You are on page 1of 33

FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO.

155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
______.._______________________________.____________----------
x

THE DAILY DOT,


Index No.
Petitioner,

- against -

NEW YORK CITY POLICE DEPARTMENT,


RICHARD MANTELLINO as Lieutenant and
Records Access Officer, and JORDAN S.
MAZUR as Sergeant and Records Access
Appeals Officer,
:

Respondents.

______________________ ________________________________. x

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION

James Rosenfeld
Robert Balin

Taaj Reaves
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, NY 10020-1104

(212) 489-8230 Phone

(212) 489-8340 Fax

-and-

Thomas R. Burke
(pro hacvice application to be submitted)
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111

(415) 276-6552 Phone

(415) 489-9052 Fax

Attorneysfor Petitioner The DailyDot

4830-6481-4438v.4 0201316-000001

1 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

TABLEOF CONTENTS

Paage

PRELIMINARY STATEMENT.....................................................................................................1
. . .................

FACTUAL BACKGROUND..........................................................................................................4 ...... .. .. .4

A. Trump Publicity, Pistols and Politics.......................................................................4

B. New York Gun Policies...........................................................................................6


. ...........................................

C. Petitioner's Efforts to Obtain the License Applications..........................................7


..............................7

D. Petitioner's Administrative Appeal.........................................................................9

ARGUMENT.................................................................................................................................10

I. THE UNDERLY1NG POLICIES AND EXPRESS LANGUAGE OF FOIL


MANDATE DISCLOSURE OF THE LICENSE APPLICATIONS....................10
....................10

A. FOIL Exemptions Must be Narrowly Construed to Fulfill the


Statute's Broad Disclosure Mandate .........................................................11 11

B. Respondents Refusal to Disclose the License Applications Defeats


FOIL's Core Goal of Holding Government Agencies Accountable .........11

II. THE NYPD'S CLAIMED EXCEPTIONS DO NOT APPLY..............................13

A. Daily Dot Made A Proper Request For A Very Limited Set Of

Existing Documents And Exhausted Its Administrative Remedies ..........13

B. The Requested Records Concern A Subject of Immense Public


Interest.......................................................................................................15 . ... .......................

Officers'
C. None of the Exempted Categories under Pub. Law 89(2)
Apply .........................................................................................................17 17

1. Disclosure Would Not Constitute An Unwarranted Invasion


Officers'
Of Privacy Under Pub. Law §§ 87(2)(b) and 89(2) .......17

2. Disclosure Would Not Endanger The Life Or Safety Of The


Applicants Under 87(2)(f).............................................................19
.

3. None Of The Excepted Categories Of Penal Law 400.00(5)


Apply .............................................................................................21 21

4830-6481-4438v.4 0201316-000001

2 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

III. PETITIONER IS ENTITLED TO THE REQUESTED DOCUMENTS


DUE TO WAIVER OF ANY PURPORTEDLY APPLICABLE
EXEMPTION........................................................................................................23
.

A. To The Extent Any Of These Exemptions Apply, Applicants


Waived Them By Virtue Of Their Various Public Statements.................23
.................23

B. To The Extent There Is Any Applicable Exemptions That Has Not


Been Waived, It At Most Justifies Redaction Of Particular
Information................................................................................................25 ... .......... . ..25

IV. PETITIONER IS ENTITLED TO AN AWARD OF LEGAL FEES AND


COSTS...................................................................................................................25
.................................................................................

CONCLUSION..............................................................................................................................26 ............................,......,.26

ii
4830-64814438v.4 0201316-000001

3 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

TABLE OF AUTHORITIES

Page(s)

Cases

Allen Grp., Inc. (Allen Testproducts Div.) v. N.Y S. Dep't of Motor Vehicles,
147 A.D.2d 856, 538 N.Y.S.2d 78 (3d Dep't 1989)..........................................................13, 14

Application of Langert, 5 A.D.2d 586, 173 N.Y.S.2d 665 (1st Dep't 1958).................................20

In re Bastiani,

23 Misc. 3d 235, 881 N.Y.S.2d 591 (Cty. Ct. Rockland Cty. N.Y. 2008)..............................20
..........

Burke v. Yudelson,
81 Misc. 2d 870, 368 N.Y.S.2d 779 (Sup. Ct. Monroe Cty. 1975), aff'd, 51
A.D.2d 673, 378 N.Y.S.2d 165 (4th Dep't 1976)....................................................................13

Capital Newspapers Div. of Hearst Corp. v. Burns,

67 N.Y.2d 562, 505 N.Y.S.2d 576 (1986).........................................................................12, ... .................... 13

Caruso v. Ward,
72 N.Y.2d 432, 534 N.Y.S.2d 142 (1988)...............................................................................12
. ...... . .......................

Church of Scientology of N.Y. v. State,


46 N.Y.2d 906, 414 N.Y.S.2d 900 (1979)...............................................................................14
. . .. .....................................

Cirale v. 80 Pine St. Corp.,


35 N.Y.2d 113, 359 N.Y.S.2d 1 (1974)...................................................................................20
.................................

Farrell v. Vill. Bd. of Trustees,


83 Misc. 2d 125, 372 N.Y.S.2d 905 (Sup. Ct. Broome Cty. 1975).........................................12

Ferrara v. Safir,
282 A.D.2d 383, 723 N.Y.S.2d 655 (1st Dep't 2001).............................................................20 . ................. ..

Fink v. Lefkowitz,
47 N.Y.2d 567, 419 N.Y.S.2d 467 (1979).........................................................................11, 12

Gannett Co. v. Monroe Cty.,


59 A.D.2d 309, 399 N.Y.S.2d 534(4th Dep't 1977), aff'd, 45 N.Y.2d 954, 411
N.Y.S.2d 557 (1978)................................................................................................................12 ... . ............... ......

Gannett Satellite Info. Network; Inc. v. Cty. of Putnam,


142 A.D.3d 1012, 37 N.Y.S.3d 299 (2d Dep't 2016)..............................................................18

4830-64814438v.4 0201316-000001

4 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

Gould v. New York City Police Dep't,


89 N.Y.2d 267, 653 N.Y.S.2d 54 (1996).................................................................................11
. ........... ...............................

Hamilton v. Bd. of Educ. of Jordan-Elbridge Cent. Sch. Dist.,


29 Misc. 3d 1201(A), 958 N.Y.S.2d 307 (Sup. Ct. Onondaga Cty. ................
2010)........................12, 25

Hanig v. N.Y.S. Dep't of Motor Vehicles,


79 N.Y.2d 106, 580 N.Y.S.2d 715 (1992)...............................................................................18

Johnson Newspapers Corp. v. Stainkamp,


61 N.Y.2d 958, 475 N.Y.S.2d 272 (1984)...............................................................................12 ................. .

Kachalsky v. Cty. of Westchester,


701 F.3d 81 (2d Cir. 2012), cert. denied, 569 U.S. 918 (2013).............................................6, 8

Bratton,- '
Kaplan v. Bratton,
249 A.D.2d 199, 673 N.Y.S.2d 66 (1st Dep't, 1998)..............................................................20

Kwitny v. McGuire,
102 Misc. 2d 124, 422 N.Y.S.2d 867 (Sup. Ct. N.Y. Cty. 1979), aff'd, 77
A.D.2d 839, 432 N.Y.S.2d 149 (1st Dep't 1980), aff'd, 53 N.Y.2d 968, 441
N.Y.S.2d 659 (1981)..........................................................................................................16, . ............. 20

Legal Aid Soc'y of Ne. N.Y , Inc. v. N.Y State Dep't of Soc. Servs.,
195 A.D.2d 150, 605 N.Y.S.2d 785 (3d Dep't 1993)..............................................................13

M. Farbman & Sons, Inc. v. New York City Health & Hosps. Corp.,
62 N.Y.2d 75, 476 N.Y.S.2d 69 (1984).............................................................................11, 25

Miller v. N.Y S. Div. of Human Rights,


122 A.D.3d 431, 996 N.Y.S.2d 30 (1st Dep't 2014)...............................................................24

Montes v. State,
94 Misc. 2d 972, 406 N.Y.S.2d 664 (Ct. Cl. 1978).................................................................12
.

N.Y. 1 News v. Office of President of Borough of Staten Island,


166 Misc. 2d 270, 631 N.Y.S.2d 479 (Sup. Ct. N.Y. Cty. 1995), aff'd, 231

A.D.2d 524, 647 N.Y.S.2d 270 (2d Dep't 1996).........................................................12, 23, 24

N.Y Civil Liberties Union v. Erie Cty. Sheriff's Office,


47 Misc. 3d 1201(A), 15 N.Y.S.3d 713 (Sup. Ct. Erie Cty. 2015)..........................................21 .21

New York Times Co. v. City of N.Y. Fire Dep't,


4 N.Y.3d 477, 796 N.Y.S.2d 302 (2005).................................................................................24 . .......... . . ..

Papaioannou v. Kelly,
14 A.D.3d 459, 788 N.Y.S.2d 378 (1st Dep't 2005).................................................................8
... ............................................

iv
4830-6481-4438v.4 0201316-000001

5 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

Peck v. United States,


514 F. Supp. 210 (S.D.N.Y. 1981), on reargument, 522 F. Supp. 245

(S.D.N.Y. 1981).......................................................................................................................24

Pennington v. Calabrese,
No. 2002/155, 2002 WL 31885409 (Sup. Ct. Erie Cty. Nov. 25, 2002), aff'd in

part, 4 A.D.3d 778, 771 N.Y.S.2d 422 (4th Dep't 2004)........................................................19

Planned Parenthood of Westchester, Inc. v. Town Bd. of Town of Greenburgh,


154 Misc. 2d 971, 587 N.Y.S.2d 461 (Sup. Ct. Westchester Cty. 1992)..............12,
..........,...12,
..............12, 22, 23, 24

Rauh v. de Blasio,
161 A.D.3d 120 (1st Dep't 2018)............................................................................................25

Sportmen's Ass'n for Firearms Educ., Inc. v. Kane,

178 Misc. 2d 185, 680 N.Y.S.2d 411 (Sup. Ct. Nassau Cty. 1998), aff'd, 266

A.D.2d 396, 698 N.Y.S.2d 170 (2d Dep't 1999)...............................................................16, 24

. Time Warner Cable News NY1 v. N.Y. Police Dep't,


53 Misc. 3d 657, 36 N.Y.S.3d
.D.DG 579 (Sup. Ct. N.Y. . Cty. 2016), on reargument,

No. 150305/2016, 2017 WL 1354833 (Sup. Ct. N.Y. Cty Apr. 7, 2017)................................18

Xerox Corp. v. Town of Webster,


65 N.Y.2d 131, 490 N.Y.S.2d (1985)......................................................................................25 ..

Statutes

N.Y. Admin. Code § 10-302.1.........................................................................................................7

N.Y. Penal Law §§ 400.00, et seq .passim

N.Y. Pub. Off. Law. §§ 84, et seq ..........................................................................................passim .passim

N.Y. Pub. Off. Law §§ 87, et seq. .passim

N.Y. Pub. Off. Law §§ 89, et seq. .passim

Secure Ammunition and Firearms Enforcement Act.....................................................................15

Other Authorities

21 N.Y.C.R.R. §§ 1401.1, et seq .....................................................................................................1 1

Mem. of Legislative Representative of City of N.Y. in support of L.1994, ch. 332,


1994 McKinney's Session Laws of N.Y. ................................................................................16 16

v
4830-64814438v.4 0201316-000001
4830-6481-4438v.4

6 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

PRELIMINARY STATEMENT

("
The Daily Dot ("Daily Dot") brings this Article 78 proceeding because Respondents, the

New York City Police Department ("NYPD"), Richard Mantellino ("Lt. Mantellino"), as

Lieutenant and Records Access Officer, and Jordan S. Mazur ("Sgt. Mazur"), as Sergeant and

"Respondents"
Records Access Appeals Officer (collectively, "Respondents"), have denied access to the

handgun license applications of President Donald Trump, and his two sons, Donald Trump Jr.

Applications"
and Eric Trump (the "License Applications"), in violation of the duties imposed on them by the

(" FOIL"
Freedom of Information Law, N.Y. Pub. Off. Law. §§ 84, et seq ("FOIL") and the Committee on

Open Government's implementing regulations, 21 N.Y.C.R.R. §§ 1401.1, et seq (the

Regulations"
"Implementing Regulations").

President Trump, Donald Trump Jr. and Eric Trump have long been avid gun-users and

outspoken advocates for Second Amendment rights - prior to and the presidential
during Trump

campaign, in public appearances during the Trump presidency and on social media. President

Trump ran on a strong pro-gun platform and, of course, now presides as this nation's chief law

enforcement official. In that capacity, he is charged with enforcing gun laws and, in the wake of

recent mass shootings, evaluating potential reforms. Trump's public stance on the subject of

guns is full-throated:

• "I am a Life Member of the NRA [National Rifle Association] and am proud of

their service in protecting our right to keep and bear arms. The NRA's efforts to

stop dangerous, gun-banning legislation and regulation is invaluable. The media


focus on those efforts overshadows the great work the NRA does on behalf of
conservation."I
conservation."'
safety and

I
Fredy Riehl, Donald Trump Talks: Gun Control, Assault Weapons, Gun Free Zones & Self Defense, AMMOLAND
https://www.ammoland.com/2015/07/donald-trump-talks-gun-control-assault-weapons-gun-free-
-talks-
(July 7, 2015),
zones/#ixzz5H8kOFZZN.

1
4830-6481-4438v.4 0201316-000001

7 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

• "I have a permit to carry and, living in New York, I know firsthand the challenges
rights."2
law-abiding citizens have in exercising their Second Amendment

wouldn'
• "I could stand in the middle of Fifth Avenue and shoot and I wouldn't
somebody
voters."3 '7')3
voters."
lose

• "I have a permit, which is very unusual in New York. It's a permit to carry. I
unpredictable."4
unpredictable."
carry on occasion, sometimes a lot. I like to be

Wesson."5
• "I "own[] a H&K .45 and a .38 Smith &

• "I always a weapon on me. If I'd been at the Bataclan or one of those bars, I
carry
would have opened fire. Perhaps I would have died, but at least I would have
taken a shot. The worst thing is the powerlessness to respond to those who want to
you."6
you."
kill

Both Donald Jr. and Eric have advised President Trump on gun-related issues before and

President.7
since he took office as Like their father, both have spoken publicly and often about

their gun ownership and fervent support of Second Amendment rights:

• Eric: "We want the good guys in the country to have guns . . . We believe in
home."8
concealed carry and that a person has a right to protect themselves and their

2
Id.
3 somebody'
Steve Holland and Ginger Gibson
, Confident Trump says could 'shoot and not lose voters, REUTERS,
(Jan. 23, 2016), https://www.reuters.com/article/us-usa-election-idUSMTZSAPEClNFEQLYN.
4
Anita Balakrishnan, Trump: I carry a gun on occasion, CNBCWED, (Oct 28 2015),
-i-ca -a-
https://www.cnbc.com/2015/10/28/trump-i-carry-a-gun-on-occasion.html. See also Emily Miller, Donald Trump's
Guns, WASHINGTON TIMES (Nov. 14, 2012), https://www.washingtontimes.com/blog/auns/2012/nov/l4/miller-
I' don'
donald-trumps-guns/ ("I have a carry permit - I've said that publicly. I own a couple of different guns, but I don't
talk about it.")
'
Id.
6 Gun,'
Rob Garver, Trump: 'I Always
Carry a FISCAL TIMES (Feb. 11, 2016),
http://www.thefiscaltimes.com/2016/02/11/Donald-Trump-I-Always-Carry-Gun. -I-Alwa -Gun.
'
In a July 2015 interview concerning gun control, self-defense, gun-free zones and assault weapons, President
sources."
Trump told Ammoland his sons Don, Jr. and Eric are his "most trusted Fredy Riehl, Donald Trump Talks:
Gun Control, Assault Weapons, Gun Free Zones & Self Defense, AMMOLAND (July 7, 2015),
https://www.ammoland.com/2015/07/donald-trump-talks-gun-control-assault-weapons-gun-free-
-talks-
zones/#ixzz5H8kOFZZN.
8
In September 2016, at the Ohio Gun Collector's Association ("OGCA") Alliance Rally, show and the Sportsmen's
Eric Trump was interviewed on his views about the Second Amendment in shooting sports. and his participation
Larry S. Moore, Eric Trump Discusses Guns, Hunting, And the Second Amendment, BUCKEYE FIREARMS
ASSOCIATION (Sept 19, 2016), https://www.buckeyefirearms.org/eric-trump-discusses-guns-hunting-and-second-
-discusses- -and-second-
amendment.

2
4830-6481-4438v.4 0201316-000001

8 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

• President Trump: "My sons have been members of the NRA, for many, many
They'
years. re incredible. They have so many rifles and so many guns, even
concerned."9
concerned."
I get

"We' we' we' we'


• Donald Jr.: re shooters, re hunters, re outdoorsmen, re
Amendment."10
sportsmen, and we love the Second

• Eric: "[The election of President Trump] will be the difference between

having our Second Amendment freedoms and not having our Second
freedoms."l l
Amendment

• Donald Jr.: "The Second Amendment isn't just a hobby that I do every
lifestyle."12
weekend; it's a

Trumps'
The public positions on guns must be taken into account in evaluating the

NYPD's response to Daily Dot's request for access to their License Applications. First, against

the backdrop of these many statements, it is simply not tenable to assert that the disclosure of the

Trumps' -
applications would constitute an invasion of the personal privacy or endanger their life

or safety - two of the grounds cited the NYPD. (The third ground cited the that
by by NYPD,

these documents are specifically exempted from disclosure by statute, is manifestly incorrect as a

matter of law). Second, even if any of these exceptions to the general rule of openness were

applicable, the Trumps have waived them by virtue of their public statements. The Court should

require the NYPD to grant the instant FOIL petition and award the Daily Dot its attorney's fees

and other costs incurred in bringing this action.

9
Ignore the past. Trump loves guns! He swears!, NBC NEWS (May 20, 2015),
-loves-
https://www.nbenews.com/dateline/video/ignore-the-past-trump-loves-guns-he-swears-690007619692.

At a 2015 NRA-ILA Leadership Forum, President Trump asked Eric, Don, Jr. and his wife Vanessa to appear and
speak on their commitment to the NRA and Second Amendment freedoms. Donald Trump: 2015 NRA-ILA
Leadership Forum, NRA (Apr. 10, 2015), https://www.youtube.com/watch?time continue=10&v=u7IDo la39w.

Eric Trump @ Tommy Gun Warehouse Grand Opening Clips, YouTUBE (Aug. 30, 2016),
https://www.youtube.com/watch?v=vTVng0ZTywk.
12 Awesome!'
Simon Dumenco, 'I Think It's Awesome! Here's Donald Trump Jr. in a Promo Video for a Gun Silencer, AD
-'r-a-
AGE (Oct. 4, 2017), http://adage.com/article/media/donald-trump-jr-a-promo-video-a-gun-silencer/310751/.

3
4830-64814438v.4 0201316-000001

9 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

FACTUALBACKGROUND

A. Trump Publicity, Pistols and Politics

President has been vocal about his gun and license to carry - well
Trump long ownership

Office.13
before his term in the Oval Office. He is also one of very few civilians permitted to carry a

City.14
concealed weapon in New York President Trump's sons, Donald Jr. and Eric, public

right,15
right,'
figures in their own right, who have been actively involved in promoting their father's political

agenda,' 6 years.'
years."
agenda, have also been proud gun owners for many From declaring that "nobody loves

3
See, e.g., Donald Trump, The America We Deserve, p.102 (Jul 2, 2000); Fredy Riehl, Donald Trump Talks: Gun
Control, Assault Weapons, Gun Free Zones & Self Defense, AMMOLAND (July 7, 2015).
/www.ammoland.com/2015/07/donald-trump-talks-eun-control-assault-weapons-gun-free-
-talks-
-tall
https;
zones/#axzz5J46uY li9.
14
Though exact licensing dates cannot be confirmed at this stage in litigation, at least one media outlet has reported
President Trump completed a handgun renewal application in June 1987, indicating he has held a license to carry in
New YorkCity for at least twenty years. See Donald Trump's NYC Handgun Carry Application Revealed,
AMMOLAND (Dec. 2, 2016), https://www.ammoland.com/2016/12/donald-trumps-nve-handeun-
application/#axzz5H8kGt05h; see also Jacob Bernstein, New York's Gun Culture, NEW YORK MAGAZINE,
http://nvma2.com/nymetro/news/people/columns/intelligencer/9920/
.com/n (noting that of the 4.5 million people who own
guns in New York State, approximately 50,000 are New York city residents with pistol permits that are "not easy to
obtain.").
"
Donald Jr. reaches over 2.25 million followers on Twitter and 1 million on Instagram. Eric has more than 2
million Twitter followers and over 700,000 Instagram followers.
Koronowski, See Ryan
The White House and the
Trump Organization have merged: The Life and Times of Eric and Donald Jr., THINK PROGRESS (Dec 12, 2017),
https://thinkprogress.org/trump-sons-trump-admin-merged-78bbfb886655/.
-sons-trum -admin-mer According to Instagram and Twitter
figures" "verified"
both Eric and Donald Jr. are considered "public and are appropriately on each platform. See
Avinash Bhunjun, How do you get verified on Instagram?, METRO (Jan 12, 2018),
https://metro.co.uk/2018/01/12/how-do-vou-cet-verified-on-instaeram-7225002/?ito=cbshare.
"
In 2017, Think Progress conducted an analysis of Donald Jr., and Eric's political activity and public statements in
connection with either the Trump administration, or both, and found that both Eric and Donald
Trump Organization,
Jr. regularly participate in cable TV interviews with the vast majority
of their time being spent talking about
President Trump's administration and political priorities. Specifically, beginning in March 2017, Eric and Donald
Jr. appeared in television interviews at least 17 times - 15 on Fox News - a rate of almost twice per month. In
addition, Donald Jr.'s social media feeds are very politically active, with more than 1,000 ofhis Twitter, Facebook,
and Instagram posts concerning President Trump's administration and political priorities between November 9, 2016
and October 31, 2017, averaging out to almost three political posts per day. Similarly, between November 9, 2016
and October 31, 2017, more than 150 of Eric's posts on Twitter, Instagram, and Facebook were about campaigns,
political issues, and President Trump's administration. See Ryan Koronowski, The White House and the Trump
Organization have merged: The Life and Times of Eric and Donald Jr., THINK PROGRESS (Dec 12, 2017),
https://thinkprogress.org/trump-sons-trump-admin-merged-78bbfb886655/
-sons-trum -admin-mer ; see also John Bowden, Trump consults
adult sons on possible gun reforms: report, THE HILL (Feb 23. 2018),
-consulis-adult-sons-on-
http://thehill.com/homenews/administration/375226-truinp-consubs-adult-sons-on-possible-eun-reforms-report
(reporting that President Trump consulted with Don Jr. and Eric over Presidents Day weekend about how to address
gun violence in the U.S. following the deadly high school shooting in Florida).
"
Both Donald Jr. and Eric have spoken publicly and posted on social media about their gun ownership. Paola
Chavez, Eric Trump: 'Shooting was a big part of my youth', strengthenedfamily bonds, ABC News (Mar. 19,

4
4830-64814438v.4 0201316-000001

10 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

us,"
the Second Amendment more than to proclaiming that he always carries a gun, President

Trump and the First Family have injected their own handgun ownership into the public

occasions.¹8 18
discussion of guns and gun control on numerous occasions.

- sons' -
Since President Trump has taken office, his and his gun ownership has been a

Trumps'
matter of great public interest, inextricably linked to the policy positions on gun-related

issues.19
Despite the fact President Trump receives around-the-clock Secret Service protection,

he has stated that he not only holds a concealed-carry permit in New York City, but that he also

times.20
carries a weapon at all times. In the wake of school shootings in Parkland, Santa Fe and

elsewhere, the President and First Family have expressed willingness to consider gun reforms

like arming teachers, raising the minimum age for purchasing assault rifles and banning "bump

stocks."21
stocks." ' Trumps'
Whether trumpeting gun rights or considering gun controls, the deep and

2018), https://abcnews.go.com/Politics/eric-trump-shooting-big-part-youth/story?id=53849822; Eric Trump @


Tommy Gun Warehouse Grand Opening Clips, YOUTUBE (Aug. 30, 2016),
https://www.youtube.com/watch?v=vTVng0ZTywk ; Mark Moore, Shooting range linked to Trump's sons is pissing
NEW YORK POST (Feb. https://nypost.com/2018/02/l4/shooting-range-linked-to-trumps-
-ran
off neighbors, 14, 2018),
sons-is-pissing-off-neighbors/ linked to Eric and Don. Jr owning a 171-acre hunting
(In discussing a company
Awesome!'
preserve used as a private
shooting range); Dumenco, Simon
1 Think It's Awesome! Here's Donald Trump Jr. in a
Promo Video for a Gun Silencer, AD AGE (Oct. 4, 2017), http://adage.com/article/media/donald-trump-ir-a-promo- -'r-a-
"silencers"
video-a-gun-silencer/310751/ (discussing SilencerCo, a manufacturer of firearm headquartered in West
products"
Valley City, Utah, Don Jr. stated that he "loves their and, though he doesn't get to use them in the state of
New York, he hopes to change that).
18
See Donald Trump Nevada Watch Party & Victory
Speech, Right Side Broadcasting Network (Feb. 23, 2016),
("
https://www.voutube.com/watch?v=kdA4ru5Zl al ("We love the Second Amendment, nobody loves it more than
us"); Ignore the past. Trump loves guns! He swears!, NBC NEWS (May 20, 2015),
-loves-
https://www.nbenews.com/dateline/video/ignore-the-past-trump-loves-guns-he-swears-690007619692 to
(speaking
the NRA Convention, President Trump stated that Hillary Clinton wanted to eradicate the Second Amendment and
"we'
not going to let that happen.").
"
See e.g., Michele Gorman, A Brief History of Donald Trump's Stance on Gun Rights, Newsweek (May 20, 2016),
http://www.newsweek.com/brief-history-donald-trumps-stance-gun-rights-461705; Benjy Sarlin, Gun Violence:
What Trump said vs. what Trump did, NBC NEWS (Mar. 12, 2018), https://www.nbenews.com/politics/white-
house/gun-violence-what-trump-said-vs-what-trump-did-n855756.
-said-vs-what-trum -did-n855756.
20 Gun,'
See Rob Garver, Trump: 7 Always Carry a THE FIsCAL TIMES (Feb. 11, 2016),
http://www.thefiscaltimes.com/2016/02/11/Donald-Trump-l-Always-Carry-Gun. -I-Alwa -Gun.
21
Margaret Hartmann, Every Gun Policy President Trump Has Proposed, NEW YORK MAGAZINE (Feb. 27, 2018),
- -
http://nymag.com/dailv/intelligencer/2018/02/every-gun-policy-president-trump-has-proposed.html
.com/dail -has-
(noting
President Trump has flip flopped on arming teacher, stating, "I don't want to have guns in classrooms, although, in
some cases, teachers should have guns in classrooms, frankly."); See also John Bowden, Trump consults adult sons
on possible gun reforms: report, THE HILL (Feb 23. 2018), http://thehill.com/homenews/administration/375226-

5
4830-6481-4438v.4 0201316-000001

11 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

public involvement in these issues has stoked public interest in their individual gun licenses and

ownership.

B. New York Gun Policies

New York State has extremely rigorous gun control laws, requiring persons interested in

carrying to obtain a handgun permit and pass a strict background check as a prerequisite to

handgun ownership. N.Y. Penal Law § 400.00 ("No license shall be issued or renewed . . .

except by the licensing officer, and then only after investigation and finding that all statements in

a proper application for a license are true."). In fact, New York's licensing scheme was

challenged in federal court on Second Amendment grounds, but in a 2012 decision the U.S.

Court of Appeals for the Second Circuit upheld the law and the Supreme Court declined to

ruling.22 22
review of the ruling.

To begin, an applicant must have a legally recognized reason for wanting to possess or

23
carry a firearm. N.Y. Penal Law § 400.00(2). The state application process can take up to six

months to complete, and includes fingerprinting and an FBI background check. N.Y. Penal Law

§ 400.00(4). Following successful completion, certain counties even require handgun owners to

take a firearm safety course and a written exam. N.Y. Penal Law § 400.00(4-b).

-consults-adult-sons-on- that President


trump-consults-adult-sons-on-possible-gun-reforms-report (reporting Trump consulted with Don
Jr. and Eric over Presidents how to address gun violence
Day weekend about in the U.S. following the deadly high
school shooting in Florida); Fredy Riehl, Donald Trump Talks: Gun Control, Assault Weapons, Gun Free Zones &
https://www.ammoland.com/2015/07/donald-trump-talks-gun-control-
-talks-
Self Defense, AMMOLAND (July 7, 2015),
("
assault-weapons-gun-free-zones/#ixzz5H8kOFZZN ("We should re-examine our policy to make sure that these
prohibitions do not impede law abiding citizens from exercising their Second Amendment rights.").

Kachalsky v. Cty. of Westchester, 701 F.3d 81, 84 (2d Cir. 2012), cert. denied, 569 U.S. 918 (2013) held that New
York's handgun license legislation-which prevents individuals from obtaining a full-carry concealed-handgun
license to possess concealed firearms in public, except upon showing of a special need for self-protection
distinguishable from that of the general community-
community
— does not violate the Second Amendment.
23
N.Y. Penal Law § 400.00 provides, in part, specific categories which an applicant must designate for pistol or
revolver possession, including possession in her dwelling by a householder, possession in her place of business by a
merchant or storekeeper, or possession without regard to employment or place of possession by any person when
proper cause exists for the issuance thereof.

6
4830-6481M38v.4 0201316-000001

12 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

tighter.24
New York City laws are even tighter. The City's permit application is 17 pages long,

applicants are required to renew their license every three years, and the NYPD interviews all

applicants.25 '
applicants. New York City's handgun license application requires applicants to relay their

employment history, list the handguns to be covered under their application, and highlight their

individual arrest and summons history. For those applying for licenses in connection with their

employment, a letter of necessity and proof of business ownership is required. Notably, all

license holders have a continuing obligation to amend their licenses within ten days of a status or

change.26
address change. Due to these restrictive requirements, it is estimated that less than 50,000

City.27
persons have licenses to possess firearms in New York City. Apart from retired law

enforcement officers, fewer than 2,500 people have full carry permits, which allow licensees to

carry their handgun around the city anywhere they are permitted. Upon information and belief,

President Trump, Donald Jr., and Eric are among that group.

C. Petitioner's Efforts to Obtain the License Applications

Under New York Penal Law § 400.00(5), the name and address of any person to whom

an application for any handgun license has been granted is public record. Indeed, historically,

activities such as owning and carrying firearms have been licensed due to the public interest in

24
New YorkCity prohibits gun owners from buying more than one gun every three months and requires that
handguns be secured with a safety-locking device when not in use. N.Y. Admin. Code § 10-302.1; Rachel Uda, Gun
Ownership in New York State: What you need to know, NEWSDAY (Feb. 21, 2018),
https://www.newsday.com/news/region-state/new-york-gun-law-1.16886114.
.com/news/re
25
See Jonathan Wolfe, New York Today: What Are New York's Gun Laws? NEW YORK TIMES (Oct. 4, 2017),
-what-are-new-
https://www.nytimes.com/2017/10/04/nyregion/new-york-today-what-are-new-yorks-gun-laws.html.
26
See NYPD Handgun License Application Amendment,
http://home.nyc.gov/html/nypd/downloads/pdf/permits/pd 635 022rev10 06formfillable.pdf.
27
Jacob Bernstein, New York's Gun Culture, NEW YORK MAGAZINE,
http://nymag.com/nymetro/news/people/columns/intelligencer/9920/
.com/n (noting that of the 4.5 million people who own
guns in New York State, approximately 50,000 are New York city residents with pistol permits that are "not easy to
obtain.").
28
Jonathan Wolfe, New York Today: What Are New York's Gun Laws? New York Times (Oct. 4, 2017),
-what-are-new-
https://www.nytimes.com/2017/10/04/nyregion/new-york-today-what-are-new-yorks-gun-laws.html.

7
4830-64814438v.4 0201316-000001

13 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

activities.29
ensuring that individuals or entities are qualified to engage in certain activities. The issuance

of a permit or license, therefore, ordinarily indicates that a person has met the requisite

qualifications or criteria needed to obtain the permit or license. It follows then that such licenses

and records should be publicly available because they are intended to enable the public to know

that an individual has met appropriate requirements to be engaged in an activity that is regulated

by the state and in which the state has a significant interest.

Petitioner Daily Dot wants the public to know whether President Trump, Donald Jr., and

Eric have met the appropriate requirements and continuing obligations to hold licenses to possess

and carry handguns in New York City. The details in the License Applications are highly

relevant to the publication's coverage of gun-related issues. See Affidavit of Ellen Ioanes, sworn

to June 19, 2018 ("Ioanes Aff."), ¶¶ 3-4. Accordingly, on or about January 25, 2018, the Daily

Dot contacted the NYPD's records department by phone to inquire about the handgun license

applications associated with President Trump, Donald Jr., and Eric. Ioanes Aff. ¶ 5. On that

call, the Records Officer told Daily Dot that firearms license applicants could choose whether to

have their license application subject to open records laws, but refused to inform Daily Dot

whether any of the Trump family members had submitted a public records exemption addendum

to their license application. Id.

²' ("
See e.g., Papaioannou v. Kelly, 14 A.D.3d 459, 460, 788 N.Y.S.2d 378, 378 (1st Dep't 2005) ("It is well settled
that the possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the
(" authority— -
New York City Police Commissioner."); Kachalsky, 701 F.3d at 100 ("In light of the state's considerable authority
enshrined within the Second Amendment - to regulate firearm possession in public, requiring a showing that there is
self-protection"
an objective threat to a person's safety - a "special need for - before
granting a carry license is
entirely consistent with the right to bear arms."); see also Press Release, The Educational Fund to Stop Gun
Violence, New Poll Finds American Voters Overwhelmingly Support Handgun Licensing and Registration, Criminal
Background Checks (June 12, 2001),
http://web.archive.org/web/20060920012257/http://www.commondreams.org/news2001/0612-05.htm; see Lois
Hess, Editorial, Bush Undermining Gun Control Laws, BALTIMORE SUN, July 31, 2001, at 11A,
at http://web.archive.org/web/20130617231745/http://www.commondreams.org/views01/0731-03.htm (82% of
respondents supported laws requiring the licensing and registration of handguns).

8
4830-6481<438v.4 0201316-000001

14 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

Following the call, Daily Dot promptly submitted a Freedom of Information Law

(" FOIL"
("FOIL") Request to the Records Access Officer in the NYPD Legal Bureau's FOIL Unit. It

requested the handgun license applications for President Trump, Donald Jr., and Eric (the

Request"
"January Request"). See Ioanes Aff., Exhibit 1.

By letter dated February 1, 2018, Lieutenant Richard Mantellino ("Lt. Mantellino"),

Records Access Officer with the NYPD, denied Daily Dot's January Request. See Ioanes Aff.,

Trumps'
Exhibit 2. The NYPD's only basis for denial was that disclosure of the handgun

license applications would, in its view, constitute an unwarranted invasion of personal privacy

under N.Y. Public Officers law § 87(2)(b). The letter did not include any specification as to how

Daily Dot's request for gun license applications constituted an unwarranted invasion of privacy

to President Trump, Donald Jr., or Eric, and no further basis was provided.

D. Petitioner's Administrative Appeal

On February 20, 2018, Daily Dot submitted an 8-page appeal to the NYPD (the

Request"
"February Request"). See Ioanes Aff., Exhibit 3. Daily Dot's appeal outlined the following:

• The NYPD's denial of the January Request was insufficient under FOIL because

recitation"
it provided only a "bare of the asserted statutory exemption, N.Y.

Public Officers law § 87(2)(b), rather than giving the particularized justification

required, or redacting to avoid the purported invasion of privacy;

• The NYPD's denial of the January Request lacked merit because neither President

Trump nor his sons, Donald Jr. and Eric, met the exemptions set forth in Penal

Law § 400.00(5); and,

9
4830-6481-4438v.4 0201316-000001

15 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

• Even if President Trump, Donald Jr., or Eric's handgun license applications had

once been eligible for exemption from public disclosure, their high public profile

and public statements now took them out of the scope of any exemption.

The NYPD denied Daily Dot's February Request, this time in a letter from Sergeant

Jordan S. Mazur ("Sgt. Mazur"), Records Access Appeals Officer. See Ioanes Aff., Exhibit 4. In

privacy"
denying the February Request, Sgt. Mazur reiterated "invasion of personal is an

asserted basis for denial and also asserted two new, additional grounds for denial: (i) that public

disclosure of the requested records would endanger the life or safety of the applicant pursuant to

N.Y. Public Officers law § 87(2)(f); and (ii) Penal Law § 400.00(5) prohibited disclosure of the

requested records because only "the name and address of any person to whom an application for

record."
any license has been granted shall be a public Like the NYPD's earlier denial of

disclosure, Sgt. Mazur's denial offered no further details beyond recitation of the relevant

statutes.

Due to the NYPD's failure to provide adequate justifications and its baseless denials,

Daily Dot brings this action.

ARGUMENT

L THE UNDERLYING POLICIES AND EXPRESS LANGUAGE OF FOIL


MANDATE DISCLOSURE OF THE LICENSE APPLICATIONS

The policies underlying FOIL and its text require narrow construction of its exceptions

and the articulation of particularized and specific justifications for denying public disclosure of

documents in the possession of government agencies. These rules manifestly support granting

Daily Dot's petition.

10
4830-6481R438v.4 0201316-000001

16 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

A. FOIL Exemptions Must be Narrowly Construed to Fulfill the Statute's


Broad Disclosure Mandate

FOIL is based upon a presumption of access. All records of an agency are presumptively

available to the public, except to the extent that records or portions thereof fall within one or

more narrow grounds for denial appearing in Section 87(2)(a) through (j) of the law. N.Y. Pub.

Off. Law § 87(2). M Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62

N.Y.2d 75, 83, 476 N.Y.S.2d 69, 72-73 (1984). New York courts also uniformly hold that these

statutory exemptions must be narrowly interpreted. Gould v. New York City Police Dep't, 89

N.Y.2d 267, 653 N.Y.S.2d 54 (1996) (to ensure maximum access to government documents,

FOIL's exemptions are to be narrowly construed, with the burden resting on agencies to

demonstrate that requested records qualify for exemption). As the Court of Appeals stated in

Gould, "[o]nly where material requested falls squarely within the ambit of ... statutory

withheld."
exemptions may disclosure be Id at 275, 653 N.Y.S.2d at 57 (alterations in original)

(citation omitted).

In this case, as discussed below, the exemptions raised by the NYPD must be narrowly

construed with the burden placed on Respondents to demonstrate that the requested records

actually qualify for these alleged exemptions. Applying that principle, the exemptions

articulated by the NYPD as the bases for denial of Daily Dot's January and February Requests

do not squarely fit within the ambit of any statutory exemption.

B. Respondents Refusal to Disclose the License Applications Defeats FOIL's

Core Goal of Holding Government Agencies Accountable

Public record laws such as FOIL proceed under the premise that the public is vested with

an inherent right to know; official secrecy is anathematic to our form of government. See, e.g.,

("
Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 470 (1979) ("By permitting access to

official information long shielded from public view, the act permits the electorate to have

11
4830-6481-4438v.4 0201316-000001

17 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

sufficient information in order to make intelligent, informed choices with respect to both the

direction and scope of governmental activities."). Moreover, "judicious use of the provisions of

the law can be a remarkably effective device in exposing waste, negligence and abuses on the

governed.'"
part of government; in short, 'to hold the governors accountable to the Id. (citation

omitted).

Equally important, the public interest is weighed more heavily when the records at issue

concern public officials or employees, as opposed to private citizens. Public employees enjoy a

lesser degree of privacy than others, for it has been found in various contexts that public

others.30
employees are held to be more accountable than others. Further, the courts have found that, as

a general rule, disclosure of records that are relevant to the performance of a public employee's

privacy.3¹
official duties does not constitute an unwarranted invasion of personal These

principles of openness and accountability require public officials to articulate particularized and

specific justifications which establish that statutory exemptions apply, particularly when


See, e.g., Caruso v. Ward, 72 N.Y.2d 432, 439, 534 N.Y.S.2d 142, 145-46 (1988) (noting the NY Court of
Appeals has observed that all public employees have diminished expectations of privacy in respect to inquiries
by
the State into their physical fitness to perform on the job); Hamilton v. Bd. of Educ. of Jordan-Elbridge Cent. Sch.
Dist., 29 Misc. 3d 1201(A), 958 N.Y.S.2d 307 (Sup. Ct. Onondaga Cty. 2010) (holding petitioner demonstrated that
document was of significant interest to the general public where the agreement was between elected board members
and a public employee and concerned the use of public funds).
3'
See, e.g., Farrell v. Vill. Bd. of Trustees, 83 Misc. 2d 125, 372 N.Y.S.2d 905 (Sup. Ct. Broome Cty. 1975)
(disclosure of written reprimands of police officers, contained in report concerning investigation into alleged
wrongdoing by city police officers, would not result in an unwarranted invasion of personal privacy and would not
harm overall interest, and thus such reprimands
public should be made available for public inspection and copying
under FOIL); Gannett Co. v. Monroe Cty., 59 A.D.2d 309, 312, 399 N.Y.S.2d 534, 536 (4th Dep't 1977), aff'd, 45
N.Y.2d 954, 411 N.Y.S.2d 557 (1978) ("To refuse disclosure would frustrate the intent of the statute."); Montes v.
("
State, 94 Misc. 2d 972, 977, 406 N.Y.S.2d 664, 667 (Ct. Cl. 1978) ("Where malfeasance of a public officer is an
issue - and the necessary confidentiality of criminal investigation will not be impaired thereby or national security
threatened - maximum freedom of information must be provided, whether the proceeding is criminal or civil.") For
example, records reflective of failures to comply with law have long been accessible, and the Court of Appeals has
determined that those records must be disclosed, unless and until a charge has been dismissed. See Johnson
Newspapers Corp. v. Stainkamp, 61 N.Y.2d 958, 475 N.Y.S.2d 272 (1984); Planned Parenthood of Westchester,
Inc. v. Town Bd. of Town of Greenburgh, 154 Misc. 2d 971, 587 N.Y.S.2d 461 (Sup. Ct. Westchester Cty. 1992)
(holding that, under FOIL, town board was required to release photographs of abortion protestors whose
prosecutions for disorderly conduct were pending).

12
4830-64814438v.4 0201316-000001

18 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

interest.32
concerning an area of public interest. Finally, while an agency is permitted to restrict access to

those records falling within the statutory exemptions, the language of FOIL's exemption

provision contains permissive rather than mandatory language, and it is thus within the agency's

chooses.33
discretion to disclose such records, with or without identifying details, if it so chooses.

II. THE NYPD'S CLAIMED EXCEMPTIONS DO NOT APPLY

Daily Dot made a narrow FOIL request for a few specific documents (the License

Applications) directly relating to issues of great public importance (gun rights and gun control)

in which the President and his two sons have direct involvement and over which they exert great

influence. In support of its denial of this limited request, the NYPD has asserted three

exceptions, none of which are applicable.

A. Daily Dot Made A Proper Request For A Very Limited Set Of Existing
Documents And Exhausted Its Administrative Remedies

The Daily Dot's letters clearly and expressly requested the handgun license applications

for President Trump, Donald Jr., and Eric. Having now exhausted its administrative remedies,

Daily Dot is properly before the Court in an Article 7803 proceeding because the information it

seeks is sufficiently identifiable as to meet the requirements of the Public Officers Law. Burke v.

81 Misc. 2d 368 N.Y.S.2d —


787-88 (Sup. Ct. Monroe Cty.
Yudelson, 870, 878, 779, 1975), aff'd,

51 A.D.2d 673, 378 N.Y.S.2d 165 (4th Dep't 1976).

³²
See, e.g., Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 578-79
(1986) (agencies seeking to prevent disclosure carry the burden of demonstrating that the requested material falls
squarely within a FOIL exemption by articulating a particularized and specific justification for denying access);
("
Fink, 47 N.Y.2d at 571, 419 N.Y.S.2d at 470 ("Thus, the agency does not have carte blanche to withhold any
information its pleases. Rather it is required to articulate particularized and specific justification and, if necessary,
submit the requested
materials to the court for In camera inspection, to exempt its records from disclosure."); N.Y. 1
News v. Office of President of Borough of Staten Island, 166 Misc. 2d 270, 273, 631 N.Y.S.2d 479, 482 (Sup. Ct.
N.Y. Cty. 1995), aff'd, 231 A.D.2d 524, 647 N.Y.S.2d 270 (2d Dep't 1996) ("To give the public maximum access to
records of government, these statutory exemptions are narrowly interpreted, and the burden of demonstrating that
requested material is exempt from disclosure rests on the agency.").
³³
Capital Newspapers, 67 N.Y.2d at 567, 505 N.Y.S.2d at 579.

13
4830-6481-4438v.4 0201316-000001

19 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

Respondents'
In contrast, denials of Daily Dot's January and February Requests did not

justifications"
articulate "particularized and specific as is required by N.Y. Pub. Off. Law § 87.

Legal Aid Soc'y of Ne. N.Y., Inc. v. N.Y State Dep't of Soc. Servs., 195 A.D.2d 150, 153, 605

N.Y.S.2d 785 (3d Dep't 1993). In Allen Grp., Inc. (Allen Testproducts Div.) v. N.Y.S. Dep't of

Motor Vehicles, 147 A.D.2d 856, 538 N.Y.S.2d 78 (3d Dep't 1989), for example, the Third

respondents' — which


Department found that the opposition consisted of merely restating

respondents'
conclusory allegation that materials sought were exempt from disclosure under

—
FOIL-was inadequate to permit a conclusion that respondents sustained their burden of
totally

showing that requested material fell within a statutory exemption. Id. at 857, 538 N.Y.S.2d at

—
79-80. See also Church of Scientology of N.Y. v. State, 46 N.Y.2d 906, 907-08, 414 N.Y.S.2d

officials'
900, 900-01 (1979) (finding record on appeal wholly insufficient to sustain state refusal

to disclose materials sought by petitioner, where in support of denial the officials tendered only

references to sections, subdivisions and subparagraphs of the applicable statute and conclusory

characterizations of the records sought to be withheld with no tender of any factual basis on

which to determine whether the materials sought actually fell outside the scope of mandated

disclosure). Here, the NYPD, which has done no more than mechanically recite statutory

exceptions in boilerplate fashion, has woefully failed to sustain its heavy burden.

Given the NYPD's failure to meet its obligations or provide valid justifications for non-

disclosure, reversal of the agency decision is warranted. Alternatively, and at the very least,

because the NYPD has not demonstrated as a matter of law that the requested handgun license

applications are exempt from FOIL, the court should reach a determination on this matter based

on an in camera inspection of the records.

14
4830-6481-4438v.4 0201316-000001

20 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

B. The Requested Records Concern A Subject of Immense Public Interest

culture.34
Gun ownership is embedded in American culture. The United States now has more

world.35 35
guns than any other country in the world. MaSS Shootings and other instances of gun violence

debate.36
routinely appear in the headlines and are a subject of national attention and debate. Indeed,

since President Trump has taken office, three of the nation's deadliest mass shootings have taken

place, with 17 dead in Parkland, Florida, 26 in Sutherland Springs, Texas and 58 in Las Vegas,

Nevada.37
Nevada. In the wake of these shootings, while large swaths of the country have been vocal in

bills.38
calls for gun reform, Congress has not moved on any bills. Following the 2012 mass shooting

at Sandy Hook Elementary School, New York enacted the Secure Ammunition and Firearms

("SAFE").39
Enforcement Act ("SAFE"). Under SAFE, any New York handgun license holder who

received her or his permit before January 15, 2013 was required to recertify by January 31, 2018.

Id. It follows that President Trump and his sons, all of whom upon information and belief were

handgun license holders in New York prior to January 2013, would have been required to

34
Tyger Drew-Honey, Why are Americans so obsessed with guns?, BBC, http://www.bbc.co.uk/guides/z3t2hv4
(describing how gun culture has become "so deep rooted in the American psyche"); Ruthe Igielnik and Anna
Americans'
Brown, Key takeaways on Americans views of guns and gun ownership, PEW RESEARCH CENTER (June 22, 2017),
http://www.pewresearch.org/fact-tank/2017/06/22/key-takeaways-on-americans-views-of-guns-and-gun-ownership/
-takeawa
(finding that for most gun owners, owning a firearm is tied to their sense of personal freedom).
35
Interview with Adam Winkler and Priscilla Imboden, America's Unique Gun Violence Problem, NATIONAL
PUBLIC RADIO (Oct. 7, 2017), https://www.npr.org/2017/10/07/556405496/americas-unique-gun-violence-problem.
³ª
See America's gun culture in 10 charts, BBC NEWS (March 21, 2018),https://www.bbc.com/news/world-us-
canada-41488081 (noting that the 2017 Las Vegas attack was the worst in recent US history and that five of the
shootings with number of casualties
the highest happened within the past 10 years.); Doug Criss, The Las Vegas
attack is the deadliest
mass shooting in modern US history, CNN (Oct. 2, 2017),
https://www.cnn.com/2017/10/02/us/las-vegas-attack-deadliest-us-mass-shooting-trnd/index.html -trnd/index. (describing the
deadliest mass shootings in modern US history [from1949 to present]).
"
Id.
38
Mark Z. Barabak, It's Been A Generation Since Congress Passed a Gun Control Law. Will Young Protesters
Change That? The Los ANGELES TIMES (Feb. 22, 2018), http://www.latimes.com/politics/la-na-pol-school-
shootings-guns-20180222-story.html .html (noting the last time Congress passed major gun control legislation was in
1994, when Congress approved and President Clinton signed into law the Violent Crime Control and Law
Enforcement Act).
39
N.Y. Penal Law § 400.00.

15
4830-6481-4438v.4 0201316-000001

21 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

recertify this year, restate their rationale for the need to carry a handgun, and set forth the reasons

for any claimed public records exemption.

Because of the significance of guns and prominence of gun violence in modern society,

40
gun ownership is of great public interest. Indeed, Second Amendment rights and gun

advisors.41 '
regulations have been a major focus of President Trump, his Administration and his advisors.

Accordingly, the American people and press have a right to know whether their president is

speaking in good faith on one of the most pressing matters in American society and to see what

he has stated under penalty of perjury in his own handgun license application.

Similar issues arose in Kwitny v. McGuire, where the petitioner, a newspaper reporter

employed by the Wall Street Journal, sought to compel the respondent police commissioner to

permit him to inspect approved pistol license applications on file with the NYPD. There the

Court ordered the disclosure of the handgun license applications, noting that "in an open society

40
Indeed, everyone about the right to access information
seems to have an opinion about gun ownership and control.
For example when News, a local New York paper, decided to publish an interactive
The Journal map of handgun
permit owners in two New York counties in 2013, legislatures responded by advocating for privacy measures in gun
regulation and sparked a public debate. See Emily Bazelon, The First Amendment Versus the Second Amendment ,
SLATE.COM (Jan. 3, 2013),
http://www.slate.com/articles/news politics/jurisprudence/2013/01/the
and joumal news gun map the first ame
("
ndment and state law gave the ("Because
new.htmi guns are what they are, there is a greater need to know."); J.
David Goodman, Newspaper Takes Down Map of Gun Permit Holders, NEW YORK TIMES (Jan. 18, 2013),
-of-
html; see also,
Michelle Ruiz, Should We Still Let Children Play with Toy Guns?, VOGUE (June 11, 2018),
https://www.vogue.com/article/are-toy-guns-okay-for-kids-in-2018; Harry Enten, The U.S. Has Never Been So
Polarized on Guns, FIVETHIRTYEIGHT (Oct. 4, 2017), https://fivethirtyeight.com/features/the-u-s-has-never-been-so-
polarized-on-guns/.
'
See, e.g., Margaret Hartmann, How Republicans Have Been Making Gun Laws Worse Under Trump, NEW YORK
MAGAZINE (Feb. 15, 20181 http://nymag.com/daily/intelligencer/2018/02/every-attempt-to-change-gun-laws-under-
.com/dail -attem
.html;
trump.html; Beth Reinhard and Sari Horwitz, The Trump administration has already been rolling back gun
regulations, WASHINGTON POST (Oct. 4, 2017), https://www.washingtonpost.com/investigations/the-trump-
administration-has-already-been-rolling-back-gun-regulations/2017/10/04/5eaad7d6-a86b-11e7-8ed2-
-been-rollin -back-
("
c71 14e6ac460 story.html?utm
.html?utm term=.231685cl5dc5 ("Donald Trump campaigned as a fierce defender of the
Second Amendment and the favored candidate of the National Rifle Association, vowing to undo any actions by
President Barack on gun control.");
Obama Fredy Riehl, Donald Trump Talks: Gun Control, Assault Weapons, Gun
Free Zones & Self Defense, AMMOLAND https://www.ammoland.com/2015/07/donald-trump-talks- -talks-
(July 7, 2015),
gun-control-assault-weapons-gun-free-zones/#ixzz5H8kOFZZN. (describing his actions in support of guns rights,
Act,"
Trump stated that he fought the SAFE Act in New York, which he called the "Unsafe and also spoke at a rally
in Albany championing gun rights and protesting the "Unsafe Act").

16
4830-64814438v.4 0201316-000001

22 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

such as ours where its members normally conduct their business while unarmed, the subject of

interest."
gun control and regulation is fraught with the public Kwitny v. McGuire, 102 Misc. 2d

124, 125, 422 N.Y.S.2d 867, 867 (Sup. Ct. N.Y. Cty. 1979), aff'd, 77 A.D.2d 839, 432 N.Y.S.2d

(1981).42
149 (1st Dep't 1980), aff'd, 53 N.Y.2d 968, 441 N.Y.S.2d 659 (1981). Here, the Trump's

handgun license applications matter not only because the information contained therein is

interest,"
"fraught with the public but also because the Trumps themselves have invited such

public interest. The Trumps cannot on one hand tout their Second Amendment freedoms,

advocate for greater gun rights and set national gun policy, and expect the shield of privacy

rights on the other. Nor, where the public interest is so great, can the NYPD be free from

accountability to the public they serve. Disclosure is warranted here.

C. None of the Exempted Categories under Pub. Officers Law 87(2) Apply

1. Disclosure Would Not Constitute An Unwarranted Invasion Of

Privacy under Pub. Officers Law §§ 87(2)(b) or 89(2)

records"
N.Y. Pub. Off. Law § 87(2) provides that each agency shall make "all available

for public inspection and copying, subject to certain enumerated exceptions, including when

privacy"
disclosure would constitute "[a]n unwarranted invasion of personal under § 89(2).

Section § 89(2) in turn provides that an unwarranted invasion of personal privacy includes, but

shall not be limited to:

i. disclosure of employment, medical or credit histories or personal references of


applicants for employment;


Admittedly, Kwitny's holding predates the 1994 amendment to § 400.00(5). Prior to the amendment, § 400.00(5)
record."
dictated that the application for any license, if granted, "shall be a public Sportmen's Ass'n for Firearms
Educ., Inc. v. Kane, 178 Misc. 2d 185, 187, 680 N.Y.S.2d 411, 413 (Sup. Ct. Nassau Cty. 1998), aff'd, 266 A.D.2d
396, 698 N.Y.S.2d 170 (2d Dep't 1999). The legislative history reveals the purpose of the 1994 amendment to
Section 400.00(5) was solely to ensure safety and security. See Mem. of Legislative Representative of City of N.Y.
in support of L.1994, ch. 332, 1994 McKinney's Session Laws of N.Y., at 2675. ("sensitive and private information
can be obtained by anyone under the present law, even [by] a person with potential criminal motives."). That
rationale, however, does not apply to President Trump and his sons-who receive 24-hour a day protection from the
Secret Service. Equally important-nothing in the amendments to section 400.00(5) undercuts or calls into question
Kwitny's core holding that guns and gun regulation are matters of utmost public concern.

17
4830-64814438v.4 0201316-000001

23 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

ii. disclosure of items involving the medical or personal records of a client or


patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for
solicitation or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in

economic or personal hardship to the subject party and such information is not
relevant to the work of the agency requesting or maintaining it;

v. disclosure of information of a personal nature reported in confidence to an

agency and not relevant to the ordinary work of such agency; or

workers'
vi. information of a personal nature contained in a compensation record,
workers'
except as provided by section one hundred ten-a of the compensation

law; or

vii. disclosure of electronic contact information, such as an e-mail address or a


social network username, that has been collected from a taxpayer under
section one hundred four of the real property tax law.

None of these categories remotely apply here. Whereas here none of the specific

categories enumerated in § 89(2) apply, the test for whether disclosure of a record would

constitute an unwarranted invasion of personal privacy, such that disclosure may be denied,

requires balancing the privacy interests implicated with the public interest in disclosure of the

information. Time Warner Cable News NY1 v. N.Y Police Dep't, 53 Misc. 3d 657, 667, 36

N.Y.S.3d 579 (Sup. Ct. N.Y. Cty. 2016), on reargument, No. 150305/2016, 2017 WL 1354833

(Sup. Ct. N.Y. Cty Apr. 7, 2017); Gannett Satellite Info. Network, Inc. v. Cty. of Putnam, 142

A.D.3d 1012, 1018, 37 N.Y.S.3d 299, 305 (2d Dep't 2016) (affirming grant of FOIL request for

disclosure where the information requested did not fall within any FOIL exemption and County

failed to establish that disclosure of the requested names and addresses would be offensive and

objectionable to a reasonable person of ordinary sensibilities).

In applying this balancing test, courts look to whether the requested information is of a

personal"
"highly or intimate nature, the disclosure of which would be offensive to a reasonable

18
4830-6481-4438v.4 0201316-000001

24 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

person of ordinary sensibilities. See Hanig v. N.Y.S. Dep't of Motor Vehicles, 79 N.Y.2d 106,

112, 580 N.Y.S.2d 715, 719 (1992). Here, public access to the handgun license applications of

President Trump and his sons presents a unique scenario, wholly distinguishable from any of the

examples listed in the statute. The applications requested by the Daily Dot relate to issues of

great public importance, particularly given the President's role in enforcing existing gun laws

sons'
and evaluating potential reforms, and his roles as close Presidential advisors on these

personal"
issues. Disclosing these license applications will not reveal information of a "highly

"intimate"
level or nature, or be offensive to reasonable persons. In short, the NYPD's

boilerplate determination that disclosure would constitute an unwarranted invasion of personal

privacy of the already extremely public applicants is wholly unsupported. Accordingly, full

disclosure is warranted.

2. Disclosure Would Not Endanger The Life Or Safety Of The


Applicants Under Pub. Officers Law § 87(2)(f)

In its response to the February Request, the NYPD and Records Access Officer raised a

new ground for denial not mentioned in the NYPD's original response: disclosure of the

requested records would endanger the life or safety of the applicants. The public-
supposedly

safety exemption of FOIL (Public Officers Law § 87 [2] [fj), which permits an agency to deny

access to records if disclosure would endanger the life or safety of any person, also requires a

particularized showing and must be based on more than mere speculation. Pennington v.

Calabrese, No. 2002/155, 2002 WL 31885409, at *2 (Sup. Ct. Erie Cty. Nov. 25, 2002), aff'd in

part, 4 A.D.3d 778, 771 N.Y.S.2d 422 (4th Dep't 2004).

Here, there was no particularized justification given, and it is difficult to discern one; the

NYPD again relies on pure speculation. President Trump's address, place of business, and

occupation are all known and publicized. Donald Jr. and are well-
publicly widely Eric, too,

19
4830-6481-4438v.4 0201316-000001

25 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

media.43
known public figures whose public and private lives are well-documented in the media.

Furthermore, the threat of danger to President Trump and his family members is inherent in their

roles, mitigated by the 24-hour Secret Service security detail that protects the First Family. The

notion that disclosure of the License Applications would somehow increase the safety risk to the

specious.44 44
President or his sons is entirely specious. That President Trump and his sons are handgun

license holders is widely known from their own public statements. See supra at 1-3. Thus,

disclosure of additional information concerning already known facts cannot raise danger or

safety concerns beyond the status quo. Finally, even assuming disclosure of some information in

the gun license applications could conceivably endanger the Trumps, which the NYPD has not

produced.45 '
shown, any such information could be redacted and the License Applications produced.


See Kelsey Goeres, Presidential Digs: Here Are the Elaborate Homes of Donald Trump's Family, CULTURE
CHEAT SHEET (Apr. 14, 2018), https://www.cheatsheet.com/culture/presidential-digs-here-are-the-elaborate-homes-
of-the-trump-family.html/?a=viewall
.html/?a=viewall (detailing the elaborate homes and addresses of First Family members); Laura
M. Holson, Donald Trump Jr. Is His Own Kind of Trump, NEW YORK TIMES (Mar. 28, 2017),
-'r-business-
https://www.nytimes.com/2017/03/18/style/donald-trump-jr-business-politics-hunting-twitter-vanessa-haydon.htmi
-twitter-vanessa-ha
politics"
(describing Don Jr. as a "rising figure in Republic and public speaker who brings in an estimated $50,000
per speech); Katherine Rosman and Jacob Bernstein, Unbecoming a Trump: The Vanessa Trump Divorce, THE
NEW YORK TIMES (March 22, 2018), https://www.nytimes.com/2018/03/22/style/vanessa-trump-divorce.html -divorce
(describing Don Jr.'s very public separation from once model
Trump, and its connection Vanessa
to his rising
Live'
notoriety); Dan Zak, 'Saturday Night Live Thinks
Out The Trump Brothers.It's Figured
Does It Get Them Right?
WASHINGTON POST (Mar. 14, 2018), (assessing popular parody of Don Jr. and Eric, noting "When a whole family
enters politics, as the Trumps have done, its siblings undergo a public sorting."); Eric Trump Calls Father's Critics
'
'Not Even People, Los ANGELES TIMES (June 7, 2017), http://www.latimes.com/politics/washinaton/la-na-
essential-washington-updates-eric-trump-calls-father-s-critics-not-1496849988-htmlstory.htmi .html (demonstrating Eric
making headlines for edgy remarks in the public sphere).
44
Compare Kaplan v. Bratton, 249 A.D.2d 199, 201, 673 N.Y.S.2d 66, 68 (Ist Dep't, 1998) (holding License
Division correctly required petitioner, a pistol license applicant, to show "extraordinary personal danger,
safety,"
documented by proof of recurrent threats to life or and noting that "the mere fact that an applicant ... resides
area'
or is employed in a 'high crime does not establish 'proper cause'") (internal quotation marks omitted); In re
("
Bastiani, 23 Misc. 3d 235, 236, 881 N.Y.S.2d 591, 592 (Cty. Ct. Rockland Cty. N.Y. 2008) ("The issuance of a
pistol permit is a privilege subject to reasonable regulation, and in order to receive a full
carry permit the applicant
must show a special need for self-protection distinguishable from that of the general community."); Ferrara v. Safir,
282 A.D.2d 383, 723 N.Y.S.2d 655 (1st Dep't 2001) (chief executive officer of body-guard business for movie stars
was properly denied handgun permit since petitioner failed to show that his position placed him in "extraordinary
personal danger, or other special need for self-protection distinguishable from that of the general community.").
45
Even if some form of executive privilege were to be asserted in this case, "the hallmark of this privilege is that it
is applicable when the public interest would be harmed if the material were to lose its cloak of
confidentiality."
Cirale
v. 80 Pine St. Corp., 35 N.Y.2d 1 13, 117, 359 N.Y.S.2d 1, 4 (1974)
(noting that not all
governmental information is privileged or may be withheld by a mere assertion of privilege,
but instead requiring a
specific support for the claim of privilege). Compare Kwitny , 102 Misc. 2d at 125, 422 N.Y.S.2d at 868 (granting

20
4830-64814438v.4 0201316-000001

26 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

3. None Of The Excepted Categories of Penal Law § 400.00(5)(b) Apply

On administrative appeal, Sgt. Mazur also added a second ground for non-disclosure that

had not been identified in the NYPD's earlier letter: disclosure "is specifically exempted by state

or federal statute [§ 87(2)(a)]; specifically, New York State Penal Law § 400.00(5), which states

that the application is not subject to disclosure; rather, only that, "the name and address of any

record."
person to whom an application for any license has been granted shall be a public

Section 87(2)(a) does indeed provide for non-disclosure where records are "specifically

statute."
exempted from disclosure by state or federal N.Y Civil Liberties Union v. Erie Cty.

("
Sheriffs Office, 47 Misc. 3d 1201(A), at *8, 15 N.Y.S.3d 713 (Sup. Ct. Erie Cty. 2015) ("An

agency that seeks to withhold documents or portions thereof pursuant to one or more of the

justification"
statutory exemptions must articulate a "particularized and specific for not

disclosing requested documents and moreover must "make a particularized showing that a

statutory exemption applies to justify nondisclosure."") However, Penal Law § 400.00(5)

contains no such exemption.

Section 400.00(5) provides that a handgun license applicant can request an exception

from her or his gun application information becoming public record. The only acceptable

grounds, however, to request such exceptions are as follows:

(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;

judgment to reporterand compelling police commissioner to permit reporter to inspect approved pistol license
applications, and limiting executive privilege to "confidential communications between public officers, and to public
officers, in the performance of their duties, where the public interest requires that such confidential communications
or the sources should not be divulged."), with Application of Langert, 5 A.D.2d 586, 588, 173 N.Y.S.2d 665, 667
(1st Dep't 1958) (finding privilege justified and non-disclosure where the Commissioner of Investigation of City of
New York had a public interest privilege which prevented disclosure of name of informant).

21
4830-64814438y.4 0201316-000001

27 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

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


criminal charge;

(D) the applicant is participating or previously participated as a juror in a


criminal proceeding, or is or was a member of a grand jury; or

(E) the applicant is a spouse, domestic partner or household member of a


person identified in this subparagraph or subparagraph (ii) of this

paragraph, specifying which subparagraph or subparagraphs and clauses


apply.

(ii) the applicant has reason to believe his or her life or safety may be endangered by
disclosure due to reasons stated by the applicant.

(iii) the applicant has reason to believe he or she may be subject to unwarranted
harassment upon disclosure of such information.

N.Y.S. Penal Law § 400.00(5). Here, the NYPD has not claimed that any of the Trumps in fact

requested an exception per the requirements of Section 400.00(5), and refused to answer when

Daily Dot asked if they had done so. See Ioanes Aff., ¶ 5.

Moreover - even if the Trumps did request exemption - none of the grounds in

§ 400.00(5) apply. Grounds (i)(A) through (E) are clearly inapplicable on their face. Upon

information and belief, not one of the three Trump men is a retired officer, under valid order of

protection, a witness to criminal proceedings, a jury participant, and/or a spouse or household

member of anyone in the aforementioned categories. Consequently, two categories remain.

Although Respondents may argue that President Trump, Donald Jr., and/or Eric's lives would be

endangered or that they would be harassed because of the disclosure of the requested records, as

already demonstrated, such a contention is illogical, unsupported and speculative. Like all their

White House predecessors, President Trump and the First Family, to be sure, are constantly

subject to real threats of harassment and danger. But the First Family is protected around the

clock by the Secret Service, unprecedented security that will continue for years to come. There

22
4830-6481-4438v.4 0201316-000001

28 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

is simply no evidence that these risks would be increased by disclosure of the License

Applications, particularly given the extensive security provided to the President and his sons.

HL PETITIONER IS ENTITLED TO THE REQUESTED DOCUMENTS DUE TO


WAIVER OF ANY PURPORTEDLY APPLICABLE EXEMPTION

A. To The Extent Any Exemptions Apply, Applicants Waived Them By Virtue


Of Their Various Public Statements

Trumps'
Even if any FOIL exemptions did apply, they have been waived by the own

public disclosures. In Planned Parenthood, 154 Misc. 2d 971, 587 N.Y.S.2d 461, the court held

that photographs taken of 43 anti-abortion protestors were not exempt from FOIL disclosure as

an unwarranted invasion of privacy. Id. at 974-75, 587 N.Y.S.2d at 463. An anti-abortion

organization, Operation Rescue, had publicly demonstrated at petitioner's premises in an effort

to further awareness for their anti-abortion cause and its members were ultimately charged with

disorderly conduct. No affidavit had been submitted from any of the 43 subject individuals

explaining how disclosure of their photographs would cause personal hardship, and the names

and addresses of those 43 individuals had been previously released. Because these individuals

had publicly protested in order to highlight and publicize their position against abortion, the

Planned Parenthood court held that the photographs of them were not exempt from disclosure

privacy"
under FOIL on "invasion of grounds. Id.

Similarly, in N.Y.1 News v. Office 0 f President 0 f Borough 0 f Staten Island, the court

likewise held that voluntary disclosure of a significant portion of a document waived any

claimed FOIL exemption. 166 Misc. 2d at 276, 631 N.Y.S.2d at 484. In N.Y. 1 News, petitioner

New York 1 News made a FOIL request for a "copy of the guilty verdict and investigation of

insensitivity'
'racial against former Borough Hall employee Raymond Hagemann sometime in

Molinari."
October 1992 as described in public access television by Borough President Guy Id.

at 271, 631 N.Y.S.2d at 481(internal quotation marks omitted.). The respondent (Molinari)

23
4830-64814438v.4 0201316-000001

29 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

argued that because a memorandum was intra-agency, pre-decisional, non-final material, it was

thereby exempt from disclosure pursuant to FOIL. However, in rejecting this argument, the

Box"
court noted that respondent "opened up this Pandora's by making an announcement on a

public access television show two years earlier about the memorandum that explained the

incident and investigation in question. Id at 275, 631 N.Y.S.2d at 483. The Court also rejected

Molinari's argument that disclosure of names set forth in the memoranda would constitute an

unwarranted invasion of personal privacy where there was no sworn statement made by any

individual with personal knowledge that individuals were promised confidentiality. Id at 276,

631 N.Y.S.2d at 484. The court further noted that even if certain individuals had been promised

confidentiality, this did not constitute an unwarranted invasion of personal privacy within the

meaning of Public Officers Law § 89(2)(b). Id See also Peck v. United States, 514 F. Supp. 210,

213 (S.D.N.Y. 1981), on reargument, 522 F. Supp. 245 (S.D.N.Y. 1981) (holding that voluntary

disclosure of significant portion of a privileged investigatory document may waive privilege

against disclosure); New York Times Co. v. City of N.Y. Fire Dep't, 4 N.Y.3d 477, 796 N.Y.S.2d

302 (2005) (holding FOIL privacy and intra-agency exceptions did not apply to taped interviews

conducted by New York City Fire Department with firefighters about events of September 11,

2001 to extent Department intended, and firefighters interviewed for those oral histories

understood, that the words spoken were destined for public disclosure).

The Trump family is famous and vocal on gun issues. President Trump has gained

notoriety as a businessman, entertainer and politician. Donald Jr. and Eric, with their massive

social media followings and routine public appearances, are well-known public figures who have

played informal but influential roles in the Trump administration. See supra at 2, 4.

24
4830-64814438v.4 0201316-000001

30 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

Trumps'
In light of the own numerous public statements concerning handguns, it is not

conceivable that the release of any of the Trump license applications would constitute an

unwarranted invasion of personal privacy within the narrow scope of Public Officers Law

89(2)(b).46
§ 89(2)(b)

B. To The Extent Any Applicable Exemptions Has Not Been Waived, It At Most
Justifies Redaction Of Particular Information

Even if this Court were concerned that the withheld license applications might contain

some information falling within an exemption from disclosure, it should conduct an in camera

inspection of the documents and order the disclosure of all non-exempt, appropriately redacted

material. See Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S.2d, 488 (1985);

M Farbman & Sons, 62 N.Y.2d at 83, 476 N.Y.S.2d at 73. Respondents have not fulfilled their

minimal obligation to specify grounds for denial with particularity, or to provide redacted

documents responsive to the Daily Dot's request to the fullest extent possible. At the very least,

they should be ordered to do so.

IV. PETITIONER IS ENTITLED TO AN AWARD OF LEGAL FEES AND COSTS

Under FOIL, a court must award prevailing FOIL petitioners their legal fees and costs

access."
where "the agency had no reasonable basis for denying N.Y. Pub. Off. Law

Respondents'
§ 89(4)(c)(ii). See Rauh v. de Blasio, 161 A.D.3d 120, 126 (1st Dep't 2018). Here,

outright refusal to provide credible explanations or satisfy their obligation to afford meaningful

accessibility to government information in the interest of transparency have no reasonable basis

"
Moreover, by not asserting either the personal safety exemption or state law exemption as grounds for its initial
denial of the January Request, the NYPD waived its right to assert these exemptions as additional bases for denial of
Daily Dot's administrative appeal. There have been numerous cases where administrative agencies have not been
permitted to invoke alternative grounds for nondisclosure. See Miller v. N.Y.S. Div. of Human Rights, 122 A.D.3d
431, 996 N.Y.S.2d 30 (1st Dep't 2014) (State Division Of Human Rights could not assert in court that legal opinions
it withheld in response to FOIL request were privileged as attorney work-product since the agency did not invoke
this ground as a basis for denying requester's FOIL request); Sportmen's Ass'n, 178 Misc. 2d at 187, 680 N.Y.S.2d
("
at 412 ("Since judicial review of an administrative determination is limited to the grounds invoked by the
administrative body these arguments cannot be considered by the court").

25
4830-64814438v.4 0201316-000001

31 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

in law. See e.g., Hamilton, 29 Misc. 3d 1201(A), 958 N.Y.S.2d 307 (awarding attorney's fees

where the petitioner demonstrated the requested document was of significant interest to the

public). Further, the exceptions cited by the NYPD are inapplicable for the reasons set forth

herein; there was no reasonable cause to withhold the license applications. Accordingly,

attorneys'
Petitioner respectfully requests an award of reasonable fees and costs in an amount to

be determined by the Court.

CONCLUSION

For the foregoing reasons, Petitioner Daily Dot respectfully requests that this Court (1)

declare that Respondents have acted unlawfully in failing to disclose records not properly

exempt from disclosure under FOIL; (2) direct Respondents to comply with their duty under

FOIL to produce all portions of the requested license applications not subject to any exemption

or other privilege; (3) order, in the alternative, an in camera review of the requested documents

to allow the Court to determine the applicability of the claimed exemptions; (4) award Petitioner

its reasonable attorney's fees and costs as allowed under Public Officers Law § 89; and (5) award

Petitioner such other and further relief the Court deems just and proper.

Dated: New York, New York


June 21, 2018

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP

a,:

James Rosenfeld
Robert Balin

Taaj Reaves

1251 Avenue of the Americas, 21st Floor


New York, NY 10020-1104

(212) 489-8230 Phone

(212) 489-8340 Fax

26
4830-6481-4438v.4 0201316-000001

32 of 33
FILED: NEW YORK COUNTY CLERK 06/21/2018 02:19 PM INDEX NO. 155845/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/21/2018

-and-

Thomas R. Burke
(pro hac vice application to be submitted)

505 Montgomery Street, Suite 800

San Francisco, California 94111

(415) 276-6552 Phone

(415) 489-9052 Fax

Attorneys for The Daily Dot

27
4830-6481<438v.4 0201316-000001

33 of 33