Guest Commentary: Balancing the Citizens’ Right to Know and Public Safety and Privacy

Putnam Sheriff Donald B. Smith

Putnam Sheriff Donald B. Smith

By Donald B. Smith

In recent days, there has been substantial media attention focused on the issue whether the names and addresses of all pistol permit holders in Putnam County must be released to a newspaper, which has indicated its intention to publish such information. By law, the initial determination of this issue is to be made by the county clerk, who is the legal custodian of the licensee records, with any administrative appeal to be determined by the county executive and any further challenge to be decided by the courts. According to the media reports, the county clerk and county executive-as well as other officials in county and state government-have expressed their positions that the disclosure of licensees’ names and addresses to the newspaper should be refused.

In the main, the media coverage has seemed to suggest that those officials’ refusal to release the licensees’ names and addresses is utter fiat and without any legal basis, as the reporting has emphasized more rhetoric than legal discussion. To my understanding, however, there are legal grounds upon which Putnam County, as a sound exercise of governmental discretion, may lawfully withhold some, if not all, of the names and addresses of pistol licensees.

The issue whether the names and addresses of all Putnam County pistol permit holders should be released to the newspaper can be rightly answered if we consider the state laws bearing on the question. I am not a lawyer but, as I understand it, there are two applicable state statutes that must be examined to resolve this question. One is the pistol permit licensing statute, set forth under the Penal Law, and the other is the Freedom of Information Law (“FOIL”), contained in the Public Officers Law.

The pistol permit statute, under Penal Law §400.00 (5), prescribes, among other things, as follows: “The name and address of any person to whom an application for any [firearms] license has been granted shall be a public record.” Prior to 1994, that section of law required that the entire pistol permit application file of a license holder was a public record. In 1994, the state legislature amended the section to require that only the licensee’s name and address was a public record. That amendment came in the wake of court cases in which concerns were raised about criminals potentially using information contained in pistol permit files to commit crimes against permit holders.

The pistol licensing statute does not stand alone, but must be read together with the FOIL statute. The FOIL statute sets forth several exemptions to disclosure of what otherwise may generally be public records. Public Officers Law §87 (2) (b) and §89 (2) prescribe that records that are otherwise deemed public may nevertheless be withheld when disclosure would constitute an unwarranted invasion of personal privacy defined to include the “release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes.” Additionally, §89 (7) prescribes that FOIL does not require the disclosure of the home address of an active, former or retired public officer or employee. Finally, §87 (2) (f) prescribes that records may be withheld when disclosure of them would endanger the life or safety of a person.

We officials are charged by our oaths to uphold the laws-all the laws. In the current controversy, we have duties to promote, on the one hand, the public’s statutory right to know certain information pertaining to pistol licenses. On the other hand, we have a duty to protect and safeguard citizens’ lives and property, as well as their legitimate personal privacy interests. In fulfilling both duties, we are authorized and required to use our best lights of reason and to exercise sound discretionary judgment in balancing the seemingly competing provisions of the applicable laws. Such a balancing act as this is not easy or even necessarily clear-cut in this case, as it often is not, but we officials are obligated to do the best we can in fulfilling our duties and in fairly upholding the competing rights at stake.

I understand there is a legal principle of statutory construction that requires that, if there are two seemingly contrary statutes bearing on a controversy, and one is specific and the other general, then the specific statute controls if there is an irreconcilable conflict between the two. But I understand, too, that there is another principle that requires that, to the extent it is practicable, the two statutes should be read together in a way that gives meaning to both, to advance the legislative intent of both in a harmonious way, and not read in a way that places the two statutes into conflict.

Indeed, the New York State Court of Appeals, our highest state court, in a case discussing the interplay between the FOIL statute and a statute granting public access to taxation records, held as follows: “To give effect to both statutes, the FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records.” See, Xerox Corp. v. Town of Webster, 65 N. Y.2d 131, 132 (1985). In this case, Putnam County officials must do as the Court of Appeals has ruled and read the pistol licensee statute in light of the limitations on disclosure set forth in the FOIL statute. In my opinion, the clearly indicated intention of the newspaper to publish the list

of firearms licensees’ names and addresses will effectively make the list available for all uses, including for solicitation and fund-raising usage by any number of entities. Thus, the exemption to disclosure under Public Officers Law §87 (2) (b) and §89 (2), as mentioned above, is applicable. The exemption under POL §89 (7) for names and addresses of current, former or retired public officers and employees is also operative for many of the licensees in issue, too. Finally, and I think most compellingly, the exemption under POL §87 (2) (f) potentially may pertain to any licensee on the list, as it is clear that disclosure of a licensee’s name and address may subject him or her to the very real potential of targeting by criminals.

If this matter proceeds to the courts, and if the courts find that the statutes in issue herein are irreconcilably conflicted and that Putnam County must release the list of licensees’ names and addresses, then I would most stridently urge our Legislature in Albany to revisit the licensee disclosure statute, as it did back in 1994, when it curtailed the information that could be disclosed about licensees. Clearly, the kinds of concerns for licensees’ privacy and safety that were recognized by the courts and legislature back then-prior to the events of 9-11, Columbine, Aurora, Sandy Hook and others-are even more serious today, and present a compelling reason to further protect the privacy of licensees’ information.

Donald B. Smith is a retired Brigadier General of the U.S. Army, is the sheriff of

Putnam County and the president of the New York State Sheriffs’ Association.