Appeal Filed after NY AG Rejects FOIL to ID Investigated ‘Ghost Gun’ Companies

U.S.A. – -(Ammoland.com)- An appeal was filed Friday by this correspondent to the New York Office of Attorney General after its office rejected a Freedom of Information Law request to identify 16 companies Attorney General Letitia James is investigating for allegedly violating the state’s “ghost gun” law.

Since the companies affected could be “subject … to disgorgement, restitution, and penalties of up to $5,000 for each violation,” and since New York citizens who dealt with these companies are also at legal risk, AG James’ reported contention that she would not make them known “for fear of directing them business” should not override the public’s right to know. That the rejection was then “justified” under the excuse that it is for law enforcement investigations and judicial proceedings only makes the rejection all the more unsupportable, especially since the companies know who they are and disclosure of their identities, with no other information, can in no way jeopardize state actions.

The refusal instead indicates not only a lack of transparency on the part of Attorney General James and suggests arrogance and a legal vendetta by someone with the power to prosecute based on a political agenda. If allowed to stand, forget guns. What other issues involving citizen rights will the State be able to pursue while confidently hiding behind a cloak of in-your-face nondisclosure?

Here’s my appeal:

November 29, 2019

Kathryn Sheingold
Records Appeals Officer
State of New York
Office of the Attorney General
Division of Appeals and Opinions
The Capitol
Albany, New York 12224

Re: Freedom of Information Law Appeal, Reference # G000679-092619

Dear Ms. Sheingold:

I hereby appeal the November 1, 2019 denial of access regarding my request, which was made on 09/26/2019 and sent to NYS OAG FOIL Request Center via the NYAG website’s online request form. This appeal is being filed today to meet the State’s Nov. 30 deadline.

The records that were denied include the names of the 16 online “ghost gun” companies ordered by Attorney General Letitia James to cease and desist New York sales, and if applicable, the person the order was directed to the attention of. (See Sept. 23 press release.)

The Attorney General was cited in the press saying “James did not identify [the companies] for fear of directing them business.”

I maintain as I said in my FOIL request:

I am a journalist covering firearms-related issues whose work has appeared for decades in national magazines and internet sites. My readership and I have a legitimate interest in knowing which companies have received orders that include the potential for criminal prosecutions.

In rejecting my request, Assistant Attorney General Abisola Fatade asserted:

Please be advised that the records that respond to your request are exempt from disclosure and have been withheld pursuant to:

• New York Public Officers Law § 87(2)(e), because the documents requested were compiled for law-enforcement purposes and would, if disclosed, interfere with law-enforcement investigations or judicial proceedings.

I don’t believe a blanket law enforcement exemption would apply to this. As the United States Court of Appeals, District of Columbia Circuit held in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 66–67 (D.C. Cir. 1986):

[T]he Supreme Court underscored: ” [T]he amendment of Exemption 7 was designed to eliminate ‘blanket exemptions’ for Government records simply because they were found in investigatory files compiled for law enforcement purposes.”

And

In Campbell v. Department of Health and Human Services, 682 F.2d 256 (D.C. Cir. 1982), this circuit reiterated that the 1974 Congress did not authorize “blanket exemption” for “all records relating to an ongoing investigation.” Id. at 259. We referred to the “congressional intent to heighten or refine agency attention to FOIA requests,” and we stressed: “If an agency may withhold any document merely because it relates to a pending investigation, the 1974 version of Exemption 7(A) would apply to everything properly placed in investigatory files, yet Congress plainly mandated a focus upon records, not files.”

Furthermore, by withholding the names of the companies, important information is being withheld from citizens who it appears are at legal risk. I hope your office can see that if the intent is to establish compliance with the law, decisions made by those citizens should be informed. I maintain that it is in the public interest to make that information known, and that should take precedence over the reportedly stated intent of AG James not to “direct business” to companies engaging in business that is lawful in other jurisdictions.

As required by the Freedom of Information Law, the head or governing body of an agency, or whoever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, 41 State Street, Albany, New York 12231.

Sincerely,

David Codrea
[Address redacted]

I will, of course, follow up on this when I receive a response and will determine then if further action is necessary.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.