New York State has one of the strictest gun license applications in the country. Applicants have to explain not only why they need the gun, but also what sort of training they have to use it and how they plan to store the weapon safely. Conceal carry permit applications hold a trove of information about licensed weapon owners and their beliefs about gun control and gun safety.
In January, Ellen Ioanes, FOIA reporter for The Daily Dot, filed a Freedom of Information Law request with the NYPD. Her editor at The Daily Dot, a digital media company covering Internet culture, was looking for Donald Trump’s application for a concealed carry permit, as well as those of his sons Donald Jr. and Eric. The team’s interest stemmed from the fact that the president’s position on gun rights seemed to have shifted “from meeting to meeting,” writes The Daily Dot’s politics editor David Covucci, in an email. “We believe the information he includes here could help shape the public’s understanding of his stances,” says Covucci. “Any time [the president] is forced to answer something honestly by law, we want to know what he said.”
The NYPD, which often takes months or even years to fulfill FOIL requests, sent Ioanes a form-letter denial saying that disclosing the documents would constitute an “unwarranted invasion of privacy.” A perfunctory answer to The Daily Dot’s subsequent appeal added that the documents fell outside FOIL law and would endanger the Trumps’ “life and safety.” The Daily Dot filed suit in New York County Supreme Court to force the NYPD to release copies of the Trumps’ application documents.
President Trump and his two eldest sons are not just public officials. They have commented extensively on their handgun permits.
“I have a permit, which is very unusual in New York,” Trump said during his campaign for the Republican Party primaries in 2015. “I carry on occasion, sometimes a lot. I like to be unpredictable.”
“The Second Amendment isn’t just a passion and a hobby that I do every weekend,” said Donald Trump Jr. in a 2016 SilencerCo promotional video. “It’s a lifestyle.”
“We want the good guys in the country to have guns,” Eric Trump said in a September 2016 interview with Buckeye Firearms. “We believe in concealed carry and that a person has a right to protect themselves and their home.”
FOIA law places an administrative burden on the requesting citizen or media company, says James Rosenfeld, the attorney representing The Daily Dot against the NYPD. He compares FOIA journalism to “old shoe-leather reporting”: painstaking and time-consuming. But public agencies are legally obliged to give more than a cursory citation in denial by exemption letters.
Too often such agencies count on inertia to dissipate FOIL and FOIA appeals. The risks of not responding are low, in part because the cost of FOIL lawsuits has been prohibitive in states like New York, where recovery of attorney fees has always been at the discretion of the court. A new law, though, passed in December, holds that if there is “no reasonable basis” for denying access to a FOIL request, compensation of attorney’s fees is mandatory. This ruling emboldens petitioners, says Rosenfeld, and will hopefully make government agencies more responsive. It will also encourage law firms to take on FOIL suits pro bono, as Rosenfeld’s firm Davis Wright Tremaine has for The Daily Dot. (Disclosure: Laura Handman, a Davis Wright partner, is on CJR’s Board of Overseers.)
The NYPD is notoriously opaque. Adam Marshall, a public records litigator with the Reporters Committee for Freedom of the Press, says the department’s strategy goes beyond simple delay and denial. “It’s an adoption of specific strategies to frustrate,” says Marshall, who is not connected to The Daily Dot’s suit, but is currently litigating two other cases against the NYPD. He cited a 2013 report published by then–Public Advocate Bill de Blasio, which found that the NYPD ignored a full third of FOIL requests.
The NYPD didn’t respond to requests for comment about The Daily Dot suit, or complaints that it slow-walks FOIL requests.
In its arguments, The Daily Dot says that transparency is especially important with the president, who is both the most public figure in the country, as well as one of the most hostile to the press.
In some recent FOIL denials, the NYPD has implemented the federal government’s Glomar response, a legacy of the Cold War. The CIA popularized the phrase “can neither confirm nor deny” in the 1970s to withhold information from the press about an attempt to raise a sunken Soviet nuclear submarine in the Pacific Ocean; it later became a standard agency response.
The NYPD used the Glomar response in a recent FOIL case that reached the New York State Court of Appeals. In Talib W. Abdur-Rashid v. NYPD, the NYPD won the right to conceal whether it was surveilling a group of Muslim-American activists.
The question raised by The Daily Dot is how public records law should evolve to reflect Trump’s disclosure of information without simultaneously increasing public record openness, says Marshall. For instance, by so willingly and frequently publicly disclosing information through Twitter and elsewhere, does the president give up the government’s claim to secrecy?
“Do Trump’s public statements, on Twitter for example, waive the government’s ability to give the Glomar response?” asked Marshall. “That’s really interesting.”
The NYPD is required to answer The Daily Dot by August 6. A return hearing date is scheduled for August 10.