Opposition Brief — Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives v. City of Chicago, Illinois

No. 02-322 | OCT 3 200;

IN THE | Or FICE: i if CLERK

Supreme Court of the United States

UNITED STATES DEPARTMENT OF TREASURY. BUREAU OF

ALCOHOL, TOBACCO, AND FIREARMS.

Petitioner.

Vv.

CITY OF CHICAGO,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

MICHAEL J. HAYES MARA S. GEORGES

S. PATRICK MCKEY Corporation Counsel

JOHN T. ROACHE of the City of Chicago

GARDNER CARTON & DOUGLAS | ~awrENCE ROSENTHAL *

Suite 3400 Deputy Corporation Counsel

Jot Nest Cink Stress BENNA RUTH SOLOMON

Chicago, IL 60610

(312) 245-8559 Chief Assistant Corporation

Counsel

DAVID A. GRAVER

Assistant Corporation Counsel!

City Hall, Suite 600

121 North LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

* Counsel of Record Attorneys for Respondent

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether the district court clearly erred when it found

that the disclosure of individual names and addresses in the

firearms trace database and the multiple sales database does

not constitute an unwarranted invasion of personal privacy

within the meaning of Exemption 7(C) of the Freedom of

Information Act.

2. Whether the district court clearly erred when it found

that disclosure of the firearms trace database could not

reasonably be expected to interfere with law enforcement

proceedings within the meaning of Exemption 7(A) of the

Freedom of Information Act.

(i)

TABLE OF CONTENTS

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STATEMENT..

ARGUMENT...

CONCLUSION

(ili)

Page

27

iv

TABLE OF AUTHORITIES

CASES

American Friends Service Committee v. Depart-

ment of Defense, 831 F.2d 441 (3d Cir. 1987)...

Arieff v. United States Department of Navy, 712

off a ee

Berenyi v. District Director, 385 U.S. 630

Bibles v. Oregon Natural Desert Association,

519 U.S. 355 (1997) (per curiam)...

Blau v. Lehman, 368 U.S. 403 (1962)........cccc0000000

Burge v. Eastburn, 934 F.2d 577 (Sth Cir. 1991)...

Campbell v. HHS, 682 F.2d 256 (D.C. Cir.

Center To Prevent Handgun Violence v. United

States Department of Treasury, 981 F. Supp.

in CU ceeenitiitnsenintecinidiniaaeiaeaiiiasiiis

Department of Air Force v. Rose, 425 U.S. 352

Spee nrveicetancapicnccaneiapitaiedeiniiiiabisieaianiiiaiiaitiiaiigiiiais

Department of Interior v. Klamath Water Users

Protective Association, 532 U.S. | (2001).........

Exxon Co. U.S.A. v. SOFEC, Inc., 517 U.S. 830

FLRA v. United States Department of Defense,

977 F.2d 545 (11th Cir. 1992) ............0cscceeereees

Goodman v. Lukens Steel Co., 482 U.S. 656

(Tap ceesecmarenemsccninimnnscninttnnnatiigisnsiaiidneniiinaaenas

Graver Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271 (1949).....ccccceceeeees

Halloran v. Veterans Administration, 874 F.2d

eres Taree Picecviteisiniacennnininiasinniiaainaiaiains

Vv

TABLE OF AUTHORITIES—Continued

Landano v. United States Department of Justice,

956 F.2d 422 (3d Cir. 1992) aff'd in part &

rev'd in part, 508 U.S. 165 (1993) ........ccecceeeees

Lewis v. IRS, 823 F.2d 375 (9th Cir. 1987)............

Manna vy. Department of Justice, 51 F.3d

1158 (3d Cir.) cert. denied, 516 U.S. 975

( FP erencsescemasesnnssencssnsemsscsnsesmmmescnsenasaness 13, 15,

Marshall v. Barlow’ s Inc., 436 U.S. 307 (1978) ...

Military Audit Project v. Casey, 656 F.2d 724

Gs Ge, GED cncencenscsnennnctsmasainesnmnscnmnssa

National Association of Retired Federal Employ-

ees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) ...

Neely v. FBI, 208 F.3d 461 (4th Cir. 2000) ...........

NLRB vy. Robbins Tire and Rubber Co., 437 U.S.

BOG ( FPP ccccncsccessssccccesssensenssanssenenessecassanses 7,11,

North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989)...

SafeCard Services, Inc. v. SEC, 926 F.2d 1197

GE Ga FEO cccnsnsnassnsnnnsncasesssemaanssemesmsconseens

Senate of Puerto Rico v. United States Depart-

ment of Justice, 823 F.2d 574 (D.C. Cir.

Silets v. United States Department of Justice, 945

F.2d 227 (7th Cir. 1991) (en banc), cert.

denied, SOS U.S. 1204 (1992) .....cccceceseeereeeeneeees

Swan v. SEC, 96 F.3d 498 (D.C. Cir. 1996) ..........

United States v. Biswell, 406 U.S. 311 (1972).......

United States v. Marchant, 55 F.3d 509 (10th

Cir.), cert. denied, 516 U.S. 901 (1995).............

United States Department of Defense v. FLRA,

SOO U.S. 4B7 (1DDS) ..nnnrccccccccccccseccccccccscesscceses 13,

United States Department of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S.

Page

24, 25

24,2

14, 15

23, 24

14,15

| 7, 10, 12, 15

vi Vii

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

Page Page

United States Department of Justice v. Landano, Bureau of Alcohol, Tobacco & Firearms, U.S.

See CARD, CGD Ci cccsnccenessesnssnsssenecsnsserentnensennes 24 | Dep't of Treasury, Youth Crime Gun Inter-

United States Department of Navy v. FLRA, 975 | diction Initiative, Crime Gun Trace Reports:

Bn A en 13-14 The Illegal Youth Firearms Markets in 27

Young v. Bryco Arms, 765 N.E.2d | (Ill. App. Ct. Communities (Feb. 1999) .............ccccccceeeeeeees 2, 3, 16, 17

IED ertingensennenmnnmetneneesmmmmemesmememeneantents 3 Philip J. Cook & Anthony A. Braga, Compre-

STATUTES, REGULATION, AND RULE , hensive Firearms Tracing: Strategic and

Investigative Uses of New Data on Firearms

5 U.S.C. § §52(a\(3) (2000) eucesnscecsooacecesessescesesseesse 7 Markets, 43 Ariz. L. Rev. 277 (2001) en ee 16

5 U.S.C. § 5§52(a)(4)(B) (2000) pesaueesausssesssessasessssese . 7 John G. Culhane & Jean Macchiaroli Eggen.,

5 U.S.C. § 552(b)(7)(A) (2000) .........eeeecceseeeseeeees passim Defining a Proper Role For Public Nuisance

5 U.S.C. § 552(b)(7)(C) (2000) ...........ceeeerccceeeseeees passim Law in Municipal Suits Against Gun Sellers:

is Oe I ccccerencrntccrngntermmmenate 11 Beyond Rhetoric and Experience, 52 S.C. L.

18 U.S.C. § 922(S) (2000) ....sssssssseeesrerrsrssssssssseneen 10 EAT TE 3

Fe is Oe IE icsechnrericuniccnnsessnninennnapennns 10

18 U.S.C. § 923(g)(1) (2000)...............cccccesrecceereeees l

18 U.S.C. § 923(g)(1 (A) (2000) 20... eeeecceneeeenees l

18 U.S.C. § 923(g)(3 (A) (2000) 20.0... eececeeeseeeeees 2

18 U.S.C. § 923(g)(7) (2000)............ccccccsereesssceeeees 2

Bp ee OF Se GP bccccnsnennnnasssscsseqicenstemnenem 10

ae en Ce CD ccstereeemmmemnnm l

Pe Sie Gaile We SEED cccnascnntnnssenevscneenmenenssenmnenmense 8

MISCELLANEOUS

Bureau of Alcohol, Tobacco & Firearms, U.S.

Dep’t of Treasury, Commerce in Firearms in

the United States (Feb. 2000).............cccccceeeeeeees 3, 16

Bureau of Alcohol, Tobacco & Firearms, U.S.

Dep’t of Treasury, Crime Gun Trace Reports

(2000): National Report (July 2002)................. 2, 3, 16

IN THE

Supreme Court of the United States

No. 02-322

UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF

ALCOHOL, TOBACCO, AND FIREARMS,

Petitioner,

Vv.

CITY OF CHICAGO,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT

Under the Gun Control Act, all licensed firearms importers,

manufacturers, and dealers must maintain records of their

sale or other disposition of firearms. See 18 U.S.C.

§ 923(g)(1)(A) (2000). In particular, prior to transferring a

firearm at retail, a licensee must identify on a prescribed form

the transferee’s name, address, date and place of birth, height,

weight, and race and identify the firearm transferred by

manufacturer, model, and serial number. See 27 C.F.R.

§ 178.124 (1999). During either a criminal investigation of

any person other than the licensee or an annual compliance

inspection, the Secretary of the Treasury is entitled to inspect

these records without a warrant or cause to believe that the

licensee has violated the law. See 18 U.S.C. § 923(g)(1)

(2000). Licensees must provide to the Secretary of the

2

Treasury within 24 hours of a request any “information

contained in the records required to be kept . . . for deter-

mining the disposition of one or more firearms during the

course of a bona fide criminal investigation.” /d.

§ 923(g)(7). In addition, whenever a licensee transfers two or

more handguns to a nonlicensee within five consecutive

business days, the licensee must report the multiple sale to the

office designated by the Secretary and to the state and local

law enforcement agencies having jurisdiction at the location

of the transfers. See id. § 923(g)(3)(A).

Utilizing this statutory framework, the Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) traces the disposition of

firearms by federal licensees at the request of more than

17,000 law enforcement agencies, processing more than

200,000 trace requests annually and reporting the results to

the requesting agency. R. 21, Ex. 2, 9G 12, 19, 28. After a

firearm is recovered and a trace is requested by the law

enforcement agency conducting the investigation, ATF

contacts a firearm’s manufacturer, wholesaler, and retailer to

trace its disposition. Pet. App. 35a-36a. ATF has encouraged

major cities, including Chicago, to trace all firearms

recovered in the course of criminal investigations in order to

help ATF and the participating jurisdictions better analyze,

identify, and investigate patterns of illegal gun trafficking.

See Bureau of Alcohol, Tobacco & Firearms, U.S. Dep’t of

Treasury, Crime Gun Trace Reports (2000): National Report

1-2 (July 2002) [hereafter cited as “Gun Trace Reports’ |;

Bureau of Alcohol, Tobacco & Firearms, U.S. Dep’t of

Treasury, Youth Crime Gun Interdiction Initiative, Crime

Gun Trace Reports: The Illegal Youth Firearms Markets in

27 Communities 1-2 (Feb. 1999) [hereafter cited as “Youth

Crime Gun’’}.

ATF maintains comprehensive databases containing the

information generated by its firearms traces and reports of

multiple sales. R. 76-1 at 127. These databases contain no

3

information indicating whether an investigation relating to

any firearm is currently open or closed. Pet. App. 37a-38a.

They also do not identify suspects, witnesses, or anyone who

has been interviewed during the course of an investigation.

Pet. App. 65a, 67a-68a.

ATF’s own analysis of trace data reveals that most crime

guns are sold by a small and readily identifiable number of

manufacturers and dealers. See Gun Trace Reports, supra at

46-47; Bureau of Alcohol, Tobacco & Firearms, U.S. Dep't

of Treasury, Commerce in Firearms in the United States 2,

22-25 (Feb. 2000) [hereafter cited as “Commerce in Fire-

arms’’|; Youth Crime Gun, supra at vii. Chicago has reached

the same conclusion; and, on the basis of its own analysis of

patterns of firearms trafficking and the results of an

undercover investigation targeted at firearms dealers that

most frequently sell weapons later recovered and traced,

Chicago has brought a civil suit against a number of firearms

manufacturers, wholesalers, and dealers alleging that they

unreasonably facilitate the unlawful possession and use of

firearms in Chicago and therefore constitute a public nuisance

under Illinois law. See, e.g., John G. Culhane & Jean Mac-

chiaroli Eggen, Defining a Proper Role For Public Nuisance

Law in Municipal Suits Against Gun Sellers: Beyond Rhetoric

and Experience, 52 S.C. L. Rev. 287 (2001). See also Young

v. Bryco Arms, 765 N.E.2d 1 (Ill. App. Ct. 2002).

In late 1998, the City of Chicago submitted a request under

the Freedom of Information Act (“FOIA”) to ATF, seeking

disclosure of nationwide data from its trace and multiple sales

databases. ATF denied the request, although it promised to

provide the information if the City formally withdrew its

FOIA request and sought the information pursuant to the Gun

Control Act. Pet. App. 21a. The City complied, but ATF

failed to provide the requested information. Pet. App. 21a.

After several further requests for the information, the City

again filed a formal FOIA request on March 3, 2000. Pet.

4

App. 21a. On March 8, 2000, ATF sent the City a zip disk

compiled from its databases withholding information iden-

tifying the names and addresses of the manufacturers, import-

ers, wholesalers, and dealers that had sold firearms later

recovered and traced as part of a criminal investigation; the

names and addresses of the purchasers of those firearms as

well as the identities of those in possession of the firearms

when they were recovered and their associates; the locations

where the weapons were recovered; and the serial numbers

and manufacture date of the recovered firearms. R. 8 at 6-16.

ATF also withheld from the national multiple sales database

the identity of the manufacturers, wholesalers, and retailers

that had sold the firearms, as well as information identifying

the purchasers, the date of purchase, the number of firearms

purchased, and information about the type of firearms

purchased. R. 8 at 18-31. The City then brought suit against

ATF under FOIA seeking the withheld information on June 7,

2000. Pet. App. 22a.

In the ensuing litigation, ATF eventually claimed that its

policy was to claim the following exemptions for varying

amounts of time: under the exemption for material the

disclosure of which could reasonably be expected to interfere

with law enforcement proceedings, all trace data for one year

and all multiple sales data for two years; under the same

exemption, the identity of the agency requesting traces, the

serial numbers of traced firearms if they were involved in

multiple sales, the identity of importers and dealers that sold

traced firearms, and the dates of purchase, for five years; and

under the exemption for material the disclosure of which

would constitute an unwarranted invasion of privacy, the

identity of purchasers of multiple handguns, purchasers of

firearms later traced by ATF, the possessors of traced guns

and their associates at the time the guns were recovered, and

the location where traced guns are recovered, permanently.

Pet. 5. ATF supported its claim to exemptions primarily with

a statement by ATF Assistant Director for Field Operations

5

David L. Benton (“Benton”). See Pet. App. 31a-7la.' The

City supported its claim for full disclosure with several

affidavits from Gerald A. Nunziato (“Nunziato”), a former

ATF special agent employed by the agency for more than 28

years and, from 1991 to 1998, in charge of developing the

requirements for the tracing process and the software to

support it as well as supervising all requests for information

at ATF’s National Tracing Center. Nunziato testified that

none of the information the City is seeking is likely to

interfere with any investigation because any truly sensitive

information is not placed in the databases in question, R. 35,

Ex. J, and because information similar to that now being

withheld has been released in the past without causing any

interference, R. 25, Ex. F. Nunziato also noted that the

information sought could shed light on ATF’s performance of

its duties. R. 38, Ex. O. Law enforcement officials respons-

ible for investigations that involve trace requests from St.

Louis, Chicago, Detroit, and Camden County, New Jersey,

submitted affidavits affirming that their investigations would

not be jeopardized by the release of any information in the

databases. R. 35, Exs. K, L, M; R. 38, Ex. P.

On the parties’ cross-motions for summary judgment, the

district court ruled that an evidentiary hearing was warranted.

Pet. App. 4a-S5a. At the hearing, ATF called three witnesses,

two of whom—ATF Disclosure Division Chief Dorothy A.

Chambers; and National Tracing Center Chief Forest Webb—

testified to the importance of withholding the information in

question. See R. 76-1, 76-2. The City called two witnesses,

one of whom—Nunziato—testified that the information could

' ATF also produced letters from leaders of the Fraternal Order of

Police and the Law Enforcement Steering Committee urging a law

enforcement exemption for trace data. See R. 21. Several other state-

ments were presented arguing that ATF had never before released the kind

of information sought by the City. R. 34, Exs. A, C, E, “A” (second

so labeled).

6

be released without compromising investigations. See R.

76-2. After the evidentiary hearing, the district court entered

judgment in favor of Chicago. The court found that the

privacy exemption, 7(C), does not apply because the infor-

mation does not constitute an unwarranted invasion of pri-

vacy, and that the law enforcement exemption, 7(A), does not

apply because ATF had failed to explain adequately how the

information could interfere with law enforcement proceed-

ings. See Pet. App. 24a-25a, 27a.”

The court of appeals affirmed. On the law enforcement

exemption, the court acknowledged that any “potential for

interference” involving either “open or prospective inves-

tigations” would be sufficient to invoke the exemption, but

held that “ATF has not affirmatively established any potential

interference of this nature.” Pet. App. 7a-8a. On the privacy

exemption, the court concluded that disclosure would not be

an unwarranted invasion of privacy, because “[d]isclosure of

the records sought by the City will shed light on ATF’s

efficiency in performing its duties and directly serve FOIA’s

purpose in keeping the activities of government agencies

open to the sharp eye of public scrutiny.” Pet. App. 15a.

ATF’s petition for rehearing en banc was denied with the

panel adding a paragraph to its opinion explaining: “ATF has

provided us with only far-fetched hypothetical scenarios;

without a more substantial, realistic risk of interference, we

cannot allow ATF to rely on this FOIA exemption to with-

hold these requested records.” Pet. App. 18a.

* The district court rejected a third claim of exemption, for personnel

and medical records, which ATF has now abandoned. See Pet. App.

23a-24a; Pet. 11 n.7. Moreover, in an alternative finding, the district court

ruled that to the extent that any privacy interest was at stake, it could be

fully protected through encryption of the names and addresses of all

individuals in the databases without placing any significant burden on the

agency or requiring the creation of new documents. See Pet. App.

27a-30a. The court of appeals found it unnecessary to reach this issue.

See Pet. App. 15a-16a.

7

ARGUMENT

As this Court has explained, “[t]he basic purpose of FOIA

is to ensure an informed citizenry, vital to the functioning of a

democratic society, needed to check against corruption and to

hold the governors accountable to the governed.” NLRB vy.

Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978).

Hence, “the Act is broadly conceived,” and “its basic policy

is in favor of disclosure.” /d. at 220. Indeed, the Act places

the burden on the agency to demonstrate that the material at

issue is exempt from disclosure. See 5 U.S.C. § 552(a)(4)(B)

(2000). Moreover, the reasonableness of any claim to an

exemption must be weighed against “the strong presumption

in favor of disclosure.” Robbins Tire, 437 U.S. at 236. And,

in light of this presumption, exemptions to FOIA’s disclosure

requirement should be construed narrowly. See, e.g., Depart-

ment of Interior v. Klamath Water Users Protective Associa-

tion, 532 U.S. 1, 7-8 (2001); Department of Air Force v.

Rose, 425 U.S. 352, 361 (1976).

This case involves a highly fact-bound dispute resolved by

the district court after an evidentiary hearing held to weigh

the conflicting evidence that the parties had submitted on

ATF’s claim to exemptions from FOIA’s disclosure require-

ment. Even ATF does not claim that the district court was

obligated to credit its evidence without inquiry; under FOIA,

the decision whether material is exempt from disclosure is

properly for the district court and not the agency. As this

Court observed in United States Department of Justice v.

Reporters Committee for Freedom of the Press, 489 U.S. 749

(1989), “[u]nlike the review of other agency action that must

be upheld if supported by substantial evidence and not

arbitrary or capricious, FOIA expressly placed the burden ‘on

the agency to sustain its action’ and directs the district

courts to ‘determine the matter de novo.’” /d. at 755 (quoting

5 U.S.C. §§ 552(a)(3) & 552(a)(4)(B) (2000)) (footnote

omitted). And, indeed, the district court ultimately found that

8

disclosure of the information at issue here neither constitutes

an unwarranted invasion of privacy within the meaning of

FOIA’s Exemption 7(C), 5 U.S.C. § 552(b)(7)(C) (2000),

nor could reasonably be expected to interfere with law

enforcement proceedings within the meaning of FOIA’s

Exemption 7(A), id. § 552(b)(7)(A). Affirming, the court of

appeals concluded that the district court’s findings were not

clearly erroneous.

In its decision, the court of appeals followed settled law:

on the privacy exemption, the court of appeals balanced the

privacy interests implicated by disclosure of the data at issue

against the value of its disclosure, concluding that disclosure

would not work an unwarranted invasion of privacy; and on

the law enforcement exemption, the court of appeals found

that the district court had properly concluded that disclosure

of trace data could not reasonably be expected to interfere

with law enforcement proceedings. Now, in its petition,

ATF’s primary complaint is that the lower courts erred

when evaluating the strength of its evidence. The petition,

however, does not even discuss the evidence we adduced,

which amply supports the district court’s findings. Equally

important, ATF does not quarrel with the court of appeals’

observation that the findings of a district court in FOIA cases

are reviewed only for clear error. See Pet. App. Sa; see also

Fed. R. Civ. P. 52(a). In fact, the petition raises only highly

fact-bound issues of no general significance for litiga-

tion under FOIA, and given the substantial evidence in the

record supporting the district court’s findings, plenary review

is unwarranted.

1. The courts below correctly rejected ATF’s reliance on

Exemption 7(C), which exempts from disclosure infor-

mation “to the extent that production . . . could reasonably be

expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C) (2000). The information

at issue here involves little, if any, cognizable privacy

9

interests, since the purchase of firearms, occurring within an

industry subject to intensive regulatory scrutiny, is not private

in any meaningful sense. Moreover, because disclosure of

this information can help the public evaluate whether ATF is

adequately discharging its own responsibilities, disclosure is

fully “warranted” within the meaning of Exemption 7(C).

a. ATF notes that even non-confidential information

about the involvement of particular individuals in government

investigations is frequently treated as private within the

meaning of Exemption 7(C). See Pet. 13. From this, ATF

concludes that “[a] fortiori, disclosure of a firearms pur-

chaser’s name and address to a limited class of government

officials who have access to non-public files does not negate

the individual's privacy interest in avoiding indiscriminate

release of that information to the general public pursuant to

FOIA.” Pet. 13-14 (emphasis in original). But ATF’s

conclusion does not follow from its premise; none of the

cases on which ATF relies considers the unique charac-

teristics of the firearms industry, where expectations of

privacy are sharply circumscribed.

In general, business records involving commercial activ-

ities that are subject to government inspection and regulation

are nevertheless considered private. See, e.g., Marshall v.

Barlow's Inc., 436 U.S. 307, 311-15 (1978). But this

principle does not apply to the firearms industry. In United

States v. Biswell, 406 U.S. 311 (1972), for example, the

Court, in upholding warrantless inspections of the premises of

federally licensed firearms dealers, observed that “close

scrutiny of this traffic is undeniably of central importance to

federal efforts to prevent violent crime and to assist the States

in regulating firearms traffic within their borders.” /d. at 315.

Moreover, “inspection is a crucial part of the regulatory

scheme, since it assures that weapons are distributed through

regular channels and in a traceable manner and makes

possible the prevention of sales to undesirable customers and

the detection of the origin of particular firearms.” /d. at

10

315-16. Accordingly, “when a dealer chooses to engage in

this pervasively regulated business and to accept a federal

license, he does so with the knowledge that his business

records, firearms, and ammunition will be subject to effective

inspection.” /bid.’

It follows that those who purchase firearms are also on

notice that the records of those purchases are subject to

intensive scrutiny, and are therefore in no meaningful sense

private. Indeed, since Biswell, regulation has become even

more intensive; now all firearms purchases must be re-

viewed by appropriate federal, state, or local authorities. See

18 U.S.C. § 922(s) & (t) (2000). Moreover, as we explain

above, multiple purchases must be reported to federal, state,

and local authorities, without any statutory restriction on the

further dissemination or use of that information; and the

records of all other transactions are subject not only to regu-

latory scrutiny during compliance inspections and regulatory

investigations, but also must be provided to ATF when it

conducts a trace, again with no statutory restriction on the

dissemination or use of that information by ATF or the

federal, state, or local law enforcement agency that receives

the trace results.* Accordingly, there is simply no reasonable

expectation of privacy involved in the purchase of firearms.

* To be sure, Biswell is not controlling here; Exemption 7(C) is not

limited to information that is considered private for purposes of the

Warrant Clause or under other constitutional provisions. See Reporters

Committee, 489 U.S. at 762 n.13. But the reasoning of precedents that

address the scope of protected privacy interests usefully informs analysis

under Exemption 7(C). See id. at 762-63.

‘ATF notes that the Gun Control Act forbids any system of

registration for firearms purchases. See Pet. 16-17 (citing 18 U.S.C.

§ 926(a) (2000)). In this case, however, the data we have sought is not

subject to that statutory restriction. Only multiple sale and trace data is at

issue here, and as we explain above, that data must be reported to the

authorities, with no statutory restriction on its subsequent dissemination

or use.

See, e.g., United States v. Marchant, 55 F.3d 509, 516 (10th

Cir.), cert. denied, 516 U.S. 901 (1995); Center To Prevent

Handgun Violence v. United States Department of Treasury,

981 F. Supp. 20, 23 (D.D.C. 1997). And the recovery of a

firearm by the authorities in the course of a criminal

investigation is even less private. Once the authorities have

seized a firearm, its possessor surely loses any meaning-

ful privacy interest in the weapon or the circumstances of

its recovery—nothing offers possessors confidentiality with

respect to those facts. .

ATF claims that the court of appeals erred by failing to

recogn’te that a privacy interest inheres in the disclosure of

names and addresses “in connection with a criminal law

enforcement investigation.” Pet. 15. As to multiple sales

data this argument has no merit at all, since the multiple sales

data does not indicate whether any investigation has ever

been conducted with respect to the multiple sales described in

the data. Even as to trace data, ATF’s position considerably

overstates things. This Court has explained that FOIA does

not shield information from disclosure “simply because it was

found in an investigatory file.” Robbins Tire, 437 U.S. at

230. Thus, Exemption 7(C) does not categorically exclude

from disclosure any information identifying particular indi-

viduals who came to the attention of the authorities during an

investigation; only disclosures amounting to an “unwarranted

invasion of privacy” are within the exemption.” Moreover,

the data at issue contains only highly limited information

about particular individuals—it discloses only the identity of

the purchaser of a firearm that was later recovered in the

* Congress has itself acknowledged this point. The Privacy Act, which

ordinarily forbids disclosure of information in agency records about

particular individuals, specifically exempts information subject to

disclosure under FOIA, recognizing that information identifying particular

individuals is not categorically exempt from disclosure under FOIA. See

5 U.S.C. § S52a(t)( 1) (2000).

12

course of a criminal investigation, and the identity of the

person from whom the firearm was recovered by the

authorities and his associates present at that time. This

information does not reveal whether anyone violated any law

or was a subject or witness in a criminal investigation.” There

is no precedent for treating information of this character as

private, especially when it involves a closely regulated com-

modity such as a firearm.

ATF relies on precedents holding that records reflecting the

nature of an individual’s involvement in a criminal inves-

tigation, such as records reflecting individuals’ arrest rec-

ords or involvement in investigations as witnesses or

interviewees, can be considered private within the meaning of

Exemption 7(C). See Pet. 13-16. In this case, however, the

information at issue does not identify suspects, witnesses, or

even people interviewed in connection with an investigation.

Disclosure of this data could, at most, encourage some to

speculate about how the individuals identified in the data may

have been involved in the criminal process, but the case law

makes clear that the possibility of that type of speculation

does not constitute a reasonable expectation of an invasion of

privacy. See, e.g., Rose, 425 U.S. at 380 n.19 (threat to

privacy must be “more palpable than mere possibilities”);

Arieff v. United States Department of Navy, 712 F.2d 1462,

1468 (D.C. Cir. 1983) (Scalia, J.) (document itself and not

speculation must Constitute invasion of privacy).

The cases that ATF cites fall into three categories: (1)

when the named person is actually identified as a suspect,

witness, or interviewee in a particular law enforcement

investigation, see, e.g., Reporters Committee, 489 U.S. at 780

° Indeed, Benton, on whom ATF exclusively relies, acknowledged that

“many of the persons whose names and/or addresses are in the [trace

database] are not suspects or defendants” and that “ATF cannot dis-

tinguish the innocents from the suspects because it lacks sufficient infor-

mation from the requesting agencies.” Pet. App. 65a.

13

(FBI arrest and conviction histories); Neely v. FBI, 208 F.3d

461, 463-65 (4th Cir. 2000) (individuals interviewed or

mentioned in “connection with particular [criminal] inves-

tigations”); Manna v. Department of Justice, 51 F.3d 1158,

1166 (3d Cir.) (suspects, witnesses, and interviewees in

specific criminal investigation of mob boss), cert. denied, 516

U.S. 975 (1995); Landano v. United States Department of

Justice, 956 F.2d 422, 426 (3d Cir. 1992) (suspects,

witnesses, and interviewees in specific murder investigation),

aff'd in part & rev’d in part on other grounds, 508 U.S. 165

(1993); Burge v. Eastburn, 934 F.2d 577, 579 (Sth Cir. 1991)

(individuals who made statements to police in specific murder

investigation); SafeCard Services, Inc. v. SEC, 926 F.2d

1197, 1205 (D.C. Cir. 1991) (suspects and witnesses in

particular stock fraud investigation); Fitzgibbon v. CIA, 911

F.2d 755, 767 (D.C. Cir. 1990) (name in FBI investigative

file concerning disappearance of international political acti-

vist); Senate of Puerto Rico v. United States Department of

Justice, 823 F.2d 574, 588 (D.C. Cir. 1987) (suspects,

witnesses, and informants in particular murder and police

corruption investigation); (2) when revealing the name would

also reveal other identifiable and potentially embarrassing

information, see Halloran v. Veterans Administration, 874

F.2d 315, 321 (Sth Cir. 1989) (names connected with private

comments on work, job performance, co-workers, clients, and

friends); and (3) when the names and addresses are attached

to other personal information that could lead to unwelcome

junk mail and other solicitations, see, e.g., Bibles v. Oregon

Natural Desert Association, 519 U.S. 355 (1997) (per curiam)

(names and addresses on Bureau of Land Management

mailing list); United States Department of Defense v. FLRA,

510 U.S. 487, 500 (1994) (home addresses (but not names) of

federal employees who have not disclosed their addresses to

their union); FLRA v. United States Department of Defense,

977 F.2d 545, 549 (11th Cir. 1992) (home addresses coupled

with federal employment positions); United States Depart-

14

ment of Navy v. FLRA, 975 F.2d 348, 353 (7th Cir. 1992)

(same); National Association of Retired Federal Employees v.

Horner, 879 F.2d 873, 876 (D.C. Cir. 1989) (names and

addresses coupled with identification as retired or disabled

persons receiving monthly federal annuity checks).

The information at issue here does not fall into any of these

categories. It is different from the first category because it

does not identify anyone as a suspect, witness, interviewee, or

otherwise participating in some fashion in a criminal inves-

tigation. It is different from the second category because the

names are not connected with any potentially embarrassing

information. There is nothing either private or embarrassing

about having bought two or more guns in one week or

purchasing a gun that was later traced by police; this is at

most discrete information about commercial transactions in a

closely regulated industry. And it is different from the third

category because this information does not reveal anyone’s

employment or indeed anything other than facts relating to a

commercial transaction in a closely regulated industry. Nor is

disclosure likely to subject firearms purchasers or possessors

to unwanted commercial solicitation; purchasers identified in

the data have already revealed their names and addresses to

dealers and are already subject to whatever marketing atten-

tion the dealer deems appropriate or profitable, and the names

of possessors and associates are not likely to attract any com-

mercial attention because there is not enough other informa-

tion to make them of any particular commercial interest.

Moreover, even in the cases cited by ATF, the courts have

not considered the privacy interest at stake very strong. For

example, with respect to data disclosing the addresses of

federal employees, this Court wrote only that the privacy

interest at stake was “not insubstantial.” Department of

Defense v. FLRA, 510 U.S. at 500. The D.C, Circuit has

found the interest in names and addresses attached to

information about federal retirement or disability benefits

merely “more than de minimis.” National Association of

15

Retired Federal Employees, 879 F.2d at 878. The Third

Circuit has held that even the privacy interest in the names of

witnesses and interviewees in federal investigative files used

to convict a powerful mafia boss “may become diluted with

the passage of time.” Manna, 51 F.3d at 1166. The only

reason the courts found these possibly very slight invasions of

privacy unwarranted is because there were no cognizable

public interests to balance against them: “we ‘need not linger

over the balance’ because ‘something . . . outweighs nothing

every time.’” /bid. (quoting National Association of Retired

Federal Employees, 879 F.2d at 879); see also Bibles, 519

U.S. at 355 (no public interest relevant to FOIA identified);

Department of Defense v. FLRA, 510 U.S. at 500 (“a very

slight privacy interest” outweighs “the virtually nonexistent

FOIA-related public interest”). In this case, however, the

lower courts found that powerful public interests counseled in

favor of disclosure. That means that even if the lower courts

undervalued the privacy interest at stake, this case would

nevertheless come out the same way because the public

interests outweigh even a cognizable privacy interest, as we

now explain.

b. Even a disclosure of otherwise private facts can be

“warranted” within the meaning of Exemption 7(C) when it

advances “the citizens’ right to be informed about what their

government is up to.” Reporters Committee, 489 U.S. at 773.

The court of appeals followed this test precisely, concluding

that disclosure of the requested information will aid the

public in evaluating “ATF’s performance of its statutory

duties of tracking, investigating and prosecuting illegal gun

trafficking, as well as determining whether stricter regulation

of firearms is necessary.” Pet. App. 14a-15a. ATF, for its

part, contends only that the lower courts misapplied this test

because disclosure of the information at issue would not

assist the public in evaluating the efficacy of firearms regu-

lation. See Pet. 14. But ATF does not even discuss the evi-

dence supporting the findings below.

16

Nunziato, in uncontroverted testimony, explained that if

individual names are identified, analysis of trace and multiple

sales data can assist the public in determining whether ATF is

properly identifying dealers and individuals who display

indicia of involvement in illegal gun trafficking, and who

therefore warrant further investigation. See R. 35, Ex. J, 4 13;

R. 38, Ex. O, 9§ 26-28. Indeed, ATF publishes its own

analysis of tracing and multiple sales data, which it believes

tends to identify patterns of illegal gun trafficking. See Gun

Trace Reports, supra & 1-2; Commerce in Firearms, supra

at 2, 22-25; Youth Crime Gun, supra at 12. Independent

scholars agree that analysis of this data provides an important

pool for evaluating investigative techniques in gun control

policy. See, e.g., Philip J. Cook & Anthony A. Braga, Com-

prehensive Firearms Tracing: Strategic and Investigative

Uses of New Data on Firearms Markets, 43 Ariz. L. Rev. 277

(2001). Nevertheless, by withholding data identifying pur-

chasers, possessors, and associates, ATF prevents the public

from learning whether this information helps to identify the

characteristics of dealers or purchasers that increase the

likelihood that the firearms that they traffic will wind up in

the hands of criminals. Suppressing this data also prevents

the public from learning whether ATF effectively targets

“high risk” dealers and sales for adequate investigation, or,

more generally, whether additional legislation is warranted to

address “high risk” dealers and sales.

Accordingly, disclosure of the information at issue in this

case falls squarely within the public policy identified by the

courts as sufficient to warrant disclosure even in the face of a

cognizable privacy interest. And for this reason, ATF’s

reliance on cases where a minimal privacy interest carried the

day because the data at issue shed no light on the operations

of government is wholly unavailing here. Rather, in light of

the substantial public need for disclosure, ATF was required

to prove a substantial invasion of important privacy concerns,

and it simply never mustered the evidence to do that.

17

Finally, ATF contends that the court of appeals erred by

ascribing significance to Chicago’s interest in obtaining this

data in order to improve its enforcement of its own gun

control laws. See Pet. 17-18. This myopia is distressing.

Even ATF acknowledges that one of its “critical missions” is

“assisting State and local law enforcement agencies in

enforcing their own firearms laws... .” Youth Crime Gun,

supra at vii. Thus, to the extent that ATF fails to disclose

information that may assist local governments in combating

illegal firearms trafficking, it fails to do its job. On this basis,

the court of appeals correctly held that “[d]isclosure of the

records sought by the City will shed light on ATF’s efficiency

in performing its duties and directly serve FOIA’s purpose in

keeping the activities of government agencies open to the

sharp eye of public scrutiny.” Pet. App. 15a. To be sure, we

anticipate that the information we seek will assist us in

prosecuting Our suit against scofflaw gun manufacturers and

dealers, as both lower courts noted. See Pet. App. 14a, 24a.

That, however, does not diminish the strong FOIA-related

public interest in this information that both courts have

recognized.

2. The courts below also correctly rejected ATF’s reliance

on the exemption for information that, if disclosed, “could

reasonably be expected to interfere with enforcement pro-

ceedings ...." 5 U.S.C. § 552(b)(7)(A) (2000). While ATF

boldly claims that disclosure of firearms trace data “threatens

substantial harm to law enforcement,” Pet. 20, it fails to come

to grips with the fact that the trace information at issue is not

in any meaningful sense confidential—it reveals virtually

nothing that the subjects of an investigation are not already

likely to know.’

” ATF has abandoned its reliance on Exemption 7(A) to support with-

holding multiple sales data. See Pet. 9 n.6.

18

ATF’s witness Benton speculated that disclosure of trace

data will alert suspects to the existence of an investigation,

and provide them with an opportunity to obstruct it. See Pet.

App. 38a-43a. Nunziato and law enforcement officials from

St. Louis, Chicago, Detroit, and Camden County, however,

all asserted that the trace database contains primarily non-

sensitive raw data, which does not indicate “whether an

investigation of any type is ongoing or contemplated with

respect to a particular person or a particular gun.” R. 35,

Ex. J, 9 8; see also R. 35, Exs. K, L, M; R. 38, Ex. P.

Nunziato pointed out, as an example of this general point, that

an investigation of an arms dealer who sold over 600 guns

used in crimes between 1989 and 1998 was not compromised

by the public disclosure of the trace data on these guns in

many FOIA data releases. See R. 35, Ex. J, § 8. Nunziato

also established that when trace data is potentially sensitive, it

is clearly identified as such and already adequately shielded

from release. See R. 35, Ex. J, 9§ 7, 14-16.

Our witnesses’ testimony was properly credited by the

district court. Firearms cannot be traced until they have been

recovered by the authorities—almost always as the result of a

search of a suspect or arrestee—and that fact alone tells both

the individual from whom the weapon was taken and his

associates that an investigation is underway. Consequently, a

disclosure of trace results under FOIA will not alert the

subjects to the fact that an investigation has begun—that will

be evident from the moment that the firearm is seized by the

authorities. Moreover, the tracing process itself destroys

whatever confidentiality might remain, because it requires

that firearms manufacturers, wholesalers, and retailers be

contacted and told that a trace has been requested. The trace

request therefore alerts these entities that an investigation is

underway, and enables them to tip off the target if they are

inclined to do so; indeed, they might be targets themselves.

Thus, not only is the tracing process not confidential, but it is

the recovery of the firearms by the authorities and the

19

subsequent request to dealers and others for information

about those firearms, not any disclosure under FOIA, that

alerts the outside world to the existence of an investigation.

Nor does trace data reveal any of the sensitive details of an

investigation. As we explain above, trace data does not iden-

tify any prospective witnesses; it identifies only the person

from whom the firearm was recovered and his associates.

The identities of those persons, of course, are not confiden-

tial, but instead are known to everyone present at the time of

recovery, and to anyone else whom those persons may tell.

In any event, if confidentiality is important, the requesting

agency can utilize a special code telling ATF not to con-

tact the dealer that sold the firearm- and Chicago has

not requested this data. R. 35, Ex. J, 99 7, 14, 16." ATF,

however, asserts that “‘do not contact’ traces are relatively

rare, constituting approximately 1% of all traces.” Pet. 20

n.10. This fact merely emphasizes the minuscule amount of

potentially sensitive information in the trace database. And

while ATF also asserts that “nothing in the record suggests

that the ‘do not contact’ traces as a group are more sensitive

from a public disclosure perspective than other firearm

traces,” ibid., this claim discloses unfamiliarity with the

record. As we note above, Nunziato and the other law

enforcement witnesses all testified that ordinary trace data is

nonsensitive.

ATF is equally mistaken in suggesting, without citing any-

thing in the record, that information in the trace database

“related to homicides and other violent crimes in which the

dealer is not a suspect” is just as sensitive as information

marked with a “do not contact” code. Pet. 20 n.10. There is

nothing particularly sensitive about the trace of a firearm used

* ATF itself uses special codes when it wishes to conceal the identity of

a dealer in its trace database, and we have not requested that trace data

either. R. 35, Ex. J, 4 15.

20

in a violent crime—the offender will almost certainly already

know that an investigation of that crime is underway. And in

the unlikely event that an investigation is ongoing but the

recovery of a firearm or its subsequent trace has somehow not

alerted the subjects that an investigation is underway, nothing

in the trace database will alert the subjects to the progress

and direction of the investigation or reveal the identity of

potential witnesses.”

Importantly, ATF does not argue that any of the district

court’s findings are clearly erroneous, nor does it doubt the

applicability of this deferential standard for review of the

district court’s findings. Instead, ATF claims only that “(t]he

* ATF’s witness Benton attempted to identify only two hypothetical

scenarios in which disclosure of trace data could alert a suspect to the

existence of a previously undisclosed investigation. First, he claimed that

disclosure could compromise an ongoing undercover investigation. See

Pet. App. 48a-49a. He did not claim, however, that weapons obtained by

an undercover operative during the course of his investigation would ever

be traced; as we explain above, because tracing tells third parties that a

firearm is in the hands of the authorities, the tracing process itself

compromises the confidentiality of an investigation. For just that reason,

when an undercover agent obtains a weapon while acting undercover, he

would certainly not have it traced because of the risk that the trace would

alert others to his real identity. Second, Benton claimed that disclosure of

trace data would tell a criminal who had discarded a weapon that it had

been recovered and that the authorities “could be closing in on him prior

to the time that the police are ready to arrest him.” Pet. App. 53a. This

scenario is, at the outset, wildly implausible—we know of few criminals

on the run who make FOIA requests and even fewer with the ability to

comprehend ATF’s highly technical data. But even if Benton’s hypo-

thetical criminal made a request, waited weeks if not months for an

answer, and if the police somehow failed to make an arrest until after ATF

had answered the request and disclosed that the firearm had been

recovered, that fact would tell the target of the investigation nothing about

the progress of the investigation. Besides, ATF adduced no evidence to

show that this scenario occurs with any frequency at all, much less with

sufficient frequency to justify withholding the entire trace database for

substantial periods of time.

21

court of appeals wholly failed to articulate any cogent ration-

ale for its rejection of ATF’s evidentiary submission.”

Pet. 25. But the court of appeals made its rationale plain—it

found no clear error in the district court’s view that ATF’s

witness Benton had offered only wildly implausible specu-

lation in support of his view that the disclosure of trace data

would be likely to interfere with law enforcement proceed-

ings. See Pet. App. 7a-10a. Moreover, the court of appeals

was not charged with reviewing Benton’s testimony in

isolation; it was reviewing the district court’s decision for

clear error based on all the evidence in the record. And for

that reason, ATF does this Court a considerable disservice by

presenting this case as though Benton were the only witness.

See Pet. 24-25. Both sides presented evidence to the district

court, and all of that evidence weighs in the balance when

evaluating the propriety of its judgment.

Even ATF does not claim that the district court was

obligated to credit Benton’s testimony no matter how

implausible it seemed. Indeed, there is no authority (and ATF

cites none) supporting the proposition that courts must credit

the testimony of an agency’s witnesses, especially when that

testimony is controverted by other witnesses, including a

former ATF official with experience similar to Benton’s. To

the contrary, the circuits are in agreement that the district

court is not obligated to credit an agency’s witnesses when

their testimony is controverted by other evidence in the

record. See, e.g., Silets v. United States Department of

Justice, 945 F.2d 227, 231 (7th Cir. 1991) (en banc), cert.

denied, 505 U.S. 1204 (1992); American Friends Service

Committee v. Department of Defense, 831 F.2d 441, 444 (3d

Cir. 1987); Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981). After all, as we explain above, under

FOIA the agency bears the burden of proof, not merely a

burden of coming forward with evidence, and it is up to the

district court to evaluate the agency’s showing de novo, rather

than affording it only limited or deferential review. That rule

22

was correctly applied in this case. Even if Benton’s specu-

lation is “comprehensive and highly detailed,” Pet. 24, it is

still speculation, and need not be credited in the face of the

testimony that we adduced—all from present or former law

enforcement officials—who explained why, in their exper-

ience and professional judgment, disclosure of the informa-

tion at issue here was not reasonably likely to interfere with

law enforcement proceedings.

Moreover, the argument for deference to agency expertise

is especially weak in a case such as this one, where the

agency does not actually conduct the investigations that it

claims would be impeded by disclosure. In fact, 97% of all

traces are performed at the request of agencies other than

ATF. See R. 34, Ex. F § 9. And ATF’s own witnesses had

no actual investigative responsibilities. Surely it is not too

much to expect that if ATF attempts to carry its burden of

justifying an exemption by proving that disclosure of trace

data “would reveal, with respect to each of more than one

million investigations, a variety of sensitive law enforcement

information,” Pet. 19, it should support that dire prediction

with testimony from at least some law enforcement officials

who actually do the investigations at issue. Yet ATF prof-

fered no testimony or even unsworn expression of concern

from anyone representing the FBI, the DEA, or, indeed, any

other federal, state, or local law enforcement agency. In fact,

the only evidence in the record from law enforcement

officials with actual investigative responsibilities is evidence

ATF ignores, and it confirms that disclosure of trace data is

not likely to prejudice ongoing investigations. See R. 35, Ex.

K, L, M; R. 38, Ex. P. Significantly, no law enforcement

organization appeared to support ATF as amicus below,

and even now, the only law enforcement amicus support for

ATF comes from the Fraternal Order of Police—a labor

organization.

On this record, accordingly, the court of appeals correctly

concluded that the district court did not clearly err in rejecting

23 .

ATF’s “far-fetched hypothetical scenarios” precisely because

they did not identify a “substantial, realistic risk of inter-

ference.” Pet. App. 18a. Indeed, we quite agree with ATF

that Exemption 7(A) should be “given a workable and prag-

matic construction.” Pet. 27. In truth, that principle better

than any other demonstrates that the district court did not

clearly err in this case. While ATF’s witness Benton was

willing to speculate that release of the trace data might

somehow enable a subject to obstruct an investigation, the

“pragmatic” reality is that release of this data is unlikely to

compromise anything of any real importance. And, of course,

the holding below leaves ATF free to claim Exemption

7(A) for specific traces in future litigation by showing

that they contain sensitive information about a particular

ongoing investigation.

ATF complains that the court of appeals failed to honor

the holding in Robbins Tire that an agency “may rely on

reasonable categorical judgments and is not required to estab-

lish that release of the withheld information would interfere

with a specific existing or contemplated law enforcement

proceeding.” Pet. 25-26 (emphasis in original). But the

court's opinion embraced the Robbins Tire standard, while

concluding that ATF had failed to demonstrate that “dis-

closing the requested records puts the integrity of any

possible enforcement proceedings at risk.” Pet. App. 8a

(emphasis supplied). And in denying ATF’s petition for

rehearing, the court made plain that ATF’s testimony had

established at most “a possible risk of interference with en-

forcement proceedings, but these predictions are not reason-

able.” Pet. App. 18a (emphasis in original). This approach

tracks Exemption 7(A) precisely, as even ATF ultimately

acknowledges. See Pet. 26.'°

1

ATF also complains that the court of appeals effectively required it

to prove the impossible, by showing that data it has never released have

been used to obstruct investigations. See Pet. 25. In fact, the record

24

ATF argues that the decision below imposes evidentiary

burdens on ATF “so demanding that they would effectively

subvert ATF’s ability to employ the ‘categorical’ approach to

the implementation of Exemption 7(A) that was approved by

this Court in Robbins Tire.” Pet. 27. But when, as here, the

information at stake is almost always already known to an

investigation’s targets and other third parties, an agency's

ability to engage in hypothetical speculation that disclosure of

the information would interfere with law enforcement pro-

ceedings will not satisfy Exemption 7(A). Indeed, as this

Court concluded when it refused to presume that all infor-

mation obtained from witnesses during the course of criminal

investigations should be treated as confidential and therefore

exempt from disclosure under FOIA, “the proposed rule is not

so much categorical as universal . .. .” United States

Department of Justice v. Landano, 508 U.S. 165, 175 (1993).

And the type of presumption that ATF in effect advocates

is surely wholly unwarranted when, as here, the data at

issue “can range from the extremely sensitive to the routine.”

Id. at 176.

A far more concrete showing than ATF made here has

always been required under Exemption 7(A), as even the

cases cited by ATF make plain. For example, Manna, Swan

v. SEC, 96 F.3d 498 (D.C. Cir. 1996), and Lewis v. IRS, 823

F.2d 375 (9th Cir. 1987), hold that a district court did not

shows that ATF has released trace data on numerous occasions in the past

to advocacy groups, journalists, and even purchasers. See R. 25, Ex. F, G;

R. 35, Ex. J, 99 8, 10, 12; R. 47, Ex. C,4 8. Yet ATF could neither show

that these prior releases had harmed any investigation, nor explain why

they were any less likely than the disclosure sought here to produce the

results that ATF claims to fear. In any event, the court of appeals’

holding ultimately rests not on ATF’s failure to show past interference

with investigations, but on its conclusion that ATF had not provided a

reasonable basis to support its speculative fear of disclosure, and as we

explain above, that approach is consistent with Exemption 7(A). See Pet.

App. 10a, 18a.

25

clearly err when the information at issue related to the

nonpublic details of a specifically identified ongoing inves-

tigation. See Swan, 96 F.3d at 500; Manna, 51 F.3d at 1164-

65; Lewis, 823 F.2d at 378-79. And in North v. Walsh, 881

F.2d 1088 (D.C. Cir. 1989), the court held that Exemp-

tion 7(A) did not shield from disclosure information related to

portions of a criminal investigation that had already been

closed and, on the balance, directed the district court to

consider “whether disclosure can reasonably be expected to

interfere in a palpable, particular way” with an investigation

that is still open. /d. at 1100. None of these cases remotely

suggests that a district court is obligated to credit the kind of

testimony on which ATF relies here—testimony in which no

particular ongoing investigation is identified, even for illus-

trative purposes, and where the data sought does not reveal

confidential details, such as names and addresses of wit-

nesses, descriptions of evidence, or memoranda discussing

investigative strategies and tactics. In addition, the case law

explains that when the information at issue is likely to already

be known to the subjects of an investigation, a claim to

Exemption 7(A) is particularly weak. See, e.g., Campbell v.

HHS, 682 F.2d 256, 265 (D.C. Cir. 1982). And the ample

case law in this area reflects no confusion or disagreement in

the lower courts that requires plenary review to clarify the

scope of Exemption 7(A).

ATF offers the further claim that this decision may deter

other law enforcement agencies from requesting firearms

traces. See Pet. 29. But any legitimate concerns raised by the

decision below are easily addressed. If a law enforcement

agency requesting a trace has a real concern about disclosure

of the results of that particular trace request, and if the trace is

not already specially coded by the requesting agency, then, as

a part of the trace request, the requesting agency need only

apprise ATF of the reason that the trace is sensitive. Under

the case law we discuss above, a tailored claim under Exemp-

tion 7(A), based not on the unrealistic presumption that alT

26

traces are sensitive but instead supported by the particularized

concerns of the jurisdiction conducting the investigation will

suffice under Exemption 7(A). Thus, law enforcement agen-

cies with legitimate concerns about particular traces need not

fear the decision below. It will, however, force ATF to bring

its FOIA policies into line with those of all other federal

agencies, rather than resting on an unrealistic presumption

that all traces are sensitive."

3. The preceding discussion should make plain that the

exceedingly fact-bound dispute in this case does not warrant

plenary review. Moreover, there are special factors that

counsel against review. First, as we explain above, ATF’s

arguments depend heavily on the weight to be given to the

testimony of its principal witness, Benton. The district court,

however, found his testimony unpersuasive, and the court of

appeals sustained that finding. This Court is especially

reluctant to review cases that challenge the factual findings of

a district court that have, in turn, been sustained on appeal.

See, e.g., Exxon Co. U.S.A. v. SOFEC, Inc., 517 U.S. 830,

840-41 (1996); Goodman v. Lukens Steel Co., 482 U.S. 656,

665 (1987); Berenyi v. District Director, 385 U.S. 630, 636

(1967); Blau v. Lehman, 368 U.S. 403, 408-09 (1962);

Graver Tank & Manufacturing Co. v. Linde Air Products Co.,

336 U.S. 271, 275 (1949). The “two court” rule argues pow-

erfully against plenary review here.

'' The Solicitor General adds that ATF has “informed” him that more

than 40 police departments have signed memoranda of understanding with

ATF requesting that “the law enforcement sensitive firearms trace infor-

mation generated pursuant to the Agreement shall not be disclosed with-

out the consent of both parties to the agreement.” Pet. 29. The Chicago

Police Department informs us that it is ATF itself that solicits these

agreements in return for offering its own cooperation. These agreements

thus reflect no spontaneous expression of concern by other law enforce-

ment agencies—none of which has filed a brief in support of ATF either

here or in the court of appeals—but only ATF’s effort to pressure local

police departments to support its litigation strategy.

ee. ee eee

27

Second, ATF itself notes that Congress is considering

legislation addressed to disclosure of trace and multiple sales

data under FOIA. See Pet. 21-22 n.11. This fact, too, coun-

sels against plenary review. Since Congress is even now

studying the matters raised by the petition, this is alone a

particularly strong reason for this Court to deny review. We

are unsure of the meaning and effect of the particular

legislation to which ATF refers, but surely if ATF presents a

more powerful case to Congress than it presented to the

district court, Congress will enact appropriate legislation. If,

conversely, new legislation ultimately stalls or is defeated,

that will suggest that Congress has concluded that ATF’s

concerns about the decision below are, at best, exaggerated.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MICHAEL J. HAYES MARA S. GEORGES

S. PATRICK MCKEY Corporation Counsel

JOHN T. ROACHE of the City of Chicago

GARDNER CARTON & DOUGLAS LAWRENCE ROSENTHAL *

Suite 3400 Deputy C tion C |

321 North Clark Street Jo dees rayeeiagemans

. BENNA RUTH SOLOMON

Chicago, IL 60610 Chief Assistant C —

(312) 245-8559 ief Assistant Corporation

Counsel :

DAVID A. GRAVER

Assistant Corporation Counsel

City Hall, Suite 600

121 North LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

* Counsel of Record Attorneys for Respondent

October 3, 2002