated with the reproduction in digital format.
It is further
ORDERED and ADJUDGED that, in all other respects, the application of petitioner is denied and the petition is dismissed.
This constitutes the decision, order and judgment of the court.