403 F.Supp.3d 343
S.D.N.Y.2019Background
- Everytown for Gun Safety sought aggregate statistical data from ATF's Firearms Tracing System about firearms used in completed and attempted suicides (2012–2013), broken out by type, state, purchaser status, and time-from-purchase bands.
- ATF refused most of the request relying on Exemption 3 (statutory withholding) tied to the Tiahrt appropriations riders; the DOJ Office of Information Policy upheld the denial. Two categories were later conceded publicly available.
- The operative statutory context includes the OPEN FOIA Act of 2009 (requiring post-2009 statutes to cite 5 U.S.C. § 552(b)(3) to qualify as Exemption 3) and successive annual Tiahrt Riders (2003–2012) that limit public disclosure of trace data.
- ATF alternatively argued that producing Everytown’s requested aggregates would require creation/compilation of new records (beyond a reasonable FOIA search) because the database lacks pre-made annualized counts and would need multi-step cleanup and review.
- The district court treated the ATF affidavit as presumptively in good faith for summary judgment but required ATF to carry the burden of showing the applicability of Exemption 3 or that production would be record creation.
- The court concluded (1) the 2012 Tiahrt Rider does not qualify as an Exemption 3 statute because it lacks the required citation to § 552(b)(3) and pre-2009 Riders were impliedly repealed by later comprehensive reenactments; and (2) Everytown’s request sought database query results (raw counts) that ATF could produce without creating records, so FOIA required disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tiahrt Riders qualify as Exemption 3 statutes after the OPEN FOIA Act | Pre-2009 Riders prohibit disclosure and should apply; 2012 Rider need not cite § 552(b)(3) because prior riders remain effective | Post-2009 riders must expressly cite § 552(b)(3) to qualify; the operative 2012 Rider lacks that citation; pre-2009 riders were superseded | The 2012 Rider does not qualify under Exemption 3 (no § 552(b)(3) citation); pre-2009 Riders were replaced by later comprehensive reenactments and are not operative for Exemption 3 purposes. |
| Whether FOIA requires ATF to create new records (compile/clean database) to satisfy the request | The database stores coded trace entries and a simple query will yield the requested aggregate counts; FOIA requires producing those query results | Producing "correct" cleaned statistics would require multi-step data cleanup and review—i.e., creation of a new record beyond a FOIA search | The request sought raw aggregate counts obtainable by query; producing those counts does not constitute forbidden record creation and must be provided. |
| Proper interpretation of FOIA search obligations for electronic databases after E-FOIA | Agencies must search and provide electronic data; sorting and simple manipulation of database contents is part of a FOIA search | Agencies may refuse where producing aggregates would demand new analysis/creation of records beyond searching | E-FOIA requires agencies to sort/search electronic records; where counts are directly obtainable by query, disclosure is required. |
| Burden of proof on summary judgment in FOIA cases | Agency must prove exemption applicability and that production is beyond FOIA duties | Agency contends its declarations showing time/effort suffice to avoid production | Agency failed to meet its burden; declarations did not show producing raw counts would require record creation. |
Key Cases Cited
- A. Michael's Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994) (FOIA entitlement and scope)
- Carney v. United States Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) (agency affidavits accorded presumption of good faith in FOIA summary judgment)
- Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009) (resolving doubts in favor of disclosure; agency burden)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (FOIA does not require agencies to create documents or answer questions)
- Branch v. Smith, 538 U.S. 254 (U.S. 2003) (canon regarding repeal by comprehensive revision)
- Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (FOIA requests construed liberally; agencies must search subject-matter files)