AP Photo by Mike Groll
Perhaps it was no surprise that in the wake of The Journal News’ publication of gun permit data in New York, the state legislature moved swiftly to cut off public access to the data.
After all, it happened in Indiana in 2009, Virginia in 2007 and Florida in 2006, when lawmakers sought to make confidential gun permit data that was considered to be a public record – often without much fanfare or controversy – only after media outlets published stories using the data.
Yet in some ways, the reaction to The Journal News’ maps published soon after the Sandy Hook Elementary shooting in nearby Newtown, Conn., is surprising in that it has sparked a rallying cry in state legislatures across the country to make government records about gun owners private, with at least 10 states introducing bills that would restrict access to the records in some form.
If the measures succeed, only a handful of states would continue to make individual gun permit records public. That would mean the impact of The Journal News’ decision to publish gun permit holder maps in two New York counties may not be limited to New York’s decision to temporarily bar the release of gun permit records and allow its permit holders to opt out of disclosing that they have a permit.
Although laws vary widely, a review of public records laws, gun permitting laws, and pending legislation in all 50 states and the District of Columbia shows that 39 states restrict access to gun permit data records in some form, either barring their release entirely, restricting access to personally identifying information or only permitting the release of aggregate data.
Of the 11 states where such data is public, at least nine have legislation introduced to restrict access to the records. And even in states such as Arkansas and Virginia — which already restrict access to some gun permit data — legislation is pending that would prohibit access to nearly all such records.
With states moving toward closing off access, reporters and transparency advocates worry that the move would not only prohibit public oversight of gun licensing within states but may also be part of a growing trend where states make certain records off limits in response to news media reports on public records.
“Our fear is that the more exemptions a given legislative body makes to open records, the greater the chance that the next time, which may have nothing to do with guns, it’ll be that much easier for legislators to say, ‘Well, just close those records too,’” said Mike Cavender, executive director of the Radio Television Digital News Association. “Where does it stop?”
New York quickly cuts off access
Despite the fact that when the Journal News published the locations of gun owners in Westchester and Rockland counties New York law required such records to be open to the public, the maps sparked an intense national conversation about individual privacy, the propriety of publishing such a map and whether individuals who lawfully owned guns were being subjected to unwarranted scrutiny.
The publisher of The Journal News said that the newspaper wanted to provide readers with information about gun ownership in part so that parents could make informed decisions about their children’s safety.
In response, some individuals targeted the Journal News’ publisher, editors and reporters by publishing private details about them online, including home phone numbers, addresses and pictures of their homes. The paper’s employees also received several threats, according to media reports.
In addition to barring the release of gun permit data for 120 days after the bill became law, New York’s gun control law allows individuals to opt out of having their personal information disclosed under the state’s Freedom of Information Law, or FOIL. It also created several new state databases for tracking weapons and ammunition sales, though none are subject to FOIL.
Regarding the opt-out provisions, individuals can withhold their records permanently if they are a police officer, a victim of domestic violence, a juror or witness involved in criminal trials, fear for their life and safety or are worried about “unwarranted harassment.”
After the bill became law, the Journal News removed the gun maps from its website. In a statement to readers, publisher Janet Hasson said the paper took the maps down because they had been public for nearly a month and because the legislature had decided to close off access to the records for three months. Hasson did not respond to several inquiries for comment for this story.
“When the moratorium concludes, far fewer permit holders will be identifiable, and those who want to know which houses on their block may have guns will not be able to get that information,” Hasson wrote. “But we are not deaf to voices who have said that new rules should be set for gun permit data.”
Other states seek to restrict data
Legislative action in response to the Journal News’ maps was not limited to New York. According to multiple media reports, as lawmakers from Arkansas, California, Iowa, Maine, Michigan, Mississippi, Montana, North Carolina, Tennessee, Virginia and West Virginia looked at their own public records laws regarding gun permits, they feared that similar maps could be made from their states’ public records.
As a result, lawmakers have introduced legislation in those states that would either cut off access to the records or prevent the release of personally identifying information contained in them.
The efforts to restrict access to gun permits vary by state, with some lawmakers introducing competing bills. For example, one bill in Montana (SB 145) would make gun permit records completely confidential while another (SB 37) would exempt almost all information but require that the name and address of the permit owner be public.
In Mississippi, HB 485 would exempt the names, addresses, telephone numbers and other personally identifying information from the state’s public records laws.
And in Maine, HP 250 is being rushed through the legislature to close off access to gun permit data after the Bangor Daily News made a public records request for the records. The request drew heavy backlash from legislators and the governor, with several Republican lawmakers holding a press conference to criticize the newspaper’s request.
In a Feb. 15 editor’s note to readers, Anthony Ronzio, the paper’s director of news and new media, said that the Daily News rescinded its request for the information after the criticism and said the paper was disappointed with the reaction to the request. Ronzio declined further comment about the incident, directing inquiries to his prepared statements to readers.
In an earlier note to readers on Feb. 14, Ronzio said the paper did not intend to publish personally identifying information from the data but was instead attempting to compare it with other records as part of an ongoing reporting projects on domestic violence, sexual assault and drug abuse. Ronzio also stated that the paper made clear in its request that it would not be publishing personally identifying data.
“We believe the wholesale publication of permit holder information, as was done recently by a newspaper in New York, is irresponsible,” Ronzio wrote. “We intend to use this information about permits, along with other information sets we are gathering, to analyze possible correlations relevant to our reporting projects.”
The legislative reaction in New York and elsewhere is unfortunate, Cavender said, because it confuses two different issues: the right to access gun permit records and the editorial decisions by media on how to use public records to report the news.
“That’s a professional discussion for the entire community, and we believe it should be vigorously debated,” he said. “What has happened is that the emotion of the moment has become so intertwined with this, that the response is to just close the records.”
Ken Bunting, executive director of the National Freedom of Information Coalition, said the national reaction to shut off access to gun permit records after the Journal News’ maps was akin to when states cut off access to death records in response to the publication of race car driver Dale Earnhardt’s autopsy file.
“That type of reaction is not the best way to make policy on access to government records,” he said.
Both Bunting and Cavender acknowledged that the public availability of gun permit data is controversial, as it intersects with several competing values: the right to access government records, individual privacy and the First and Second Amendments.
But Bunting said all of those concerns should be carefully weighed and discussed before closing off access to gun permit data or any other type of record. When lawmakers legislate quickly, they often overreact to protect certain interests at the cost of others. In this case, it means less access to government activities related to issuing and licensing gun owners.
“Legislators should not be dictating reporting on public affairs,” Bunting said.
Transparency made more difficult
A bill recently introduced in Tennessee (HB 9) highlights the concerns between allowing public access to gun permit data while still addressing the stated privacy concerns of gun owners.
Rep. William Lamberth (R-Cottontown) sponsored the bill that would restrict public access to records after seeing the Journal News’ maps in New York and being contacted by constituents concerned about having their addresses published in print and online.
A former prosecutor, Lamberth said he introduced the bill to prevent burglaries and other crimes of opportunity against individuals identified in such records.
“Burglars look for guns, pharmaceuticals and electronics,” he said. “We don’t keep public lists of who owns pharmaceuticals and we don’t keep lists of people who own the latest 60-inch TVs.”
In its initial form, the bill would have categorically restricted access to state gun permit records, though Lambert said he plans to introduce an amendment that would address concerns from news organizations and transparency advocates by allowing individuals to confirm whether a person has a gun permit.
Under the amendment, if a member of the public or media had concerns about whether a particular individual should be able to carry a concealed weapon, they could ask officials to check the database by providing a government document such as a police report or court record that indicates that the person should not have a permit.
“I want to make sure that the extra check on the system remains in place,” Lamberth said. “My problem is having the private information of citizens who have done nothing more than exercise their Second Amendment rights broadcast over the Internet.”
It is not the first time the debate over public access to gun records has occurred in Tennessee. Bills similar to Lamberth’s were proposed after the Memphis Commercial Appeal used state gun permit data in 2008 to show gaps in the time between when people with concealed weapons permits were convicted of serious crimes and when their permits were revoked. Those bills never became law.
Kent Flanagan, executive director of the Tennessee Open Government Coalition, said that gun permit records in the state have been public for more than 30 years, as lawmakers sought to bring transparency to a process that previously was corrupt. Officials had been using their discretion to give out gun permits as political favors rather than issuing the permits based on the applicant’s qualifications.
Flanagan said his organization is against legislation that would restrict access to gun permit records. He views the bills as attempts to further erode the public’s access to all kinds of government information, not just gun data. The result is an overall weakening of the state’s public records law and the ability of citizens to learn about government activities, he said.
“Since the act was made law in 1957, we have added more than 350 exemptions,” Flanagan said.
Although Flanagan said that some of the exemptions, such as for records involving child welfare and security of government facilities, are warranted, subjecting access to public records to the political whims of the day makes it difficult for citizens and the media to know what government is up to.
“If you can’t see what the government is doing, how can you possibly know how they’re doing it?” he said.
Public oversight of guns weakened
Widespread efforts to restrict public access to gun permit records means that the public loses out on learning about trends, accountability gaps and other potential problems in a state’s gun licensing scheme, said Michael Luo, an investigative reporter with The New York Times who has used such records in his past reporting.
In 2011, Luo compared gun permit data in North Carolina with criminal records to show that individuals who had been convicted of violent crimes and in some cases, sentenced to prison, still had valid gun permits.
The story exposed a gap in oversight between local sheriffs — who process, approve and revoke individual applications — and the criminal courts. In short, the two branches of government were not talking to each other.
Luo said that by preventing people from accessing gun permit records, states are potentially allowing problems with the permitting system to go unchecked.
“Closing off access closes off other attempts to independently monitor how well these programs are being policed and also closes off inquiries into these permit holders and whether or not they are law abiding or whether or not they commit gun related crimes at a higher rate, not just by media, but academics too,” he said.
Luo said that it may be possible to address the privacy concerns voiced by legislatures while still enabling public oversight of the permitting systems, such as by providing de-identified data or by not releasing an individual’s address.
But without access to names of individual permit holders or some other personally identifying information, it becomes difficult to cross-reference data with other sources, such as criminal court records, Luo said. That would make reporting about gun permitting systems less profound.
“Without names, you lose the power in the details,” he said. “I wouldn’t have been able to do a story with all those anecdotes.”