Gannett Satellite Info. Network, Inc. v. Cnty. of Putnam

• Decision Date: 14 September 2016
• Parties: In the Matter of GANNETT SATELLITE INFORMATION NETWORK, INC., respondent, v. COUNTY OF PUTNAM, et al., appellants.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1012
37 N.Y.S.3d 299
2016 N.Y. Slip Op. 05999

In the Matter of GANNETT SATELLITE INFORMATION NETWORK, INC., respondent,
v.
COUNTY OF PUTNAM, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 14, 2016.

37 N.Y.S.3d 301

Gaines, Novick, Ponzini, Cossu & Venditti, White Plains, NY (Denise M. Cossu of counsel; Jennifer S. Bumgarner, County Attorney, former counsel on the brief), for appellants.

Satterlee Stephens Burke & Burke LLP, New York, NY (Mark A. Fowler, Glenn C. Edwards, and Mark Lerner of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

142 A.D.3d 1012

In a proceeding pursuant to CPLR article 78 to compel the production of certain information pursuant to the Freedom of Information Law (Public Officers Law art 6), the County of Putnam and the Office of the Putnam County Clerk appeal from a judgment of the Supreme Court, Westchester County (Neary, J.), dated March 5, 2014, which granted the petition.

142 A.D.3d 1013

ORDERED that the judgment is affirmed, with costs.

The petitioner, Gannett Satellite Information Network, Inc. (hereinafter Gannett), is the owner of The Journal News, a newspaper circulated primarily in Westchester, Rockland, and Putnam counties. In December 2012, a reporter for The Journal News submitted requests pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) to Westchester, Rockland, and Putnam counties seeking, as is relevant to this appeal, the names and addresses of all pistol permit holders in those respective counties. Pursuant to Penal Law § 400.00(5), the names and addresses of such persons are public records. Both Westchester County and Rockland County disclosed the names and addresses, but Putnam County did not. The Journal News used the names and addresses that it had obtained from Westchester County and Rockland County to create an interactive map of all the pistol permit holders in those locales, which it then posted to its website. Soon thereafter, in January 2013, the New York Legislature passed the Secure Ammunition and Firearms Enforcement Act (L. 2013, ch. 1; hereinafter the 2013 SAFE Act), which was approved by the Governor. The 2013 SAFE Act, among other things, amended Penal Law § 400.00(5) to provide a method by which pistol permit holders could apply to except their names and addresses from the public record (see Penal Law § 400.00[5][b] ). The 2013 SAFE Act permits persons who have reason to believe that their life or safety would be endangered by disclosure, or who believe that they would be subject to harassment, to apply for the exception (see Penal Law § 400.00[5][b] ). The statute provided for a 120–day grace period from the time of its enactment into law for permit-holders to apply for the exception, during which time all names and addresses for pistol permit holders were prohibited from being disclosed (see Penal Law § 400.00[5][f] ).

At the end of the 120–day grace period, on May 15, 2013, The Journal News reporter

37 N.Y.S.3d 302

submitted a new FOIL request to the Office of the Putnam County Clerk seeking “the names and addresses of all non-exempt permit holders in your database,” in “electronic format” (hereinafter the FOIL request). The Putnam County Clerk denied the FOIL request on the basis that access to the records would “constitute an unwarranted invasion of personal privacy” and that “disclosure could endanger the life or safety of any person,” pursuant to Public Officers Law §§ 87(2)(b) and (f). The reporter challenged the denial of the FOIL request in an administrative appeal, which was denied.

As a result, Gannett commenced this CPLR article 78

142 A.D.3d 1014

proceeding against the County of Putnam and the Office of the Putnam County Clerk (hereinafter together the County parties) to review the denial of the FOIL request. The Supreme Court granted the petition, and directed the County parties “to comply with [Gannett's] request for the names and addresses of all pistol permit holders in Putnam County who had not qualified under the SAFE Act to exempt themselves from disclosure.” In support of its determination, the court reasoned that Penal Law § 400.00(5), as amended by the 2013 SAFE Act, “unequivocally direct[s]” the disclosure of the names and addresses of license holders “who did not choose to seek an exception.” The County parties appeal. For the reasons set forth below, we affirm, on other grounds.

The Freedom of Information Law was enacted “to promote open government and public accountability,” and “imposes a broad duty on government to make its records available to the public” (Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 274, 653 N.Y.S.2d 54, 675 N.E.2d 808 ; see Public Officers Law § 84 ; Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 656–657, 944 N.Y.S.2d 429, 967 N.E.2d 652 ). “The statutorily stated policy behind FOIL is to promote ‘[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations' ” (Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564, 475 N.Y.S.2d 263, 463 N.E.2d 604, quoting Public Officers Law § 84 ). Government records, including public records, are “presumptively open” for public inspection and copying, unless they fall within an enumerated statutory exemption of Public Officers Law § 87(2) (Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 274–275, 653 N.Y.S.2d 54, 675 N.E.2d 808 ; see Matter of Alderson v. New York State Coll. of Agric. & Life Sciences at Cornell Univ., 4 N.Y.3d 225, 230, 792 N.Y.S.2d 370, 825 N.E.2d 585 ; Matter of New York Civ. Liberties Union v. City of Schenectady, 2 N.Y.3d 657, 661, 781 N.Y.S.2d 267, 814 N.E.2d 437 ). There are exemptions, for example, where access to the records are exempted from disclosure pursuant to state or federal statute (see Public Officers Law § 87[2][a] ), where disclosure would constitute an unwarranted invasion of personal privacy (see Public Officers Law § 87[2] [b] ), or where disclosure could endanger the life or safety of any person (see Public Officers Law § 87[2][f] ).

The names and addresses of pistol permit holders are, by statute, public records (see Penal Law § 400.00[5][a] ). As such, this information is presumptively subject to FOIL disclosure, unless an exemption to disclosure is established (see Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 274–275, 653 N.Y.S.2d 54, 675 N.E.2d 808 ; Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 407, 959 N.Y.S.2d 171 ).

37 N.Y.S.3d 303

142 A.D.3d 1015

The 2013 SAFE Act amendment to Penal Law § 400.00(5) created a provision granting an applicant for a pistol license “an opportunity for the applicant to request an exception from his or her [name and address] from becoming public record” (Penal Law § 400.00[5][b] ). The provision permits an applicant to submit a form specifying one of the following grounds “ on which he or she believes his or her [name and address] should not be disclosed”:

“(i) the applicant's life or safety may be endangered by disclosure because:

“(A) the applicant is an active or retired police officer, peace officer, probation officer, parole officer, or corrections officer;

“(B) the applicant is a protected person under a currently valid order of protection;

“(C) the applicant is or was a witness in a criminal proceeding involving a criminal charge;

“(D) the applicant is participating or

...