Little things mean a lot

From the Winter 2005 issue of The News Media & The Law, page 19.

by Rebecca Daugherty

It didn’t seem like anything anyone would notice back in July 2002, which is probably why it was done the way it was.

Rep. George Nethercutt (R-Wash.) crafted language that would block spending by the Bureau of Alcohol, Tobacco and Firearms to answer Freedom of Information Act requests for gun data, including the names of the owners and sellers of guns used in crimes.

Later Nethercutt would tell The Seattle Times that, after the House of Representatives passed the language in an early spending bill, he lost track of it.

But when the little rider ultimately appeared buried in a $397.4 billion spending bill passed in February 2003, Congress dashed the city of Chicago’s hopes that the U.S. Supreme Court would soon affirm two lower courts and order the ATF to release firearms data to the city.

The Supreme Court, poised to hear the government’s appeal of Chicago’s successful suit for the records in the lower courts, sent the case back that month to see what effect the appeals court thought Nethercutt’s spending measure would have on the city’s FOI Act request for the records.

Before the U.S. Court of Appeals in Chicago (7th Cir.) heard the case again, Congress passed another little rider to another huge spending bill. The Consolidated Appropriations Act of 2004 did not mention the FOI Act, it simply prohibited use of the money to “disclose to the public” the same information Nethercutt successfully veiled.

The data the city sought would document where all those guns came from that had been used to commit the city’s excessive felonies. Chicago already has a pretty good idea of where the guns come from. It sued the gun industry for causing crime and death, especially among the city’s young people. The city asked for records showing who bought and who sold guns used in deaths and the names of people who buy more than one gun within five days.

But the federal government, claiming sensitivity to the privacy needs of its citizens, defended the ATF’s claims that the data it collects are law enforcement records that, if disclosed, would invade the personal privacy of the gun sellers and owners. The government also claimed, unsuccessfully in court, that disclosure would interfere with its own investigations.

On remand, the Chicago federal appellate court ruled again that the city could see the records. Chicago promised to pay for processing the FOI request and the government asked for a new hearing before the full court.

While its request was pending, Congress passed yet another spending bill with yet another little rider. The Consolidated Appropriations Act of 2005 includes a paragraph, again rejecting the use of funds for disclosure, but including other somewhat confusing language as well. It bars disclosures of the data for legal proceedings or subpoenas other than those brought by law enforcement agencies. Chicago has told the court that the bar to providing records for legal procedures has nothing to do with FOI requests. The federal government has told the court that the expanded language is clear in its intent to keep the information secret.

What a mess.

When the government decides to keep secrets, it’s a bone of serious contention that deserves full airing and weighty attention. There are undoubtedly secrets that the government needs to keep and needs to address with legislation, but information lock-up should be rare.

The Freedom of Information Act has nine exemptions. The third contemplates the creation by Congress of new confidentiality requirements by statute. Sen. Patrick Leahy (D-Vt.) has sought oversight by the Senate Judiciary Committee of any new Exemption 3 statutes. There have been suggestions that each bill be scanned for effects on disclosure before it is introduced or at least before it goes forward.

Sen. John Cornyn (R-Texas) is looking at ways to improve FOI processing and hopes to introduce legislation this year to address some of the problems that keep public information from the public. He has suggested that the newly re-established Administrative Conference have a strong role in overseeing administration response to disclosure laws.

In the meantime, keep an eye out for the little things.