Brady Ctr. to Prevent Gun Violence v. DOJ, No. 17-2130, 2019 WL 4737331 (D.D.C. Sept. 28, 2019) (Moss, J.)

Brady Ctr. to Prevent Gun Violence v. DOJ, No. 17-2130, 2019 WL 4737331 (D.D.C. Sept. 28, 2019) (Moss, J.)

Re:  Requests for records concerning paper written by senior ATF official about ways to reduce gun regulations ("'White Paper Request'"), as well as concerning ATF inspections of federally-licensed gun dealers ("'Warning Letters Request'")

Disposition:  Granting in part and denying in part defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

• Procedural Requirements, Searching for Responsive Records:  "The Court recognizes that this case poses a hurdle not posed in the garden variety FOIA case because the records at issue were located on [the Acting Deputy Director's] personal email account and because, although he was employed by the ATF at the time the search was conducted, he is no longer an ATF employee."  "At oral argument, counsel for the ATF conceded that, were the Court to conclude that the ATF had failed to demonstrate that the search of [the Acting Deputy Director's] personal email account was adequate, the Court could 'direct the agency to ask [the Acting Deputy Director] to respond to questions' about what he did."  "The Court will accept that concession for present purposes and will direct the ATF to use its best efforts to determine what [the Acting Deputy Director] did and to file any further evidence it is able to obtain with the Court within thirty days."  The court also addresses several substantive issues concerning defendant's search, first finding that "for present purposes, the Court merely holds that the ATF's exclusive use of the search term 'White Paper' was not reasonably calculated to locate all records 'related to' the white paper."  "If all that [plaintiff] sought were copies of the White Paper itself, that account would make perfect sense."  "It makes less sense, however, in light of the fact that [plaintiff] sought all communications 'related to [the White Paper].'"  "The Court will leave it to the ATF, in the first (or, now, second) instance to craft a search protocol that 'can be reasonably expected to produce the information requested' . . . ."  Second, regarding the search custodians, the court relates that "ATF spoke with the key participant and, based on that conversation, it identified likely custodians of responsive records."  "It then collected and reviewed the responsive emails and, based on that review, concluded that none of the other recipients were likely to have responsive, non-duplicative records."  "[Plaintiff], moreover, has now received those same records, and it has not brought to the Court's attention any email suggesting that the ATF missed a further, likely custodian of responsive records."  Third, "[t]he Court . . . concludes that the scope of the ATF's search was deficient in one respect:  The White Paper was apparently created, and presumably stored, somewhere in the ATF's word processing files, and, as [plaintiff] observes, an important, responsive attachment to a produced email was not produced – namely, an early draft of the White Paper that was sent to an industry group."  "If, for whatever reason, that document could not be produced by email searches, it was unreasonable for the ATF to stop short of searching [the Acting Assistant Director's] word processing files for the missing draft."  "To do so would not have been 'unreasonably burdensome' . . . ."
  
  Separately, "on the facts of this case, the Court concludes that the ATF reasonably – and lawfully – decided to treat wholly unrelated attachments as separate records."  The court first looks at the requester's intent and finds that "[i]f a 'document,' by definition, already included all attachments, there would have been no reason to clarify that the term 'document' included attachments referenced in the body of the 'subject documents.'"  "But, because FOIA requests are to be construed broadly in favor of the requester, the Court will assume that the White Paper Request unambiguously defined 'responsive documents' as including 'all attachments' – including those that are not referenced in the main document – and thus that the 'requester’s intent,' . . . was that emails and attachments be treated as a single 'record.'"  However, the court finds that "the remaining considerations weigh heavily against [plaintiff]."  "Most notably, the ATF has reviewed each of the attachments and has certified 'that none of the separate documents which were considered outside of scope, including certain attachments to emails, contain any information even slightly related to the White Paper and, instead, are wholly on independent subjects outside the purview of the underlying request.'"  "Moreover, treating such wholly unrelated attachments as part of the main document would cause increased delay in the agency's responses to FOIA requests, would increase costs to the agency and requesters, and would do little, if anything, to further FOIA's goal of enhancing transparency and confidence in the workings of government."  "And, absent a reference to the attachment in the body of the main document, which the Brady Center has not brought to the Court’s attention, there is no reason to conclude that the ATF’s decision to treat attachments as a separate document undermined the 'integrity' of the responsive records."  "To the extent [plaintiff] seeks any of those attachments, it can always submit a FOIA request that identifies the particular attachment it seeks."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[t]here are many redactions that the Court cannot decipher on the present record."  "At times, for example, the ATF has redacted multiple, consecutive paragraphs, across many pages, and, at other times, it has redacted entire paragraphs based on more than one FOIA exemption, without indicating which redactions correspond with which exemption."  "At other times, however, the Court can discern the nature of the redaction from the document itself."  "When combined with the declarations the ATF has filed in support of its motion, the Court can reasonably discern the nature of some – but not all – of the redactions."  "Based on this evidence and the parties' description of the issue that they have briefed for decision, the Court will address – in general – whether the ATF permissibly 'redacted the number of times a licensee committed a particular [regulatory] violation.'"  "But, the Court leaves for another day the determination whether each particular redaction of the number of violations was proper; the determination whether the ATF permissibly redacted any other information pursuant to the Tiahrt Rider and FOIA Exemption 3; and resolution of any dispute regarding which of the redactions at issue fall within that category."  "Before the Court can address these additional questions, the Court will require greater detail – including either a detailed Vaughn Index or a declaration that addresses the redactions on a document-by-document basis, as well as further briefing by the parties."
   
• Exemption 3:  First, the court relates that "[plaintiff] . . . argues that the records at issue here are not covered by the Tiahrt Rider because they fall within the Rider's exception for 'aggregate statistical data.'"  "That exception provides that the Rider 'shall not be construed to prevent: . . . the publication of . . . statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.'"  The court finds that "the text of the Tiahrt Rider does not support [plaintiff's] argument."  "First, the Court is unconvinced that the number of violations committed by a particular licensee constitutes 'statistical aggregate data' for purposes of the Tiahrt Amendment's exception."  The court explains that "the Rider speaks in the plural – it refers to 'traffickers,' 'trafficking channels,' and 'trafficking investigations' – while the reports at issue here are, at least as far as the Court can tell, each about a single licensee."  "Moreover, [citing the Merriam-Webster Dictionary Online, the court finds that] it is far from clear that the number of violations of a particular type committed by a single licensee constitutes 'statistical data' – the word 'statistical' connotes the use of 'the principles of statistics,' . . . and 'statistics' is 'a branch of mathematics dealing with the collection, analysis, interpretation, and presentation of masses of numerical data,' . . . ."  "There is no reason to conclude, for example, that the ATF investigators are measuring probabilities, deviations from the mean, or the relationship between data sets."  "But, even if the Court were to construe the phrase 'statistical data' liberally, reading the statutory phrase 'aggregate statistical data' in the manner [plaintiff] suggests would read the word 'aggregate' entirely out of the statute."  "And, that, the Court may not do."
  
  However, concerning the main Exemption 3 arguments, the court finds that "[plaintiff] is correct that the Court cannot, on the existing record, resolve the parties' pending cross-motions for summary judgment with respect to the ATF's reliance on FOIA Exemption 3 and the Tiahrt Rider."  "The existing record . . . leaves the Court with an information deficit on two different fronts."  "First, the Court has little guidance from either party about how broadly it should understand the Rider's prohibition on 'disclosure' to sweep – or even how it should answer that question."  "Second, without the Vaughn index or a detailed declaration, the Court cannot determine how much of an inferential or investigative step would be needed to take a particular piece of redacted information and trace it back to particular 'information required to be kept by licensees pursuant to section 923(g)' or to information gleaned from the eTrace database."