City of Chicago v. U.S. Dept. of Treasury

• Decision Date: 16 September 2004
• Docket Number: No. 01-2167.,01-2167.
• Citation: 384 F.3d 429
• Parties: CITY OF CHICAGO, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF THE TREASURY, Bureau of Alcohol, Tobacco and Firearms, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.3d 429

CITY OF CHICAGO, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF THE TREASURY, Bureau of Alcohol, Tobacco and Firearms, Defendant-Appellant.

No. 01-2167.

United States Court of Appeals, Seventh Circuit.

Argued July 28, 2004.

Decided September 16, 2004.

Appeal from the United States District Court for the Northern District of Illinois, George W. Lindberg, J Lawrence Rosenthal (argued), David A. Graver, Office of the Corporation, Chicago, IL, for Plaintiff-Appellee.

Steve Frank (argued), Department of Justice Civil Division, Washington, DC, for Defendant-Appellant.

Larry H. James, Crabbe, Brown & James, Columbus, OH, for, Amicus Curiae, Fraternal Order of Police.

Lucy A. Dalglish, Arlington, VA, for Amicus Curiae, Reporters Committee for Freedom of the Press.

David A. Handzo, Jenner & Block, Washington, D.C., for Amicus Curiae, DKT Liberty Project.

Eric J. Mogilnicki, Wilmer, Cutler & Pickering, Washington, D.C., for Amicus Curiae, Brady Center to Prevent Gun Violence.

Stephen P. Halbrook, Fairfax, VA, for Amicus Curiae, National Rifle Association of America, Inc.

Before BAUER, ROVNER and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

The City of Chicago ("the City") seeks information from a federal database regarding the sale of firearms and the tracing of firearms that have been recovered by law enforcement. Two and a half years ago we first heard this case and considered whether the Bureau of Alcohol Tobacco and Firearms ("ATF") could refuse to release the information to the City based on certain exemptions in the Freedom of Information Act ("FOIA"). Following our decision that ATF must release the information, ATF appealed and the Supreme Court granted certiorari. While that appeal was pending, Congress passed the Consolidated Appropriations Resolution of 2003 which ordered that "no funds... shall be available" to release the records in question. This case now comes to us on remand from the Supreme Court in order to determine what effect, if any, § 644 of the Consolidated Appropriations Resolution of 2003 has on this case. We find that the statutes in question preclude the use of federal funds for the retrieval of the information but do not substantively change the FOIA; accordingly, ATF must provide the City access to the databases.

Background

ATF is a criminal and regulatory enforcement agency within the Department of the Treasury. Pursuant to the Gun Control Act, ATF maintains databases that contain information collected from firearms manufacturers, importers, dealers and collectors. The information concerns the transfer of firearms and contains, among other things, the names and addresses of non-licensed parties involved in the transfer as well as identifying information for the firearms. The City seeks information from two specific ATF databases: the "Trace Database," which contains information regarding the history of weapons recovered in connection with a crime; and the "Multiple Sales Database," which contains records of transactions wherein a non-licensed individual purchases more than one gun from the same dealer within a five-day period.

On March 3, 2000, the City submitted a formal FOIA request to ATF, seeking information in the databases dating from 1992 to the present. ATF released some of the information the City had requested, but withheld other information. ATF informed the City that it had a policy of withholding certain information for a period of several years after it was collected to protect against interference in ongoing investigations. Litigation ensued.

In the meantime, Congress enacted the Consolidated Appropriations Resolution of 2003¹ and the Consolidated Appropriations Act of 2004² prohibiting the use of federal funds to disclose the information to the public. In light of these recent events, both parties to the litigation have rebriefed their arguments. ATF posits that the effect of the laws is to exempt the information in the databases from the FOIA's general obligation of disclosure. ATF seeks to prevail under several provisions of the FOIA, arguing in turn that the information has been specifically exempted from FOIA disclosure, that the agency is not "improperly withholding" the information, and that the information falls under a FOIA exemption for information that would interfere with an ongoing police investigation. For its part, the City argues that the new laws merely pose procedural hurdles to disclosure; to bypass these the City has offered to cover all costs incurred in retrieving the information.

Discussion

We review issues of statutory construction de novo. HA-LO Industries, Inc. v. CenterPoint Properties Trust, 342 F.3d 794, 797 (7th Cir.2003). Additionally, the burden is on the government to demonstrate that the database information falls within one of the FOIA's exemptions. Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir.1998).

I. Effect of the 2003 and 2004 Appropriations Acts

While the parties arrive at this question from different paths, the main issue before us is whether the 2003 and 2004 appropriations measures make a substantive change to the FOIA by exempting the databases. Hence, we will consider both pieces of legislation.

The FOIA was enacted in 1966 in response to perceived abuse by federal agencies of their discretion to disclose information to the public; it was felt that such secrecy was used by officials to cover mistakes and irregularities within the agencies. GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 384-86, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980). The goal of the FOIA was to "establish a general philosophy of full agency disclosure." Id. at 385, 100 S.Ct. 1194. Under the FOIA, courts recognize a "strong presumption in favor of disclosure." N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Accordingly, we interpret exemptions to FOIA narrowly.

The framework of FOIA mandates that federal agencies make information available to the public upon request unless that information falls into one of nine exemptions outlined in the statute. One of those exemptions allows information to be withheld if another statute specifically exempts that information from disclosure. 5 U.S.C. § 552(b)(3). To be in conformity with this exemption, the statute must either require "that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or refer to "particular types of matters to be withheld." Id.

On their face, the 2003 and 2004 appropriations measures do not specifically exempt the databases from disclosure under the FOIA, instead they direct that "no funds ... shall be available" to the ATF to disclose the information. This sort of indirect language is not normally used to create substantive exemptions under the FOIA, rather, in the past when Congress desired to create a statutory exemption to the FOIA legislation, it looked more like the following: "Information concerning the nature and specific location of a National Park System resource which is endangered ... may be withheld from the public in response to a [FOIA] request...." 16 U.S.C. § 5937. As a result of the unusual language in the 2003 and 2004 appropriations measures, the question to us is whether, in enacting the pertinent provisions of the bills in question, Congress engaged in "repeal by implication" — that is to say, whether Congress intended to exempt the databases from FOIA's generally duty of disclosure, despite its failure to explicitly do so.

As a rule of statutory construction, repeals by implication are disfavored. Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The Supreme Court has noted that this policy of disfavor "applies with full vigor" when the statute in question is an appropriations measure, such as is the case here. Id. at 190, 98 S.Ct. 2279; see also Calloway v. District of Columbia, 216 F.3d 1, 9 (D.C.Cir.2000) (noting that "while appropriation acts are `Acts of Congress' which can substantively change existing law, there is a very strong presumption that they do not.") (internal quotations omitted) (quoting Building & Construction Trades Dept., AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C.Cir.1992)). Further, when faced with a conflict between appropriations legislation and a substantive statute, we construe the appropriations legislation narrowly. Calloway, 216 F.3d at 9.

While generally disfavored, repeals by implication will work in two situations: (1) if one act is "clearly intended as a substitute" for the other, or (2) if the two statutes are in "irreconcilable conflict." Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003). ATF is quick to highlight the cases in which courts have found that appropriations measures repealed portions of substantive legislation. We will discuss these.

A. Clearly Intended Substitutes

In Robertson v. Seattle Audubon Society, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992), the Court considered the effect of the "Northwest Timber Compromise." The Compromise, a part of the 1990 appropriations measures, was passed in response to controversy surrounding an endangered species — the northern spotted owl — and the logging industry in the Northwest. It established "a comprehensive set of rules to govern harvesting" in thirteen national forests. Id. at 433, 112 S.Ct. 1407. The Compromise bears no resemblance to the 2003 and 2004 appropriations measures. Rather than simply denying funding, it created a detailed system to replace portions of other substantive legislation.³ In short, it fell directly under what we described above as a "clearly intended substitute" for portions of the Migratory Bird Treaty Act and other substantive environmental legislation. In arriving at its holding, the Court noted that the Compromise "provided by its terms that compliance with certain new law constituted compliance with certain old law,...