Ctr. for Investigative Reporting v. U.S. Dep't of Justice

• Decision Date: 03 December 2020
• Docket Number: No. 18-17356,18-17356
• Citation: 982 F.3d 668
• Parties: The CENTER FOR INVESTIGATIVE REPORTING, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

982 F.3d 668

The CENTER FOR INVESTIGATIVE REPORTING, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 18-17356

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2020 San Francisco, California

Filed December 3, 2020

WARDLAW, Circuit Judge:

When Congress passed the Freedom of Information Act (FOIA), 5 U.S.C. § 552, it sought to "permit access to official information long shielded from public view" and thereby "pierce the veil of administrative secrecy" that clouded the workings of federal agencies. Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks and citation omitted). Congress viewed this commitment to government transparency and an "informed citizenry" as "vital to the functioning of a democratic society." NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). After all, "[g]overnment transparency is critical" to ensure "the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies." Hamdan v. U.S. Dep't of Just. , 797 F.3d 759, 769–70 (9th Cir. 2015) ; accord Robbins Tire , 437 U.S. at 242, 98 S.Ct. 2311.

Today, few issues spawn as much political debate as guns and their role in criminal activity and the government's role in regulating these weapons. Countless individuals and entities participate in this debate, often relying on statistical data as they advocate for their preferred policy outcomes. This debate is unquestionably one of public importance. For its part, the Executive Branch has long recognized the importance of quantitative data in this arena and, to that end, has spent decades systematically investigating, or "tracing," the origins of firearms linked to criminal activity. As of 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had compiled the results of over 6,876,808 of those traces in an electronic database called the Firearms Tracing System (FTS).

The Center for Investigative Reporting (CIR) participates in the national debate surrounding guns in America. CIR specifically wants to report on the use in crimes of guns that had at one time been owned by law enforcement agencies. To prepare that report, CIR sought hard data from ATF, filing a FOIA request asking ATF for records depicting the "[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present." ATF, however, had never before released that information to the public, and it refused to change course in light of CIR's request. It instead contended that Congress had forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2008, 2010, and 2012. ATF also contended that FOIA did not require ATF to run this search in the FTS database because such a query would require it to create a new agency record.

We do not agree. The Tiahrt Rider does not exempt the data sought by CIR from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data. Moreover, the use of a query to search for and extract a particular arrangement or subset of existing data from the FTS database does not require the creation of a "new" agency record under FOIA. The only question that thus remains is whether the FTS database is currently capable of producing the information CIR seeks in response to a search query. We cannot answer that question on the existing record and accordingly reverse and remand for further factual development consistent with this opinion.

I.

The disputes in this case arise from two federal statutes passed in the 1960's—FOIA and the Gun Control Act of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213 (1968) —and from Congress's evolving understanding of the circumstances in which ATF should disclose gun-tracing data gathered under the GCA. We therefore recount the history of these statutes, Congress's recent involvement in this area, and then the case at hand.

A.

In 1966, Congress enacted FOIA to usher in a newfound era of transparency in the Executive Branch. Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). FOIA mandated that federal agencies "disclose records on request, unless they fall within one of nine exemptions." Id. "These exemptions are ‘explicitly made exclusive’ " and "must be ‘narrowly construed.’ " Id. (quoting Envt'l Prot. Agency v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ; Fed. Bureau of Investigation v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376, (1982) ). They thus "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose , 425 U.S. at 361, 96 S.Ct. 1592. Over the years, Congress has repeatedly updated and strengthened FOIA. See, e.g. , OPEN FOIA Act of 2009, Pub L. No. 111-83, § 564, 123 Stat. 2142, 2184 (2009); Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (1996) (E-FOIA).

Meanwhile, a year after passing FOIA, and in the wake of the assassinations of President John F. Kennedy, Attorney General Robert Kennedy, and Martin Luther King Jr., Congress passed the Gun Control Act of 1968. The GCA sought to reduce the incidence of "crime and violence," § 101, 82 Stat. at 1213, by, among other things, creating a statutory licensing and recordkeeping scheme for firearms manufacturers, importers, retailers, and dealers, see 18 U.S.C. § 923. The Attorney General or his current designee, ATF, may obtain and inspect the inventory and sales records created under this scheme for certain enumerated reasons, including as part of a criminal investigation. Id. § 923(g).

ATF has used this statutory authority to implement "tracing"—"the systematic tracking of a recovered firearm from its manufacturer or importer, through its subsequent introduction into the distribution chain (wholesaler/retailer), to identify an unlicensed purchaser." As explained in the First Declaration of Charles Houser, Chief of the National Tracing Center Division of ATF, any law enforcement agency in the country can request that ATF trace a firearm. Upon such a request, ATF tracks a firearm from its manufacturer or importer, through the supply chain of licensed dealers and wholesalers, and on to the first retail purchaser of that gun. A trace usually, but not always, stops with the first retail purchaser, because those purchasers are not subject to the GCA's recordkeeping requirements.

ATF documents each trace it conducts. These tracing records are maintained in the Firearm Tracing System, an electronic database that logs the "trace data" for each individual trace. As of April 2018, the FTS database contained information from over 6.8 million traces. The FTS database retains substantial information about each individual trace, including:

(i) information about the law enforcement agency requesting the trace, such as the agency's name, address, case number, and investigative notes provided by the agency; (ii) information provided by the requesting agency regarding its recovery of the firearm, such as the date and location where the traced firearm was taken into custody by the requesting agency; (iii) information about purchasers of the traced firearm; (iv) information about possessors of the traced firearm and any associates (i.e., persons with the possessor of the firearm when the firearm comes into police custody), such as their names and addresses, driver's license information and social security numbers, and any related vehicle information; (v) information identifying each [Federal Firearms License] that has sold the traced firearm; and (vi) information about the traced firearm such as the manufacturer, importer, model, weapon type, caliber, and serial number.

This information is situated in the FTS database in "over 75 tables with a combined total of 800 columns/fields, not including subsystems and integrated or associated systems."

When it completes a firearms trace, ATF enters a "close-out-code" in the FTS database to signal the status of the completed trace. Firearms traced to a government or law enforcement agency generally receive the close-out code "S5." Three other codes also reveal that ATF traced a firearm to a law enforcement or government agency: "S6," "SH," and "DN."

ATF prepares various reports and statistical analyses using the FTS database, which it shares with the public on its website and with partnered government and law enforcement agencies. ATF prepares these reports through specialized search queries. After receiving the results of the query, it processes, verifies, and organizes that data through statistical software. Often, ATF creates "visual depictions," such as graphs or charts from the data, and a "multi-level review process" ensues to verify the accuracy of the data and format. "[E]xperienced specialists at the ATF" generally complete this process.

Because the FTS database contains large volumes of quantitative data regarding guns in the United States, ATF has received FOIA requests for permutations of this data. See, e.g. , City of Chi. v. U.S. Dep't of Treas., Bureau of Alcohol, Tobacco & Firearms , 287 F.3d 628, 632 (7th Cir. 2002), vacated by 537 U.S. 1229, 123 S.Ct. 1352, 154 L.Ed.2d 1097 (2003). And, prior to 2003, those requests were at times successful in obtaining responsive information. See, e.g. , id. at 638.

B.

That status quo began to shift in 2003, when Congress first attached a provision commonly referred to as the "Tiahrt Rider" or "Tiahrt Amendment" to its Consolidated Appropriations Resolution. See Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, § 644, 117 Stat. 11, 473–74 (2003) ("2003 Rider"). The 2003 Rider directed that "no funds appropriated" in that Act "or any other Act with respect to any fiscal year shall be available to take any...