Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives

• Decision Date: 23 December 2020
• Docket Number: August Term 2020,No. 19-3438,19-3438
• Citation: 984 F.3d 30
• Parties: EVERYTOWN FOR GUN SAFETY SUPPORT FUND, Plaintiff-Appellee, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

984 F.3d 30

EVERYTOWN FOR GUN SAFETY SUPPORT FUND, Plaintiff-Appellee,

v.BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendant-Appellant.

No. 19-3438

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: October 13, 2020

Decided: December 23, 2020

Alla Lefkowitz, Everytown Law, New York, NY (Eric A. Tirschwell and James Miller, Everytown Law, New York, NY, and Lawrence S. Lustberg, Gibbons P.C., Newark, NJ, on the brief), for Plaintiff-Appellee.

Tomoko Onozawa, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellant.

Before: Walker and Menashi, Circuit Judges.^*

Menashi, Circuit Judge:

The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") maintains the Firearms Trace System ("FTS") database, a national database that stores information relating to the manufacture, importation, and distribution of certain firearms. Everytown for Gun Safety Support Fund ("Everytown") submitted a request pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2018), seeking the disclosure of data from the FTS database. In this appeal, we decide whether Congress has exempted data stored in the FTS database from disclosure pursuant to the FOIA. The district court concluded that Congress has not. We disagree. The ATF therefore properly denied Everytown's FOIA request. We reverse the district court's order granting summary judgment to Everytown and remand with instructions to enter judgment for the ATF.

In the early 2000s, Congress adopted a series of appropriations riders known as the Tiahrt Riders, each of which protected FTS data from disclosure.¹ In response to court decisions subjecting FTS data to disclosure under the FOIA, Congress strengthened the language of the Tiahrt Riders. Based on the language first adopted in 2005, federal courts uniformly understood the Tiahrt Riders to exempt FTS data from FOIA disclosure. See, e.g. , City of Chicago v. U.S. Dep't of the Treasury, 423 F.3d 777, 780-81 (7th Cir. 2005). Accordingly, the ATF could withhold FTS data pursuant to Exemption Three of the FOIA, which allows records to be withheld when "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3).

In October 2009, Congress adopted the OPEN FOIA Act of 2009. Department of Homeland Security Appropriations Act, Pub. L. No. 111-83, 123 Stat. 2142, 2184 (2009) (codified at 5 U.S.C. § 552(b)(3)(B) ). Congress thereby amended the FOIA to provide that, in order for a statute enacted after the OPEN FOIA Act's effective date to qualify as a statutory exemption under Exemption Three, it must not only require the withholding of information but also "specifically cite[ ]" Exemption Three. Id.

Two months later, Congress reenacted a Tiahrt Rider that contained essentially the same antidisclosure language as the Tiahrt Rider it had enacted the previous year. Stat. App'x 6 (2010 Tiahrt Rider). In 2012, Congress again reenacted a Tiahrt Rider with the same antidisclosure language. Id. at 7-8 (2012 Tiahrt Rider). The language of these riders paralleled that of riders enacted before the OPEN FOIA Act and did not specifically cite Exemption Three.

The 2012 Tiahrt Rider is the last-enacted version and currently operative. The district court concluded that because the 2012 Tiahrt Rider does not comply with the requirement of the OPEN FOIA Act to specifically cite Exemption Three, it does not qualify as a statutory exemption to the FOIA and does not permit the ATF to withhold FTS data from Everytown.

We disagree. An earlier-enacted statutory requirement cannot prevent the " ‘plain import’ or ‘fair implication’ " of a later-enacted statute from taking effect. Dorsey v. United States , 567 U.S. 260, 275, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). It is axiomatic that an earlier statute "cannot bind a later Congress, which remains free ... to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified," and Congress "remains free to express any such intention either expressly or by implication as it chooses." Id. at 274, 132 S.Ct. 2321. In the event of a conflict, "the later enactment governs, regardless of its compliance with any earlier-enacted requirement of an express reference." Id. (quoting Lockhart v. United States , 546 U.S. 142, 149, 126 S.Ct. 699, 163 L.Ed.2d 557 (2005) (Scalia, J., concurring)). Congress may establish a "background principle of interpretation" to guide courts in understanding subsequently enacted statutes. Id. But it cannot constrain those subsequent statutes.

Ultimately the question before us is relatively straightforward: whether the 2012 Tiahrt Rider, either expressly or by implication, exempts FTS data from FOIA disclosure. We conclude that it does. Had Congress continued to rely on the 2009 Tiahrt Rider, it would unquestionably exempt FTS data from FOIA disclosure because the specific-citation requirement of the OPEN FOIA Act would not apply to that rider. We do not believe that Congress's decision to reenact essentially the same antidisclosure language in subsequent years can be understood to reverse its meaning—that is, to subject FTS data to FOIA disclosure. Rather, if the statutory language of the 2009 Tiahrt Rider exempted FTS data from FOIA disclosure, that same statutory language reenacted as the 2012 Tiahrt Rider must have the same meaning and legal effect. Congress does not use the same words to accomplish the opposite objective. Accordingly, FTS data remains exempt from FOIA disclosure, and the district court erred in concluding otherwise.

BACKGROUND

I

Enacted in 1966, the FOIA requires federal agencies to "make ... records promptly available to any person" upon a proper request. 5 U.S.C. § 552(a)(3). The FOIA exempts certain categories of records from this general rule of disclosure. Id. § 552(b). As relevant here, Exemption Three protects records "specifically exempted from disclosure by [a] statute" that meets certain criteria. Id. § 552(b)(3).

Since the turn of this century, Congress has sought to prevent FOIA requesters from obtaining information stored in the FTS database, which houses data relating to the manufacture, importation, and distribution of certain firearms. In 2003, Congress passed the first of a series of appropriations riders known as the Tiahrt Riders, named for U.S. Representative Todd Tiahrt. Each iteration of the rider applied to the fiscal year of the appropriations bill in which it was enacted and to every year thereafter. See Stat. App'x. In explaining its view of the purpose of the first Tiahrt Rider, the House of Representatives Appropriations Committee expressed "concern[ ] that certain law enforcement databases may be subject to public release under the Freedom of Information Act." H.R. Rep. No. 107-575, at 20 (2002). The committee worried that "information collected and maintained by ATF related to ongoing criminal investigations of firearms, arson or explosive offenses could be released, potentially compromising those cases." Id. The committee stated that "comprehensive" disclosure of this information "to the public" would "pose a risk" not only "to law enforcement and homeland security, but also to the privacy of innocent citizens." Id. The committee believed that the addition of the Tiahrt Rider to that year's appropriations bill would "ensur[e] that no appropriated funds may be available to ATF to take any action under the FOIA with respect to such law enforcement records." Id.

That original version of the rider stipulated that, subject to some exceptions, no appropriated funds would "be available to take any action based upon any provision of 5 U.S.C. 552"—that is, the FOIA—"with respect to records collected or maintained" pursuant to the ATF's management of the FTS database. Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11, 473-74 (2003). In 2004, Congress removed the direct reference to the FOIA, replacing it with language stating that appropriated funds could not be used "to disclose to the public the contents" of information collected pursuant to the ATF's management of the FTS database. Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 3, 53 (2004). In the 2005 appropriations bill, Congress strengthened the prohibition on disclosure, adding language providing that "all such data shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State or Federal court or in any administrative proceeding other than a proceeding commenced by the [ATF]." Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2859-60 (2004).

Congress enacted the Tiahrt Riders and strengthened the antidisclosure language in response to judicial decisions that subjected FTS data to FOIA disclosure. In 2002, the Seventh Circuit affirmed a district court decision requiring FOIA disclosure of FTS data. City of Chicago v. U.S. Dep't of Treasury (Chicago I ), 287 F.3d 628, 631 (7th Cir. 2002), vacated , 537 U.S. 1229, 123 S.Ct. 1352, 154 L.Ed.2d 1097 (2003). The Supreme Court granted certiorari in November 2002. 537 U.S. 1018, 123 S.Ct. 536, 154 L.Ed.2d 424 (2002). Congress then enacted the original Tiahrt Rider in February 2003, and the Supreme Court vacated the Seventh Circuit's decision and remanded the matter for consideration of the new statute's effect on the case. 537 U.S. 1229, 123 S.Ct. 1352, 154 L.Ed.2d 1097 (2003). On remand, the Seventh Circuit concluded that the 2003 and 2004 Tiahrt Riders were not Exemption Three statutes because the riders were "indirect" prohibitions on disclosure, effected through a restriction on appropriations, and therefore established a procedural rather than a substantive obstacle to disclosure. City of Chicago v. U.S. Dep't of the Treasury (Chicago II ),...