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

No. 02-322 FFB 5 2003

In The en OF CLE

Supreme Court of the Anited States

S

UNITED STATES DEPARTMENT OF JUSTICE,

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES,

Petitioner

V.

CITY OF CHICAGO

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

S

BRIEF FOR CAMDEN COUNTY, NEW JERSEY,

WAYNE COUNTY, MICHIGAN, THE CITY

AND COUNTY OF SAN FRANCISCO,

AND THE CITIES OF BERKELEY, CINCINNATI,

CLEVELAND, JERSEY CITY, PHILADELPHIA,

ST. LOUIS, WEST HOLLYWOOD AND WILMINGTON

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

+

Drew S. Days, III*

BETH S. BRINKMANN

SETH M. GALANTER

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 887-1500

Attorneys for Amici Curiae

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

te SIE hccticervesesicccsscececesesscenseccnsense i

TABLE OF AUTHORITIES ..............::csesssessssereeeeeeees ili

INTEREST OF AMICI CURIAE ..............ccccceeseeeseeees 1

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

IEE tiictnabiicisdiieaiicaltielialle niatinseitesanennsionnseensbeonenstees 6

I. ATF did not establish that the withheld

information in the Trace Database meets the

standards for nondisclosure under FOIA Ex-

PIII TT cintsccitclniicopndnepenmneniineonsedisossnaennenenes 8

A. Exemption 7(A) is limited to preventing in-

terference with enforcement proceedings

and does not support a blanket five-year ex-

emption for the various types of Trace Data-

base information withheld, notwithstanding

ATF’s “categorical” claim................c00sssesse0es 8

B. ATF failed to establish that the various

types of Trace Database information

withheld under Exemption 7(A) could

characteristically be expected to inter-

fere with enforcement proceedings if dis-

closed in less than five years................... 14

II. Any personal privacy interest under FOIA

Exemption 7(C) in the categories of names

and addresses withheld is outweighed by the

public interest served by disclosure and

could, in any event, be protected under the

FOIA’s segregability provision ....................... 23

ii

TABLE OF CONTENTS - Continued

Page

A. Disclosure of the withheld names and

addresses would serve the public interest

by revealing ATF's effectiveness in trac-

ing crime guns and monitoring multiple

GEEOD ovccccccescocssstesssnnnne eoccvcccccsscsenseoooes 24

B. Any personal privacy interest is out-

weighed by the public interest and could,

in any event, be addressed through re-

Ba GUIGR, 0000ccccccvcesesonsscsccensscssennesneenanaaa 27

CONCLUSION .....0cccccccccccscscsccscsccssesossscososossossssonssess 30

iii

TABLE OF AUTHORITIES

Page

CASES

Basic Inc. v. Levinson,

Ee 22

Bibles v. Oregon Natural Desert Ass’n,

ec 26, 28

Campbell v. Department of Health & Human Servs.,

Sy ED PGES GR BI ccccccccscccccccssccccccesccccccossesceee 13

Crooker v. Bureau of Alcohol, Tobacco and Firearms,

en 13

Department of the Air Force v. Rose,

cece crerrsnssnenssnsnocscet 25

John Doe Agency v. John Doe Corp.,

EE a 9

NLRB v. Robbins Tire & Rubber Co.,

a 9, 11, 12,13

United States Dep't of Defense v. FLRA,

rr 25, 26, 28

United States Dep't of Justice v. Landano,

a passim

United States Dep't of Justice v. Reporters Comm.,

a 11, 12, 25

STATUTES

Freedom of Information Act, 5 U.S.C. § 552

ELE LEAL TEE 14

a TTITITTI i ncenceeccntncenenensncssnanecesensesenseed 6, 29

iv

TABLE OF AUTHORITIES — Continued

= —

Ee 3, 8, 10, 14

gs NL eae 10

a, —

Cn 5, 25

BATTED ccccccsnccenscssssessnssesnsentannenenmmemememmene 10

(EE 10

Eee 10

Ee 4

0 Eee 14

Freedom of Information Reform Act of 1986,

Pub. L. No. 99-570, 100 Stat. 3207-48 ............ccccccceeeeeees 10

Gun Control Act of 1968, 18 U.S.C. § 921 et seq.

|) | ene ee 23

| eee 27

IIR... ccnnscascosmsnesenscsnnnneniademenbennmemusnemminnmenenmeimaiial 27

Pub. L. No. 89-487, 80 Stat. 251...............cccccssrsseersereeeenees 9

MISCELLANEOUS

H.R. Rep. No. 1419, 92d Cong., 2d Sess. (1972)................ 20

S. Rep. No. 221, 98th Cong., 1st Sess. (1983)............0000« 10

Burm. Cb. Rule B7.Ble)......ccrccececssceccsccessesevccssessosescosssosssssssoses 1

United States Dep't of Justice v. Landano, No. 91- -

2054 (O.T. 1992), Brief for Petitioners (Feb. 1993) ....... 12

1

INTEREST OF AMICI CURIAE’

Amici Camden County, New Jersey, Wayne County,

Michigan, the City and County of San Francisco, and the

cities of Berkeley, Cincinnati, Cleveland, Jersey City,

Philadelphia, St. Louis, West Hollywood, and Wilmington

are all charged with myriad responsibilities to sustain and

improve the quality of life in their communities, including

safeguarding their citizens from violent crime. Each

amicus, on behalf of its citizens, is pursuing a multi-

pronged approach to curbing gun violence. As such, amici

are interested in the information regarding the tracing

and multiple purchases of firearms that respondent City of

Chicago has requested be released by petitioner United

States Department of Justice, Bureau of Alcohol, Tobacco,

Firearms, and Explosives (ATF) from ATF’s Trace and

Multiple Sales Databases.

The effectiveness of ATF’s enforcement efforts regard-

ing firearms is of particular importance to amici because

they work with ATF on an ongoing basis and depend on its

assistance in their own law enforcement efforts. ATF

encourages localities to participate with it in various

nationwide firearm initiatives, such as the Youth Crime

Gun Interdiction Initiative (YCGII), which, inter alia,

“seeks to determine the illegal sources of guns for youths

by analyzing trace data to detect patterns in the local

supply of crime guns.” J.A. 27; Pet. Br. 8. That initiative

requires that participating localities agree to have all

crime guns recovered in their jurisdictions traced by ATF.

Ibid.

Disclosure of the withheld information from the Trace

and Multiple Sales Databases would further the public

' Letters from the parties consenting to the filing of this brief are

being filed with the Clerk of this Court along with this brief, pursuant

to Supreme Court Rule 37.3(a). No counsel for a party authored this

brief in whole or in part, and no person or entity, other than the amici

curiae, their members, or their counsel, made a monetary contribution

to the preparation or submission of this brief.

2

interest in demonstrating how well ATF is conducting its

gun trace and monitoring functions, and how well it is

compiling data to develop a picture of the nation’s crime

gun distribution channels. For example, information from

the Trace Database showing which firearm dealers do not

provide information to ATF that is adequate to complete a

trace to a retail purchaser, in what circumstances such

trace failures occur, and ATF’s response, would reveal

important factors that contribute to ATF’s effectiveness.

That information would, in turn, inform how amici may

better improve their effectiveness in combating gun

violence, including with respect to those amici responsible

for enforcing state laws regulating licensed firearm deal-

ers who operate in their jurisdictions and those amici who

have enacted their own local firearm dealer laws.

As part of their efforts to curb gun violence, several

amici are currently pursuing public nuisance claims

against certain firearm industry members, similar to

respondent's civil lawsuit. See Pet. App. 2a. Some of the

amici have also requested the data at issue here under the

Freedom of Information Act (FOIA), 5 U.S.©. § 552, and

ATF has similarly refused to disclose the data to them.

Like respondent, and as shown more fully below, these

amici are entitled under FOIA to the information re-

quested, should they seek to use it in connection with their

claims that the methods of gun distribution of certain

industry members directly result in widespread accessibil-

ity of handguns to persons prohibited by law from possess-

ing them, including felons and juveniles. Moreover, in

connection with all their efforts to address gun violence in

their jurisdictions, amici have a legitimate interest in

ascertaining the degree to which ATF is fulfilling its

statutory role of regulating firearm industry licensees, and

the data about changes in crime gun patterns over time

will assist amici in making such evaluations.

As a more general matter, the information at issue in

this case is relevant to the national debate regarding

whether current federal firearm laws and the resources

devoted to enforcing them are adequate, or whether

additional laws or efforts are needed in this area — a

j

'

3

debate that is of particular significance to amici ana their

law enforcement efforts. Chief executives of the law

enforcement offices of some of the amici submitted sworn

declarations in support of respondent’s summary judgment

motion in the instant action, attesting to the fact that

disclosure of the information requested in this case could

not reasonably be expected to interfere with law enforce-

ment proceedings.

Given the extent of their law enforcement duties and

responsibilities, amici have a strong interest in the proper

resolution of the questions presented in this case.

SUMMARY OF ARGUMENT

I. Disclosure of the information withheld by the

Bureau of Alcohol, Tobacco, Firearms, and Explosives

(ATF) will directly serve the public interest by revealing

ATF’s effectiveness in tracing firearms that have been

involved in criminal activity and in monitoring the sales of

multiple firearms to unlicensed individual purchasers

within a short period of time. The court of appeals cor-

rectly held that ATF failed to establish that the withheld

information in its Trace and Multiple Sales Databases was

exempt from disclosure under the Freedom of Information

Act (FOIA), 5 U.S.C. § 552.

A. ATF treats FOIA Exemption 7(A) as a blanket

exemption that allows it to withhold, for a five-year period,

whatever information in its databases is, in ATF’s view,

“sensitive,” in order to avoid what ATF believes would be

“premature” release. But Congress specified in Exemption

7(A) that “records or information compiled for law en-

forcement purposes” need not be disclosed by federal

agencies “only to the extent” that they “could reasonably

be expected to interfere with enforcement proceedings.” 5

U.S.C. § 552(bX 7A). ATF’s sweeping policy of a five-year

withholding period for a variety of different types of

information in its Trace Database does not meet that

standard.

4

ATF’s attempt to characterize its policy as a “categori-

cal” rule akin to those approved in earlier cases is incon-

sistent with more recent precedent. In United States

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

Court rejected arguments strikingly similar to those made

by ATF in this case. Landano made clear that an agency's

claim of a categorical law enforcement exemption under

the FOIA must be supported by a particularized showing

that each of the various types of information withheld

could characteristically be expected to cause the harm

addressed by the exemption. Landano’s tailoring require-

ment is reinforced by a separate provision of the FOIA

that authorizes an agency to withhold information about

the existence of law enforcement records pertaining to a

crimir. . investigation only so long as there is a pending

investigation and the subject is unaware of it. See 5 U.S.C.

§ 552(c)(1).

B. ATF falls far short of making the particularized

showing that Landano requires to support its Exemption

7(A) claim. Although ATF claims that disclosure of the

existence of firearm traces could reasonably be expected to

interfere with enforcement proceedings, ATF’s evidence

does not indicate that to be so. First, the Trace Database

information does not reveal whether an investigation is

pending with regard to any trace. Second, ATF’s withhold-

ing of information identifying all firearm manufacturers,

importers, wholesalers, and retailers is not justified in the

vast majority of traces where those entities are informed

by ATF of the existence of the trace during the course of

the trace. Third, ATF presents no evidence that the disclo-

sure of any of the various types of information withheld

could reasonably be expected to interfere with an enforce-

ment proceeding for the entire five-year withholding

period. ATF’s evidence establishes that traces are com-

pleted within one year and even the more complicated

investigations involving the Multiple Sales Database are

completed within two years. Finally, ATF did not tender

admissible evidence to support its claim that any failure to

maintain the confidentiality of trace requests for five years

—_———— —-

5

would mean that local law enforcement agencies would no

longer request traces. The record evidence from chief

executives of major metropolitan police departments is to

the contrary. The Court found remarkably similar argu-

ments to be inadequate in Landano.

That is not to say that ATF could not justify withhold-

ing some types of Trace Database information under a

categorical Exemption 7(A) claim. Instead of making the

required particularized showing for a narrower category of

information such as in cases involving undercover agents,

however, ATF has rested on an overbroad and unreason-

able five-year policy that does not “comport{] with ‘com-

mon sense and probability.’” Landano, 508 U.S. at 175.

II]. ATF also cannot sustain its withholding of vari-

ous categories of names and addresses of individuals in

the Trace and Multiple Sale Databases under FOIA

Exemption 7(C). That exemption allcws the withholding of

law enforcement records “only to the extent” that produc-

tion “could reasonably be expected to constitute an unwar-

ranted invasion of personal privacy.” 5 U.S.C.

§ 552(b7C). Exception 7(C) applies only if the public

interest served by disclosure is outweighed by personal

privacy interests.

A. Disclosure of the withheld names and addresses

in the Trace Database will serve the public interest by

allowing the public to determine whether the fifty percent

of ATF traces which successfully identify the retail pur-

chaser are concentrated on crime guns that are sold to

particular purchasers, by particular retailers, recovered in

particular geographic areas, or recovered from particular

individuals. Similarly, disclosure of the names and ad-

dresses of retail purchasers in the Multiple Sales Data-

base would allow the public to determine whether ATF is

able to detect, in a timely manner, multiple purchases by

the same unlicensed individual within a short time period

at different dealers.

The public interest outweighs ATF’s claims of per-

sonal privacy. As for retail purchasers’ names and ad-

dresses, ATF claims a privacy interest based on federal

6 .

statutes limiting the disclosure of purchaser information

by state and local law enforcement agencies. ATF does not

suggest, however, that mongovermentai, commercial

retailers are prevented from making public the names or

addresses of their customers, thus undermining the

claimed privacy interest. ATF’s claim of a generic personal

privacy interest for the names and addresses of the people

from whom crime guns are recovered, their associates, and

the recovery locations, rests on a blanket claim for exempt-

ing information merely because it is included in a record

compiled for law enforcement purposes. Congress tailored

the FOIA law enforcement exemptions to preclude such a

blanket claim. To the extent there may be any privacy

interest in any of the various categories of withheld names

and addresses, that concern can be readily addressed

through the FOIA’s segregability provision. See 5 U.S.C.

§ 552(b).

ARGUMENT

Major metropolitan areas in this country suffer a

significant level of loss of life and personal injury to their

citizens due to gun violence. In addition, gun related

violence imposes added financial costs on their health care

systems and redevelopment efforts, as well as an unac-

ceptable quality of everyday life on those who live in fear

of such violence. Combating gun violence is a responsibil-

ity shared by law enforcement and government officials at

the federal, state, and local levels.

Disclosure of the withheld information in this case

will directly serve the public interest and support efforts to

curb gun violence in a variety of ways. The various types

of information requested by respondent City of Chicago to

be disclosed from the Trace and Multiple Sales Databases

maintained by petitioner Bureau of Alcohol, Tobacco,

Firearms, and Explosives (ATF) are precisely those that

Congress intended to be released under the Freedom of

7

Information Act (FOIA), 5 U.S.C. § 552. The information

will serve the public interest by revealing the effectiveness

and efficiency of ATF’s efforts to trace firearms that have

been used in criminal activity by identifying the ranufac-

turer, importer, wholesaler, reta‘ler, and retail purchaser,

who previously possessed a particular crime gun, and tne

agency that recovered the gun. The information will

reflect, inter alia, the number of crime gun traces that ATF

has conducted involving particular firearm dealers, the

timeframe within which ATF traced multiple sales to

particular dealers, the geographical distribution of ATF’s

trace efforts, ATF’s success rate in locating the sources of

crime guns, and the timeliness of ATF’s traces.

The information will allow the public to assess

whether the rate of failed firearm traces is higher with

regard to certain purchasers or locations, manufacturers,

importers, wholesalers, retailers, or requesting agencies,

and whether ATF’s crime gun tracing efforts are success-

fully ensuring that federally licensed dealers whose guns

end up being used in crimes are maintaining proper

paperwork to ensure successful gun traces. The informa-

tion also will allow the public to determine whether ATF’s

means of compiling data about multiple sales allows it to

identify, in a timely manner, purchasers involved in

multiple sales from more than one dealer. All of that

information is relevant to determining the efficacy of

ATF’s current efforts to combat gun crime and is impor-

tant to the amici’s own law enforcement efforts, including

civil lawsuits that various of the amici have brought

against certain gun manufacturers and dealers, alleging

that they are creating a public nuisance through their

methods of gun distribution that disproportionately lead to

criminal use. The lower courts correctly helc that ATF

failed to demonstrate that it is entitled to withhold this

requested information from the public.

8

I. ATF DID NOT ESTABLISH THAT THE WITH-

HELD INFORMATION IN THE TRACE DATA-

BASE MEETS THE STANDARDS FOR

NONDISCLOSURE UNDER FOIA EXEMPTION

7(A)

The “heart of ATF’s claim to withhold information is

Exemption (7)(A).” Pet. App. 25a. ATF treats FOLIA Exemp-

tion 7(A), 5 U.S.C. § 552(b\7A), as a broad exemption

that authorizes the withholding of whatever law enforce-

ment investigative information is, in ATF’s view, “sensi-

tive.” Pet. Br. 31, 34, 35 n.18, 38, 39. ATF claims a blanket

right to withhold such “sensitive” information for five

years, because, in its view, any disclosure before the

expiration of five years would be “premature.” ATF does

not make clear what distinguishes “sensitive” law en-

forcement information from “nonsensitive” law enforce-

ment information and does not present a rationale to

support the five-year withholding period as necessary to

prevent “premature” release. ATF’s withholding policy

cannot be reconciled with the text, structure, history, or

purpose of the FOIA, or with this Court’s precedents.

A. Exemption 7(A) Is Limited To Preventing

Interference With Enforcement Proceed-

ings And Does Not Support A Blanket

Five-Year Exemption For The Various

Types Of Trace Database Information

Withheld, Notwithstanding ATF’s “Cate-

gorical” Claim

1. FOIA Exemption 7 sets forth the criteria that

must be met in order for a federal agency to withhold law

enforcement records or information. Exemption 7 includes

six subsections that each establishes a different exemption

tailored to a particular need of law enforcement. The

detailed nature of Exemption 7 reflects the special atten-

tion and care that Congress gave to determining the

appropriate standards to address the particularly impor-

tant concerns of law enforcement — concerns that the amici

nner ET Pn |

9

cities and counties share — regarding safeguarding the

integrity of the law enforcemer:t process as weil as the

officers, witnesses, and others who are involved in that

process.

Exemption 7 provides that, notwithstanding the

FOIA’s compelled disclosure of government records and

information, the FOIA does not require the disclosure of

“records or information compiled for law enforcement

purposes, but only to the extent that the production of such

law enforcement records or information” satisfies one of

the statutory exemption criteria. 5 U.S.C. § 552(b)\(7)

(emphasis added). By using the phrase “but only to the

extent,” Congress made clear that Exemption 7 does not

exempt from disclosure any records or information based

on the mere fact that they were compiled for law enforce-

ment purposes, or solely because a law enforcement

agency views them as “sensitive.”

The statute’s history confirms that Congress intended

for the six statutory exemptions to preclude any effort by

agencies to apply a blanket exemption for all criminal

investigative materials. When the FOIA was enacted in

1966, “Exemption 7 permitted nondisclosure of ‘investiga-

tory files compiled for law enforcement purposes except to

the extent available by law to a private party.’” John Doe

Agency v. John Doe Corp., 493 U.S. 146, 156 (1989) (quot-

ing Pub. L. No. 89-487, § 3(e)(7), 80 Stat. 251). Congress

narrowed that exemption significantly, when, in 1974, it

enacted Exemptions 7(A) through 7(F), thereby revising

the statute to require a federal agency “to demonstrate

that a record is ‘compiled for law enforcement purposes’

and that disclosure would effectuate one or more of the six

specified harms.” John Doe Agency, 493 U.S. at 156

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

214, 221-222 (1978)). That narrowing of the law enforce-

ment exemption responded to concerns that Exemption 7

as originally enacted was being applied too broadly by

some courts to allow withholding of anything that was put

in a law enforcement investigative file. See John Doe

Agency, 493 U.S. at 156 & n.7.

10

Congress limited the first law enforcement exemption,

Exemption 7(A), to records or information, the production

of which “could reasonably be expected to interfere with

enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).’ Exemp-

tion 7(A) does not address concerns, unrelated to enforce-

ment proceedings, that relate to release of records that

could reveal confidential sources, national security intelli-

gence investigations, law enforcement investigative

techniques and procedures, or information that could

endanger the safety of an individual. Other exemptions

not invoked by ATF in this case specifically address such

concerns. See 5 U.S.C. §§ 552(b)(7(B), (D)-(F). Thus, the

statute’s text, structure and history make clear that

Exemption 7(A) does not authorize a blanket exemption

for all law enforcement information that is involved in an

investigation that could possibly lead to an enforcement

proceeding.

2. ATF nonetheless insists that it is entitled to

withhold a variety of information related to firearm

manufacturers, wholesalers, retailers, retail purchasers,

requesting agencies, firearms, and firearms recovery

contained in the Trace Database because its withholding

policy constitutes a “categorical” determination that

* When Exemption 7(A) was first added to the FOIA in 1974, a

federal agency was required to establish that disclosure of a law

enforcement record “would” interfere with enforcement proceedings. 5

U.S.C. § 552(b7A) (1976). In 1986, Congress amended Exemption

7(A) to require that a federal agency establish only that release of the

record or information “could reasonably be expected” to interfere with

enforcement proceedings. Freedom of Information Reform Act of 1986,

Pub. L. No. 99-570, § 1802, 100 Stat. 3207-48. That amendment and

similar amendments to some of the other law enforcement exemptions

were intended to “clarify the degree of risk of harm from disclosure

which must be shown to justify withholding records.” S. Rep. No. 221,

98th Cong., lst Sess. 23 (1983). The amended standard “recognizes the

lack of certainty in attempting to predict harm, but requires a standard

of reasonableness in that process, based on an objective test.” Jd. at 24.

11

Exemption 7(A) applies to such information.’ ATF relies on

Congress’s 1986 amendment of FOIA Exemption 7(A), see

note 2, supra, as a validation of its expansive view of its

“categorical” claim of exemption. Pet. Br. 36-37. ATF also

claims (Pet. Br. 35-36) that its “categorical” exemption is

akin to the sort approved by the Court in Robbins Tire

under Exemption 7(A) (statements of witnesses whom the

agency intended to call at an upcoming hearing), and in

United States Department of Justice v. Reporters Commit-

tee, 489 U.S. 749 (1989), under Exemption 7(C) (criminal

“rap sheets”).

This Court was presented with, and unanimously

rejected, a strikingly similar argument advanced by the

federal government in United States Department of Justice

v. Landano, 508 U.S. 165 (1993). Landano “concern{ed]

the evidentiary showing that the Government must make”

to establish the applicability of FOIA Exemption 7(D),

the law enforcement exemption governing confidential

* All of the information in the Trace Database is withheld by ATF

under Exemption 7(A) for at least one year after the trace is requested.

J.A. 32-33.

ATF withholds nine data elements in the Trace Database for five

years under Exemption 7(A): (1) the code that identifies the agency that

requested tracing assistance from ATF; (2) the requesting agency's

name; (3) the requesting agency's city; (4) the requesting agency's zip

code; (5) the serial number of the firearm; (6) the importer of the

firearm; (7) the full number that identifies each federally licensed

firearm dealer; (8) anv “invalid dealer number” which identifies a

governmental firearm « zaler who need not be licensed; and (9) the date

of the retail purchase of the firearm. J.A. 34 & n.2, 35-39, 41-44.

ATF withholds additional data elements in the Trace Database for

five years under Exemption 7(A) that it also withholds indefinitely on

privacy grounds under Exemption 7(C). With regard to the person who

possessed the firearm at the time it was recovered, his associates, and

the retail purchaser of the firearm, the data withheld consists of 11

elements comprising the person’s name and address. Jd. at 40-41 & n.6,

45-46 & n9. With regard to the location where the firearm was

recovered, seven elements comprising the address are withheld. Jd. at

39-40 & n.5. A

12

sources. Like Exemption 7(A) at issue here, and Exemp-

tion 7(C) at issue in Reporters Committee, Exemption 7(D)

had been amended in 1986 to require that the federal

agency demonstrate that disclosure “could reasonably be

expected” to cause the harm identified in the exemption.

The United States relied on that legislative history and

the decisions in Robbins Tire and Reporters Committee to

claim a blanket confidential source exemption under

Exemption 7(D) for records pertaining to anyone who

provided information to the FBI during the course of a

criminal investigation. See United States Dep’t of Justice v.

Landano, No. 91-2054 (O.T. 1992), Brief for Petitioners at

23-24, 34 (Feb. 1993). The Court rejected that claim, and

in doing so addressed the proper application of Reporters

Committee, as well as the relevance of the 1986 statutory

amendment.

The Court found that the legislative history of the

1986 amendment to Exemption 7(D) offered “no persuasive

evidence that Congress intended for the [FBI] to be able to

satisfy its burden in every instance simply by asserting

that a source communicated with the [FBI] during the

course of a criminal investigation.” Landano, 508 U.S. at

178. And the Court explained that, in Reporters Commit-

tee, it had upheld the categorical exemption from disclo-

sure of “rap sheet” information because “the release of

such information invariably” met the Exemption 7(C)

standard. 508 U.S. at 177. The Court thus concluded that,

in order to support such a categorical exemption, a federal

agency has to identify “certain circumstances” that “char-

acteristically support” the inference that the agency is

claiming. [bid. The Court noted that circumstances such

as the character of the crime, and the source’s relation to

the crime, could be relevant to justifying a more narrowly

defined category. What Landano demands, however, is a

“particularized” showing by a federal agency that certain

identified circumstances characteristically support the

inference drawn by the agency with regard to particular

types of information being categorically covered by a FOIA

law enforcement exemption. Jd. at 180.

13

The opinion on which ATF repeatedly relies (Pet. Br.

37, 48), Crooker v. Bureau of Alcohol, Tobacco and Fire-

arms, 789 F.2d 64 (D.C. Cir. 1986), is not to the contrary.

Crooker recognized that a categorical exemption claim

(which it described as “generic”) was permissible under

Robbins Tire but, presaging Landano, emphasized that

such an exemption is distinct from a blanket exemption.

The court made clear that, “[i)f the government chooses to

rely on generic determinations, its definitions of the

relevant categories of documents must be sufficiently

distinct to allow a court to grasp ‘how each ... category of

documents, if disclosed, would interfere with the investi-

gation.’ The hallmark of an acceptable Robbins category is

thus that it is functional; it allows the court to trace a

rational link between the nature of the document and the

alleged likely interference.” 789 F.2d at 67 (quoting Camp-

bell v. Department of Health & Human Servs, 682 F.2d 256

(D.C. Cir. 1982)). The court of appeals ruled that ATF’s

showing in that case was inadequate because it had not

made a presentation that would allow a court “to compre-

hend how each withheld document or category of docu-

ments, if disclosed, would interfere with an ongoing

investigation.” /bid.

In sum, it is clear that ATF’s labeling of its policy as a

“categorical” determination does not insulate it from

scrutiny under the FOIA exemption standards.‘

3. Jandano’s requirement that categorical claims

under ti.c FOIA’s law enforcement exemptions be tailored

to particular circumstances and supported by evidence

that indicates disclosure would characteristically cause

* Also, as in Landano, regardless of whatever force there is to

ATF’s policy arguments against disclosure, the Court is “not free to

engraft [a federal agency's) policy choice onto the statute that Congress

passed.” Landano, 508 U.S. at 181. The wisdom of that limitation is

particularly apparent here, where Congress has responded to law

enforcement concerns about FOIA exemptions in the past and is

currently considering various reform proposals. See Pet. Br. 38-39 n.20.

14

the claimed harm, is reinforced by a separate provision of

the FOIA regarding interference with enforcement pro-

ceedings. Congress made clear in Section 552(c\1) that,

before the existence of law enforcement records pertaining

to a criminal investigation can be withheld on the basis

that disclosure would rever. ‘he pendency of an investiga-

tion or proceeding, there ra»st be “reason to believe” that

“the subject of the investigation or proceeding is not aware

of its pendency.” 5 U.S.C. § 552(c 1B i). Congress also

specified that a federal agency may continue to withhold

such information only during “such time as that circum-

stance continues,” i.e., so long as the subject is unaware of

the pendency of the investigation or proceeding, and

disclosure could reasonably be expected to interfere with

enforcement proceedings. [bid.

In light of that neighboring provision, Exemption 7(A)

cannot be read to allow a blanket exemption for a variety

of types of information, without regard to whether an

investigation is closed, see page 16, infra, or whether the

information relates to traces about which the subject is

aware, e.g., when the subject of the investigation is a

dealer who already has been informed of the trace of the

firearms involved, see pages 16-17, infra. That more

specific provision also undermines ATF’s policy that it can

rely on concern about disclosure of an investigation to

continue to withhold information for five years, without

regard to whether the circumstances regarding awareness

of the trace have changed.

B. ATF Failed To Establish That The Various

Types Of Trace Database Information

Withheld Under Exemption 7(A) Could

Characteristically Be Expected To Inter-

fere With Enforcement Proceedings If

Disclosed In Less Than Five Years

1. Congress made unambiguously clear that, under

the FOIA, “the burden is on the agency to sustain its

action” of withholding records or information. 5 U.S.C.

§ 552(aX4\B). The United States claims that ATF met

a

15

—

that burden through the submission of a declaration by an

ATF official that sets forth the reasons for ATF’s withhold-

ing policies. ATF’s principal argument for withholding

under Exemption 7(A) the various types of information

requested relating to particular firearm manufacturers,

wholesalers, retailers, retail purchasers, requesting

agencies, firearms, and firearms recovery is that disclo-

sure of the existence of the trace could reasonably be

expected to interfere with whatever ongoing investigations

there may be related to a trace. See Pet. Br. 38, 41, 42.°

But ATF’s showing falls far short of FOLA’s require-

ment that a claim of a categorical exemption be supported

by a particularized showing that each of the various types

of information withheld could characteristically be ex-

pected to interfere with enforcement proceedings if dis-

closed. See Landano, 508 U.S. at 175-176. Allowing ATF to

avoid such a showing in this case exacts a significant toll

on the public interest because amici cities and counties

and their taxpayers are prevented from assessing the

effectiveness of ATF’s law enforcement strategies regard-

ing gun violence in their communities.

There are numerous examples of why disclosure of the

various types of Trace Database information withheld

could not characteristically be expected to interfere with

any enforcement proceedings as ATF claims including, but

not limited to, the following.

a. First, it is not reasonable to infer from the facts

set forth by ATF that disclosure of any of the withheld

information would allow a target of an investigation, or

* The federal government appears, in essence, to be seeking

deference to the declaration of an ATF official. See Pet. Br. 5 n.4, 34-35,

40-46, 49; JA. 18-58. But that same declaration also justified the

withholding of all Multiple Sales Database information for two years

under Exemption 7(A), see J.A. 47-49, and the withholding of a variety

of names and addresses indefinitely under Exemption 6. See J.A. 57.

The United States no longer advances either argument in this Court.

See Pet. 34 n.17; id. at 20 n.11.

16

anyone else, to learn that a criminal investigation is

pending involving a particular firearm. The Trace Data-

base reflects only the fact that a trace of a firearm was

conducted — a standard operating procedure with respect

to all crime guns in many jurisdictions, including Chicago,

and in all jurisdictions that join certain initiatives of ATF.

See, e.g., J.A. 27. The Trace Database information does not

indicate “whom law enforcement is investigating, or

whether an investigation of any type is ongoing or con-

templated with respect to a particular person or a particu-

lar gun.” J.A. 84; see id. at 86, 88. Indeed, ATF states that

the database information is inadequate to allow ATF,

itself, to determine what traces relate to firearms involved

in pending criminal investigations because ATF is not

informed about the status of investigations by local law

enforcement agencies. J.A. 24-25, 29.

Moreover, even if one could infer from the trace

information that a criminal investigation was pending,

ATF’s evidence does not support its withholding of all of

the information at issue. ATF’s evidence establishes that

approximately twenty-five percent of the traces included

in the database were requested by ATF itself. Pet. Br. 7

(920,655 out of the approximately 1.2 million traces in the

Trace Database were requested by state and local law

enforcement agencies). Whether those federal matters

have been closed is known to ATF. J.A. 150-151. That

category of closed cases could be disclosed forthwith

without raising any concern whatsoever about interference

with enforcement proceedings.

b. Similarly, ATF’s withholding of all information

identifying firearm manufacturers, importers, wholesal-

ers, and retailers in all circumstances is not justified on

this record. Those entities are all informed by ATF of the

existence of a trace during the course of the trace and ATF

does not claim that such businesses must keep that

knowledge confidential. J.A. 88, 171-172, 212. Therefore,

ATF’s disclosure to the public of the same information

cannot reasonably be expected to interfere with enforce-

ment proceedings.

17

The only exception to that practice of notifying retail

dealers apparently is when a trace has been labeled “do

not contact.” That code “alerts ATF that in conducting the

trace it should not contact a particular retail dealer to

advise that a firearm he recently sold is being traced

because, inter alia, the dealer may be suspected of being

involved in criminal activity.” Pec. Br. 35 n.18. Although

such information may support an appropriately tailored

categorical exemption, see page 22, infra,’ respondent City

of Chicago does not seek any “do not contact” information

in recognition of the legitimate law enforcement interests

at issue in avoiding interference with such matters. See

J.A. 215; see also J.A. 89-90 (discussing another code ATF

uses when it needs to protect against specific dealers

learning of a gun trace); J.A. 90-91 (discussing method

that ATF uses to ensure that the database does not reveal

the identity of the law enforcement agency that requests

“particularly sensitive” traces).

c. Consider next the duration of ATF’s withholding

policy of Trace Database information under Exemption

7(A). Throughout its brief, the government defends the

withholding of the Trace Database information by relying

on examples of what could happen if the information were

released contemporaneously with the trace itself being

conducted or during the very initial steps of an investiga-

tion. See, e.g., Pet. Br. 18, 41, 43-44. It does not present an

argument that would reasonably support an inference that

the disclosure of any of the various types of information

could reasonably be expected to interfere with an enforce-

ment proceeding if released four years, or even two or

three years, after the trace is initiated.

* In some instances where the dealers are already aware of gun

traces that then lead to an investigation, ATF continues to inform

dealers of future traces so as to avoid raising suspicion by the dealer

that he is under investigation. J.A. 89. Release of information about the

existence of such a trace in those circumstances could not reasonably be

expected to interfere with any enforcement proceedings.

18

ATF’s own evidence indicated only that “firearms

traces may take many weeks or months to complete,” and

did not suggest that a trace could take even as long as a

year. J.A. 33. Rather, ATF’s evidence confirms that traces

are completed well within one year. According to ATF, the

delay caused by its one-year withholding period for the

rest of the Trace Database information “allows law en-

forcement personnel sufficient time to complete the trace

process.” J.A. 33; see J.A. 21 (federal law requires that

federally licensed dealers respond within 24 hours to trace

inquiries about crime guns).

ATF’s only justification for withholding additional

information in that same Trace Database for another four

years is that members of the public would be able to use it

to “trace firearms used in crimes and interfere with law

enforcement investigations.” J.A. 34. But that argument

rests on an unspoken assumption that investigations

relating to traces may continue for another four years.

ATF states, however, that the “one-year withholding

period for all trace data also protects against the possibil-

. ity of interference with a recently-opened investigation.

J.A. 33. Moreover, ATF explains that its two-year with-

holding policy regarding the Multiple Sales Database

provides an adequate “cushion” to protect against interfer-

ence with “trafficking-related investigations” or studies of

“multiple sales patterns” among licensed dealers. J.A. 48.

And ATF explains that investigations involving the Multi-

ple Sales Database “require more time to develop than

investigations concerning a trace.” J.A. 48 n.12 (emphasis

added).

ATF provides no explanation as to why the FOIA

would allow the remainder of the Trace Database to be

withheld for another three or more years despite the fact

that, according to ATF’s own evidence, traces are com-

Sistad within one year and efegiate time hes clapeed to

allow completion of related investigations before the end of

two years. Cf. J.A. 34, 170 (explaining that blanket five-

year withholding is consistent with the statute of limita-

tions for the Gun Control Act). Thus, ATF’s showing does

not demonstrate that it would be fair to infer that release

ll

19

of the remainder of the Trace Database information after

two, three, or four years could characteristically be ex-

pected to interfere with enforcement proceedings. The

unduly broad sweep of ATF’s five-year policy for withhold-

ing Trace Database information under Exemption 7(A)

appears even more unreasonable in light of the fact that

the United States is no longer defending ATF’s policy of

withholding information in the Multiple Sales Database

for two years under Exemption 7(A). See Pet. Br. 34 n.17.

The latter database no doubt generates leads for investi-

gations that are more complex and attenuated than those

related to traces where the criminal activity involving a

gun has already been uncovered.

d. ATF also claims that, if it does not maintain the

confidentiality of trace requests from local law enforce-

ment agencies, including the identify of the requesting

agency which ATF withholds for five years, such agencies

will no longer request traces. J.A. 46. But ATF proffered

only unsworn letters regarding concern by members of

certain organizations with law enforcement memberships

that made conclusory claims of possible harm. Respon-

dent, however, submitted sworn declarations from several

law enforcement officers of major metropolitan police

departments attesting to the fact that disclosure of the

requested database information would not interfere with

enforcement proceedings, thereby undermining the rea-

sonableness of petitioner’s unsupported assumptions or

inferences to the contrary. See J.A. 62 (declaration of

Deputy Superintendent of Chicago Police Department) (“it

is difficult to imagine a scenario where the disclosure of

the raw data itself concerning what companies sold the

gun and what individual made the initial purchase from

which gun dealer would threaten our investigation”); ibid.

(noting that such information is frequently provided to the

press “in the immediate wake of a crime with no adverse

consequences”); J.A. 66 (declaration of Camden County

Prosecutor) (release of database information, including

data accumulated based on Camden County’s inquiries,

will not “impede ongoing criminal investigations” in the

20

county); J.A. 69 (declaration of Deputy Chief of Headquar-

ters Bureau, City of Detroit Police Department) (public

release of database information “unlikely to cause inter-

ference with law enforcement activities”); J.A. 110 (decla-

ration of President, Board of Police Commissioners for

City of St. Louis) (release of ATF database information

“unlikely to cause interference with law enforcement

activities”).

Respondent also submitted evidence that past disclo-

sures of ATF’s Trace Database information had not inter-

fered with enforcement proceedings. See JA. 79

(identifying ATF’s specific disclosure of all of its gun trace

information to major metropolitan newspaper which

“agreed to enter all of the information into a computer

database for ATF to use”); J.A. 76-77, 93-101 (describing

release of entire database to petitioner’s amicus without

adverse effect on enforcement proceedings); J.A. 84 (de-

scribing unusual nine-year investigation of firearms

trafficking that was not adversely affected by ATF’s

disclosure of trace data); J.A. 86-87 (describing other

complicated investigations where release of trace data did

not interfere with enforcement proceedings). Therefore, it

is particularly unreasonable and contrary to common

sense for ATF to insist that it must withhold, for five

years, any information identifying the agency that re-

quests a trace, even that agency’s zip code, when executive

officers of major local law enforcement departments made

clear, as declarants below, that disclosure of the raw data

involved in this case could not reasonably be expected to

interfere with their enforcement proceedings. ‘To the

contrary, disclosure would significantly assist them in

their efforts to curb gun violence in their communities.

’ Nor can the United States invigorate its anemic evidence in this

case by its invocation (Pet. Br. 46) of memoranda of understanding

between ATF and police departments regarding the confidentiality of

Trace Database information, all of which were entered into after the

district court’s decision. bid. Moreover, to the extent those cities’ entry

(Continued on following page)

21

2. The Court found remarkably similar claims to be

inadequate in Landano. For example, the FBI argued

there that Exemption 7(D)’s protection of confidential

sources applied to all witnesses who provided information

to the FBI during a criminal investigation “because of the

risk of reprisal or other negative attention inherent in

criminal investigations,” even though “reprisal may not be

threatened or even likely in any given case.” 508 U.S. at

176 (quoting declaration of FBI Special Agent). The Court

recognized that “many, or even most, individual sources

will expect confidentiality” when providing information to

the FBI, but refused to hold that the government could

categorically withhold all sources of information because

“the Government offer[ed] no explanation, other than ease

of administration, why that expectation should always be

presumed.” Jd. at 176.

In addition, the Landano Court specifically addressed

the FBI's invocation of Exemption 7(D) to justify withhold-

ing of information based on the agency’s assertion that it

was “‘convinced’ that the willingness of other law en-

forcement agencies to furnish information depends on a

‘traditional understanding of confidentiality.’” 508 U.S. at

176 (quoting declaration of FBI Special Agent). The Court

found that that justification was even “less persuasive”

than the claimed inference about all information sources

being at risk of reprisal. The Court indicated that there

was “no argument * * * that disclosure ordinarily would

affect cooperating agencies adversely or that the agencies

otherwise would be deterred from providing even the most

in such agreements was actively encouraged by ATF in order to bolster

their FOIA claim, see Br. in Opp. 26 n.11, Congress previously encoun-

tered and disapproved of a similar agency tactic to avoid the FOLA’s

disclosure requirements over 30 years ago. See H.R. Rep. No. 1419, 92d

Cong., 2d Sess. 15-16 (1972) (condemning an agency practice of

soliciting requests for confidentiality from persons as “entirely inconsis-

tent with” and a “flagrant abuse[ } of” FOIA: “the committee knows of

no agency that has the specific statutory authority to extend blanket

exemption, let alone to solicit the exemption of confidentiality”).

22

nonsensitive information.” [bid.; see also ibid. (rejecting as

“conclusory” the suggestion in declaration by FBI Special

Agent regarding expectations of other law enforcement

agencies).

That is not to say that ATF could not justify withhold-

ing some types of Trace Database information under a

categorical Exemption 7(A) claim. There may well be

particular types of information in the Trace Database that

share certain common characteristics that would indicate

that disclosure of all of that same type of information

could reasonably be expected to interfere with enforcement

proceedings in some demonstrable manner. For example,

information relating to traces that involve undercover law

enforcement officers may very well be such a category. See

Pet. Br. 42-43. Also, as noted above, pages 16-17, informa-

tion relating to do-not-contact traces involving dealers who

are suspected of criminal activity may be such a category."

But ATF failed to make a “particularized” showing

that certain identified circumstances support the inference

that all of the various types of information that ATF labels

“sensitive” can be withheld for five years because release

of any of it before expiration of that time could character-

istically be expected to interfere with enforcement pro-

ceedings. Indeed, ATF’s sweeping five-year policy does not

“comport{] with ‘common sense and probability.’” Lan-

dano, 508 U.S. at 175 (quoting Basic Inc. v. Levinson, 485

* Interestingly, the government now states, however, 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 (including traces related to homicides and other violent crimes in

which the dealer is not a suspect).” Pet. Br. 35 n.18. Yet, in cases of

~ homicides and other violent crime, the identity of the licensed firearm

manufacturers, importers, wholesalers, and even retailers who pos-

sessed the firearm at some past date is generally wholly irrelevant to

the elements of the crime that must be proven and, thus, to the

investigation or prosecution of the offense. Thus, the logic of ATF’s

“sensitive” categorization is far from clear and undermines the reason-

ableness of inferences based on such categorization.

23

U.S. 224, 246 (1988)). The withholding by ATF of the

requested information on such an overbroad and unrea-

sonable basis is all the more significant here where disclo-

sure of the Trace Database information would serve the

important public interest in amici and others being able to

assess the effectiveness of ATF’s law enforcement efforts

regarding the tracing of crime guns.

II. ANY PERSONAL PRIVACY INTEREST UNDER

FOIA EXEMPTION 7(C) IN THE CATEGORIES

OF NAMES AND ADDRESSES WITHHELD IS

OUTWEIGHED BY THE PUBLIC INTEREST

SERVED BY DISCLOSURE AND COULD, IN ANY

EVENT, BE PROTECTED UNDER THE FOIA’S

SEGREGABILITY PROVISION

ATF expressly states that it “has not invoked Exemp-

tion 7(C) with respect to manufacturers, dealers, or import-

ers” in the databases. Pet. Br. 10-11 n.6. Therefore, none of

the arguments discussed below regarding public interest,

personal privacy interests, or segregability, affect, in any

way, the lower courts’ conclusion that ATF must release all

of the information about firearm manufacturers, importers,

wholesalers, and retailers in the Trace Database. The same

is true for the information in the Trace Database regarding

the agency that requests a trace and the information about

manufacturers, importers, and dealers in the Multiple

Sales Databases (which relates to purchases by a single

individual of more than one gun within five days, see 18

U.S.C. § 923(g)(3A)). Therefore, regardless of the Court’s

resolution of the personal privacy claim under Exemption

7(C), and regardless of any further order or remand regard-

ing segregability to address any personal privacy concerns,

the court of appeals’ judgment ordering release of all of the

information about manufacturers, importers, wholesalers

and retailers should be affirmed.

Further, it is significant to note that petitioner’s

extensive Exemption 7(C) argument (see Pet. Br. 19-34)

regarding the withholding of names and addresses of

retail gun purchasers has no relevance to approximately

24

fifty percent of the traces in the Trace Database. That is

because, according to ATF, only “{a]Jpproximately one-half

of the trace requests in any given year successfully iden-

tify the first retail purchaser of the firearm.” Pet. Br. 7.

Therefore, release of the other half of the traces, i.e., the

half in which no retail purchaser is identified, would not

implicate any purchasers’ privacy interests.

As for the retail purchaser information that is, in fact,

included in the Trace and Multiple Sales Databases, ATF

failed to demonstrate that disclosure of names and ad-

dresses of the purchasers would constitute an unwar-

ranted invasion of personal privacy to support withholding

the information indefinitely under Exemption 7(C).’ The

same is true for the names and addresses of the possessors

of recovered guns and their associates, as well as the

addresses of the recovery locations, all of which ATF also

withholds indefinitely on personal privacy grounds. In any

event, any personal privacy interest can easily be ad-

dressed under the FOIA’s segregability provision, as the

district court found.

A. Disclosure Of The Withheld Names And Ad-

dresses Would Serve The Public Interest By

Revealing ATF’s Effectiveness In Tracing

Crime Guns And Monitoring Multiple Sales

1. FOIA Exemption 7(C) allows the withholding of

“records or information compiled for law enforcement

* Throughout the course of the litigation below, all of the informa-

tion in the Multiple Sales Database was withheld by ATF under

Exemption 7(A) for two years based on a purported likelihood of

interference with enforcement proceedings. J.A. 47-49. The Solicitor

General, however, “has not sought review of the court of appeals’

holding that information contained in the Multiple Sales Database is

not protected by Exemption 7(A).” Pet. Br. 34 n.17. Thus, all that

remains of the policy of withholding information in the Multiple Sales

Database is the withholding of the names and addresses of retail

purchasers under Exemption 7(C), J.A. 56.

|

25

purposes, but only to the extent” that production of those

materials “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C). Whether an invasion of personal privacy is

unwarranted for purposes of Exemption 7(C) depends on

whether the public interest served by release outweighs

any personal privacy interest. See United States Dep't of

Defense v. FLRA, 510 U.S. 487, 495 (1994). The determina-

tion whether disclosure of government records or informa-

tion serves the public interest under Exemption 7(C)

depends on whether the disclosure serves “to open agency

action to the light of public scrutiny,” Reporters Committee,

489 U.S. at 774 (quoting Department of the Air Force v.

Rose, 425 U.S. 352, 372 (1976)), or “sheds light on an

agency's performance of its statutory duties.” 489 U.S. at

773.

The disclosure of the various categories of names and

addresses withheld by ATF on privacy grounds would

directly advance the public oversight goal of the FOIA.

Disclosure would be a means of ensuring federal agency

accountability as the FOIA intended, especially to amici

cities who, as representatives of their taxpayers, allocate

resources to participate in ATF initiatives aimed at curb-

ing gun violence, and are charged with ensuring that such

resource allocations are fiscally responsible.

The fifty percent success rate of ATF’s crime-gun

traces presents a prime example of how disclosure of the

various categories of names and addresses in the Trace

Database would open ATF’s actions to public scrutiny.

Disclosure of the results of successful traces, including the

names of retail purchasers, the addresses where traced

guns were recovered, the names and addresses of the

person from whom the gun was recovered, his associates,

and the recovery location, would reveal whether ATF’s

successful traces are concentrated on crime guns that are

sold to particular purchasers, are recovered in particular

geographic areas, or are recovered from particular indi-

viduals. Such disclosure also would allow the public to

determine whether failed traces are concentrated on

26

particular retailers, and to identify the number of failed

traces and crime guns connected to each retailer.

Such information bears directly on the effectiveness

and efficiency of ATF’s operations and whether patterns

exist indicating that the effectiveness relates to outside

factors (e.g., certain purchasers or retailers repeatedly

involved in crime gun traces that fail) or to internal factors

(e.g., delay or other circumstances affecting requests

regarding guns recovered in certain geographic areas or

from certain individuals). Disclosure of the names and

addresses of individuals possessing crime guns could also

be used to evaluate whether ATF is vigorously enforcing

federal firearm laws. J.A. 102. Similarly, disclosure of the

names and addresses of retail purchasers in the Multiple

Sales Database would allow the public to determine

whether ATF is able to detect, in a timely manner, multi-

ple purchases by the same purchaser within a short time

period from different dealers.

2. The various ways in which disclosure of the

withheld names and addresses would serve the public

interest in revealing the effectiveness and efficiency of

ATF’s firearm tracing and monitoring distinguish this

case from the “names and addresses” cases cited by the

United States. Pet. Br. 21, 28. In Department of Defense,

the Court found that the relevant public interest served by

disclosure of the list of names and addresses at issue there

was “negligible, at best,” because the list did not reveal

anything about what the government was doing. 510 U.S.

at 497; see also Bibles v. Oregon Natural Desert Ass’n, 519

U.S. 355 (1997). The only asserted public interest in those

cases was that disclosure would allow the FOIA requester

to contact the listed people and provide them with infor-

mation. That interest could not satisfy the standards of

Exemption 7(C).

The public interest served by disclosure in this case is

entirely different. It is not based on intended contact with

listed persons. Rather, it is based on what information the

ee ne

: 0 ee PI

27

names and addresses, considered along with the rest of the

database information, reveal as to how ATF is tracing

crime guns and monitoring multiple sales.

B. Any Personal Privacy Interest Is Out-

weighed By The Public Interest And Could,

- Any Event, Be Addressed Through Redac-

o- :

1. Petitioner compares the personal privacy interests

at stake for gun purchasers listed in the Multiple Sales

Database to cases in which the names and addresses at

isswe were those of people who had submitted that infor-

mation only to the government, and to cases where only a

limited class of government officials had access to the

information. Pet. Br. 23. The instant case is quite differ-

ent, however, with regard to the retail gun purchasers

listed in both the Trace and Multiple Sales Databases

because those purchasers disclosed their names and

addresses to a nongovernmental, commercial actor — the

firearm retailer from whom they purchased the firearm.

As is the case with regard to almost any retail pur-

chase of a significant value, many gun purchasers submit

their names and addresses to a retailer through the use of

checks, credit cards, and documentation that confirm their

personal identity and address for credit purposes. Peti-

tioner does not suggest that the FOIA or the federal

firearm statute on which it relies to claim a privacy

interest, see Pet. Br. 24-26 (discussing 18 U.S.C.

§§ 923(g)(3B) and 926(a)), prevents disclosure by a

retailer of the name or address of a gun purchaser, includ-

ing a purchaser of a gun that is later involved in a crime or

an investigation. Thus, like other retail customers, gun

purchasers’ names and addresses can be disclosed or sold

by a retailer to another entity to use as it sees fit (e.g., to

send advertisements from a manufacturer of gun locks,

promotional materials from an owner of a firing range, or

advocacy materials regarding firearm regulations). That

28

fact undermines any claim that the same privacy concern

articulated in Department of Defense and Bibles is present

here, namely the fear that release of the agency's mailing

list would open the listed people to unsolicited mail and

telephone calls. Here, there can be no such expectation of

privacy against such conduct by purchasers who disclose

that information in a commercial transaction that already

allows for such intrusions. And, as petitioner acknowl-

edges, even purchasers who would avoid such disclosure

during commercial transactions are nonetheless on notice

that their names and addresses will be provided to state

and local authorities and ATF in certain circumstances.

See Pet. Br. 22.

Petitioner also relies on several lower court decisions

to invoke a generic privacy interest in not being associated

with a criminal investigation as a basis for the withhold-

ing of information about all persons who are included in

the Trace Database. See Pet. Br. 25-28. As amply demon-

strated above, however, the FOIA does not support a

blanket exemption for information merely because it is

included in a record compiled for a law enforcement

investigation and ATF did not demonstrate any basis for a

categorical exemption for all individual information in

Trace Databases. See pages 10-13, 24-25, supra. ATF

acknowledges that the inclusion of a person’s name in the

Trace Database cannot reasonably give rise to an inference

of criminal involvement because “the Trace Database

contains the names and addresses of many individuals

who have not been adjudged guilty of any wrongdoing and

may not even be the subjects of investigative interest.”

Pet. Br. 27; J.A. 54-55.

2. Finally, to the extent there may be any personal

_ privacy interest in any of the various categories of names

and addresses in either the Trace or Multiple Sales Data-

bases, that concern can be readily addressed through the

FOLA’s segregability requirement. Congress made unam-

biguously clear that “[aJny reasonably segregable portion

—_—-

—

29

of a record shall be provided to any person requesting such

record after deletion of the portions which are exempt”

under any of the law enforcement exemptions in Section 7,

including Exemption 7(C). 5 U.S.C. § 552(b).

The district court here found that “the identity of

specific individuals and weapons in the database are

reasonably segregable from the other information” with-

held by ATF. Pet. App. 27a-28a. Indeed, the court found

that “ATF could easily ‘delete’ the portion which it avers is

sensitive, which here is limited to the identity of persons

and weapons found in the database, while maintaining the

integrity of the remainder of the requested information.”

Id. at 28a. The court also found that ATF could easily

delete portions of names so that only initials, or the first

and last letters of names, remain, and that it could easily

delete portions of addresses so that only the street names

or even partial zip codes remain. See id. at 29a. Such

means of deleting portions of the records protect any

reasonable personal privacy interests. At the same time,

they may provide sufficient information to enable their use

to serve the public interests discussed above, i.e., identify-

ing whether a person listed in one record is the same as

the person listed in another record, and whether a particu--

lar address is in the same geographic vicinity as another,

to facilitate assessment of the effectiveness of ATF’s

tracing and monitoring efforts.

Such redaction of the database information in this

case would be consistent not only with the FOILA’s segrega-

bility provision, but also with ATF’s own prior practice in

responding to FOIA requests regarding the databases

where it has redacted information through similar limiting

queries, as the district court recognized. Pet. App. 29a-30a.

Thus, at most, ATF’s Exemption 7(C) privacy argument

would not warrant withholding of the records in their

entirety, but merely deletion of specified portions of the

information.

30

CONCLUSION

For the reasons set forth above, the judgment of the

United States Court of Appeals for the Seventh Circuit

should be affirmed.

Respectfully submitted,

Drew S. Days, III*

BETH S. BRINKMANN

SETH M. GALANTER '

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 887-1500

Attorneys for Amici Curiae

* Counsel of Record

February 2003