Center for Investigative Reporting v. United States Department of Justice, No. 18-17356 (9th Cir. 2020)Annotate this Case
CIR filed suit under the Freedom of Information Act (FOIA), requesting that ATF provide records concerning weapon ownership. CIR specifically wants to report on the use in crimes of guns that had at one time been owned by law enforcement agencies. ATF argues that Congress has forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2008, 2010, and 2012. ATF also argues that FOIA did not require ATF to run this search in the FTS database because such a query would require it to create a new agency record.
The Ninth Circuit held that the Tiahrt Rider does not exempt the data sought by CIR from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data; 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; and the panel cannot answer whether the FTS database is currently capable of producing the information CIR seeks in response to a search query. Accordingly, the panel reversed and remanded for further factual development.
Court Description: Freedom of Information Act. The panel reversed the district court’s summary judgment, and remanded for further factual development, in an action brought by the Center for Investigative Reporting (“CIR”) under the Freedom of information Act (“FOIA”), requesting that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) provide records concerning weapon ownership. CIR sought records depicting the “[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present.” ATF alleged that Congress had forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2006, 2010, and 2012. The district court held that ATF was not required to disclose the requested information under FOIA. FOIA Exemption 3 relieves an agency of its obligation to disclose material specifically exempted from disclosure by statute if that statute meets certain requirements outlined in 5 U.S.C. § 552(b)(3). The panel held that the Tiahrt Rider did not exempt the data sought by CIR from disclosure under FOIA. The panel held that the 2012 Tiahrt Rider – which enacted the language of the 2010 Rider without any alteration – was the only CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 3 operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full. Looking to the 2010 Rider, the panel concluded that it was not a statute of exemption for FOIA purposes because even though it was enacted after the OPEN FOIA Act of 2009, it made no reference to 5 U.S.C. § 552(b)(3). Finally, the panel held that the issue of whether the OPEN FOIA Act’s prospective definition of statutes of exemption as those that cite to 5 U.S.C. § 552(b)(3) was an impermissible legislative entrenchment of a later Congress’s ability to create statutes of exemption was clearly waived. The panel held that the Tiahrt Rider did not deprive ATF of the funding it needed to turn over the data. The panel further held that the use of a query to search for and extract a particular arrangement or subject of existing data from the Firearms Tracing System database did not require the creation of a “new” agency record under FOIA. The panel held that based on the existing record it could not answer the question whether the Firearms Tracing System database was currently capable of producing the information CIR sought in response to a search query. The panel remanded for further factual development of the record on this issue. Judge Bumatay dissented because the majority wrongly held that the Tiahrt Amendment of 2012 must conform to an earlier statute – the OPEN FOIA Act of 2009 – to be effective, and because the majority misconstrued federal law as requiring FOIA disclosures that Congress expressly prohibited. 4 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
The court issued a subsequent related opinion or order on September 23, 2021.