Everytown for Gun Safety Support Fund v. ATF, No. 18-2296, 2019 WL 3890220 (S.D.N.Y. Aug. 19, 2019) (Nathan, J.)

Everytown for Gun Safety Support Fund v. ATF, No. 18-2296, 2019 WL 3890220 (S.D.N.Y. Aug. 19, 2019) (Nathan, J.)

Re:  Request for statistical data from Firearms Tracing System database concerning firearms used in suicides or attempted suicides that were recovered by law enforcement and traced by ATF

Disposition:  Denying defendant's motion for summary judgment; granting plaintiff's motion for summary judgment

• Exemption 3:  "[T]he Court concludes that ATF has not carried its burden of identifying a qualifying Exemption 3 statute."  "The 2012 Tiahrt Rider, which all parties agree is the operative rider for purposes of determining what information the ATF may or may not disclose, is not a qualifying Exemption 3 statute because it does not reference section 552(b)(3)."  The court finds that "pursuant to the unambiguous text of subsection (B) [of the FOIA as modified by the OPEN FOIA Act of 2009], any effort by Congress after 2009 to enact legislation statutorily exempting matters from FOIA disclosure must include express citation to section 552(b)(3)."  "Here, the potential statutory bar to disclosure is the current provision of the Tiahrt Rider, which was passed in 2012 – three years after the 2009 OPEN FOIA Act."  "Yet, the 2012 Tiahrt Rider contains no specific citation to section 552(b)(3)."  "Without that, the 2012 Tiahrt Rider cannot qualify as an Exemption 3 statute."  The court relates that "[t]he core of [defendant's] argument is that the pre-2009 provisions continue to apply because Congress intended their prohibition on public disclosure to be permanent, as exemplified by the use of language of futurity, that is, language that applies the statute into the future."  The court finds that "[t]his argument by the government fails because Congress's subsequent acts, including the currently operative 2012 Rider, cover the whole subject of the earlier acts and are a substitute for the earlier acts."  "As a result, the pre-2009 versions of the Tiahrt Rider that the government seeks to rely upon are no longer operative."
   
• Procedural Requirements, Proper FOIA Requests:  The court holds that "ATF has not carried its burden of demonstrating that, given the structure of the Firearms Tracing System database, conducting a search to produce the raw data entry counts [plaintiff] requests would require it to create records."  The court relates that "ATF contends that it is not required to respond to [plaintiff's] request because it has never prepared annualized reports summarizing the specific statistical information [plaintiff] seeks."  "While ATF maintains electronic records of individual traces conducted – coded by various criteria in the Firearms Tracing System database – its declarant affirms that it does not maintain, in any format, records of the complete number of traces of firearms that correspond to each of Plaintiff's specific sets of criteria, such as completed or attempted suicides for a given year or who possessed firearms used in such completed or attempted suicides."  "Instead, to generate accurate counts after (1) conducting searches to identify the relevant trace data, ATF would need to (2) clean up the raw data by performing six levels of data filtering and filling in gaps with educated guesses; (3) insert the resulting statistics into applicable software and create a visual depiction of the data; and (4) subject the resulting product to multi-level reviews to ensure the accuracy of the data and the format in which it is presented."  "The Court concludes that this declaration fails to carry ATF's burden of demonstrating that [plaintiff's] request requires ATF to create records."  The court finds that "[t]he E-FOIA Amendments clearly require agencies to sort 'a pre-existing database of information to make information intelligible' so that it may be transmitted to the public."  "Accordingly, conducting such a search cannot constitute creating new records or conducting research so as to fall outside of agency disclosure requirements."  "Nor does it constitute creating a record to sort a database by a particular data field, . . . or to create the computer programming necessary to conduct a search . . . ."  "And an agency may be obligated to respond to a FOIA request even if 'the net result of complying with the request will be a document the agency did not previously possess.'"