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Federal law does not retroactively protect gun records from disclosure

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    News Media Update         NEW YORK         Freedom of Information         April 8, 2005    

Federal law does not retroactively protect gun records from disclosure

  • A government agency must release subpoenaed gun records even though Congress later approved language in a spending bill that may have been intended to shield such information, a federal trial court has ruled.

April 8, 2005 — Federal officials must respond to a subpoena and release gun-tracing data to New York City even though a provision in a recently enacted appropriations bill might protect such information in the future, a federal trial court in New York ruled April 1. The ruling is the latest in a labyrinth of legal moves in the city’s lawsuit against gun manufacturers and distributors.

The city sued gun manufacturers and distributors in 2002 for alleged negligence in diverting guns into illegal markets catering to juveniles and criminals. City officials subpoenaed records — including firearms tracing data — from the Bureau of Alcohol, Tobacco, Firearms and Explosives in April 2004. The city hoped that tracing a gun’s chain of possession from its use in a crime to its initial purchase from a gun manufacturer or distributor would shed light on gun trafficking, according to court records.

The first time the city subpoenaed the data, the ATF refused to comply, citing the Consolidated Appropriations Act of 2004, a mammoth federal spending law which contains a provision that “no funds appropriated under this or any other Act may be used to disclose” firearms tracing records to the public.

U.S. Magistrate Judge Cheryl L. Pollak held in May that the records must be released because the law does not prohibit disclosing information under subpoena. U.S. District Court Judge Jack B. Weinstein accepted Pollak’s recommendation in June, and in August the U.S. Court of Appeals for the Second Circuit refused to hear an appeal.

After the first round of litigation over the subpoena, Congress passed the Consolidated Appropriations Act of 2005, which contains a provision saying that tracing data “shall be immune from legal process and shall not be subject to subpoena or discovery.” The ATF released some of the records requested by the city’s subpoena, but withheld the rest, citing the new law.

Judge Pollak heard the case again in February and said ATF should produce the disputed records, saying that the new law could not be retroactively applied to her one-year-old order. “I don’t think the act prohibits you from complying with that subpoena,” she said in a conference with the parties.

Judge Weinstein agreed and ordered ATF to produce the records. Even though Congress had made what ATF characterized as a clear allusion to its dispute with the city in debating the Consolidated Appropriations Act of 2005, “a statute does not operate retrospectively simply because it is applied in a case arising from conduct antedating the statute’s enactment,” Weinstein wrote.

If Congress had meant the law to apply retroactively, it would have included unequivocal language to that effect, Weinstein wrote.

A similar dispute between ATF and the city of Chicago is before the U.S. Court of Appeals for the Seventh Circuit. In that case, records Chicago requested under the Freedom of Information Act were subjected to a restriction in a congressional appropriations measure in 2003 as well as to those in the 2004 and 2005 spending bills. The full panel of the Seventh Circuit has agreed to consider this year the effect that the Consolidated Appropriations Act of 2005 will have on Chicago’s FOI Act request.

(City of New York v. Beretta USA Corp.; Corporation Counsel of the City of New York: Eric Proshansky, Richard J. Costa, Melanie Ash; New York, N.Y.)RL

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