MARIAN GAIL BROWN mgbrown@ctpost.com
Article Last Updated: 03/17/2008 10:58:58 AM EDT
The sign at Bradley International Airport instructs travelers like you and me to report anything "suspicious."
When I reach Grand Central Terminal with all the over-caffeinated, briefcase-toting corporate warriors, a similar notice informs me that my baggage may be subject to random search.
And every so often the cable stations corner the insomniac viewing market with a post-9/11 public service announcement that has a tag line that goes something like this: "Now Security is Everybody's Business." It pleads for all of us to pay attention to our surroundings and everyone in our midst and to share what we know with law enforcement agencies.
Sounds reasonable. So, you would think that if you had information that would assist your local police department as to whether someone you know should be licensed to carry a firearm, it would be welcomed.
You might also think that the arm of state government — the Freedom of Information Commission, established to protect access to public information — would stand by your right to get these pistol permit applications.
You'd be wrong.
In the absence of any specific statutory provision and in the face of one of its own decisions that expressly states the public has a right to pistol permit applications, it shut the door Feb. 27 on that right. And it slammed it hard.
I happen to know the case well. It's FIC2007-154 — MariAn Gail Brown and the Connecticut Post v. Stratford Police Department — because I argued it for the Post. The logic the commission used to reach this result meant gutting its decision in 2003 making pistol permit applications public. To accomplish that, it had to reach back in time to the 1990s when it ruled against a Connecticut lawyer who wanted to know who were denied pistol permits and were appealing to the Connecticut Board of Firearms Examiners.
I argued that our case was different from the one they ruled against because the newspaper was requesting all pistol permit applications, approved or denied, and that the relevant statute made no attempt to exclude them from public purview.
"You're drawing a dichotomy between the application and the permit," FOI Commission Chairman Andrew O'Keefe tells me at our February hearing. "Insofar as the permit is concerned if the statute does not apply to the [pistol permit] application, will the statute apply to anything? Then the statute serves no purpose."
This is where we disagree. The Connecticut Post believes the statute is clear. And Connecticut's rules of statutory construction say that the words lawmakers use — every one of them — are there for a reason. And that a law is to be interpreted by the plain meaning of its words. That is unless that reading would result in something absurd or unworkable. In a legislative drafting course at the Western New England College School of Law, I had the privilege of reading and analyzing laws from around the country that yielded wacky, idiotic and impractical results. No matter what the statute was, the issue always boiled down to what was the problem the Legislature meant to remedy. In 1994, the Connecticut General Assembly wanted to fix the problem of straw man sales — where someone lawfully buys a handgun, usually large numbers of them, and then sells them to drug dealers and gangs. But to clamp down on illegal straw man sales, Connecticut police chiefs, including former Bridgeport Chief Thomas Sweeney, testified that to trace the firearm you had to know who lawfully had the right to possess and carry it in the first place.
Second Amendment advocates and the National Rifle Association saw this as the government's first step at taking away their right to bear arms. No legislation passed in the regular session, but in a special one called by Gov. Lowell P. Weicker Jr. later that year a quid pro quo was reached. All handgun owners would have to obtain a pistol permit to carry a concealed weapon. In exchange for subjecting themselves to these requirements, handgun owners got to shield their pistol licenses from the public.
That's the short version of the legislative history behind how Connecticut's pistol permits are now secret. You don't have to take my word for it. Feel free to read the legislative transcripts (they're several hundred pages long) which my editor made me wade through.
But the way the rules of statutory interpretation work, if the law is clear on its face, there's no need to delve into its legislative history.
The Freedom of Information Commission takes the view that if it were to grant the Post's request, it would render meaningless the state law that says pistol permits are confidential.
The way the commission comes to that conclusion involves data mining and chaining chunks of information together.
"The statute exempts approved [pistol] permits. It doesn't exempt those that were denied," Commission Chairman O'Keefe says. "So that if I filed an FOI request for all applications and [one for] all applications that are denied, won't I know" by process of elimination "all that have been approved?"
His question hung there, begging for an answer. That is not the Freedom of Information complaint the Connecticut Post filed, I point out, nor is that question directly before the Freedom of Information Commission. All the commission had to consider was whether one of Connecticut's largest newspapers has the same rights as a guy in Griswold. No more, nor less.
The newspaper does not believe that providing pistol permit applications at the same time the law excludes approved gun licenses from disclosure would create either an absurd or unworkable situation.
That's because there's a public policy reason that justifies why the identities of those applying for pistol permits and what they do for a living should be public information. Why? Public safety.
If at the time an applicant submits an application to a police department, consider what might happen if this information were published in a legal notice — the way a land variance application is. What if a neighbor, relative or a co-worker has meaningful information that might guide police in determining whether the applicant was suitable to carry a gun? Shouldn't they be able to assist police?
But if none of these stakeholders are aware that this person has applied for a gun license, then how could they ever share anything they know? For the Freedom of Information Commission to now conclude that pistol permit applications are the functional equivalent of approved gun licenses and are thereby secret, it suggests to me that collectively we want to stick our heads in the sand. We don't want to know what's going on around us. We really don't care. And if we're lucky it will go away.
Won't that make a great public service announcement?
Fourteen years ago, the General Assembly determined that licensed handgun owners have a right to privacy. The lawmakers didn't say anything about people who apply for handgun permits. So, along comes Steven Nazarian, of Griswold, who in 2002 applies for a gun license. He's denied. So he wants to know which of his fellow Griswolders in the past decade succeeded. He files a Freedom of Information request. Again, the local law enforcement agency refuses to give him the information. The case goes to the Freedom of Information Commission, which tells the town to cough up what Nazarian wants. And that it matters not a whit to the commission why this Griswold guy wants it, he should have it: it's public information. Period.
On the heels of a series of stories by my colleague, Richard Weizel, about Stratford Mayor James R. Miron, who disclosed to Weizel that he has a gun license, I got curious about who else might be applying for one. Several people had told Weizel that they had seen the mayor carrying two firearms — one on his ankle, the other in a holster — while on the city dime.
When Weizel's story broke, I was in the Midwest in one of the most gun-happy places. The story of the gun-toting mayor made the television news there. One faction at the bed-and-breakfast where I was staying seemed ready to stampede in support of the Stratford mayor's Second Amendment rights — once they finished their beers. The other faction marveled at whether Miron's packing indicated there were security problems at Town Hall. We mulled that over, too — over another brew.
When I got back to Connecticut, a private detective clued me in on the Nazarian decision. And I thought, great. I'll ask for 10 years of pistol permit applications, just like Nazarian. I'll just piggyback on this decision. Wrong.
With the exception of Fairfield, most of the Connecticut police departments I requested pistol permit applications from balked. Initially, Stratford informed me that it fully intended to cooperate with my request. That's what the former police chief told me. It's also what the town's outside counsel at Bercham, Devlin & Moses promised.
Then they changed their minds, in large part because they decided to rely on the legal research of Bridgeport's Assistant City Attorney Melanie Howlett, a formidable lawyer.
Despite Connecticut's long history as a firearm-loving, gun-manufacturing, I-have-a-Second Amendment-right-to- bear-arms mindset, wanting to carry a concealed weapon and getting a license are two separate things. Connecticut law requires law enforcement to determine whether a pistol permit applicant is "suitable" for a license.
More than a dozen police chiefs and their administrative officers explained to me how difficult it can be to determine if an applicant is the kind of person who should carry a firearm.
What makes a person "suitable" to carry a concealed weapon is not spelled out in the statute beyond a list of 11 specific misdemeanor convictions as well as any felony.
"Carrying a concealed gun is a privilege," Fairfield Police Chief David Peck says. "Otherwise, police wouldn't be required to review their gun permit applications to ensure their suitability. They wouldn't conduct background checks, take fingerprints or verify any of the information an applicant wants. Anyone who wanted one would get one."
And while Connecticut's law does not provide law enforcement officials with a definition of what makes a pistol permit applicant suitable to pack heat, Connecticut courts have. To state court judges, who hear administrative appeals, it means more than a look into whether somebody has a criminal record, it involves weighing their character, reputation in the community and a consideration of whether they act responsibly.
"It's a totality of circumstances test," Peck says. "That's why sometimes someone with no criminal arrests or convictions may be denied."
The pistol permit application the state now uses, form DPS-799, requires applicants to provide less information than the pre-9/11 form required — job title for several years back, education level, places of residence for the past decade along with the reason the applicant sought a pistol permit.
Now, you don't have to tell anyone why you want to carry a gun, anything about your educational background, where you previously lived or much about your employment. You do have to disclose certain medical history, such as whether you were involuntarily committed to a mental hospital or psychiatric facility in the past year. But you don't have to disclose whether you checked yourself into such a facility on your own.
Winning a Freedom of Information case is always better than losing. Still, even in partial defeat the Post won on some important points on behalf of the public.
First, the Connecticut Freedom of Information Commission ordered the Stratford Police Department to promptly turn over 10 years of pistol permit applications it has denied — without redacting the names, addresses, or employment data of the applicant. Consistent with the FOIC Nazarian decision, the Stratford Police Department can black out Social Security numbers, driver's licenses, medical history and birth dates.
The Commission also ordered the Stratford Police Department to provide the newspaper with all pistol permit applications that had been awarded with the applicants' names, addresses, birth date, medical history, driver's license and Social Security information redacted.
But employment information, the commission ruled, siding with the Connecticut Post, must be included. Who is to say how many teachers, plumbers or bartenders applied to carry a concealed pistol? We argued it would be in the public interest for citizens to know.
The Stratford Police Department estimated that it had 2,500 pistol-permit applications on file from January 1996 to January 2007. During a June 2007 hearing on the Connecticut Post's complaint, Stratford claimed that it would need nine months to gather all the relevant records.
I argued that length of time for retrieving records archived in computers does not comport with Connecticut's legal requirement that documents be provided "promptly."
In its ruling, the commission decided that the police department's "estimate of 36 weeks to provide the records is not credible, and is based on unrealistically slow methods to provide the records."
Moreover, the commission ruled that the Stratford Police Department "violated" the state's open records law "by delaying access to the records and by unrealistically overestimating the time required to provide" them.
So when can the Connecticut Post expect to get these long sought pistol permit applications? Your guess is as good as mine. Right now, I am playing telephone tag with Stratford Police Chief John Buturla.
In response to the first of my three messages to him, he claimed he was aware of the commission's decision and "am looking into if we can provide you with that." In his latest message, he says, "the department is beginning to pull the necessary files, but it's personnel-intensive."
The town also tried to bill the paper more than $3,000 in advance for copying the documents. FOI law requires that if a respondent government agency finds that the information benefits the public interest it can provide it gratis. The commission ordered Stratford to provide the information for free, but not before Stratford's outside legal counsel, Bryan LeClerc of Bercham Devlin & Moses, protested.
"As to the waiver of fees, it is within the [Stratford Police Department's] discretion as to whether the requested documents benefits the general welfare of society and not just Ms. Brown and the Connecticut Post," LeClerc argues. And this request "does not benefit the general welfare."
At this point, Chairman O'Keefe, locked eyes with LeClerc.
"You [fail] to take into consideration that this [complainant] is a newspaper, that publishes information" for its readership every day, O'Keefe says, that is "in pursuit of the general welfare."
From where I sat, it looked like a slapdown, the kind actor John Houseman's professor Kingsfield delivered in "The Paper Chase" to one of his Harvard Law School proteges: Painful. Unexpected. But necessary.
After briefing my editors on the outcome, I filed an FOI request with the town of Stratford's Finance Director John Norko for copies of Stratford's legal bills to its outside counsel.
Just how much did the town spend to try to keep all this secret, I wanted to know. It's a matter of dot the "I's" and cross the "T's." Reporters and taxpayers always are interested — or should be — in wanting to know what the government is doing and how much it is spending. Although all the bills are not in yet, it turns out that Stratford has spent at least $4,693.75 and devoted more than 30 hours in an eight month span, from last January through August 2007 to fend off the Connecticut Post's Freedom of Information request.