Big news on the FOIL request for number of registered “Assault Weapons”

I put in a Freedom of Information Act, or FOIL, to the NY State Police on June 19, 2013  to find out how many so called “assault weapons” had been registered as of that date.  I was denied that information, appealed and was turned down again.  The State Police said that the NY unSAFE act protected that information.  I was not the only one to put in FOIL request for that and other NY unSAFE information.  ( My past post linked here; Original Foil and Appeal.) SCOPE has a lawyer, Paloma A. Capanna, who has been working on this also.  She saw my post and added me to her law suite.

I/we have assumed that others were working on the same thing and that others have put in their own FOIL request.  Then on 10/4/2014 I got an anonymous email with the addressee whited out containing a four page “advisory opinion” from The State of New York Department of State Committee on Open Government.   The last two paragraphs state:

“Accordingly, due to the lack of reference in the statute, the statue’s purpose of protecting applicants from harm, and legal precedent from the highest court requiring specific statutory authority, it is our opinion that disclosure of aggregate data or that which can be derived from the collected records and reported without identification of individual licensees is subject to disclosure pursuant to the Freedom of Information Law.

 In our opinion, 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 weapon permits reported without identification of individual applicants.  On the contrary, we believe that data of that nature must be disclosed pursuant to § 89(2)(g)(i), 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.”

The document was dated 10/3/2014.  On Sunday, 10/5/2014 the New York State Rifle and Pistol Association posted the original letter on their Facebook and Yahoo page.  From the original we learned that the ruling had been addressed to David Harper.  I sent him an email thanking him and got this reply, (in part,)
You are welcome. Credit should really go to my client – who is a law enforcement officer opposed to the SAFE Act. He’s the one who gave me the idea. We hope this leads to exposing what a low rate of compliance there is with the registration requirement.
I am not an activist; I’m just a small town lawyer but I do have a carry concealed permit, a military background and 23 years as an assistant DA.”

On 10/3/2014, SCOPE also sent out a press release, (PAGE 1, PAGE 2, click on picture to enlarge it,) stating that SCOPE had joined with Gun Owners of America and Bill Robinson, (host of the syndicated “Second Amendment Radio Show,) to file three lawsuits for “records relative to the “assault weapons” registry,”.  Thirty Three members of the Monroe County Scope chapter had sent in Foil request with a list of questions around the State Police “field Guide” and website.  Also include were “an individual and a newspaper that asked for “assault weapons” registration statistics and were turned down.”  (I am the individual.)

The State Police are not dummies and they know that they will lose the case so the only reason to deny my request and other people’s request was just to delay the information from getting out so that people would know how poorly the registration system was working and how low the compliance is.  The only thing that the AW Ban has done is turn hundreds of thousands if not millions of New Yorkers into criminals.  Most of them have no idea that they are breaking the law.  Who would ever think that a Ruger 10/22 with a thumb-hole stock that you gave your kid for his/her Bar/Batmistva or their birthday was an “Assault Weapon.”

The Committee on Open Government opinion is just that, an opinion and not binding on the NY State Police but it is great ammunition for the lawsuits that have been filed like SCOPE’s lawsuit, and additional suits that will be filled.  NYSRPA has announced that they have hired David Harper.  SCOPE already has a hearing scheduled for November.   SCOPE has another Press Release that I will cover in separate post.

(I apologize but problems with my blog prevented me from posting this earlier.)

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