Shot Down
A federal appeals court upheld a new law prohibiting courts from granting access to gun-sale records, presumably available under the FOI Act until now.
From the Fall 2005 issue of The News Media & The Law, page 25.
By Corinna Zarek
Chicago’s seven-year pursuit to find out who is buying the guns used to commit some of its hundreds of murders each year is over and neither the city nor journalists nor the public will get to tap into federal statistics that trace gun ownership.
In siding with the federal government, which fought to keep federal databases of gun sales secret, the U.S. Court of Appeals in Chicago (7th Cir.) ruled Sept. 12 that such databases are no longer public because of a new law that makes the data “immune from the judicial process” and therefore exempt from the Freedom of Information Act. The ruling is the final 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 said it does not plan to appeal the decision.
“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,” Judge William J. Bauer wrote for the Seventh Circuit, which covers Illinois, Indiana and Wisconsin.
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. The suit, one of several filed across the U.S. at that time, was winding its way through courts during a period in which Chicago saw 80 percent of its murders caused by handguns, said David Heinzmann, a Chicago Tribune reporter who covers city police and crime.
“There is an enormous number of illegal guns in the city of Chicago. If we’re unable to get all of the data that the federal government is collecting and analyze it for ourselves, then we know less about the impact of guns on our society. It makes our jobs harder and gives us less opportunity to fully report what is going on with gun violence in Chicago and across the country,” Heinzmann said.
New law cuts off access
At the heart of the court’s ruling is a provision buried in the Consolidated Appropriations Act of 2005, a mammoth catch-all federal spending bill, which 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 a 2002 opinion by the same three judges, 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 Seventh 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.
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, stating that the First Amendment “does not mandate … a right of access to government information or sources of information within the government’s control.”
“The court did a real disservice by not focusing harder on the First Amendment argument,” Rosenthal said.
ATF generally “inaccessible”
In 2004, Heinzmann did a major reporting project on gun trafficking into Chicago and found ATF “pretty inaccessible,” he said, noting that there are a lot of records that ATF does not keep. “They have no clue of how many guns someone may have trafficked to Chicago over time, which really limits their ability to know the scope of the crime being committed, and, in turn, really limited my ability to report the scope of the crime being committed. There’s an enormous amount of information we don’t know about commercial transactions of firearms.
“The ATF and the gun industry appear to differ from other public safety interests where information and records are available,” Heinzmann said. “Once somebody is charged with a crime, we are often able to get access to information about the scope of their crime. That seems to stop when it comes to gun transactions and the records that ATF keeps and the records that ATF does not keep. The pressure that ATF is under to not collect certain records and not release certain records is a disservice to everyone and to public information. There’s an enormous amount of information we do not know about commercial transactions of firearms.”
The ATF’s database records sought in the lawsuit contain multiple sales and trace data. Multiple sales records list noncommercial gun buyers who purchased more than one gun from the same dealer within a five-day period. Trace data are manufacturer records and the chain of ownership of guns used in crimes and recovered by law enforcement officials. While access to such information might prove helpful, Heinzmann said this decision does not change much as far as his reporting, citing ATF’s history of inaccessibility including last year’s gun trafficking story. “The way I got around it in that story was to get a lot of the same information anecdotally from local law enforcement and from gun dealers themselves.”