Brady Bill denials exempt from open records law

ARKANSAS–Lists of names of those turned down for handgun permits as the result of a Brady Bill check are exempt from the state Freedom of Information Act, a state circuit judge in Little Rock ruled in mid- September.

Judge David Bogard held that because the state police department denies handgun permits only when the applicant has a criminal history, release of the names would confirm the existence or nonexistence of such a record in violation of the Freedom of Information Act.

A prospective handgun purchaser must fill out a Brady check form which contains nine reasons a person could be denied a permit. If any of the reasons is checked, the application is denied at the store and never sent to the state police. However, if none of the reasons is checked, the form is submitted to the state police department for a criminal history background check. If no criminal history is revealed the police do nothing, but if a search indicates a history, the department returns the form and denies the application.

The Arkansas Democrat-Gazette sued to require the state police to turn over a list of persons denied handgun permits. The newspaper argued that since there are nine reasons a person could be denied a permit, the list of those actually denied would not necessarily confirm that an applicant has a criminal history.

The state police contended that under existing procedure only those people who have a criminal history are denied permits; applicants denied based on one of the nine reasons listed on the form are rejected before the form is submitted to the police. Thus, the only reason a person’s name would be on the list of denials is the existence of a criminal history. Because the Freedom of Information Act provides that “[n]o agency . . . shall confirm or deny the existence of criminal history information,” release of the list would be in violation of the Act. (Simmons v. Bailey; Media Counsel: Leon Holmes, Little Rock)