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Supreme Court to Decide Law Enforcement Database Case

The United States Supreme Court has agreed to hear and decide what could become a landmark Freedom of Information Act case involving the protection of information contained in law enforcement databases.

On November 12, the Supreme Court granted the Solicitor General's petition for certiorari review of the disclosure decision issued by the Seventh Circuit Court of Appeals in City of Chicago v. United States Department of the Treasury, 287 F.3d 628 (7th Cir.), amended upon denial of reh'g en banc, 297 F.3d 672 (7th Cir. 2002), cert. granted, 71 U.S.L.W. 3337 (U.S. Nov. 12, 2002) (No. 02-0322). The case involves both Exemption 7(A) and Exemption 7(C) of the FOIA, an unusual combination for Supreme Court review, and it pits the federal government against a municipal government before the Supreme Court for the first time ever in a FOIA case.

This FOIA dispute arose in 2000, when the City of Chicago filed a FOIA request with the Bureau of Alcohol, Tobacco and Firearms (ATF) for complete access to two law enforcement databases -- ATF's Trace and Multiple Sales Databases -- pertaining to the sale and use of firearms. ATF compiles and uses these enormously important databases for purposes of its gun-related law enforcement activities. The City of Chicago has been engaged in civil litigation against several gun manufacturers, gun distributors, and gun dealers in state court, in which it seeks both injunctive relief and damages for alleged wrongful conduct, and it sought the databases for use in that litigation.

ATF, which is part of the Department of the Treasury, cooperated with the City by providing much data pertaining to the Chicago area, as a matter of administrative discretion, but it refused to provide complete access to the two databases on a nationwide basis. It invoked both Exemption 7(A) and Exemption 7(C) of the FOIA to withhold most of the information that is contained in these two "gun-trafficking" databases -- including such database categories as the names and addresses of the purchasers and possessors of traced weapons, the names of multiple-sales firearms purchasers, and the addresses at which traced guns were recovered.

At the District Court level, ATF did not prevail in arguing either that Exemption 7(A) or that Exemption 7(C) applies to either database. See City of Chicago v. United States Dep't of the Treasury, No. 00 C 3417, slip op. at 5-10 (N.D. Ill. Mar. 6, 2001). Confusingly, the District Court further ruled that even if any of the information in the databases is exempt, the identifying details pertaining to the persons and the weapons that are identified in the databases could be protected through some "encryption" technique that might satisfy the needs of this particular FOIA requester. Id. at 11-12.

ATF appealed that decision to the United States Court of Appeals for the Seventh Circuit. That appellate court, however, went even further than the District Court: It flatly refused to accord any protection to any part of the two databases, based upon its unprecedented interpretations and applications of both Exemption 7(A) and Exemption 7(C).

First, as to Exemption 7(A), the Seventh Circuit simply upheld the District Court's finding that ATF had submitted only "speculative," not "concrete," examples of how disclosure could interfere with its ongoing enforcement proceedings. 287 F.3d at 634. It refused to give any deference to the agency's expertise in such matters, declaring that such deference is limited to instances where "the agency has demonstrated with specificity a logical connection between the information withheld and identified investigations, and where the agency has submitted uncontroverted affidavits." Id. at 633.

The Seventh Circuit gave similarly short shrift to ATF's privacy-protection arguments under Exemption 7(C). It refused to view the individuals named and identified in the databases as persons having "any legitimate privacy concerns[,] because the purchase of a firearm is not a private transaction." 287 F.3d at 637. Further, it declared that any personal privacy interest of anyone identified in the databases was, in its view, "substantially outweighed by the public's interest in allowing the City to further its suit in the state court." Id.

ATF asked the full Seventh Circuit Court of Appeals to reconsider its decision on both issues, but to no avail. In fact, in denying ATF's petition for rehearing, the Seventh Circuit amended its initial opinion by merely adding a paragraph to it that supplemented its rationale on the Exemption 7(A) part of the case: It declared, in a highly conclusory fashion, that ATF had provided it "with only far-fetched hypothetical scenarios," rather than any showing of the "substantial, realistic risk of interference" with law enforcement proceedings that it said the Supreme Court requires. City of Chicago v. United States Dep't of the Treasury, 297 F.3d 672, 673 (7th Cir. 2002).

In asking the Supreme Court to hear this FOIA case, the Solicitor General pointed out that the Seventh Circuit had "disregarded well-established FOIA principles" under both Exemption 7(A) and Exemption 7(C) to reach its result. Petition for a Writ of Certiorari at 10, United States Dep't of the Treasury v. City of Chicago, 71 U.S.L.W. 3169 (U.S. Sept. 3, 2002) (No. 02-0322). It is of great concern, the Solicitor General said, that "compelled release of the names and addresses withheld by ATF [in this case] would significantly intrude upon the privacy of hundreds of thousands of individuals -- including firearms purchasers, potential witnesses to crime, and others -- without meaningfully assisting the public to evaluate the conduct of the federal government." Id. Moreover, the certiorari petition argued, "[t]he manifest sensitivity of [database] information, and the obvious likelihood that release of the data would, in the aggregate, cause immense harm to law enforcement interests, make it evident that blanket disclosure of the Trace Database 'could reasonably be expected to interfere with enforcement proceedings.'" Id. In other words, there are "very substantial" personal privacy and law enforcement interests involved in this case, with "immense practical consequences" at stake. Id. at 28, 30.

Now that the Supreme Court has accepted the City of Chicago case for review, it is most likely to proceed to oral argument sometime in late winter or early spring. A final decision from the Court can be expected before the end of its current Term in late June or early July.

This case should provide the Supreme Court with an excellent opportunity to apply and further expound upon the law enforcement-protection principles that it established for Exemption 7(A) nearly twenty-five years ago in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), and the privacy-protection principles that it established for both Exemption 6 and Exemption 7(C) more than a dozen years ago in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).   (posted 11/22/02)

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