Ctr. for Investigative Reporting v. DOJ, No. 18-17356, 2020 WL 7064638 (9th Cir. Dec. 3, 2020) (Wardlaw, J.)

Ctr. for Investigative Reporting v. DOJ, No. 18-17356, 2020 WL 7064638 (9th Cir. Dec. 3, 2020) (Wardlaw, J.)

Re:  Request for aggregate data related to Firearms Tracing Database ("FTS") maintained by ATF; in particular, records depicting total number of weapons linked to criminal activity that were traced back to former law enforcement ownership during specified period

Disposition:  Reversing and remanding magistrate judge's finding that ATF was not required to disclose requested information under FOIA and entry of partial judgment for government

• Exemption 3:  The Court of Appeals for the Ninth Circuit holds that "[t]he Tiahrt Rider does not exempt the data sought by [the requester] from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data."  First, "[the court] conclude[s] that the 2012 Rider – which enacted the language of the 2010 Rider without any alteration – is the only operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full."  "Having reached that conclusion and upon looking to the 2010 Rider, [the court] conclude[s] that it is not a statute of exemption for the simple reason that, though enacted after the OPEN FOIA Act of 2009, it makes no reference to 5 U.S.C. § 552(b)(3)."  "[The court has] no doubt that the 2010 Rider 'cover[s] the whole subject of the' matters discussed in the 2005 and 2008 Riders."  "Moreover, the 2010 Rider is, like its predecessors, clearly intended to prescribe the only rules for the release of data from the FTS."  Finally, the court finds that "the enactment of the OPEN FOIA Act represented a clear break from Congress's past habit of creating statutes of exemption in a legislative dead of night."  "That the 2010 Rider may have sufficed to exempt FTS data from disclosure before the Open FOIA Act is thus irrelevant.'  "'[I]nsofar as Congress wished to enact statutes that would exempt Firearms Trace Database data from disclosure following the enactment of the OPEN FOIA Act, it gave itself explicit instructions for how to do so.'"
  
  Judge Bumatay, dissenting, states that "[t]he OPEN FOIA Act contains a legislative entrenchment: it says that, to be effective, any exemption from FOIA disclosure must 'specifically cite[ ] to this paragraph [5 U.S.C. § 552(b)(3)(B)]' if enacted after the 2009 law."  "The Act, thus, purports to prevent future congresses from passing FOIA exemptions without an express citation to '5 U.S.C. § 552(b)(3)' – in other words, without using the 'magical password.'"  "The 2012 Tiahrt Amendment doesn’t contain any passwords, but still seeks to exempt certain information from disclosure."  "Because these two statutes are in conflict, [Judge Bumatay] would construe the OPEN FOIA Act's express-statement rule as merely a 'background principle of interpretation,' . . . and hold that the later-enacted Tiahrt Amendment controls."  Responding to the dissent, the court states that "this is not the case to address that question, for the issue is clearly waived."  "Neither party raised this point before the district court."
  
  The court also makes a finding regarding the scope of any potential Exemption 3 holding.  The court relates that "the Riders contain three exceptions to the stated funding prohibitions," one of which, "Exception (C)[,] provides that the Tiahrt Rider:  'shall not be construed to prevent: . . . (C) the publication of annual statistical reports on products regulated by the [ATF], including total production, importation, and exportation by each licensed importer (as so defined) and licensed manufacturer (as so defined), or statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.'"  The court finds that "[the requester's] request seeks statistical aggregate data."  "'Statistical' is defined as 'of, relating to, based on, or employing the principles of statistics.'"  "ATF concedes that the number of firearms traced to each state annually, the numbers of each type of firearm recovered annually, and the top source states for firearms, are each examples of 'statistical aggregate data' within the meaning of Exception (C)."  "Similarly then, '[t]he total number of weapons traced back to former law enforcement ownership, annually from 2006 to the present' likewise reflects an aggregated statistic derived from an underlying set of data."  "Moreover, ATF's production of these documents to [the requester] will result in the 'publication' of this data."  Additionally, "[t]urning over data regarding firearms in the United States to 'a reporter' or 'a representative of the news-media' like [the requester], which reports on the topic of guns in the United States, will make that data 'generally known' to the public."
  
  Judge Bumatay, dissenting, states that "that exception allows for the 'publication of . . . statistical aggregate data,' not the FOIA disclosure of such data."  Responding to the dissent, the court states that "[t]he plain meanings of these words also comport with FOIA's use of those terms."
   
• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the Ninth Circuit holds that "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 court finds ""[i]n some ways, typing a query into a database is the modern day equivalent of physically searching through and locating data within documents in a filing cabinet."  "The subset of data selected is akin to a stack of redacted paper records."  "It makes no difference if the query produces a set of documents, a list, a spreadsheet, or some other form of results that the agency has not previously viewed."  "Further, '[t]he fact that [the agency] may have to search numerous records to comply with the request and that the net result of complying with the request will be a document the agency did not previously possess is not unusual in FOIA cases nor does this preclude the applicability of the Act.'"  "So long as the relevant information and data fields already exist in the database maintained by the agency, the result produced by a query is an existing record, regardless of the form it takes."  "The nature of electronic databases firmly grounds this principal in common sense."
    
  "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."  "[The court] cannot answer that question on the existing record and accordingly reverse[s] and remand[s] for further factual development consistent with this opinion."  The court explains that "[it has] an insufficiently developed record from which to determine with any certainty whether the information [the requester] seeks could be produced by a reasonable search of the FTS database or would require more significant human analysis."  "The record evidence only generally describes the FTS database and does not describe its search functions or the form that the results of a query or search of the database will take."  The court therefore, "remand[s] to the district court to provide ATF the opportunity to better explain the nature of the FTS database, and determine whether [the requester's] search query will yield the responsive information it seeks."