FOR ACCESS TO “NO-FLY” LIST
by Sharon Rondeau
During his speech, Obama suggested that individuals whose names appear on the federal “no-fly” list should be denied gun ownership by congressional statute. “…And for those who are concerned about terrorism, some may be aware of the fact that we have a no-fly list where people can’t get on planes, but those same people who we don’t allow to fly could go into a store right now in the United States and buy a firearm and there’s nothing that we can do to stop them. That’s a law that needs to be changed,” Obama said.
At the time of his address, the White House referred to the incident as a “shooting” rather than “terrorism.” The act was carried out by two Muslims, one of whom immigrated from Saudi Arabia on a “fiancee visa.” The couple reportedly planned the attack against the husband’s coworkers for some time with external assistance.
On December 10, Connecticut Gov. Dannel P. Malloy declared that he would “become the first U.S. state to ban the sale of guns to people on government watch lists under an executive order.” His intention was put in writing, wherein he “Urge[d] Congress to Adopt Legislation Requiring Similar Background Checks Across the Nation.”
In his declaration, Malloy additionally said, “The Governor is working directly with federal officials to use government watch lists for this purpose and, upon approval, will sign the executive order…Between 2004 and 2014, FBI data shows that people on terrorism watch lists tried to purchase firearms and explosives 2,233 times. They succeeded in more than 90 percent of those cases, or 2,043 times.”
Following Malloy’s press conference, WTNH reported that “According to some reports, there are close to 50,000 people on the Federal Government’s ‘Terror No Fly’ list. Maintained at the ‘Terrorist Screening Center’ within the FBI, the list was created by Presidential Directive after 9/11.” The directive, signed by President George W. Bush on September 16, 2003, states, in part:
It is the policy of the United States to (1) develop, integrate, and maintain thorough, accurate, and current information about individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism (Terrorist Information); and (2) use that information as appropriate and to the full extent permitted by law to support (a) Federal, State, local, territorial, tribal, foreign-government, and private-sector screening processes, and (b) diplomatic, military, intelligence, law enforcement, immigration, visa, and protective processes.
The day after Malloy announced his plans, the Journal Inquirer reported that “His staff remains in conversations with President Barrack Obama’s administration on how Connecticut would enforce such a ban.”
The Post & Email sent a message to Malloy’s press office for more information but received no response.
On April 4, 2013, Malloy signed a firearms law passed as a result of the Sandy Hook Elementary School shootings of 20 children and six educators on December 14, 2012 in Newtown, CT. The law restricted magazine clips to ten and reclassified over 100 types of firearms necessitating registration by the end of that year. Reportedly, many residents ignored or otherwise did not comply with that deadline.
As of April 1, 2014, long-gun purchasers must apply for and obtain an “eligibility certificate” from the Department of Emergency Services and Public Protection (DESPP).
An article dated January 3, 2014 quoted Atlas Van Lines as having reported from 2013 trends “that Connecticut is losing residents faster than any other state.”
Prior to the San Bernardino attack but following the November 13, 2015 terrorist attacks in Paris which killed 130, Malloy wrote to congressional leaders, urging them to pass the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015.”
The bill, HR 1076, was introduced in February of last year and proposed:
to grant the Attorney General the authority to deny the transfer of firearms or the issuance of a federal firearms and explosives license to any individual if the Attorney General: (1) determines that such individual has been engaged in or has provided material support or resources for terrorist activities, and (2) has a reasonable belief that such individual may use a firearm or explosive in connection with terrorism. Allows any individual whose firearm or explosives license application has been denied to bring legal action challenging the denial.
Prohibits the sale or distribution of firearms or explosives to any individual whom the Attorney General has determined to be engaged in terrorist activities.
Permits the Attorney General to withhold information in firearms and explosives license denial revocation suits if the Attorney General determines that the disclosure of such information would likely compromise national security.
Authorizes the Attorney General to revoke firearms and explosives licenses and permits held by individuals determined to be engaged in terrorism.
Two days after Obama addressed the nation about the San Bernardino attack, the U.S. House of Representatives voted to discharge the proposal.
In querying a state lawmaker’s office about whether or not Malloy could obtain the no-fly list from the FBI, The Post & Email was told by the lawmaker’s aide:
As far as I know the federal government is not releasing the terror watch list. That is the issue with the New Jersey law, although they have a law on the books, the fed isn’t releasing the list effectively nullifying the intent of the bill.
That information prompted The Post & Email to research New Jersey’s law, of which the Journal Inquirer reported:
Malloy said Monday that Connecticut would be the first state to institute such a ban. But New Jersey’s legislature passed a law in 2013 that banned the issuance of a firearm permit to anyone on the federal terrorist watch list.
Capt. Stephen Jones, the New Jersey State Police spokesman, said police screen permit applicants to see if they are on the list. But he couldn’t say whether anyone has had a permit denied on that basis.
Jones said the FBI has granted New Jersey access to the list as part of its criminal history and background check on applicants for gun permits.
However, on December 17, 2015, NBC10 in Philadelphia reported:
Under a law signed by Gov. Chris Christie, people buying guns or applying for a firearm permit in New Jersey can be blocked as part of the routine criminal history check, conducted through the National Crime Information Center…
Capt. Stephen Jones, a spokesman for the New Jersey State Police, said that neither the police nor licensed firearms dealers have direct access to the FBI’s watch list and instead rely on the NCIC screening process to reject suspected extremists.
In December The Post & Email contacted the FBI’s Terrorist Screening Center and received a response from spokesman Dave Joly, which reads:
The Terrorist Screening Center does not publicly confirm nor deny whether any individual maybe included in the U.S. Government’s Terrorist Screening Database (TSDB) or a subset list. Disclosure of an individual’s inclusion or non-inclusion in the TSDB or on the No Fly List would significantly impair the government’s ability to investigate and counteract terrorism, and protect transportation security.
We then responded:
If you can answer this: When CT Gov. Dannel Malloy said, “I have been working directly with federal officials and we are working to use the watch lists for these purposes,” can he reasonably expect to obtain access to the lists?
to which Joly replied:
I have provided you all the information I am able to.
Dave S. Joly
Congressional & Public Affairs Coordinator
Terrorist Screening Center
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535
On December 17, 2016, The Post & Email filed a Freedom of Information Act (FOIA) request with Malloy’s office which reads:
Through the Connecticut FOIA, I am requesting copies of all documents Gov. Malloy’s office has produced to federal authorities in an effort to obtain copies of terror watch lists. I would also like to see the proposed wording of the executive order, assuming it has not been issued yet.
The Constitution State’s Freedom of Information Act (FOIA) is 27 pages long in PDF format, including approximately seven pages of exemptions. Section 1-206 outlines the time frame for the denial of requests to be four days, with one exception.
On November 24, after filing a November 17, 2015 FOIA request on a different topic, we received an acknowledgement from Eleanor Michael, Associate General Counsel in Malloy’s office. Having heard nothing as of January 8, 2016 on the two requests, we contacted Michael again:
|Sent:||Fri 1/08/16 11:13 AM|
Hello, Atty. Michael, you should have received a second FOIA request from me approximately a month ago regarding Gov. Malloy’s statement that he intends to keep firearms out of the hands of anyone residing in Connecticut whose name is on the federal “No-Fly” list.In late November, you acknowledged an initial FOIA request I had directed to another party whose auto-response indicated that she is on leave through February. That request was for documentation regarding Syrian refugees and illegal aliens in Connecticut.
If you need the exact dates of the requests, I can supply them.
I am checking on the status of both of these requests.
Thank you very much.
Sharon Rondeau, Editor
The Post & Email
P.O. Box 113
Canterbury, CT 06331-0113
On January 11, Michael responded:
I am writing in response to your email, below, seeking a status update on your FOI requests. At this time, the search for, and review of, documents responsive to your requests remains ongoing and I cannot provide you with a date certain for the final response. That said, please be assured that I will provide you with a response as promptly as possible. In order to expedite a response, you may wish to narrow the scope of your requests with regard to time or subject matter area.
On February 18, we checked with Ms. Michael again:
Hello, Atty. Michael, is there any word on when my two FOIA requests, or portions thereof, might be fulfilled?
It has been nearly three months since I submitted the first one, albeit at the beginning of the holiday season, and more than two months for the second one submitted in early December.
Seeing as the first request concerned several subgroupings of documents, could you provide those in separate batches to accelerate the process?
I have let my state representative know that I believe Connecticut’s FOIA law is too vague, suggesting that a clarification be considered during next year’s legislative session since it was too late for them to act on it during the current session.
Thank you very much.
The following day, Michael replied:
Dear Ms. Rondeau,
Thank you so much for your patience – our office has been short staffed over the past few months because of a maternity leave and a lawyer who transferred out. We plan to provide you with responses next week.
Thank you again for your understanding.
Eleanor M. Michael
Associate General Counsel
Office of the Governor
State Capitol – Room 212
210 Capitol Avenue | Hartford, CT 06106
P: (860) 524-7319 | F: (860) 524-7391
to which The Post & Email responded:
OK, thank you very much. I appreciate your efforts.
We heard nothing further and on March 24 sent the following:
Good morning, Ms. Michael, have you been able to find any responsive documents to my second FOIA request from late last year, filed on or around December 6?
That FOIA request asked for documents exchanged between Gov. Malloy’s office and the White House regarding the federal no-fly list or lists.
I hope you have a nice Easter.
and received the following response on Saturday, March 26:
Dear Ms. Rondeau:
This email is a follow-up to your Freedom of Information request dated December 17, 2015 regarding Governor Malloy’s proposed executive order. All responsive documents are being withheld as exempt from disclosure.
This is the final response to your Freedom of Information request, however, if additional responsive non-exempt documents are later discovered, we reserve the right to supplement our response.
My apologies for the delay in response. I appreciate your understanding.
in response to which we asked:
What is the reason for the exemption under Connecticut law?
and Michael replied:
The documents are being withheld as exempt pursuant to Section 1-210(b)(1) of the Connecticut General Statutes.
(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:
(1) Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure;
The Post & Email will be publishing a separate report on the FOIA response it received relative to its request for documentation of Syrian refugees brought in to the state since January 1, 2011.