Ctr. for Investigative Reporting v. DOJ, No. 18-17356, 2021 WL 4314789 (9th Cir. Sept. 23, 2021) (Wardlaw, J.), withdrawing, 982 F.3d 668 (9th Cir. 2020)

Ctr. for Investigative Reporting v. DOJ, No. 18-17356, 2021 WL 4314789 (9th Cir. Sept. 23, 2021) (Wardlaw, J.), withdrawing, 982 F.3d 668 (9th Cir. 2020) 

Re:  Request for records depicting the "'[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present'"

Disposition:  Reversing and remanding district court's grant of defendant's motion for summary judgment

• Exemption 3:  The Court of Appeals for the Ninth Circuit holds that "the Tiahrt Rider does not exempt the data sought by CIR from FOIA's reach, 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the language of the 2010 Rider without any alteration – is the only operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full."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, it is plain that, though enacted after the OPEN FOIA Act of 2009, it makes no reference to 5 U.S.C. § 552(b)(3)."  "Because no party has disputed that the OPEN FOIA Act applies in this case, [the court] conclude[s] that, for purposes of this particular case, Exemption 3 does not apply."
  
  Second, the court notes that "[a]lthough neither the 2010 nor 2012 Tiahrt Riders exempts the records [the requester] seeks, they nevertheless generally preclude the expenditure of funds to disclose any of the FTS [Firearms Tracing System] database's contents."  "[The court] agree[s] that ["Exception (C) of the Tiahrt Rider, which has been included in each Tiahrt Rider since 2008"] applies in this case."  The court relates that "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.'"  "'Statistics' in turn is defined as 'a branch of mathematics dealing with the collection, analysis, interpretation, and presentation of masses of numerical data.'"  "'Aggregate' refers to a summary form of information 'formed by the collection of units or particles into a body, mass, or amount.'"  "Given these definitions, 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."  The court notes that "the Tiahrt Rider does not define that term."  The court finds that "[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."
  
  Circuit Judge Bumatay, dissenting, writes that, concerning the Tiahart Riders, "[t]he Constitution imposes no requirement that new statutes must comply with past statutes."  "In other words, when passing laws, Congress is not bound by previous congresses."  Judge Bumatay describes this as "legislative entrenchment" and argues that "the weight of constitutional history and precedent show that where two statutes conflict, the later statute controls, regardless of attempts by past congresses to hobble the current legislature."  "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."  Judge Bumatay then writes that "no exceptions apply" and argues that the majority's "reasoning improperly shoehorns 'disclosure' into the definition of 'publication' and eviscerates the prohibition on funding in the Tiahrt Amendment."  "Every disclosure request for data is now a publication request so long as the requester claims an intention to disseminate the information widely."
   
• Procedural Requirements, Searching for Responsive Records:  Responding to ATF's argument that "ATF is not required to disclose under FOIA the '[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present,' because FOIA establishes a right of access to existing agency records only, and searching its trace database would require the creation of a new record," 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 [Firearms Tracing System ("FTS")] database does not require the creation of a 'new' agency record under FOIA."  "[The court] agree[s] that using a query to search for and extract a particular arrangement or subset of data already maintained in an agency's database does not amount to the creation of a new record."  "In 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."  "The nature of electronic databases firmly grounds this principal in common sense."  "Unlike paper documents, which present information in a largely fixed form, 'databases store information in a highly structured format that is easily divided and recombined into a variety of arrangements.'"  "Thus, as amici argue, an agency that stores information in a database creates 'a multitude of different arrangements [of the data] . . ., each of which is in the agency’s possession or control.'"  "The agency has access to these different arrangements of data, and under E-FOIA, the public presumably has the same rights of access."  The court explains that "[w]ere [the court] to agree with ATF that the results of a search query run across a database necessarily constituted the creation of a new record, [the court] may well render FOIA a nullity in the digital age."
  
  "The only question that thus remains is whether the FTS database is currently capable of producing the information [the requester] seeks in response to a search query."  The court explains that "[it has] an insufficiently developed record from which to determine with any certainty whether the information CIR seeks could be produced by a reasonable search of the FTS database or would require more significant human analysis."  "[The court determines that it] cannot answer that question on the existing record and accordingly reverse[s] and remand[s] for further factual development consistent with this opinion."