NEWS MEDIA UPDATE · SEVENTH CIRCUIT · Freedom of Information · Sep. 19, 2005
Federal gun-tracking data not public record
Sep. 19, 2005 · Federal databases tracking gun sales are no longer public, the U.S. Court of Appeals in Chicago (7th Cir.) ruled Sept. 12, citing a new law which makes the data “immune from the judicial process” and therefore exempt from the Freedom of Information Act. The ruling is the latest volley between Congress and the federal courts in a case involving the city of Chicago’s quest for gun-tracking data kept by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The city’s search for gun sale and tracing information began in 1998 when it sued several gun makers, distributors and dealers, claiming that they were marketing guns to Chicago residents despite the city’s laws making possession of most guns illegal.
A provision buried in the Consolidated Appropriations Act of 2005, a mammoth catch-all federal spending bill, cut funding for data requests such as the city of Chicago’s, and essentially precludes access to that data for any purpose unrelated to law enforcement. In applying the law, the unanimous three-judge panel noted that the “legal landscape has changed dramatically” since its previous opinion in 2002 , which had required release of the information.
The court’s earlier opinion upheld a 2000 district court ruling for the city, ordering that ATF comply with a FOI Act request for information on gun sales and tracing. ATF appealed to the U.S. Supreme Court in 2002, but while the court was receiving briefs in the case — including one filed by The Reporters Committee for Freedom of the Press — Congress passed the Consolidated Appropriations Act of 2003, that year’s version of the catch-all spending bill that also contained a provision pertaining to ATF records. That measure said that no funds could be spent to respond to FOI requests for the records. The high court sent the matter back to the 7th Circuit court to determine whether that provision had any effect.
A three-judge panel of the Court of Appeals determined that while the 2003 law cut funding for requests such as this, it did not preclude access to the information. However, while ATF petitioned for rehearing with the entire appeals court, Congress passed the 2005 version of the law, containing a provision preventing judicial intervention regarding the data. Judge William J. Bauer, writing for the court, said “Congress’ obvious intention in adding the ‘immune from legal process’ language . . . was to cut off access to the databases for any reason not related to law enforcement.”
Larry Rosenthal, formerly with the Chicago Office of Corporation Counsel, worked on this case until accepting a post with a California law school in August. He noted that while the earlier versions of the appropriations act did not really change the law, the language in the 2005 version’s rider became part of the “Washington game.” “My perspective is that the House Appropriations Committee is extremely hostile to anyone studying this data,” he said. “It was supposed to sound like appropriation language, not substantive law. They got bolder in 2005 and snuck in language that was more substantive into a 600-page bill hours before it was voted on and they got their way.”
The appeals court determined that although the legislation intervened while this case was pending, it was nonetheless properly applied. It also dismissed as “creative” the city’s First Amendment argument that refusing disclosure under the FOI Act is a form of viewpoint discrimination, and stated that the First Amendment does not mandate a right of access to government information. “The court did a real disservice by not focusing harder on the First Amendment argument,” Rosenthal said.
Chicago Corporation Counsel David Graver, who worked with Rosenthal on the case, said he found the case and its outcome “very interesting,” but would not comment further.
(City of Chicago v. U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Requester’s counsel: David A. Graver, Chicago) — CZ