February 20, 2018

TO: Sergeant Jordan S. Mazur

Records Access Appeals Officer
New York City Police Department
One Police Plaza
Room 1406
New York, NY 10038

FROM: Ellen Ioanes

The Daily Dot

Dear Sergeant Mazur:

This letter constitutes an appeal under the Freedom of Information Law ("FOIL"), Sections 87
and 89, and is submitted on behalf of the Daily Dot to the New York Police Department
(“NYPD”).

The FOIL tracking number for the request is 2018-PL-1886.

On January 25, 2018, the Daily Dot filed FOIL request 2018-PL-1886, which seeks the following:

The handgun license application for the following individuals:

Donald John Trump

Donald John Trump, Jr.
Eric Frederick Trump

We received a denial letter on February 1, 2018. We are appealing the denial on both
administrative and substantive bases.

Background

In this request, The Daily Dot requested handgun license applications from Donald John
Trump, Donald John Trump, Jr. and Eric Frederick Trump.
President Donald Trump has publicly discussed his concealed carry permit, saying, ​"I have a
permit, which is very unusual in New York," Trump said. "It's a permit to carry. I carry on
occasion, sometimes a lot. I like to be unpredictable."1

New York state has rigorous gun control laws, requiring individuals to obtain a permit and pass
a very strict background check for each gun purchase. Even if one meets all requirements, an
applicant can still be denied a permit for a gun.

The city’s gun laws are even stronger, with only 41,162 people having licenses in a city of more
than 8 million. Nearly half those licenses belong to security guards, and not private citizens.2

Trump’s and his children’s permits apparently fall into this group, but it’s unclear why they
require handguns. The elder Trump has long had a security guard to protect his safety, and the
safety of his home and family.

On January 25, 2018, The Daily Dot contacted the NYPD’s records department by phone.
During this call, the records officer informed The Daily Dot that firearms license applicants
could choose not to have their license application subject to open records laws. However, the
records officer did not state whether any of the Trump family had indeed filled out this
addendum to the application. We filed a FOIL request for the applications that same day.

On February 1, 2018, The Daily Dot received a letter from Lt. Richard Mantenillo denying our
request. The letter stated, “In regard to the document(s) which you requested, I must deny
access to these records on the basis of Public Officers Law Section 87 (2)(b) as such information,
if disclosed, would constitute an unwarranted invasion of personal privacy.”

The denial by NYPD is insufficient and does not meet the requirements of FOIL

FOIL requires particularized justification for denial of access to records. In response to the
request denied, the NYPD simply listed a section of FOIL that purportedly exempts the
requested records from disclosure. The NYPD provided no further information, explanation, or
justification.

Such a response is insufficient under FOIL, which requires an agency to provide more than a
bare recitation of statutory exemptions in denying a request for records. New York courts have
consistently held that FOIL disclosure obligations are to be read broadly. As the New York Court
of Appeals stated in M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., “all
records of an agency are presumptively available for public inspection” and the “statutory

1
Anita Balakrishnan, ​Trump: I carry a gun on occasion​,
https://www.cnbc.com/2015/10/28/trump-i-carry-a-gun-on-occasion.html
2
Jonathan Wolfe, ​New York Today: What Are New York’s Gun Laws?
https://www.nytimes.com/2017/10/04/nyregion/new-york-today-what-are-new-yorks-gun-laws.html
exemptions are narrowly interpreted….”3 Furthermore, “[w]here an exemption is claimed, the
burden lies with the agency to articulate particularized and specific justification, and to establish
that the material requested falls squarely within the ambit of [the] statutory exemptions.”4 Other
cases echo the Court of Appeals in ​Farbman​. ​Johnson v. New York City Police Dept.​, for
instance, states that “exemptions from disclosure are to be narrowly construed, with the burden
resting on the agency to justify the applicability of the exemption upon which it relies.”5

The NYPD has failed to meet this burden, since it provided no justification for denying the
request beyond citing a section of the FOIL statute. Mere recitation of the FOIL statute is
inadequate. In ​West Harlem Business Group v. Empire State Development Corp.​, the Court of
Appeals stated that the agency’s response to a FOIL appeal which “merely parroted the
[statutory language] in [its] appeal denial letter…. without more, constituted a failure by [the
agency] to fully explain in writing… the reasons for further denial….”6 The Court of Appeals also
stated, in ​Church of Scientology v. State​, that agencies must do more than merely recite
“sections, subdivisions and subparagraphs of the applicable statute and conclusory
characterizations of the records sought to be withheld.”7

In A​llen Group, Inc. v. New York State Department of Motor Vehicles​, the Third Department
Appellate Division considered a similar agency response that “consisted of an answer setting
forth general denials and an affirmative defense which merely stated respondents’ conclusory
allegation that [t]he materials sought are exempt from disclosure.”8 The Court found that the
response “was totally inadequate to permit the conclusion that respondents sustained their
burden of showing that the requested material fell within a statutory exemption.”9 Subsequent
cases confirm that the NYPD’s assertion of exemptions to disclosure under FOIL, without more,
is equally inadequate.10 Additionally, in denying access to records based on an exemption, the
NYPD must identify with particularity what specific exemption applies to any undisclosed
record,11 and to the extent possible, should state the nature of the information redacted.12 The
NYPD entirely failed to do that here, as it provided no information about undisclosed records.

3
​Farbman & Sons, Inc. v. New York City Health & Hospitals Corp.​, 62 N.Y.2d 75, 79-80 (1984).
4
Id. at 83 (emphasis added, internal citations and quotation marks omitted).
5
​Johnson v. New York City Police Dep’t.,​ 257 A.D.2d 343, 346 (N.Y. Sup. Ct. App. Div. 1st Dept. 1999);
see also Matter of Hanig v. State of New York Dep’t. of Motor Vehicles, 79 N.Y.2d 106, 109 (1992).
6
​West Harlem Bus. Group v. Empire State Dev. Corp., ​13 N.Y.3d 882, 884-85 (2009).
7
​Church of Scientology v. State​, 46 N.Y.2d 906, 907-08 (1979)
8
​Allen Group Inc. v. New York State Dep’t. of Motor Vehicles​, 147 A.D.2d 856, 857 (N.Y. Sup. Ct. App.
Div. 3rd Dept. 1989) (internal citations and quotation marks omitted).
9
​Id.
10
See, e.g., ​New York Civil Liberties Union v. New York City Police Dep’t​., 20 Misc.3d 1108(A) (N.Y. Sup.
Ct. 2008) (denying NYPD’s motion to dismiss following FOIL request in which “the NYPD invoked six
exemptions but failed to provide any explanation, much less a particularized and specific justification, as
to why any of them was applicable…”); Urban Justice Ctr. v. New York Police Dep’t., 2010 WL 3526045
(Apr. 16, 2010) (“Affidavits merely repeating the statutory phrasing of an exemption are insufficient to
establish the requirement of particularity.”)
11
C​ornell Univ. v. City of New York Police Dep’t.​, 152 A.D.2d 515, 544 (N.Y. Sup. Ct. App. Div. 1st Dep’t
1989), ​Yonamine v. NYCPD​, 2012 WL 255022 (N.Y. Sup. Ct. Jan. 20, 2012).
12
​Yonamine​, supra note 12.
As it pertains to our request, the NYPD cited Section 87 (2) (b) of the FOIL, which refers to
Section 89 (2), as outlined below:

2. (a) The committee on open government may promulgate guidelines regarding deletion
of identifying details or withholding of records otherwise available under this article to
prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an
agency may delete identifying details when it makes records available.
(b) 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;
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
vi. information of a personal nature contained in a workers' compensation record, except
as provided by section one hundred ten-a of the workers' 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.
(c) Unless otherwise provided by this article, disclosure shall not be construed to
constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and
(b) of this subdivision:
i. when identifying details are deleted;
ii. when the person to whom a record pertains consents in writing to disclosure;
iii. when upon presenting reasonable proof of identity a person seeks access to records
pertaining to him or her; or
iv. when a record or group of records relates to the right, title or interest in real property,
or relates to the inventory, status or characteristics of real property, in which case
disclosure and providing copies of such record or group of records shall not be deemed
an unwarranted invasion of personal privacy, provided that nothing herein shall be
 construed to authorize the 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".13

Presumably, some redaction (for example, home phone numbers and email addresses) of the
requested records could avoid an unwarranted invasion of privacy. Furthermore, details like the
Trumps’ home addresses and social network usernames are already well-known.

In fact, if an exemption applies to portions of the record, information should be redacted and the
remainder of the record provided.

In issuing a blanket denial for all of the records sought in the Request, the NYPD is overbroad in
its assertion of exemptions to FOIL. The New York Court of Appeals in ​The New York Times Co.
v. City of New York Fire Department​ 14 stated that records should “be disclosed to the extent
they consist of factual statements or instructions affecting the public, but that they [should] be
redacted to eliminate non-factual material.” All of the requests for records herein are for
material that is factual in nature. If the NYPD believes that certain information contained in
those documents is exempted from disclosure by FOIL, the proper response is to provide access
to the records, with the exempted portions redacted. Because the NYPD has failed to do so, its
response does not meet the requirements of FOIL.

The denial of the FOIL request lacks merit

While the law allows for applicants for handgun licenses to retroactively exempt their
applications from public records law, the grounds under which Trump and his sons may have
chosen to do so are unclear.

New York State penal law 400.00 section 5 (b) states that the grounds for exemption 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;

13
https://www.dos.ny.gov/coog/foil2.html#s89
14
​N.Y. Times Co. v. City of New York Fire Dept.​, 4 N.Y.3d 477 (2005).
 (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.15

Trump and his sons likely do not fall under any of the categories outlined in subparagraph (i),
but could potentially argue that they fall under sections (ii) and (iii).

However, all are now public figures--Trump is the President of the United States, and both his
sons act as his advisors.

As a candidate for president, and now President of the United States, Trump has his personal
and political life on display. His sons are adult members of the First Family who constantly put
their personal lives and opinions on display through social media. They subject themselves to
criticism and harassment simply by virtue of their position, but they further subject themselves
and their families to such criticism and harassment through their own opinions and
pronouncements on social media.

Trump and his sons also have the protection of the Secret Service; they are likely the
best-secured people in the world.

Therefore, it is unclear now how either sections (ii) and (iii) would still apply to Trump or his
sons, if indeed they ever did.

Furthermore, as arguably the most important public figures in the U.S. they are no longer
private citizens. The elder Trump, in fact, has not been for some time; first as a tabloid fixture,
then as a reality-TV celebrity, the president has been a public figure for much of his adult life,
long before his political career began. Therefore, neither Trump nor his sons have the right to
privacy, which is not constitutionally enshrined. Furthermore, the Fourth Amendment, which
legal precedent understands to protect the right to privacy, protects citizens against their
government--not the other way around.16

15
http://www1.nyc.gov/assets/criminaljustice/downloads/pdfs/nyc_penal_law_4_W_400.pdf
16
​See​ ​Boyd v. United States,​ 1
​ 16 U.S. 616​, 627-630, and ​Olmstead v. United States, Brandeis dissenting
In addition, it is within the public interest of New Yorkers to know who in their vicinity has a
firearm and why they are allowed to have it. As the president said during his campaign, “I could
stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters.” 17

If a private citizen made such a claim, his or her neighbors would likely want to know as much as
possible about that person, and how he or she came to be licensed to carry a firearm. Indeed, it
is quite possible that a person making a similar claim would be denied the right to own a firearm
in New York City.

With that statement, too, Trump declared himself immune from criminal implications that an
ordinary citizen would face in such circumstances. If Trump feels he is immune from the social
consequences of making such statements, and sees himself as exempt from punishment for a
serious crime, the public deserves to know why and how he has a concealed carry permit from
the NYPD.

And finally, tragically, three of 10 of the worst mass shootings in U.S. history have occurred
during Trump’s 13 months in office. Just days after the devastating school shooting in Parkland,
FL, the nation is again reeling and demanding an end to these horrific events. The president’s
stance on personal firearms, and his personal reasons for owning them, are of vital national
interest.

Under New York law, the NYPD has 10 business days to decide this appeal, see N.Y. Pub. Off.
Law § 89(4)(a), and we look forward to an early and favorable response. Should the NYPD deny
our appeal, it should be aware that The Daily Dot intends to pursue litigation to acquire the
records requested.

Certification

The above information is true and correct to the best of our knowledge.

Electronic Records

We request that you provide us with documents as they become available rather than waiting to
provide a complete set of documents. If this appeal is accepted, we renew our request for the
NYPD to please furnish all responsive records in electronic format.

Further Correspondence

17
Ginger Gibson and Steve Holland, ​Confident Trump says could 'shoot somebody' and not lose
voters​,
https://www.reuters.com/article/us-usa-election/confident-trump-says-could-shoot-somebody-an
d-not-lose-voters-idUSMTZSAPEC1NFEQLYN
All correspondence regarding this request can be directed to me at ​eioanes@thedailydot.com​ or
foia@thedailydot.com​, or by phone at .

Sincerely,

Ellen Ioanes