982 F.3d 668
9th Cir.2020Background
- The Center for Investigative Reporting (CIR) filed a FOIA request seeking the annual total (2006–present) of firearms in ATF’s Firearms Tracing System (FTS) traced back to former law‑enforcement ownership.
- ATF maintains an electronic FTS with millions of trace records and close‑out codes (e.g., S5, S6, SH, DN) identifying traces to government or law‑enforcement agencies.
- Congress repeatedly attached “Tiahrt Riders” to appropriations acts (2003, 2005, 2008, 2010, 2012) restricting ATF’s ability to disclose FTS data and prohibiting use of appropriated funds to do so; each Rider included exceptions, and Exception (C) permits publication of annual statistical reports or statistical aggregate data.
- ATF refused CIR’s request, arguing (1) the Tiahrt Riders bar disclosure (and function as FOIA Exemption 3 statutes) and (2) producing the requested counts would require creating a new agency record (which FOIA does not compel).
- The district court sided with ATF. The Ninth Circuit reversed in part and remanded: it held the post‑2009 Riders (2010/2012) are not Exemption 3 statutes because they do not cite 5 U.S.C. § 552(b)(3), concluded Exception (C) covers CIR’s requested statistical aggregate data, and held that running a database query to extract an existing subset does not require creating a new record; it remanded for factual development about whether FTS can produce the requested counts by query.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tiahrt Riders qualify as FOIA Exemption 3 statutes | CIR: Riders do not exempt records from FOIA; FOIA disclosure required. | DOJ/ATF: Tiahrt Riders (as later reenacted) are withholding statutes exempting FTS data from disclosure under Exemption 3. | Held: 2010/2012 Riders are not Exemption 3 statutes because, being enacted after the OPEN FOIA Act, they do not cite § 552(b)(3). |
| Whether later (2010/2012) Riders impliedly repealed earlier (2005/2008) Riders | CIR: Later Riders replace earlier ones; only current Rider controls. | ATF: Earlier Riders remain effective; Tiahrt language has been continuously reaffirmed. | Held: 2010 Rider (and reenacted 2012 Rider) impliedly replaced the 2005/2008 Riders. |
| Whether Exception (C) (publication of annual statistical reports/aggregate data) covers CIR’s requested counts and whether “publication” includes disclosure to a news organization | CIR: The requested annual counts are statistical aggregate data and Exception (C) permits publication; disclosure to a news‑media representative effectively publishes to the public. | ATF: Exception (C) is limited to formal agency publications; disclosure under FOIA is distinct and barred by the Rider’s funding prohibition. | Held: Exception (C) covers statistical aggregate data like CIR’s request; disclosure to a news media representative constitutes publication for purposes of the Rider. |
| Whether running a query of an electronic database to extract aggregated counts would create a new agency record (thus relieving ATF of any FOIA obligation) | CIR: Querying existing database fields (e.g., close‑out codes) to extract counts is a search of existing records, not creation of new records. | ATF: Producing the requested aggregated counts would require creating a new record/annual report, which FOIA does not compel. | Held: Running a query to extract or arrange existing data does not create a new record; remanded for factual development on whether the FTS can yield the requested counts through its search functionality. |
Key Cases Cited
- Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976) (FOIA’s disclosure objective and importance of government transparency)
- Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and construed narrowly)
- Cent. Intelligence Agency v. Sims, 471 U.S. 159 (1985) (criteria for an Exemption 3 statute)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (agency bears burden to justify withheld records)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (FOIA does not require agencies to create new records)
- Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) (categories and principles for repeal by implication)
- Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497 (1936) (later statute must clearly show intent to replace prior law to constitute implied repeal)
- Cal‑Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105 (9th Cir. 1992) (Exemption 3 requires explicit nondisclosure statutes)
- Inst. for Justice v. Internal Revenue Serv., 941 F.3d 567 (D.C. Cir. 2019) (database searches that extract existing information do not create new records)