No. 02-322
In the Supreme Court of the United States
DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
Petitioner
v.
CITY OF CHICAGO,
Respondent
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR AMICUS CURIAE NATIONAL RIFLE
ASSOCIATION OF AMERICA, INC.,
IN SUPPORT OF PETITIONER
STEPHEN P. HALBROOK*
RICHARD E. GARDINER
Suite 404
10560 Main Street
Fairfax, VA 22030
(703) 352-7276
Counsel for Amicus Curiae
*Counsel of Record
QUESTIONS PRESENTED
This case involves the application of the Freedom of Information Act (FOIA),
5 U.S.C. § 552, to two computer databases maintained by the Bureau of Alcohol,
Tobacco and Firearms (ATF). Those databases document (a) the tracing of firearms
believed to be involved in crimes (the Trace Database), and (b) information
provided by licensed dealers regarding multiple sales of handguns (the Multiple
Sales Database). The questions presented are as follows:
1. Whether individual names and addresses in the Trace Database and the Multiple
Sales Database are exempt from compelled disclosure under FOIA Exemption 7(C),
5 U.S.C. § 552(b)(7)(C), which encompasses “records or information
compiled for law enforcement purposes” when the production of such records
“could reasonably be expected to constitute an unwarranted invasion of
personal privacy.”
2. Whether various categories of information contained in the Trace Database
are protected from disclosure under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A),
which encompasses law enforcement records when the production of such records
“could reasonably be expected to interfere with enforcement proceedings.”
TABLE OF CONTENTS
Page
QUESTION PRESENTED
i
TABLE OF AUTHORITIES
iv
STATEMENT OF INTEREST OF AMICUS CURIAE
1
SUMMARY OF ARGUMENT
2
ARGUMENT
7
Introduction
7
I. CONGRESS INTENDED
THAT REPORTS
OF MULTIPLE HANDGUN SALES
BE CONFIDENTIAL
9
II. TRACE RECORDS AND OTHER
INFORMATION FROM
LICENSEES MAY
BE DISCLOSED ONLY
TO LAW
ENFORCEMENT AGENCIES
AND
ONLY IN REFERENCE
TO
UNLAWFUL PURCHASERS
11
III. THE BRADY ACT PROTECTS THE
PRIVACY OF FIREARM
TRANSFERS
22
IV. ATF’S “DISCRETIONARY”
DISCLOSURES
ARE PROHIBITED BY LAW
25
V. RECORDS OF FIREARM TRANSFERS
ARE IRRELEVANT TO FOIA’S
CORE
PURPOSE
29
CONCLUSION
30
TABLE OF AUTHORITIES
CASES Page
Administrator v. Robertson, 422 U.S. 255 (1975) 25
Ass’n. of Retired Railroad Workers, Inc. v.
U.S. Railroad Retirement Bd., 830 F.2d 331
(D.C. Cir. 1987) 26
Bibles v. Oregon Natural Desert Association,
519 U.S. 355 (1997) 30
Campaign for Family Farms v. Glickman, 200 F.3d 1180
(8th Cir. 2000) 8, 26
Center to Prevent Handgun Violence v. U.S. Dept.
of Treasury, 981 F. Supp. 20 (D. D.C. 1997) 9
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 28
City of Chicago v. Beretta U.S.A. Corp.,
2002 WL 31455180 (Ill. App. 2002) 26
City of Chicago v. U.S. Department of Treasury,
287 F.3d 628 (7th Cir. 2002) 2, 4, 7, 9, 22, 30
Dep’t. of Justice v. Reporters Committee,
489 U.S. 749 (1989) 29
Halpern v. FBI, 181 F.3d 279 (2d Cir.1999) 28
Jordan v. U.S. Department of Justice, 591 F.2d 753
(D.C. Cir. 1978) 29
National Rifle Association v. Brady, 914 F.2d 475
(4th Cir. 1990), cert. denied, 499 U.S. 959 (1991) 15
Sherman v. U.S. Dept. of Army, 244 F.3d 357
(5th Cir. 2001) 26
Staples v. United States, 511 U.S. 600 (1994) 7
U.S. Department of Justice v. Reporters Committee,
489 U.S. 749 (1989) 6, 8, 29
United States v. Biswell, 406 U.S. 311 (1972) 9
United States v. Gonzales, 520 U.S. 1 (1997) 17
United States v. Marchant, 55 F.3d 509 (10th Cir. 1995) 14CONSTITUTION
U.S. Const., Amendment II 19
U.S. Const., Amendment IV 19
U.S. Const., Amendment V 19
U.S. Const., Amendment IX 19
U.S. Const., Amendment X 19
STATUTES
5 U.S.C. § 552(b)(3) 6, 25
18 U.S.C. § 922(g) 10, 14, 23, 24, 27
18 U.S.C. § 922(n) 10, 23, 24, 27
18 U.S.C. § 922(s)(6)(B) 22
18 U.S.C. § 922(t) 9, 23
18 U.S.C. § 922(t)(2) 5, 23
18 U.S.C. § 923(g) 11, 12, 14
18 U.S.C. § 923(g)(1)(B)(iii) 3, 8, 13
18 U.S.C. § 923(g)(1)(D) passim
18 U.S.C. § 923(g)(3) 7, 16, 25
18 U.S.C. § 923(g)(3)(A) 2, 9
18 U.S.C. § 923(g)(3)(B) 2, 9, 10, 11, 27, 28
18 U.S.C. § 923(g)(4) 16
18 U.S.C. § 923(g)(5) 16
18 U.S.C. § 923(g)(7) 3, 8, 13
18 U.S.C. § 926(a) 4, 8, 17, 18, 25
28 U.S.C. § 2106 23, 29
Brady Handgun Violence Prevention Act, P.L. 103-159,
107 Stat. 1536 (1993) 4, 12, 13, 17, 20, 22
§ 103(h) 4, 22
§ 103(i) 5, 23
Departments of Commerce, Justice, & State, the
Judiciary, & Related Agencies Appropriations Act, 2002,
P.L. 107-77, 115 Stat. 748 (2001) 23
Firearms Owners’ Protection Act, P.L. 99_308,
100 Stat. 449 (1986) 3, 4, 12, 13-19, 27
Gun Control Act, P.L. 90_618, 82 Stat. 1213
(1968) 6, 7, 11,12, 26, 29
P.L. 95_429, 92 Stat. 1001 (1978) 20
P.L. 103_322, 108 Stat. 1796 (1994) 13
P.L. 107_67, 115 Stat. 514 (2001) 4, 20
REGULATIONS
27 C.F.R. § 178.124(c) 18
27 C.F.R. § 178.129(b) 18
28 C.F.R. Part 25 22
43 F.R. 11,800 (March 21, 1978) 20-21LEGISLATIVE MATERIALS
Congressional Record 10, 17, 18, 19, 22, 24
Federal Firearms Owner Protection Act: Hearings on
S. 914 before Sen. Judiciary Comm., 98th Cong.,
1st Sess. (1983) 18
S. Rep. No. 98_583, 98th Cong., 2d Sess. (1984) 15
Treasury’s Proposed Gun Regulations:
Hearings before Subcommittee on Crime,
House Judiciary Committee, 95th Cong.,
2d Sess.(1979) 21OTHER AUTHORITIES
Websters Third New International Dictionary (1976) 17
STATEMENT OF INTEREST OF AMICUS CURIAE
The National Rifle Association of America, Inc. (“NRA”) is a New
York not-for-profit membership corporation founded in 1871. NRA has 4.2 million
individual members and 10,700 affiliated members (clubs and associations) nationwide.
Among its purposes, as set forth in its Bylaws, are:
To protect and defend the Constitution of the United States, especially with
reference to the inalienable right of the individual American citizen guaranteed
by such Constitution to acquire, possess, transport, carry, transfer ownership
of, and enjoy the right to use arms, in order that the people may always be
in a position to exercise their legitimate individual rights of self-preservation
and defense of family, person, and property, as well as to serve effectively
in the appropriate militia for the common defense of the Republic and the individual
liberty of its citizens . . . .
NRA represents the interests of its members, including both consumers and federally-licensed
firearm dealers, with respect to the application of federal statutes which protect
such members’ privacy interests. These interests are not adequately advanced
by the Petitioner Department of the Treasury.
SUMMARY OF ARGUMENT
This case implicates the privacy interests of millions of American firearm owners.
The court below held that “one does not possess any privacy interest in
the purchase of a firearm.” City of Chicago v. U.S. Dept. of Treasury,
287 F.3d 628, 636 (7th Cir. 2002). It opined that the identities of persons
who lawfully purchase more than one handgun in a five-day period, and of persons
whose names appear in firearm trace records, must be disclosed under the Freedom
of Information Act (“FOIA”).
The court below overlooked provisions of the Gun Control Act (“GCA”)
which protect the privacy of the above records. First, 18 U.S.C. § 923(g)(3)(A)
requires licensed dealers to prepare a report whenever the licensee sells two
or more handguns to a nonlicensee during a five-day period. The dealer sends
one copy to the Secretary of the Treasury (ATF) and another to State or local
law enforcement. Section 923(g)(3)(B) provides that, unless the purchaser is
a felon or other prohibited person, the State or local law enforcement agency
“shall not disclose any such form or the contents thereof to any person
or entity, and shall destroy each such form and any record of the contents thereof
no more than 20 days from the date such form is received.”
Having prohibited law enforcement agencies from disclosing such information
to any entity – which would include the City of Chicago – and from
keeping it for more than twenty days, Congress surely could not have intended
that the information would be available to anyone via FOIA.
Moreover, the Secretary is not authorized to disclose to the public information
from the records of licensed dealers, including that generated for tracing firearms.
The Firearms Owners Protection Act, P.L. 99-308, 100 Stat. 449 (1986) (“FOPA”)
enacted § 923(g)(1)(D), which authorizes the Secretary to “make available
to any Federal, State, or local law enforcement agency” information from
licensee records “with respect to the identification of persons prohibited
from purchasing or receiving firearms or ammunition who have purchased or received”
such items. No authorization exists to disclose such information – much
less information on non-prohibited persons – to the public.
Indeed, to the extent such records involve tracing firearms, the Secretary himself
may have access to these records only when “required for determining the
disposition of one or more particular firearms in the course of a bona fide
criminal investigation.” §§ 923(g)(1)(B)(iii) & (g)(7).
Congress did not intend that records to which the Secretary may not access except
for bona fide criminal investigations are subject to public disclosure.
Further, FOPA also amended § 926(a) to prohibit the Secretary from adopting
any regulation requiring that licensee records “or any portion of the
contents of such records, be recorded at or transferred to a facility owned,
managed, or controlled by the United States or any State or any political subdivision
thereof, nor that any system of registration of firearms, firearms owners, or
firearms transactions or dispositions be established.” It would be incredible
to imagine that Congress intended that this same information, generated in tracing
requests, is subject to disclosure to the public.
The Treasury and General Government Appropriations Act, 2002, Title I, P.L.
107-67, 115 Stat. 514 (2001), prohibits ATF from expending funds “in connection
with consolidating or centralizing, within the Department of the Treasury, the
records, or any portion thereof, of acquisition and disposition of firearms
maintained by Federal firearms licensees . . . .” Yet the lower court
held that such records, when they concern multiple handgun sales or traces,
are subject to disclosure to the public.
In claiming that “one does not possess any privacy interest in the purchase
of a firearm,” 287 F.3d at 636, the court of appeals also ignored yet
another statutory scheme – the Brady Handgun Violence Prevention Act,
P.L. 103-159, 107 Stat. 1536 (1993) (“Brady Act”). The Brady Act
directed the Attorney General to establish the national instant criminal background
check system (“NICS”) to determine whether persons may lawfully
receive firearms from federally-licensed dealers. Section 103(h) provides that
“the Attorney General shall prescribe regulations to ensure the privacy
and security of the information of the system established under this section.”
Two critical provisions of the Act serve to protect privacy interests.
First, the Act created 18 U.S.C. § 922(t)(2), which provides that, if NICS
(which is administered by the FBI) determines that a person may lawfully receive
a firearm, NICS shall assign a unique number to the transaction, provide the
number to the dealer, and “destroy all records of the system with respect
to the call” (other than the number and the date) and “all records
of the system relating to the person or the transfer.”
Second, § 103(i) of the Act provides that no federal agency may (1) “require
that any record” generated by NICS “be recorded at or transferred
to a facility owned, managed, or controlled by the United States or any State
or political subdivision thereof,” or (2) use NICS “to establish
any system for the registration of firearms, firearm owners, or firearm transactions,”
except of ineligible persons.
Every purchase of a firearm from a licensed dealer is subject to the above Brady
Act procedures and privacy protections. Persons who purchase more than one handgun
in a five-day period as well as persons who purchase a firearm and whose identity
later appears in a trace report are subclasses of the larger class of firearm
purchasers who have passed the instant background check and to whom the above
privacy protections apply. The only exception is in regard to an unlawful purchaser.
In short, the federal instant background system must destroy all records of
the identities of lawful firearm purchasers and may not record any information
on such persons at any federal, State, or local facility. It could hardly be
the case that Congress intended such information to be available to the City
of Chicago or the general public via the FOIA.
Despite their claim that some records are exempt from disclosure, the Petitioner
disclosed to the City of Chicago records of multiple sales and traces which
took place in that jurisdiction, and routinely discloses to any requester on
zip disks limited records of multiple sales and traces after two and five years
respectively. These disclosures violate the privacy protections of the GCA,
which are thereby exempt even from discretionary disclosure under Exemption
3, as they are “specifically exempted from disclosure by statute.”
5 U.S.C. § 552(b)(3).
Even absent the above GCA provisions, the information is not subject to disclosure.
The purpose of FOIA to expose the performance of government agencies to public
view “is not fostered by disclosure of information about private citizens
that is accumulated in various governmental files but that reveals little or
nothing about an agency’s own conduct.” U.S. Dep’t. of Justice
v. Reporters Committee, 489 U.S. 749, 773 (1989).
Unless the judgment of the court of appeals is reversed, information on countless
firearm purchasers will be disclosed in violation of their privacy interests
established by law.
ARGUMENT
Introduction
This case implicates the privacy interests of millions of Americans who chose
to own firearms. The parties failed to bring applicable statutory provisions
protecting those privacy interests to the attention of the court of appeals,
which decided this case without reference thereto.
The court of appeals held that “the City seeks records pertaining to gun
buyers and sellers. . . . [O]ne does not possess any privacy interest in the
purchase of a firearm.” City of Chicago v. U.S. Dept. of Treasury, 287
F.3d 628, 636 (7th Cir. 2002). The court also decided that “every purchaser
of a firearm is on notice that their name and address must be reported to state
and local authorities and ATF. . . . As a result, there can be no expectation
of privacy in the requested names and addresses.” Id. at 637.
The statutory scheme is completely to the contrary. The lower court overlooked
the following statutes set forth in the Gun Control Act of 1968 (“GCA”),
as amended: 18 U.S.C. § 923(g)(3) (records of multiple handgun sales received
by State or local law enforcement may not be disclosed and must be destroyed
within 20 days of receipt); § 923(g)(1)(D) (licensee records may be disclosed
to law enforcement agencies only regarding persons ineligible to possess firearms);
§§ 923(g)(1)(B)(iii) & 923(g)(7) (licensee records available for
tracing are limited to a “bona fide criminal investigation”); and
§ 926(a) (licensee records may not be transferred to any federal, State,
or local facilities, and firearms, firearm owners, and firearm transactions
may not be registered). Finally, “[t]he fact that an event is not wholly
‘private’ does not mean that an individual has no interest in limiting
disclosure or dissemination of the information.” U.S. Dept. of Justice
v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 770 (1989).
For its assertion that it is “well established” that firearm purchasers
have no privacy rights, the court of appeals relied on a single district court
opinion which also failed to mention any of the above statutory provisions.
The court of appeals held that records kept by federally-licensed firearm dealers
of two kinds are subject to disclosure: records reporting multiple handgun sales,
and records compiled in the tracing of firearms.
I. CONGRESS INTENDED THAT REPORTS OF
MULTIPLE HANDGUN SALES BE CONFIDENTIAL
Records of multiple handgun sales are addressed by 18 U.S.C. § 923(g)(3)(A),
which provides that licensed dealers shall prepare a report of any sale of two
or more pistols or revolvers to a nonlicensee in a five-day period. The dealer
forwards the report to the Secretary and also “to the department of State
police or State law enforcement agency of the State or local law enforcement
agency of the local jurisdiction” where the sale took place. Section 923(g)(3)(B)
provides:
Except in the case of forms and contents thereof regarding a purchaser who is
prohibited by subsection (g) or (n) of section 922 of this title from receipt
of a firearm, the department of State police or State law enforcement agency
or local law enforcement agency of the local jurisdiction shall not disclose
any such form or the contents thereof to any person or entity, and shall destroy
each such form and any record of the contents thereof no more than 20 days from
the date such form is received.
The above provision was an amendment to the GCA enacted as part of the Brady
Act. Senator Dole, sponsor of this amendment, explained that it “requires
that no record can be kept at the State and local police departments, which
eliminates the concern that this would be back door gun registration.”
139 Cong. Rec. S16311 (Nov. 19, 1993).
Having prohibited law enforcement agencies from disclosing information of multiple
handgun sales to any entity – which would include the City of Chicago
– and from keeping it for more than twenty days, Congress surely could
not have intended that the information would be available for the asking by
anyone via the FOIA.
The court of appeals simply disregards § 923(g)(3)(B) and finds no individual
privacy interests in multiple sales reports. Yet this is plainly information
that Congress, as a matter of law, intended should be private.
II. TRACE RECORDS AND OTHER INFORMATION
FROM LICENSEES MAY BE DISCLOSED ONLY TO
LAW ENFORCEMENT AGENCIES AND ONLY IN
REFERENCE TO UNLAWFUL PURCHASERS
The Secretary is not authorized to disclose to the public information from the
records of licensed dealers, including information generated for tracing firearms.
Indeed, subject to limited exceptions, the Secretary is himself prohibited from
retaining records of firearm transactions.
As originally enacted in the GCA, § 923(g) allowed the Secretary to “make
available to such State or any political subdivision thereof, any information
. . . with respect to the identification of persons . . . who have purchased
or received firearms or ammunition.” P. L. 90_618, 82 Stat. 1213 (1968).
Among the many reforms seeking to protect the privacy of law-abiding citizens,
FOPA, 100 Stat. at 455, repealed that provision and enacted § 923(g)(1)(D),
which provides in part:
The Secretary may make available to any Federal, State, or local law enforcement
agency any information which he may obtain by reason of this chapter with respect
to the identification of persons prohibited from purchasing or receiving firearms
or ammunition who have purchased or received firearms or ammunition, together
with a description of such firearms or ammunition, and he may provide information
to the extent such information may be contained in the records required to be
maintained by this chapter, when so requested by any Federal, State, or local
law enforcement agency. (Emphasis added).
Thus, the only information from licensee records which the Secretary may disclose
to a local law enforcement agency concerns felons and other prohibited persons.
Nothing in § 923(g)(1)(D) authorizes disclosure to the public of this information,
much less information about non-felons.
Moreover, the requirement that the Secretary may obtain information from dealer
records to trace firearms only for a bona fide criminal investigation further
establishes the confidentially of dealer records. Section 103 of the FOPA, 100
Stat. at 454, amended § 923(g)(1)(B)(iii) to authorize the Secretary to
inspect licensee records for tracing only “when such inspection or examination
may be required for determining the disposition of one or more particular firearms
in the course of a bona fide criminal investigation.” Similarly, Section
11036 of the Crime Act of 1994, P.L. 103-322, 108 Stat. 1796, enacted §
923(g)(7), which provides:
Each licensee shall respond immediately to . . . a request by the Secretary
for information contained in the records required to be kept by this chapter
as may be required for determining the disposition of 1 or more firearms in
the course of a bona fide criminal investigation.
The above provisions establish that the Secretary’s only authority to
disclose records of firearms purchases relating to traces is to a law enforcement
agency and then only as it relates to a person prohibited from receiving a firearm
but who received a firearm. It cannot be reasonably argued that records which
the Secretary may obtain only in a bona fide criminal investigation and may
make available only to law enforcement agencies are somehow transmogrified by
the FOIA into public records.
United States v. Marchant, 55 F.3d 509, 516 (10th Cir. 1995), which involved
disclosure to local law enforcement of a transfer form (Form 4473) falsified
by a felon, commented about the above amendments:
This legislative distinction between law_abiding citizens and persons prohibited
from possessing or receiving firearms under 922(g) is central to the FOPA amendments
. . . . Further, although Congress restricted the BATF's ability to release
information obtained from ATF Form 4473s to state or local law enforcement agencies,
FOPA authorized the BATF to release “any information . . . with respect
to the identification of persons prohibited from purchasing or receiving firearms.”
[. . . 18 U.S.C. 923(g)(1)(D).] FOPA, therefore, allowed the BATF to release
information regarding prohibited persons such as Defendant without regard for
privacy or confidentiality. (Emphasis added.)
Even before the FOPA amendments, “Section 923(g) of the GCA did not grant
unrestrained access to ATF Form 4473s to other law enforcement agencies or the
public at large.” Id. at 515. Under either version, the public at large
had no access to any such information. Yet the court of appeals here holds that
information originating from licensee records must be given out to the public
at large through the mere filing of a FOIA request.
Section 923(g)(1)(D) authorizes the Secretary to disclose certain information
only to a law enforcement agency, not a municipality such as the City of Chicago.
The information authorized to be released is obtained from the records of licensed
dealers, which would include trace information, but only insofar as the records
concern the identification of persons prohibited from firearm receipt who have
received firearms. The information may include a description of the firearm.
Clearly, the Secretary is not authorized to make available information from
a dealer’s records about persons who are not prohibited or about the firearms
they purchase. This lack of authority to disclose records exists without regard
to whether the information is compiled for tracing purposes.
The above is further confirmed by the legislative history. Senate Report 98-583,
98th Cong., 2d Sess., 16 (1984), reinforces that the provision authorized the
Secretary to release information, but only about prohibited persons:
The Secretary is authorized to share with Federal, state, and local law enforcement
agencies information obtained under Chapter 44 which relates to the identification
of prohibited persons who have purchased or received firearms or ammunition,
and a description of items purchased. He may provide information contained in
records maintained under Chapter 44 when requested by any such agency.
The Senate report further explained that it sought to meet law enforcement needs
while “reduc[ing] the potential for unwarranted intrusions into the business
affairs of law-abiding licensees.” Id. at 18. It added:
However, the Committee wishes to emphasize that, notwithstanding any other provision
of law, the authority granted under 18 U.S.C. 923(g) (3), (4) and (5), as well
as that contained in paragraph (1), as amended, are not to be construed to authorize
the United States or any state or political subdivision thereof, to use the
information obtained from any records or form which are required to be maintained
for inspection or submission by licensees under Chapter 44 to establish any
system of registration of firearms, firearms owners, or firearms transactions
or dispositions.
Id.
In fact, FOPA enacted that very prohibition into law. Section 106 of FOPA, 100
Stat. 459-60, amended § 926(a) to provide:
The Secretary may prescribe only such rules and regulations as are necessary
to carry out the provisions of this chapter . . . . No such rule or regulation
prescribed after the date of the enactment of the Firearms Owners’ Protection
Act may require that records required to be maintained under this chapter or
any portion of the contents of such records, be recorded at or transferred to
a facility owned, managed, or controlled by the United States or any State or
any political subdivision thereof, nor that any system of registration of firearms,
firearms owners, or firearms transactions or dispositions be established. Nothing
in this section expands or restricts the Secretary’s authority to inquire
into the disposition of any firearm in the course of a criminal investigation.
(Emphasis added.)
Thus, while the Secretary retained the authority to trace firearms, no licensee
records – which includes the contents of trace records – may “be
recorded at or transferred to a facility owned, managed, or controlled by .
. . any State or any political subdivision thereof.” Moreover, the privacy
interests include not just the “firearms owners” but also the “firearms”
and “firearms transactions or dispositions.” FOPA chief sponsor
Senator McClure further explained:
The central compromise of the Gun Control Act of 1968--the sine qua non for
the entry of the Federal Government into any form of firearms regulation was
this: Records concerning gun ownership would be maintained by dealers, not by
the Federal Government and not by State and local governments.
131 Cong. Rec. S9163-64 (July 9, 1985).
It would be incredible to imagine that Congress intended that this same information,
generated in tracing requests, could be freely available under FOIA to “any
State or any political subdivision thereof” and to the general public.
That such information is not subject to disclosure is mandated not only by such
specific language, but also by the legislative purpose to protect what Congress
perceived to be the rights of firearm owners, not the least of which was privacy.
The decision of the court of appeals is inconsistent with this Congressional
purpose.
There is yet another source of law which provides for the confidentiality of
records of firearms transfers. The Treasury and General Government Appropriations
Act, 2002, Title I, P.L. 107-67, 115 Stat. 514 (2001), provides appropriations:
for necessary expenses of the Bureau of Alcohol, Tobacco and Firearms . . .
. Provided further, That no funds appropriated herein shall be available for
salaries or administrative expenses in connection with consolidating or centralizing,
within the Department of the Treasury, the records, or any portion thereof,
of acquisition and disposition of firearms maintained by Federal firearms licensees
. . . . (Emphasis added).
This appropriations rider has been passed annually since 1978. It was first
enacted to negate ATF’s proposed regulation that licensees must submit
to the Director a quarterly report of firearms dispositions. 43 F.R. 11,800
(March 21, 1978). The regulation would have provided in part: “Dispositions
to nonlicensees shall include the date of disposition and firearm description,
but the report shall not contain the name and address of the nonlicensee.”
Id. The report would “focus upon the particular firearm and licensed dealer
involved in a particular transaction but would not identify the purchaser.”
Treasury’s Proposed Gun Regulations: Hearings before Subcommittee on Crime,
House Judiciary Committee, 95th Cong., 2d Sess., 266 (1979).
In enacting the appropriations rider to prohibit the above, Congress thereby
sought to protect the privacy not only of the transferee’s identity, but
also of the firearm description and the dealer who transferred it, which are
within the terms “any portion thereof” of the acquisition and disposition
records. Yet those are exactly the pieces of information that the court of appeals
here finds not to not to be protected by any privacy interest and may be disclosed
to the general public.
In sum, Congress has enacted strict privacy protections for information in licensee
records on not only firearm owners, but also firearms and firearms transactions.
It authorized the Secretary to obtain information from licensee records for
tracing purposes only in relation to bona fide criminal investigations. It authorized
the Secretary to give information from licensee records to state and local law
enforcement agencies, but only in regard to prohibited persons who received
firearms. Given these strict constraints, Congress could not have intended that
the public at large could have access to these records on demand through FOIA.
III. THE BRADY ACT PROTECTS THE
PRIVACY OF FIREARM TRANSFERS
In claiming that “one does not possess any privacy interest in the purchase
of a firearm,” 287 F.3d at 636, the court of appeals also ignored yet
another statutory scheme – the national instant criminal background check
system (“NICS”) established by the Brady Act. The Brady Act directed
the Attorney General to establish the NICS to determine whether persons may
lawfully receive firearms from federally-licensed dealers. Section 103(h) provides
that “the Attorney General shall prescribe regulations to ensure the privacy
and security of the information of the system established under this section.”
Two critical provisions of the Act serve to protect privacy interests.
First, the Act provides that a licensed dealer may not transfer a firearm to
a non-licensee without having contacted NICS for a background check. It then
provides, 18 U.S.C. § 922(t)(2), the following three duties for the NICS:
If the receipt of a firearm would not violate section 922(g) or (n) or state
law, the system shall–
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the
identifying number and the date the number was assigned) and all records of
the system relating to the person or the transfer.
Second, further to secure privacy interests, § 103(i) of the Brady Act
provides:
PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO
FIREARMS-- No department, agency, officer, or employee of the United States
may--
(1) require that any record or portion thereof generated by the system established
under this section be recorded at or transferred to a facility owned, managed,
or controlled by the United States or any State or political subdivision thereof;
or
(2) use the system established under this section to establish any system for
the registration of firearms, firearm owners, or firearm transactions, except
with respect to persons, prohibited by section 922(g) or (n) of title 18, United
States Code or State law, from receiving a firearm.
Every purchase of a firearm from a licensed dealer is subject to the above Brady
Act procedures and privacy protections. Persons who purchase more than one handgun
in a five-day period as well as persons who purchased a firearm and whose identity
later appears in a trace report are subclasses of the larger class of firearm
purchasers who have passed the instant background check and to whom the above
privacy protections apply.
In short, the federal instant background system must destroy all records of
the identities of lawful firearm purchasers and may not record any information
on such persons at any federal, State, or local facility. It could hardly be
the case that Congress intended such information to be available to the City
of Chicago or the general public via the FOIA.
IV. ATF’S “DISCRETIONARY” DISCLOSURES
ARE PROHIBITED BY LAW
In the courts below, Treasury and ATF failed to refer to any of the privacy
protections afforded by the Gun Control Act. Only when the case reached this
Court did the Solicitor General refer to these provisions. See Pet. 17 (citing
§ 926(a)); Reply Br. 4 n.1 (citing § 923(g)(3)).
The agency, at both administrative and litigation stages, failed to rely on
FOIA Exemption 3, which exempts matters “specifically exempted from disclosure
by statute.” 5 U.S.C. § 552(b)(3). See Administrator v. Robertson,
422 U.S. 255, 264 (1975) (FOIA “in no way limits statutes specifically
written with the congressional intent of curtailing the flow of information
as a supplement necessary to the proper functioning of certain agencies”)
(statement of Sen. Long). An agency may not make a discretionary FOIA disclosure
within the scope of Exemption 3.
ATF improperly disclosed records which are confidential under the GCA. The City
of Chicago is engaged in civil litigation against the firearms industry. The
Petition relates:
In furtherance of that litigation, the City made a FOIA request for access on
CD-ROM to ATF’s Trace and Multiple Sales Databases. . . . ATF provided
respondent all data related to (a) traced firearms associated with crimes committed
in Chicago and (b) multiple sales purchasers who are residents of Chicago, as
a discretionary release to a local law enforcement agency pursuant to the Gun
Control Act of 1968. See Pet. App. 3a-4a; 18 U.S.C. 923(g)(1)(D).
Pet. 6-7; see also Pet. 14 n.8.
Yet § 923(g)(1)(D) provides for release of records only to a “local
law enforcement agency,” not to a “political subdivision”
– language which FOPA repealed. That political subdivision requested the
records for civil litigation, not law enforcement. Further, the records are
restricted to “persons prohibited from purchasing or receiving firearms
. . . who have purchased or received firearms,” which excludes innocent
purchasers whose names appear in traces (e.g., victims of gun theft) and lawful
multiple sales purchasers.
ATF’s above “discretionary release” of records was also inconsistent
with § 923(g)(3)(B), which provides that the “local law enforcement
agency of the local jurisdiction shall not disclose any such [multiple sales]
form or the contents thereof to any person or entity, and shall destroy each
such form and any record of the contents thereof no more than 20 days from the
date such form is received.” The only exception is “regarding a
purchaser who is prohibited by subsection (g) or (n) of section 922 of this
title from receipt of a firearm.”
Moreover, ATF’s general FOIA policy of releasing the above records over
time to any requester cannot be squared with the above statutes. After two years,
ATF releases the Multiple Sales Database, including firearm information (manufacturer,
type, serial number and caliber); and dealer identification, and excluding individual
names and addresses of retail purchasers. Pet. 6. After five years, ATF releases
from the Trace Database, inter alia, firearm data (serial number, if the firearm
was involved in multiple sales, and manufacturer/importer name), firearms dealer
identification data, and date of retail purchase. Names and addresses of private
individuals are withheld. Pet. 5.
Even with the deletion of personal identities, the above violates the privacy
protections of §§ 923(g)(1)(D) and(3)(B). Further, § 926(a) provides
that licensee records “or any portion of the contents of such records”
may not “be recorded at or transferred to a facility owned, managed, or
controlled by the United States or any State or any political subdivision thereof,”
and also prohibits “any system of registration” not just of “firearms
owners,” but also of “firearms” and “firearms transactions
or dispositions.” Supplying this information to the public after the passage
of time conflicts with the Congressional purpose that this information be private.
To rectify the above, this Court should “remand the cause and direct the
entry of such appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.” 28 U.S.C.
§ 2106.
V. RECORDS OF FIREARM TRANSFERS
ARE IRRELEVANT TO FOIA’S CORE PURPOSE
Even absent the GCA provisions, data on firearms, firearm owners, and firearms
transactions are not subject to disclosure. The core function of the Freedom
of Information Act is “the citizens’ right to be informed about
‘what their government is up to.’” Dep’t. of Justice
v. Reporters Committee, 489 U.S. 749, 773 (1989). This Court observed:
Official information that sheds light on an agency’s performance of its
statutory duties falls squarely within that statutory purpose. That purpose,
however, is not fostered by disclosure of information about private citizens
that is accumulated in various governmental files but that reveals little or
nothing about an agency’s own conduct.
Id. See id. at 774-75 (“in none of our cases construing the FOIA have
we found it appropriate to order a Government agency to honor a FOIA request
for information about a particular private citizen.”).
As for Chicago’s alleged interest in enforcing its ordinances, “the
purposes for which the request for information is made . . . have no bearing
on whether information must be disclosed under FOIA.” Bibles v. Oregon
Natural Desert Assn., 519 U.S. 355, 355-56 (1997).
Given the above statutory scheme, the court of appeals is wrong in its assertion
that lawful firearm purchasers have no applicable privacy interests and that
their identities and other personal information are subject to disclosure. The
Petitioner, focusing on the interests of law enforcement agencies, has set forth
additional reasons why this Court should reverse the judgment below.
CONCLUSION
The Court should hold that records of firearm transfers are not subject to disclosure
under the Freedom of Information Act and reverse the judgment of the court of
appeals.
Respectfully submitted,
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.,
AMICUS CURIAE
STEPHEN P. HALBROOK*
RICHARD E. GARDINER
Suite 404
10560 Main Street
Fairfax, VA 22030
(703) 352-7276
Counsel for Amicus Curiae
*Counsel of Record