Codrea v. Bureau of Alcohol, Firearms & Explosives
| Decision Date | 13 September 2022 |
| Docket Number | Civil Action 21-2201 (RC) |
| Parties | DAVID CODREA, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendant. |
| Court | U.S. District Court — District of Columbia |
This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff David Codrea and Defendant Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). ATF is a federal law enforcement agency tasked with enforcing federal firearm laws. Mr. Codrea seeks information from ATF regarding how it handled a handgun incident in 2018 allegedly involving Hunter Biden, son of then-Presidential candidate Joe Biden. The agency provided Mr. Codrea a Glomar response refusing to confirm or deny the existence of any information on this incident. ATF claimed FOIA Exemptions 6 and 7(C), which requires the Court to weigh Hunter Biden's personal privacy interest against the public interest in disclosure. For the reasons described below, after weighing these respective interests under Exemption 7(C), the Court concludes that ATF's Glomar response is warranted.
The facts behind this FOIA request involve the alleged disappearance of a handgun from a car belonging to Hunter Biden and the aftermath of that incident. Ex. A to Compl. (“Request Letter”), ECF No. 1-1; Def.'s Mem. Points & Authorities Support Mot. Summ. J. (“Def.'s Mot.”) at 1, ECF No. 8. According to a news article both parties cite, in October 2018, Hunter Biden's sister-in-law Hallie Biden took his gun and threw it in a trash can behind a grocery store. See Def.'s Mot. at 15 n.1; Pl's Opp'n Def.'s Mot. Summ. J. (“Pl.'s Opp'n”) at 8 n.6, ECF No. 9 (citing Tara Palmeri & Ben Schreckinger, Sources: Secret Service Inserted Itself into Case of Hunter Biden's Gun, Politico (Mar. 25, 2021, 4:30 AM), https://www.politico.com/news/ 2021/03/25/sources-secret-service-inserted-itself-into-case-of-hunter-bidens-gun-477879 (“Politico Article”)).
A series of events apparently ensued. According to the article, Delaware State Police arrived at the scene to investigate the missing gun. Id. Meanwhile, United States Secret Service agents allegedly entered the store where Hunter Biden purchased the gun and asked the owner for the firearms transaction record. Id. The store owner apparently refused to provide it on the basis that the records fell under ATF's authority. Id. Later that day, ATF agents allegedly approached the store owner to inspect the same record. Id. The article reports that the Secret Service has denied involvement in this alleged incident. Id. Likewise, ATF represents to the Court that ATF has never officially acknowledged involvement or even awareness of this incident. Def.'s Mot. at 14.
The article further claims that a copy of Hunter Biden's firearms transaction record reveals that he responded “no” to a question on the form that asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Politico Article. The article reports that five years earlier, Hunter Biden was discharged from the Navy Reserve after testing positive for cocaine. Id. It further claims that “he and family members have spoken about his history of drug use.” Id. In 2021, Hunter Biden published a memoir which purportedly includes descriptions of his drug usage. Ex. E to Compl. (citing Elisabeth Egan, Hunter Biden's Memoir: 7 Takeaways from ‘Beautiful Things', N.Y. Times (last updated Sept. 4, 2021), https://www.nytimes.com/2021/03/30/books/hunter-biden- beautiful-things-memoir.html), ECF No. 1-5.
Mr. Codrea is a self-described internet blogger and journalist. Compl. ¶ 4, ECF No. 1. On November 23, 2020, he submitted a FOIA request to ATF that provided the following background information:
Id. ATF acknowledged Mr. Codrea's request on February 26, 2021. Ex. B to Compl., ECF No. 1-2. On March 31, 2021, ATF informed Mr. Codrea that it had conducted a search in its “systems of records that contain all investigative files compiled by ATF for law enforcement purposes” and “w[as] not able to locate any responsive records.” Ex. C to Compl. at 1, ECF No. 1-3. Two days later, ATF told Mr. Codrea that it was withdrawing its March 31 response because it was premature and explained that the agency was planning to conduct a full search. Ex. A to Siple Decl., ECF No. 8-2; Siple Decl. ¶ 5, ECF No. 8-1. On May 12, 2021, ATF again changed course, this time informing Mr. Codrea that any initial search was conducted in error and the request should have been categorically denied without a search “due to the substantial privacy interests of the subject of the FOIA request,” who was “a third party and private citizen.” Ex. D to Compl. at 1, ECF No. 1-4. ATF explained that “the existence of any such material is exempt from disclosure under FOIA” and invoked Exemptions 6 and 7(C). Id. Mr. Codrea appealed this decision to the Office of Information Policy (“OIP”) at the Department of Justice (“DOJ”). Ex. F to Compl., ECF No. 1-6. After OIP denied the appeal, Mr. Codrea brought suit. Ex. G to Compl. at 1, ECF No. 1-7; Compl. ATF now moves for summary judgment on the propriety of its Glomar response. ECF No. 8. In support of its motion, it relies on the declaration of Adam C. Siple, the Chief of Information and Privacy Governance at ATF. Siple Decl. ¶ 1.[2] That motion is now ripe for decision.
The Freedom of Information Act is meant “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that ‘each agency, upon any request for records . . . shall make the records promptly available to any person' unless the requested records fall within one of the statute's nine exemptions.” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent with the Act's goal of broad disclosure,” those exemptions should be “given a narrow compass.” U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014).
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In assessing whether the movant has met that burden, a court “must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). Because FOIA cases do not ordinarily involve disputed facts, they “are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009) (citations omitted). An agency may show that it is entitled to summary judgment by submitting affidavits that, in “reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Id. (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). An agency's justification for withholding records “is sufficient if it appears ‘logical' or ‘plausible.'” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)).
Instead of searching for and withholding exempt records, “an agency may issue a Glomar response, i.e., refuse to confirm or deny the existence or nonexistence of responsive records if the particular FOIA exemption at issue would itself preclude the acknowledgement of such documents.” Elec. Priv. Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) . “An agency thus bears the burden to sustain a Glomar response.” Id. (citing 5 U.S.C. § 552(a)(4)(B)).[4]
ATF relied on FOIA Exemptions 6 and 7(C) as grounds for its Glomar response. Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects “records or information compiled for law enforcement...
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