P. W. Arms v. ATF, No. 15-1990, 2017 WL 319250 (W.D. Wash. Jan. 23, 2017) (Coughenour, J.)

P. W. Arms v. ATF, No. 15-1990, 2017 WL 319250 (W.D. Wash. Jan. 23, 2017) (Coughenour, J.)

Re: Request for certain records concerning armor piercing ammunition

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

• Procedural Requirements: "[T]he Court finds that ATF violated FOIA because an egregious delay in initiating a search, even if the search itself was reasonably calculated, is still a FOIA violation." The court relates that "[p]laintiff waited 20 months before ATF produced any responsive documents, and only after this lawsuit was filed." "The Court concludes that a 20-month delay is clearly egregious." Also, the court finds that "the fact that ATF eventually produced responsive documents is irrelevant to whether the delay was egregious."
   
• Litigation Considerations, Adequacy of Search: The court finds that "it is clear from the declaration of [defendant's declarant], that ATF conducted a reasonable search for documents responsive to all of Plaintiff's requests once ATF actually initiated a search." "Specifically, 'ATF targeted its Enforcement Programs and Services Directorate, which was the directorate that would have documents relating to these issues, and used multiple iterations of search terms in order to identify any documents related to these requests.'"
   
• Exemption 3: The court holds that "because Congress has expressly prohibited ATF from releasing 6A Forms to the public, the withholdings [at issue] . . . are all appropriate pursuant to FOIA exception (b)(3)." The court relates that "[u]nder the Consolidated and Further Continuing Appropriations Act of 2012 . . . Congress specifically directed that ATF not disclose information from the Firearms Trace System Database . . ., as well as other information required to be kept by a Federal Firearms Licensee . . . under 18 U.S.C. § 923(g)." "ATF 6A Forms are generated out of the FTSD." The court relates that "[p]laintiff argues that because the 2012 appropriations bill does not cite to § 552(b)(3) and it was enacted after 2009, the (b)(3) exception cannot be applied to the documents at issue." "However, the Court is not persuaded by this argument and adopts the holding of the vast majority of cases addressing this issue: 'disclosure prohibitions set forth by Congress in the 2005 and 2008 appropriations bills are still effective prospectively and beyond those fiscal years as a permanent prohibition, until such time as Congress expresses the intent to repeal or modify them.'"
   
• Exemption 5, Deliberative Process Privilege: "The Court has reviewed all of the challenged Vaughn index entries and finds that the index and supporting affidavits are reasonably specific as to why the documents were withheld." "The entries all describe predecisional documents and text that were generated as part of a continuous process to respond to on going inquires [sic] from Congress about the agency action." "Releasing the redacted information could disclose ATF's deliberative process and diminish the candor of debate that the (b)(5) exception is meant to protect." "Moreover, all the withheld documents are not final documents and, therefore, are deliberative." "As such, Plaintiff's merely speculative claim that 'these withheld documents certainly might contain' nonprivileged information is without merit."
   
• Attorney Fees, Eligibility: "[T]he Court concludes that Plaintiff is eligible for attorney fees and costs as the prevailing party." The court finds that "it is clear that the suit was both reasonably necessary to obtain the information and had a substantial causative effect on the release because ATF began an internal search for responsive documents nearly a year and a half after the request, but a day after being served, . . . and produced documents 622 days after the initial request."