Gun-owner privacy and freedom of information soon will duel in U.S. Supreme Court

From the Winter 2003 issue of The News Media & The Law, page 29.

By Gil Shochat

After two lower court rulings favoring the city of Chicago, the Supreme Court agreed in November 2002 to decide whether the federal Bureau of Alcohol, Tobacco and Firearms can withhold federal gun-tracking data from the city.

At issue in the case is access to information on about 200,000 firearm traces made by police every year. When police officers confiscate a weapon in a crime, they track down who made it, sold it and bought it.

The dispute started when the City of Chicago sued ATF in 1999 after the agency refused to release gun-tracing data that the city requested under the federal Freedom of Information Act. Chicago claimed it needed the information to help prove its case in a $433 million lawsuit against gun manufacturers the city believed illegally marketed guns to the inner city. Chicago wanted to use this information to locate gun sources and analyze trafficking patterns.

News organizations are watching this case closely because gun-tracing data is an important reporting tool. Journalists rely on the data to report on the illegal flow of guns. Journalists have produced many stories revealing everything from how police guns ended up in the hands of criminals to the illegal interstate trafficking of guns.

“We found dozens of stories where police departments sold weapons which ended up in the hands of criminals,” said Eric Longabardi, who produced a 1999 series on police guns for CBS News’ “Eye on America.”

Using database information that ATF is now withholding, Longabardi showed in the CBS broadcast “that law-enforcement agencies across the country have sold or traded tens of thousands of their weapons to gun dealers, who then sell them to the public, everything from handguns to machine guns.” Many of those guns later end up in the hands of criminals.

Longabardi found one police department in Irving, Texas, that was selling M203 40mm grenade launchers on the open market. The launchers ended up being sold on a Web site that also promoted “as a must read, a new novel in which the hero advocated the execution of police officers who enforce[d] gun control laws.”

“To learn the true life of any gun, specific sorts of data that the ATF has in its database” must be released, he said.

In December 2000, the Dayton Daily News used the data for: “Ohio: The Gunrunner’s Paradise,” which showed how in 1997-1998, “more than 1,000 guns used in crimes nationwide came from Ohio.”

But despite the “state’s well-known role in supplying guns, ATF agents in Ohio rank among or near the bottom third of all federal districts for generating criminal cases,” the report showed.

“Without the database information, especially the serial numbers now being withheld, there is no way we could have done the work that we did,” said David Gulliver who worked on the Daily News story.

Gulliver said that release of ATF data would not affect police investigations.

“This data doesn’t give you enough to interfere with police investigations,” he said. “Release of this stuff will point you to public documents. It’s like using a phone book to find more information.”

Observers following the arguments question the government’s motives for pursuing this case all the way to the Supreme Court.

“The idea that criminals would get access to the database is totally ludicrous; it doesn’t even pretend to be logical,” said Isidore Silver, a retired professor of constitutional law and history at the City University of New York.

“Hypotheticals in which a devious miscreant might connect the dots to deduce that an investigation was occurring” as the ATF claims is impossible, he wrote in a National Law Journal commentary in July 2002.

Silver said this case fits the Bush administration’s wider inclination towards secrecy.

“Secret arrests and detentions of immigrants, and even of citizens who become instantly transformed into ‘enemy combatants;’ and meetings of government officials with political lobbyists, the contents of which are undisclosed in apparent violation of law,” are all part of this government’s secrecy agenda, Silver wrote. “This administration’s attitude is that what they do is none of your business.”

The Supreme Court took up the case at the request of the Bush administration and the Fraternal Order of Police.

The ATF claimed to the Supreme Court that releasing gun-tracing information as Chicago wants would “significantly intrude upon the privacy of hundreds of thousands of individuals — including firearms purchasers, potential witnesses to crime and others — without meaningfully assisting the public to evaluate the conduct of the federal government.” It also would hinder ongoing law-enforcement investigations.

Chicago won at both the federal district and appeals levels. The U.S. Court of Appeals (7th Cir.) found that releasing the information raised neither privacy nor law-enforcement concerns. Rather, the court found that the public interest would be served by releasing the database information.

“Disclosure of the records sought by the City will shed light on ATF’s efficiency in performing its duties and directly serve FOIA’s purpose in keeping the activities of government agencies open to the sharp eye of public scrutiny,” the appeals court held in its March 2002 decision. (U.S. Dept. of Treasury v. City of Chicago)