Advisory opinion urges releasing FOIL request information
By Casey Seiler, October 4, 2014
Albany
In an advisory opinion issued Friday, the state Committee on Open Government says the State Police should not deny Freedom of Information Law requests seeking “aggregate” data such as the number of assault weapons that have been registered under the provisions of the NY SAFE Act.
State Police officials have for almost a year refused to release any data about the number of weapons registered under the controversial gun control law.
They have consistently pointed to a little-known clause tucked into the speedily passed law that renders registration information contained in the state’s databank confidential: “Records assembled or collected for purposes of inclusion in such (a) database shall not be subject to disclosure,” the law reads.
To the derision of anti-NY SAFE activists and transparency advocates, the State Police has held that the statute covers any data derived from those records, as well. Critics say that the policy prevents New Yorkers from assessing the effectiveness of the registration law.
“Those records you seek are derived from information collected for the State Police database and are, therefore, exempt from disclosure,” State Police spokeswoman Darcy Wells said last November in response to a FOIL request from the Times Union, one of numerous media outlets that have sought the data.
COOG’s new advisory opinion, written by Assistant Director Camille S. Jobin-Davis, disagrees with that policy.
The NY SAFE Act clearly “makes application records assembled or collected and maintained by the State Police confidential,” the letter states. “There is no exception indicated, however, for data derived from those records. Specifically, there is no indication that aggregate data or that which can be derived from the collected records is protected.”
The letter says that the clear legislative intent of the confidentiality protections afforded under the NY SAFE Act was to shield the permit holder from potential danger or harassment. Aggregate data — such as the raw number of weapons registered — wouldn’t compromise that mission.
“In our opinion,” the four-page letter concludes, “none of the discretionary exceptions appearing in 87(2) of the Freedom of Information Law would permit the State Police to deny access to aggregate data regarding firearm and assault weapons permits reported without identification of individual applicants. On the contrary, we believe that data of that nature must be disclosed pursuant to [the provision of FOIL] which specifies that ‘statistical or factual tabulations or data’ contained within internal agency records be disclosed. Accordingly, it is our opinion that such non-identifying data is required to be disclosed upon request.”
Robert Freeman, the executive director of COOG, has been offering essentially the same opinion since the initial rejections of FOIL requests from the Times Union and other media outlets.
The opinion does not compel the State Police to release the data, Freeman said in an interview on Saturday morning.
“The hope is that (COOG’s) opinions are educational and persuasive, and encourage adherence to the law,” Freeman said.
The letter was copied to the State Police’s records access officer. A spokeswoman for the force did not respond to a request for comment on Saturday.
The NY SAFE Act — which was introduced, passed by the Legislature and signed into law by Gov. Andrew Cuomo in less that 24 hours in January 2013 — also allowed firearms permit holders to make their data exempt from FOIL by filling out a simple application.