Opinion
Civil Action No. 04-800 (GK).
April 18, 2005
MEMORANDUM OPINION
This matter, brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before the Court on Defendant's Renewed Motion for Summary Judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant Defendant's motion in part and deny it in part.
In its Memorandum Opinion ("Mem. Op.") and Order of December 12, 2004, the Court found a genuine issue of material fact presented on the adequacy of Defendant's search for records responsive to Plaintiff's FOIA request, see Mem. Op. at 3-4, and ordered supplementation of the record. The Court is satisfied from the search description as provided by the Second Supplemental Declaration of Averill P. Graham, Chief, Disclosure Division, Bureau of Alcohol, Tobacco, Firearms and Explosives ("Supp. Graham Decl.") at ¶¶ 20-35, that Defendant conducted a search reasonably calculated to locate all responsive records. Although Plaintiff speculates that Defendant has not produced all responsive records, see Plaintiff's Renewed Opposition to Defendant BATF's Motion for Summary Judgment ("Pl's Opp.") at 5, he has not credibly refuted Defendant's evidence demonstrating the sufficiency of its search for responsive records. The Court therefore will now grant summary judgment to Defendant on this issue.
Upon revisiting the search, Defendant, having previously released one page of information, see Mem. Op. at 1, located an additional 33 pages of responsive records. See Defendant's Statement of Material Facts as to Which There is No Genuine Issue at 2-3, ¶ 9. On February, 18, 2005, Defendant released to Plaintiff portions of 24 pages of information and withheld nine pages in their entirety. Id. Defendant invoked FOIA exemptions (b)(2) and (b)(7)(C) to justify its redactions made to the 24 released pages and exemption (b)(3) to justify its withholding in full of the nine pages. Id.; see also Def's Ex. 2 ("Vaughn Index"). Plaintiff does not challenge Defendant's redactions from the released pages, and the Court finds them adequately justified. See Supp. Graham Decl. ¶¶ 36-39 (exemption 2); ¶¶ 46-54 (exemption 7(C)).
See Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
Plaintiff challenges Defendant's justification for withholding entire records under exemption 3. See Pl's Opp. at 6-7. FOIA Exemption 3 protects records that are "specifically exempted from disclosure by statute . . . provided that such statute either "(A) [requires withholding] in such a manner as to leave no discretion on the issue," or "(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3); see Senate of the Commonwealth of Puerto Rico v. U.S. Department of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). Defendant withheld records described as "Trace Reports." Vaughn Index at 2. It asserts that the reports contain "[t]race data collected and maintained under" 18 U.S.C. § 923(g)(3) and (7), id., which by law cannot be disclosed under the FOIA. Supp. Graham Decl. ¶ 41. Defendant bases its claim on the Consolidated Appropriations Resolution of 2003, which states that
[n]o funds appropriated under this Act or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of 5 U.S.C. 552 with respect to records collected or maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State, local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of a firearm, except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior to the date of the enactment of this Act.
Pub.L. No. 108-7, § 644, 117 Stat 11, 473-74 (Feb. 20, 2003). It also cites a similar restriction set forth in the Consolidated Appropriations Act of 2005, which states in relevant part that
no funds appropriated under this or any other Act with respect to any fiscal year may be used to disclose part or all of the contents of the Firearms Trace System database maintained by the National Trace Center of the Bureau of Alcohol, Tobacco, Firearms, and Explosives or any information required to be kept by licensees pursuant to section 923(g) of title 18, United States Code, or required to be reported pursuant to paragraphs (3) and (7) of such section 923(g), to anyone other than a Federal, State, or local law enforcement agency or a prosecutor solely in connection with and for use in a bona fide criminal investigation or prosecution and then only such information as pertains to the geographic jurisdiction of the law enforcement agency requesting the disclosure and not for use in any civil action or proceeding other than an action or proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or a review of such an action or proceeding. . . .
Pub.L. No. 108-447, 18 Stat 2809, 2859 (Dec. 8, 2004).
Because the presumption under the FOIA favors disclosure of agency records, FOIA exemptions must be narrowly construed. See Cowsen-el v. United States Department of Justice, 826 F. Supp. 532, 534 (D.D.C. 1992). Defendant asserts that through the appropriations bills, "Congress has expressly prohibited ATF from releasing such documents to the public and made them ultimately immune from legal process." Supp. Graham Decl. ¶ 41. This conclusion is too sweeping. The Court of Appeals for the District of Columbia Circuit recognizes "a very strong presumption" against Congress' changing of substantive law, e.g., the FOIA, through appropriations bills. Building Construction Trades Dept., AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992). Thus, "`the established rule [is] that, when appropriations measures arguably conflict with the underlying authorizing legislation, their effect must be construed narrowly.'" Calloway v. District of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000) (quotingDonovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984)).
In addressing the ATF's denial of the same type of records based on the 2003 appropriations bill underlying Defendant's decision here, the Court of Appeals for the Seventh Circuit recently analyzed whether the appropriations bill implicitly repealed portions of the FOIA that would otherwise require disclosure of the information contained in ATF's databases. It held that the lack of federal funding "for the retrieval of the information [does not] substantively change the FOIA; accordingly ATF must provide [the requester] access to the databases," City of Chicago v. United States Department of the Treasury, 384 F.3d 429, 431 (7th Cir. 2004), reh'g en banc pending. The Seventh Circuit determined that the appropriations "legislation . . . merely creates a procedural hurdle to disclosure . . ." that may be overcome by the requester's agreement to pay the costs for retrieving and copying the information. Id at 436. It found that any agency costs arising from limited staff assistance were "de minimis." Id. (following Cal-Almond, Inc. v. United States Department of Agriculture, 960 F.2d 105, 108 (9th Cir. 1992)).
The District of Columbia Circuit has not decided the precise question presented here. This Court is convinced by the Seventh Circuit's analysis that Defendant, which has not asserted any other exemptions to justify its withholdings, must provide Plaintiff with access to the nine withheld pages, subject to Plaintiff's agreement to bear the costs of photocopying the pages and perhaps postage. Certainly, any costs associated with billing Plaintiff would be nominal. As the Ninth Circuit observed under similar circumstances, "[w]e reject USDA's argument that Congress intended the question of the disclosure or non-disclosure [under the FOIA] . . . to turn on the nominal expenditure of government resources that may occur if a government employee pauses and gives directions to Cal-Almond with its copy machine in tow." Cal-Almond, Inc. v. United States Department of Agriculture, 960 F.2d at 108. The Court will deny Defendant's motion for summary judgment with respect to the nine withheld pages and, finding no genuine issue of material fact, will order their release.
For the preceding reasons, the Court grants Defendant's renewed summary judgment motion in part and denies it in part. A separate Order accompanies this Memorandum Opinion.