Everytown for Gun Safety Support Fund v. ATF, No. 19-3438, 2020 WL 7635751 (2d Cir. Dec. 23, 2020) (Menashi, J.)

Everytown for Gun Safety Support Fund v. ATF, No. 19-3438, 2020 WL 7635751 (2d Cir. Dec. 23, 2020) (Menashi, J.)

Re:  Request for records maintained in the Firearms Trace System ("FTS") database

Disposition:  Reversing district court's grant of requester's motion for summary judgment

• Exemption 3:  The Court of Appeals for the Second Circuit "conclude[s] that the plain import of the 2012 Tiahrt Rider exempts FTS data from FOIA disclosure, and that statute must be given effect regardless of the specific-citation requirement of the OPEN FOIA Act, an earlier statute."  The court notes that "ATF does not meaningfully challenge the district court's conclusion that Congress has impliedly repealed the earlier Tiahrt Riders, and we agree with that determination."  "That conclusion, however, does not resolve the case."  "Even accepting that only the 2012 Tiahrt Rider remains operative, it must be given effect if the plain import or fair implication of that rider is to bar FOIA disclosure of FTS data, regardless of its noncompliance with the requirements of the OPEN FOIA Act."  The court explains that "[w]hen Congress enacted the 2012 Tiahrt Rider, however, it was not bound to follow the specific-citation requirement it had adopted in the OPEN FOIA Act."  "When enacting subsequent legislation, Congress 'remains free . . . to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified.'"  "And when it adopts the later statute, Congress 'remains free to express any such intention either expressly or by implication as it chooses.'"  "Accordingly, the specific-citation requirement of the OPEN FOIA Act does not dictate the outcome in this case."  "It provides a 'background principle of interpretation' of which we assume Congress is 'aware . . . when it enacts new . . . statutes.'"  "But if 'ordinary interpretive considerations' nevertheless indicate that Congress intended to depart from the background principle when it adopted the later statute, we must give that statute the full effect that its 'plain import or fair implication' demands."  "In this case, 'ordinary interpretive considerations . . . clearly' indicate that the '"plain import" or "fair implication"' of the 2012 Tiahrt Rider is to exempt FTS data from FOIA disclosure."  "The text of the rider . . . provides that no appropriated funds may be used to disclose 'the contents of the Firearms Trace System database' and other specified information collected by the ATF – subject to exceptions for law enforcement, national security, and intelligence uses – and that 'all such data shall be immune from legal process.'"  "Because the ATF operates only with appropriated funds, and because FOIA disclosure occurs subject to legal process, the rider exempts FTS data from FOIA disclosure."  "Whether or not considering the 2012 Tiahrt Rider in isolation would lead us to conclude that it exempts FTS data from FOIA disclosure following the enactment of the specific-citation requirement in the OPEN FOIA Act, there can be no doubt from the history and text of the rider that Congress intended to continue to exempt FTS data from FOIA disclosure."  "Because the 2009 Tiahrt Rider applied to 'fiscal year 2009 and thereafter' . . . that disclosure exemption would remain in effect today if Congress had not passed a subsequent Tiahrt Rider, and it unquestionably did not require a citation to Exemption Three."  "When Congress employed the same antidisclosure language in the 2010 Tiahrt Rider and later the 2012 Tiahrt Rider, Congress is best understood to have intended that language to continue to exempt FTS data from FOIA disclosure."  "[The court] do[es] not believe that Congress would have reenacted the exact same language in 2010 and 2012 as it did in 2009 in order to accomplish the opposite result."
  
  However, the court explains that "[its] conclusion that the 2012 Tiahrt Rider exempts FTS data from disclosure pursuant to a FOIA request does not fully resolve this case."  "The 2012 Tiahrt Rider, like its predecessors, contains certain exceptions to the general prohibition on disclosure."  "[Plaintiff] argues that the data it seeks, raw trace data relating to firearms used in suicides and attempted suicides, falls within one of those exceptions – namely, the exception for 'publication of . . . statistical aggregate data regarding . . . firearms misuse, felons, and trafficking investigations.'"  "[Plaintiff] contends that the word 'publication' means something substantially similar to disclosure and that, therefore, the rider does not prevent disclosure of data relating to firearms misuse by individuals completing or attempting suicide."  The court disagrees and finds that "[i]f the publication exception means that FTS data relating to firearms misuse is freely available to FOIA requesters, it would eviscerate the rider's general prohibition on disclosure."  "The publication exception allows the ATF, at its own initiative, to release statistical aggregate data regarding firearms misuse, felons, and trafficking investigations to the public."  "The rider uses the term 'disclosure' in a different exception."  "[The court] will not override Congress's careful choice of language by equating 'publication' with 'disclosure.'"