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

FEB §

No. 02-322 -_

OFFICE OF FE CLmk

In the

Supreme Court of the Gnited States

UNITED STATES DEPARTMENT OF THE TREASURY.

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,

Petitioners,

CITY OF CHICAGO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS,

AMERICAN SOCIETY OF NEWSPAPER EDITORS,

NATIONAL PRESS CLUB,

AND SOCIETY OF PROFESSIONAL JOURNALISTS

IN SUPPORT OF RESPONDENT

Lucy A. DALGLISH, ESsy.

Counsel of Record

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1815 N. Fort Myer Dr., Suite 900

Arlington, Virginia 22209

(703) 807-2100

(additional counsel for amici listed on inside cover)

ADDITIONAL COUNSEL FOR AMICI:

Counsel for The American Society of Newspaper Editors:

Richard Schmidt

Kevin M. Goldberg

Cohn & Marks

1920 N Street NW, Suite 300

Washington, D.C. 20036

Counsel for Society of Professional Journalists:

Bruce W. Sanford

Robert D. Lystad

Bruce D. Brown

Baker & Hostetler LLP

1050 Connecticut Avenue NW, Suite 1100

Washington, D.C. 20036

TABLE OF CONTENTS

ES ob wad censeuceqecccecs ii

ONT mma s OF ARGCICURIAE .... 2... ccc ccccceess I

SUMMARY OF ARGUMENT ..................... 3

RE ES POPE EP TT EPETTTETT TTT +

I. Access to the ATF databases at issue in this case is

consistent with one of the core purposes of the

Freedom of Information Act — to promote

government accountability through the maximum

disclosure of government information. ......... 4

A. The public has a strong interest in knowing

whether the ATF adequately regulates the sale

ieee i eee eegeeacseseceees 5

B. Journalists have used information from the

Trace and Multiple Sales databases to uncover

shortcomings in both the ATF’s and other law

enforcement agencies’ operations. ......... 5

Il. Exemptions to the Freedom of Information Act are

to be narrowly construed so as not to overburden the

primary purpose of the Act — public disclosure. . . 8

A. A narrow reading of FOIA Exemption 7(C)

requires the ATF to release the records sought in

GD II, oc ccc cc ccccccccccccccess 10

1. There is no expectation of privacy attached

to the purchase or sale of a handgun. ... . 10

-ii-

2. The public’s interest in having access to

information contained in the ATF databases

substantially outweighs any privacy interests

that may exist. ... 26.6.6 eee eee ees 13

B. A narrow reading of Exemption 7(A) requires

the ATF to release the database information

because the release would not compromise law

enforcement proceedings. ........---+++> 15

III. In light of the 1996 Amendments to the FOIA, the

Court should take this opportunity to clarify its

opinion in U.S. Department of Justice v. Reporters

Committee for Freedom of the Press. ...-----: 18

CONCLUSION 2. ccc ccc ccc cece cece ncececcncess

TABLE OF AUTHORITIES

Cases

Center to Prevent Handgun Violence v. United States Dept

of Treasury, 981 F Supp. 20(D.D.C. 1997) ....... 10. 12

City of Chicago v. United States Dept. of Treasury, 287

ance oe 17

County of Madison v. United States Department of Justice,

641 F.2d 1036 (ist Cir. 1980) ........0. 0000, <

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

SE kdduvibintnueaeadinabands keddesnes dees 5,9

Department of Justice v. Tax Analysts, 492 U.S. 136

dcuddudetucedewdcdutedendhéecadéeaecaucts 4

EPA v. Mink, 410 U.S. 73 (1973) .....0..0..0....... 5

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214

Ps Ca ckdowsseenetaidaweletecidicel 5, 15, 16, 17

North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989) ....... 16

Solar Sources, Inc. v. United States, 142 F.3d 1033 (7th

PS ishintudibwatanensiiudinin bie ouiad acne 16

United States v. Biswell, 406 U.S. 311 (1972) ......... 11

United States Department of Defense v. Federal Labor

Relations Authority 510 U.S. 487 (1994).......... 19, 20

U.S. Department of Justice v. Reporters Committee for

Freedom of the Press, 489 U.S. 749 (1989) 3,5, 10,13, 18

Washington Post Co. v. United States Department of

Agriculture., 943 F. Supp. 31(D.D.C. 1996) .......... 12

Young v. Rice, 826 S.W. 2d 252 (Ark. 1992)........... 9

-iv-

House Report:

HLR. Rep. No. 1497, 89th Cong. 2d Sess. (1966) ....... u

H.R. Rep. No. 3209, 106th Cong. Ist Sess. (1999) .... 6-7

Newspaper Articles:

Barbara Vobejda et al., Recycled DC. Police Guns Tied to

Crimes, WASH. POST, Nov. 12,1999 at Al .......... 7

Mike Wagner et al, Ohio » The Gunrunner's Paradise,

DAYTON DAILY NEWS Dec. 10,2000 at Al ...... 7-8

Senate Reports:

S. Rep. No. 813, 89th Cong. Ist Sess. 3 (1965) ....... 4,9

BD, Gas FR. CSD 0 ewccccccneccscceccsces 19

Statutes:

5 U.S.C. § SS2(K7MA) (2000) ... 2... eee eee eee 15

SURE, OGD Sccccccccccccscasces 10

18 U.S.C. § 922(s) & (t) (2000) ................. 10, 11

Pub. L. No. 104-231, § 2(aX1), 110 Stat. 3048

Civnds cena cbocoddcesctenneestasustadans 18-19

Television News Reports:

Miami-Dade County's Restrictions on Selling Old Police

Department Guns Being Violated by Contractors, CBS

Evening News, Oct. 12, 1999, available in LEXIS, News

a a 6

The Gun Runners, Fox News WFLD Chicago television

eo eae ea. 8

Other Sources:

About ATF: Strategic Goals,

http://www.atf.treas.gov/about/stratplan. htm (visited on:

PP nbudetuddéueuancdeddadcecetcvscdeaes 14

David Schiller, Project Exile http://www.vahv.org/Exile/

SG GU, AI ED oo oc cccdccccccecccccceeee 14

Martin E. Halstuk & Charles N. Davis, The Public Interest

Be Damned: Lower Court Treatment of the Reporters

Committee “Central Purpose” Reformulation, 54 ADMIN.

EE ocicdnduekeadduhdieneveundé ve 20

Statement by the President Upon Signing Bill Revising

Public Information Provisions of the Administrative

Procedure Act, Weekly Comp. Pres. Doc. 895 (July 4,

DE ddesedksnlcbsuskosenhecasecesavedeéiuuss« 4

INTEREST OF AMICI CURIAE'

The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of reporters and editors

that works to defend the First Amendment rights and freedom

of information interest of the news media. The Reporters

Committee has provided representation, guidance and

research in First Amendment and Freedom of Information Act

litigation since 1970.

The American Society of Newspaper Editors is a profes-

sional organization of more than 800 persons who hold

positions as directing editors of daily newspapers in the

United States and Canada. The purposes of the Society

include assisting journalists and providing an unfettered and

effective press in the service of the American people.

The Society of Professional Journalists is a voluntary

nonprofit journalism organization representing every branch

and rank of print and broadcast journalism. SPJ is the largest

membership organization for journalists in the world, and for

more than 90 years, SPJ has been dedicated to encouraging a

climate in which journalism can be practiced freely, fully and

in the public interest.

National Press Club, established in 1908, is an organiza-

tion of journalists and communicators in Washington, D.C.,

and around the world. It advocates on behalf of First Amend-

ment, press freedom and press access issues, and works to

advance the professional standards of journalists.

' Pursuant to Sup. Ct. R. 37.6, counsel for amici curiae declare

that they authored this brief in total with no assistance from the parties.

Additionally, no individuals or organizations other than the amici

made a monetary contribution to the preparation and submission of

this brief. Written consent of all parties to the filing of the brief amici

curiae has been filed with the Clerk pursuant to Sup. Ct. R. 37.3(a).

2

Amici curiae 's interest in this case is in preserving public

access to federal government records, particularly those that

may be used by the media to expose ATF actions related to

the regulation of firearms, to the light of public scrutiny.

Congress compels federal government accountability, in

part, through the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, which requires agencies to disclose the records

they use in the course of their business unless one of nine

narrowly construed exemptions applies. Thus, amici submit

this brief in support of the City of Chicago’s argument that

exemptions 7(C) and 7(A) of the FOIA do not apply to the

information requested by the city from the Bureau of Alcohol

Tobacco and Firearms (“ATF”).

3

SUMMARY OF THE ARGUMENT

This brief urges the Court to affirm the Seventh Circuit’s

opinion.

The Freedom of Information Act is a disclosure statute

meant to promote government accountability. Journalists have

used information that the ATF currently proposes to withhold

to shed light on the internal operations of the Bureau of

Alcohol Tobacco and Firearms (“ATF”). Using the Trace and

Multiple Sales databases, reporters have frequently written

stories outlining how legally purchased guns ended up being

used by criminals to commit crimes. This has directly benefit-

ted the public.

Moreover, any denials of information based on exemp-

tions to the FOIA must be narrowly construed — something

that was not done in this case. By proposing these wide-

ranging redactions, the ATF is going well beyond the mandate

given to it by the FOIA exemptions to withhold information.

The database information sought here does not raise any

privacy or law enforcement issues. The privacy interest in

owning guns is minimal while at the same time, the public has

a great interest in knowing how guns are bought and sold in

their communities. Moreover, the ATF has not demonstrated

that any law enforcement investigation is imperiled by the

release of this info.

Finally, in l‘ght of recent legislation, amici urge this court

to use this opportunity to clarify its standards regarding the

purposes of disclosure that it enunciated in U.S. Department

of Justice v. Reporters Committee for Freedom of the Press,

489 U.S. 749 (1989).

4

ARGUMENT

I. Access to the ATF databases at issue in this case is

consistent with one of the core purposes of the Free-

dom of Information Act — to promote government

accountability through the maximum disclosure of

government information.

A. The public has a strong interest in knowing whe-

ther the ATF adequately regulates the sale of

firearms.

he purpose of the FOIA was “to establish a general

philosophy of full agency disclosure.” S. Rep. No. 813, 89th

Cong. Ist Sess. 3 (1965); see also County of Madison v.

United States Department of Justice, 641 F.2d 1036, 1040

(ist Cir. 1980).

President Lyndon Johnson acknowledged Congress’ intent

to promote government accountability when he signed the

FOIA:

This legislation springs from one of our most

essential principles: a democracy works best

when the people have all the information that

the security of the Nation permits. No one

should be able to pull the curtains of secrecy

around decisions which can be revealed with-

out injury to the public interest.

Statement by the President Upon Signing Bill Revising Public

Information Provisions of the Administrative Procedure Act,

Weekly Comp. Pres. Doc. 895 (July 4, 1966).

This Court has recognized lawmakers’ intent that the

FOIA was enacted to break down the wall of government

5

secrecy and promote accountability. It held that the FOIA was

enacted “[t]o make crystai clear the congressional objective,

to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Department of Air

Force v. Rose, 425 U.S. 352, 361. (1976) (nternal quotes

omitted)

ie Further, this Court has recognized that the FOIA enables

citizens to act as watchdogs, noting that the Act “seeks to

permit access to official information long shielded unneces-

sarily from public view and attempts to create a judicially

enforceable public right to secure such information from

possibly unwilling official hands.” EPA v. Mink, 410 U.S. 73,

80 (1973). The FOIA is crucial in promoting an informed

citizenry — a virtue vital to a functioning democracy and to

preventing government corruption. NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). This view is consis-

tent with this Court’s interpretation of the “purpose” of the

FOIA in a case where records were denied. U.S. Department

of Justice v. Reporters Ccmmittee for Freedom of the Press

489 U.S. 749, 773 (1989).

The FOIA should serve the public’s interest in govern-

ment accountability, and enable the public (represented in this

case by the City of Chicago) to evaluate the ATF’s perfor-

mance.

B. Journalists have used information from the

Trace and Multiple Sales databases to uncover

shortcomings in both the ATF’s and other law

enforcement agencies’ operations.

Reporters have used the Trace and Multiple Sales data-

bases now being denied to identify shortcomings in federal

6

and local law enforcement efforts (or lack of effort) to control

sales and resales of guns. Reporters have examined the

identities of gun dealers and serial numbers of weapons to

show the public how criminals get guns, how the ATF has

and has not taken action to prevent that from happening, how

local law enforcement agencies have sold weapons used in

crime with little or no intercession by the ATF, and what

crimes have been committed using these weapons.

For example:

CBS Evening News’ Eye on America in 1999 used gun

serial numbers and dealer information, now being withheld by

the ATF, to show that law enforcement agencies across the

country sold or traded tens of thousands of their weapons —

everything from handguns to machine guns — to gun dealers,

who then resold them. From its copy of the ATF’s firearms

trace database released through the FOIA, CBS showed that

since 1990, more than 3,000 former police guns have been

connected to crimes, including 293 homicides, 301 assaults

and 279 drug-related crimes. The report relied heavily on

comparatively up-to-date gun serial number, weapon type,

and recovery location information that the ATF is now

refusing to release. This report won the Alfred 1. Dupont

Columbia University Award for Excellence in Broadcast

Journalism. Miami-Dade County's Restrictions on Selling Old

Police Department Guns Being Violated by Contractors, CBS

Evening News, Oct. 12, 1999, available in LEXIS, News

Group File — All.

After the CBS series aired, law enforcement agencies in

Miami, St. Louis, Irving, Tex., and Detroit stopped selling

used police weapons. Rep. Rod Blagojevich, (D-III.) intro-

duced legislation providing $10 million for new police

firearms. To qualify for funds under his bill, a police depart-

7

ment would have been required to destroy rather than sell its

old guns. H.R. Rep. No. 3209, 106th Cong. Ist Sess. (1999)

In November 1999, The Washington Post showed how

weapons sold by the Washington, D.C., Police Department

ended up in the hands of criminals. Reporters used serial

numbers and gun-type information to demonstrate that the

ATF had not traced the sale of police guns that ended up in

the hands of criminals, that it was apparently unaware of the

practice, and that its data on police gun saies was fragmentary

and flawed. Barbara Vobejda et al., Recycled D.C. Police

Guns Tied to Crimes, WASH. POST, Nov. 12, 1999 at Al. One

day before the story ran, the District of Columbia’s Metropol-

itan Police Department, in anticipation of the news story,

announced that it would no longer sell its used weapons The

ATF is not providing information used in that reporting today.

The Dayton Daily News used serial numbers and names

of dealers provided in the Multiple Sales and Trace database

to show that in one year, more than 1,000 guns used in crimes

across the nation came from Ohio and that the state ranked

fifth among states supplying those guns. Nonetheless, those

newspaper reported, ATF agents in Ohio were among the.

states least likely to refer gun cases for prosecution and that,

in a five-year period, the number of gun cases referred for

prosecution dropped by half. The reporters were able to

follow sales by individuals with no criminal records to

persons who used the guns to commit crimes. The series won

First Place for Investigative Reporting from the Inland Press

Association (2000), and the Ohio Associated Press (2001). It

was also given the Award of Excellence (First Place) from the

Cincinnati Society of P:ofessional Journalists for Enter-

prise/Database Reporting in 2001, and it won Second Place

for Best Use of Public Records from the Ohio Society of

Professional Journalists in 2001. Mike Wagner et al, Ohio :

The Gunrunner's Paradise, DAYTON DAILY NEWS, Dec. 10,

2000 at Al.

If current ATF policy had been in place denying weapon

recovery locations, dealer identification numbers and gun

serial numbers, the Daily News could not have written its

series.

In 1999, when ATF still released names of gun dealers,

Fox News in Chicago showed that one-tenth of guns traced by

local law enforcement authorities as possibly involved in

crimes came from one gun shop and that neither local

authorities nor the ATF had been able to shut down a dealer

who supplied illegal guns used in Chicago crimes. The Gun

Runners, Fox News WFLD Chicago television broadcast,

Nov. 10, 1999.

If the court allows the ATF to withhold this information,

reporters will not be able to do timely reporting about control

of gun sales and the spread of weapons for criminal uses —

reporting that in the past has triggered remedial measures. The

public interest is clearly served when ATF Trace and Multiple

Sale database information remains as widely available and

accessible as possible.

II. Exemptions to the Freedom of Information Act are

to be narrowly construed so as not to overburden

the primary purpose of the Act — public disclosure.

The world can be a dangerous and frightening place. It is

thus unrealistic to expect that the government would never

have cause to withhold information from the public. Congress

accounted for those rare occasions that would merit withhold-

eee ~ =

9

ing of information in the nine exemptions codified j

FOIA. 5 U.S.C. § 552. As the legislative history poche

Congress expected these exemptions to be interpreted with an

eye on assuring heightened access to information. S. Rep. No

813, 89th Cong., Ist Sess. 3 (1965); H.R. Rep. No. 1497. 89th

Cong. 2d Sess. (1966). ’

Because the primary purpose of the FOIA is access. any

exemptions must be narrowly construed. Department of the

Air Force v. Rose, 425 U.S. 352, 361 (1976). Moreover. when

“the scope of an exemption is unclear or ambiguous...[it is to

be interpreted] in a manner that favors disclosure.” Young v.

Rice, 826 S.W. 2d 252, 254 (Ark. 1992). Consistent “with the

Act’s goal of broad disclosure, these exemptions have been

consistently given a narrow compass,” Department of Justice

v. Tax Analysts, 492 U.S. 136, 151 (1989).

The information from the Multiple Sales and Trace

databases that the ATF seeks to keep hidden behind a veil of

government secrecy fits under none of the exemptions set out

by Congress in the FOIA. The information sought by the City

of Chicago raises neither privacy concerns under exemption

7(C) nor law enforcement concerns under exemption 7(A).

Conversely, the release of this information greatly benefits

the public. As noted above, several investigative reporters

used these records before the ATF decided to deny access to

them to write stories that have exposed major deficiencies

within the ATF. Voyious reports have exposed the ATF’s poor

data management, its inability to generate criminal cases in

major gun-smuggling states and the agency’s inability to

prevent the sale of former police firearms to criminals.

10

A. A narrow reading of FOIA Exemption 7(C)

requires the ATF to release the records sought in

this litigation.

The FOIA permits the federal government to exempt from

disclosure “records or information compiled for law enforce-

ment purposes . . . to the extent that the production . . . could

reasonably be expected to constitute an unwarranted invasion

of personal privacy.” 5 U.S.C. ¢ 552(b)(7)(C). In order to

invoke this exemption, a federal government agency must

prove first that a privacy interest is implicated by the release

of the records, and second, if there is such a privacy interest,

that it is not outweighed by the public interest served by the

release. Reporters Committee, 489 U.S. at 762. The ATF has

met neither of these burdens.

1. There is no expectation of privacy attached to

the purchase or sale of a handgun.

In an effort to stem the number of guns used in crime, the

firearms industry in America historically been subject to a

great degree of government regulation and scrutiny. Gun

buyers have traditionally been forced to provide high levels of

personal information to the government. Moreover, when they

purchase weapons, buyers are put on notice that this informa-

tion will not be kept private but shared with various state and

local law enforcement agencies. 18 § U.S.C. 922(s) & (t)

(2000).

The purchaser of a firearm does not have an expectation

of privacy in the highly regulated transaction because it is not

a private transaction. Center to Prevent Handgun Violence v.

U.S. Dept. of Treasury, 981 F.Supp. 20, 23-24 (D.D.C..

1997). The Gun Control Act requires that the transaction for

the sale of a firearm be recorded and every dealer is required

ll

to make business records available for government inspection

All purchasers are by definition put on notice that their name

and address will be reported to state and local authorities and

the ATF. United States v. Biswell, 406 U.S. 311. 316 (1972).

In the years since Biswell was decided, governmen

regulation has only increased. All Sesame queens ass

evaluated by the relevant federal, state or local bodies. 18

U.S.C. § 922(s) & (t) (2000). As the City of Chicago tells us

in its brief, 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 not only subject to

Gun purchasers are put on notice that the information they

provide the government will be reported to various state and

the City is requesting involves mostly information regarding

those who purchased guns or individuals associated with a

traced weapon. Buying several guns in one week or purchas-

ing a weapon that would later be traced by police is “at most

discrete information about commercial transactions in a

closely regulated industry,” in which there can be no expecta-

tion of privacy. /d. at 14.

Further, the benign nature of the database information in

question raises minimal privacy concerns. For there to be an

invasion of privacy, “the legislative history is clear,” the

“threats to privacy interests [must be] more palpable than

mere possibilities.” Department of Air Force, 425 U.S. at 380.

To infringe on a citizen's privacy interests, information that

12

is released must be “inculpatory or inflammatory...[in addi-

tion] [a]n agency may not exempt from disclosure all of the

material in an investigatory record solely on the grounds that

the record includes some information which identifies a

private citizen or provides that person’s name and address.”

(Internal quotations omitted) Center to Prevent Handgun

Violence, 981 F Supp. at 23-24.

In this case, the information sought is limited to names of

persons from whom the firearms were recovered, and those

present at the crime scenes. It does not identify individuals as

a suspect, interviewee or witness in a criminal investigation.

Because of the ambiguity, privacy concerns are minimal.

Guesswork on the part of the FOI requester as to the involve-

ment of the named person in a crime is insufficient to result

in “inculpatory or inflammatory” release of information.

Release of the information itself can in no way be consid-

ered inflammatory. It merely reveals the names of people

associated with a firearm that the police later traced, perhaps

many years after the gun has left the buyer’s possession. Also,

information from the Multiple Sales database shows only that

an individual bought more than one gun in one week. This is

hardly data that in itself can be considered embarrassing,

suggesting only that the named individual was at one point

somehow associated with a particular gun.

It should also be noted that there are no privacy concerns

raised by releasing the names of gun dealers. The names of

gun dealers — businesspersons who sold guns which were

eventually traced — presents at most a de minimus privacy

interest. In Washington Post Co. v. United States Department

of Agriculture., 943 F. Supp. 31, 35 (D.D.C. 1996), the court

holds that “a business entity has no personal privacy interest.”

(Internal quotes omitted)

13

2. The public's interest in having access to

information contained in the ATF databases

substantially outweighs any privacy interests

that may exist.

Even assuming the sellers and purchasers of handguns had

a privacy interest in the two databases at issue in this litiga-

tion, such a privacy interest is outweighed by the public

interest served by its release.

The FOIA’s central goal, as interpreted by this court, is to

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

government is up to.” If the government is to be forced to

release information, that interest must outweighs any privacy

concern that may exist. Reporters Committee, 489 U.S. at

773.

Amici strongly disagree with the ATF’s claims that release

of the names and addresses of gun buyers could not assist the

public in determining whether ATF has adequately supported

local authorities or to evaluate the agency’s performance. As

noted above in the examples of news stories that used these

records, it is clear that the information sought in this case

contributes “significantly to public understanding of the

operations or activities of the government.” Jd. at 775.

Denials of the type imposed on the City to requests of

information have had a chilling effect on journalists who wish

to keep the activities of government agencies open to the

sharp eye of public scrutiny. In Virginia, for example, local

law enforcement has since 1997 operated Project Exile, a law

enforcement initiative that seeks to reduce gun violence by

giving stiffer sentences to felons who commit gun violations.

In hopes of reducing violent crime, the state has implemented

in illegal possession of firearms face a minimum five-year jail

14

sentence. Local law enforcement working in tandem with the

ATF have claimed great success in implementing this

program. See, for example, David Schiller, Project Exile

http://www.vahv.org/Exile/ (visited on: Jan. 29, 2003)

claiming that the “aggressive, innovative, and creative ap-

proach” used by the program has helped reduce crime.

However, journalists cannot check or confirm Project

Exile’s true effectiveness under the ATF’s current policy. If

the names of purchasers, possessors and associates were

released, journalists could check this listing against court

records to see whether prosecutors have in fact pursued

weapons offenders in an aggressive and efficient manner.

Journalists could see what proportion of weapons violations

were not being prosecuted. With the ATF currently imposing

an indefinite redaction on the release of names, any meaning-

ful present analysis becomes impossible, making evaluation

of both the agency and local law enforcement’s operations

impossible.

The ATF has a “strategic goal” of restricting the huge

volume of weapons transferred every year into the hands of

criminals. As the agency states publicly on its Web site, it

strives to “continue to forge and strengthen partnerships to

prevent and disrupt the unlawful diversion of firearms to

criminals and juveniles from both legal and illegal sources. [It

seeks to] Identify, investigate, and stop illegal firearms

traffickers... [and] promote comprehensive firearms tracing

by all law enforcement agencies and continue to expand the

use of technology to trace crime guns, identify trends, develop

leads and share critical information to prevent illegal firearms

trafficking.” About ATF: Strategic Goals, (visited on: Jan. 29,

2003) http://www.atf.treas.gov/about/stratplan.htm.

This is a laudable goal that can only be achieved if the

15

public, including the City of Chi

cago, has the information i

needs to be an active partner. Access to the restricted Sten

information at issue in this case let

dhe ATF le dolag ies jos s the public know whether

B. A narrow reading of Exem

ption 7(A) requires

the ATF to release the database uemaiien

because the release would not compromise law

enforcement proceedings.

Exemption 7(A) allows the federal ernmen

. . . . gov ‘

ay sng information if the information sought is “complied

or law enforcement records... [and] could reasonably be

expected to interfere with enforcement proceedings ss

U.S.C. § 552(b)(7)(A) (2000). cil

j The types of information that the ATF is withholding for

a five-year period under this exemption include information

identifying the law enforcement agency requesting tne trace

weapon serial numbers and firearm dealer identification data

As this Court held in Robbins Tire, 437

U.S. at 224, when

— enacted Exemption 7(A), it “recognized that law

enforcement agencies had legitimate needs to keep certain

records confidential, lest the agencies be hindered in their

investigations or placed at a disadvantage when it came time

to present their case. Foremost among the purposes of this

Exemption was to prevent ‘harm [to] the Government’s case

in court."” This Court emphasized that files could not be

released unless the “Government's case in court — a concrete

prospective law enforcement proceeding — would be harmed

by the premature release of evidence or information . sae" ae

at 232. This standard is clear. Investi i

gatory information ma

be withheld by the federal government only if it harms =

16

“actual, contemplated enforcement proceeding.”

Moreover, as the court of appeals correctly noted in this

case, the harm caused to the investigation must be real. Public

disclosure of information that “could result in destruction of

evidence, chilling and intimidation of witnesses, and revela-

tion of the scope and nature of the Government’s investiga-

tion,” can be withheld. Solar Sources, Inc. v. United States,

142 F.3d 1033, 1039 (7th Cir. 1998).

Courts, historically have read the 7(A) Exemption very

narrowly. Even when there is an ongoing law enforcement

investigation, the federal government must still release

information having to do with the portion of the investigation

that already has been closed, as long as the information does —

not “interfere in a palpable, particular way” with that part of

the investigation that is still open. North v. Walsh, 881 F.2d

1088, 1100 (D.C. Cir. 1989). In other words, even when there

are ongoing investigations, the power to deny the release of

information must be used lightly, and only insofar as the

release of information does not harm the future of an ongoing

investigation.

By denying important database information under Exemp-

tion 7(A) for a five-year period, regardless of whether there is

an actual or foreseeable investigation in progress, the ATF is

ignoring the nuanced, deliberate approach adopted by this and

lower courts.

The ATF is not denying the release of information where

“an actual, contemplated enforcement proceeding” exists.

Robbins Tire, 437 U.S. at 232. Instead it denies all of the

database categories in question for a five-year period. This

heavy-handed approach has the ATF using a chainsaw to slice

the public release of information where a surgeon’s scalpel

would suffice.

17

The ATF has so far failed to present any evidence that a

concrete pending law enforcement investigation would be

threatened by the release of the information in question.

Instead, as the court of appeals correctly noted, the ATF has

only presented the court with “hypothetical scenarios,” which

“did not convince...[the court] that disclosing the requested

records puts the integrity of any possible enforcement

proceeding at risk.” City of Chicago v. U.S. Dept. of Treasury,

287 F.3d 628, 634 (7th Cir. 2002). The court correctly found

that the five-year redaction period for the information in

question was “not based on any concrete knowledge of

whether an investigation is actually contemplated or ongo-

”

ing.

Moreover, the ATF has been unable to show that release

of any of this information would threaten any real prospective

or ongoing investigation. In fact, as the court of appeals

correctly noted, “the multiple sales data reveals nothing about

any potential or ongoing investigation.” /d. at 635.

Even if the data in question exposed elements of an”

ongoing investigation, the ATF would still have the burden of

showing that the information released would harm the parts

of the investigation that are still open. By failing to identify

actual or ongoing law enforcement investigations that may be

harmed by release of the information in question, the ATF

falls far short of meeting this court’s standard originally set in

Robbins Tire, 437 U.S. at 232.

Finally, amici note that throughout the late 1990s, the

ATF released much of the database information that it

proposes to keep from the public for a five-year period. As

noted above, numerous journalists who had access to this

information in the 1990s were able to report on gun traffick-

ing problems and the ATF’s inability to adequately deal with

18

them. The ATF has not demonstrated that any of these news

reports — some of which were based on up-to-date trace

location, gun dealer and serial number information —

jeopardized an ongoing or prospective law enforcement

investigation.

19

cies, subject to statutory exemptions, for any

public or private purpose. [emphasis added}

(Pub. L. No. 104-231, § 2(aX(1), 110 Stat.

3048, 3049 (1996).)

In light of the 1996 Amendments to the FOIA,

the Court should take this opportunity to clarify

its opinion in U.S. Department of Justice v.

Reporters Committee for F reedom of the Press.

While Reporters Committee stands for the notion that

information that is released must shed light on the federal

government's actions to outweigh any privacy concerns, by

suggesting that information can be released for any “public or

private purpose,” Congress subsequently has applied a less

restrictive standard.

Sen. Patrick Leahy (D-Vt.), a sponsor of the EFOIA,

In Reporters Committee, this Court found that to outweigh

any privacy concerns that may exist, information that is

requested must expose federal government activities, and

contribute significantly to public understanding of the

operations or activities of the government. Reporters Commit-

tee, 489 U.S. at 773. While the balancing test set by the court

in Reporters Committee was clear, the Electronic Freedom of

Information Act (“EFOIA”) signed into law in 1996 at-

tempted to clarify Congress’ intent on this issue. (Pub. L. No.

104-231, § 3, 110 Stat. 3048 (1996) (amending 5 U.S.C. §

552)).

In the “Findings and Purposes” of the Act, Congress

found that:

(1) [T]he purpose of section 552 of title 5,

United States Code, popularly known as the

Freedom of Information Act, is to require

agencies of the Federal Government to make

certain agency information available for pub-

lic inspection and copying and to establish and

enable enforcement of the right of any person

to obtain access to the records of such agen-

specifically noted in a report published by the Judiciary

Committee on the 1996 EFOIA that the court’s reasoning in

Reporters Committee did not reflect Congressional intent:

The reasoning of the Supreme Court in De-

partment of Justice v. Reporters Committee

and the United States Department of Defense

v. Federal Labor Relations Authority, 510

U.S. 487 (1994) analyzed the purpose of the

FOIA too narrowly. The purpose of the FOIA

is not iimited to making agency records and

information available to the public only in

cases where such material would shed light on

the activities and operations of Government.

Efforts by the courts to articulate a ‘central

purpose’ for which information should be

released imposes a limitation on the FOIA

which Congress did not intend and which

cannot be found in its language, and distorts

the broader import of the Act in effectuating

Government openness.”

S. Rep. No. 104-272, at 23-32 (1996).

20

Writing before the passage of the 1996 EFOIA, Justice

Ginsburg concurred with Sen. Leahy’s analysis:

The Reporters Committee “core purpose”

limitation is not found in FOIA’s language. A

FOIA requester need not show in the first

instance that disclosure would serve any

public purpose, let alone a “core purpose” of

“open[ing] agency action to the light of public

scrutiny” or advancing “public understanding

of the operations or activities of the govern-

ment.” Instead, “[a]n agency must disclose

agency records to any person ... ‘unless [the

records] may be withheld pursuant to one of

the nine enumerated exemptions listed in §

552(b).””

United States Department of Defense v. Federal Labour

Relations Authority, 510 U.S. 487, 507-508 (1994) (Ginsburg,

J., concurring).

In light of the 1996 EFOIA, and concerns raised by Justice

Ginsburg and others, see Martin E. Halstuk & Charles N.

Davis, The Public Interest Be Damned: Lower Court Treat-

ment of the Reporters Committee “Central Purpose” Refor-

mulation, 54 ADMIN. L. REV. 984 (2002), the court should

take this opportunity to clarify whether the “central purpose

test” set out by Reporters Committee is valid.

21

CONCLUSION

Amici Curiae ask this Court to uphold the jud

Court of Appeals. vineanmenres

Respectfully submitted.

Lucy A. DALGLISH, Eso.

Counsel of Record

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1815 N. Fort Myer Drive

Suite 900

Arlington, VA 22209

(703) 807-2100

February 5, 2003

Of counsel:

Richard Schmidt

Kevin M. Goldberg

Cohn & Marks

1920 N Street NW, Suite 300

Washington, D.C. 20036

Counsel for The American Society of

Newspaper Editors

Bruce W. Sanford

Robert D. Lystad

Bruce D. Brown

Baker & Hostetler LLP

1050 Connecticut Avenue NW, Suite 1100

Washington, D.C. 20036

Counsel for Society of Professional Journalists