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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1229

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0598%3A20. Public record. Not legal advice.