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Magazine Publisher Sues City Police Under Freedom of Information Law


The complainants, a magazine publisher, two men and a woman seek a judgment declaring certain records of the accused, city police department subject to disclosure, pursuant to the Freedom of Information Law (FOIL) and Public Officers Law (POL) to allow the complainants to inspect and obtain copies of records, declaring that certain practices of the city police department, in responding to FOIL requests, are unlawful, ordering the city police department to comply with FOIL, and awarding the complainants their attorney’s fees. The two men and the woman are the magazine’s reporters who made FOIL requests to the city police department on behalf of the magazine publisher.

A New York Criminal Lawyer said that since the petition was filed, a number of the requests have been resolved, or partly resolved, through negotiations between the magazine publisher and the city police department. The requests that have not been resolved are for the records of a searchable electronic copy of the home address of each New York City resident who has been granted a license for a handgun; a searchable electronic copy of the residential address at which a hate criminal act occurred, from January 1, 2005 to the present; and a searchable electronic copy of the crime incident database, dating from January 1, 2004 to the present. The crime incident database contains information about each incident reported to the city police department, such as the date, location and nature of the incident, such as possession of a weapon, for example.

Penal Law provides that the name and address of any person to whom an application for any firearm license has been granted shall be a public record. According to penal law, the petitioner, a reporter for the Wall Street Journal, was entitled to inspect approved pistol license applications on file with the city police department. POL (Public Officers Law) provides, in relevant part, that when an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.

POL allows agencies to withhold lists of names and addresses if those lists would be used for commercial or fund-raising purposes. The city police department does not suggest that the magazine publisher intends to contact the persons whose addresses it seeks, for any purpose, let alone for purposes of fund raising. However, the city police department argues that it may deny access to the requested list of addresses in digital form, because the addresses were compiled for law enforcement purposes and, if disclosed, could endanger the life or safety of the licensees.

The propriety of an exemption claimed under the section of FOIL requires a court to consider whether the information sought could by its inherent nature endanger the life and safety of those as to whom the information is sought. Inasmuch as the magazine publisher could not control the use to which others might put the addresses requested from the city police department, were the magazine publisher to place them on the Internet, the woman’s affidavit, in effect, bars the magazine publisher from putting the addresses on line. Accordingly, a Suffolk County Criminal Lawyer said the magazine publisher is entitled to have the residential addresses of gun licensees in searchable electronic form, as already redacted to delete the names and addresses of retired law enforcement officers and several current or former civilian government employees. The complainant’s have not opposed such redaction.

POL permits agencies to withhold records, or to delete identifying details, so as to prevent unwarranted invasions of personal privacy. The city police department argues that publication of the residential addresses at which hate criminal acts have been committed would infringe on the privacy of the victims of such crimes, because some circumstances, the victims could be identified on the basis of their residences. The detective, who is currently assigned as the commanding officer of the Special Victims Division of the city police department, states in his affidavit that the public identification of hate crime victims would, in many cases, result in additional psychological trauma to those persons, who have already been victimized; that there are victims of hate crimes, for example, victims of anti-gay or anti-Muslim crimes, who do not want some of their acquaintances to know of their sexual orientation or their religion; and that, if hate crime victims learn that their identities as victims will be ascertainable on the internet if they report the criminal act to the police, some may choose not to report the crime.

The city police department legitimate concerns with the privacy of hate crime victims, and the public interest in not deterring such victims from reporting crimes to the police, can be allayed by replacing the last digit of the house numbers in the addresses with a dash, a deletion that petitioners suggest. Such a deletion would identify the address by the block, rather than by the individual house, and thus make identification of an individual victim highly unlikely.

The city police department points out that there are no cases requiring agencies to provide a persons’ initials, or only part of an address, when providing the full names or addresses would constitute an unwarranted invasion of privacy. While the purpose for which agency records are sought is irrelevant in deciding whether those records should be disclosed, so long as the purpose does not implicate one of the FOIL exemptions, it necessarily informs a determination of whether a particular redaction would make sense. The magazine publisher is not concerned with the identity of the persons whose addresses it seeks, or with contacting them, but rather with identifying the frequency of hate crimes in various locations within the city. Accordingly, the disclosure of the addresses that the magazine publisher seeks, with the final digit of the street address redacted, would both protect the personal privacy of hate crime victims from unwarranted invasion and comply with the mandate of FOIL that agency records be available to the public to the greatest extent compatible with a narrow construction of exemptions from disclosure.

In connection with complainants’ suggestions that the street addresses be disclosed with redactions, or that x/y coordinates be used in place of street addresses, as well as in connection with the complainant’s position on the crime incident database, the city police department argues that the complainants have failed to exhaust their administrative remedies. The complainants’ suggested redactions to the addresses sought are not revised FOIL requests, as the city police department styles them, but examples of redactions that would have negated the city police department’s reason for withholding the addresses sought. When a document subject to FOIL falls within an exemption, the agency ‘may be required to prepare a redacted version with the exempt material removed. Accordingly, the complainants are entitled to receive the addresses sought, with last digit of those addresses deleted.

The city police department acknowledges that it has routinely failed to comply with FOIL, and it represents that, as of May 2011, it has changed some of its practices so as to bring them into compliance with FOIL. However, contrary to the city police department’s argument, those changes do not make the proceeding moot. Moreover, the city police department apparently believes that it can continue to take more than 20 days to determine whether to grant or deny a FOIL request, although POL requires that such a determination be made with 20 days of the request.

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