Ctr. for Investigative Rptg. v. DOJ ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE CENTER FOR INVESTIGATIVE No. 18-17356
REPORTING,
Plaintiff-Appellant, D.C. No.
3:17-cv-06557-
v. JSC
UNITED STATES DEPARTMENT OF
JUSTICE, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted March 6, 2020
San Francisco, California
Filed December 3, 2020
Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge Bumatay
2 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
SUMMARY *
Freedom of Information Act
The panel reversed the district court’s summary
judgment, and remanded for further factual development, in
an action brought by the Center for Investigative Reporting
(“CIR”) under the Freedom of information Act (“FOIA”),
requesting that the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”) provide records concerning weapon
ownership.
CIR sought records depicting the “[t]otal number of
weapons traced back to former law enforcement ownership,
annually from 2006 to the present.” ATF alleged that
Congress had forbidden the release of that information by
approving the Tiahrt Rider to the Consolidated
Appropriations Acts of 2005, 2006, 2010, and 2012. The
district court held that ATF was not required to disclose the
requested information under FOIA.
FOIA Exemption 3 relieves an agency of its obligation
to disclose material specifically exempted from disclosure
by statute if that statute meets certain requirements outlined
in 5 U.S.C. § 552(b)(3).
The panel held that the Tiahrt Rider did not exempt the
data sought by CIR from disclosure under FOIA. The panel
held that the 2012 Tiahrt Rider – which enacted the language
of the 2010 Rider without any alteration – was the only
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 3
operative Rider because the 2010 Rider impliedly repealed
the 2005 and 2008 Riders in full. Looking to the 2010 Rider,
the panel concluded that it was not a statute of exemption for
FOIA purposes because even though it was enacted after the
OPEN FOIA Act of 2009, it made no reference to 5 U.S.C.
§ 552(b)(3). Finally, the panel held that the issue of whether
the OPEN FOIA Act’s prospective definition of statutes of
exemption as those that cite to 5 U.S.C. § 552(b)(3) was an
impermissible legislative entrenchment of a later Congress’s
ability to create statutes of exemption was clearly waived.
The panel held that the Tiahrt Rider did not deprive ATF
of the funding it needed to turn over the data. The panel
further held that the use of a query to search for and extract
a particular arrangement or subject of existing data from the
Firearms Tracing System database did not require the
creation of a “new” agency record under FOIA.
The panel held that based on the existing record it could
not answer the question whether the Firearms Tracing
System database was currently capable of producing the
information CIR sought in response to a search query. The
panel remanded for further factual development of the record
on this issue.
Judge Bumatay dissented because the majority wrongly
held that the Tiahrt Amendment of 2012 must conform to an
earlier statute – the OPEN FOIA Act of 2009 – to be
effective, and because the majority misconstrued federal law
as requiring FOIA disclosures that Congress expressly
prohibited.
4 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
COUNSEL
D. Victoria Baranetsky (argued), The Center for
Investigative Reporting, Emeryville, California; Andrew P.
Bridges and Meghan E. Fenzel, Fenwick & West LLP,
Mountain View, California; for Plaintiff-Appellant.
Robin M. Wall (argued), Assistant United States Attorney;
Sara Winslow, Chief, Civil Division; David L. Anderson,
United States Attorney; United States Attorney’s Office, San
Francisco, California; for Defendant-Appellee.
Aaron Mackey, Electronic Frontier Foundation, San
Francisco, California, for Amicus Curiae Electronic Frontier
Foundation.
Mason A. Kortz and Kendra K. Albert, Cyberlaw Clinic,
Harvard Law School, Cambridge, Massachusetts, for Amici
Curiae Five Media Organizations and Sixteen Data
Journalists.
Jack Jordan, Parkville, Missouri, as Amicus Curiae.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 5
OPINION
WARDLAW, Circuit Judge:
When Congress passed the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, it sought to “permit access to
official information long shielded from public view” and
thereby “pierce the veil of administrative secrecy” that
clouded the workings of federal agencies. Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation
marks and citation omitted). Congress viewed this
commitment to government transparency and an “informed
citizenry” as “vital to the functioning of a democratic
society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978). After all, “[g]overnment transparency is
critical” to ensure “the people have the information needed
to check public corruption, hold government leaders
accountable, and elect leaders who will carry out their
preferred policies.” Hamdan v. U.S. Dep’t of Just., 797 F.3d
759, 769–70 (9th Cir. 2015); accord Robbins Tire, 437 U.S.
at 242.
Today, few issues spawn as much political debate as
guns and their role in criminal activity and the government’s
role in regulating these weapons. Countless individuals and
entities participate in this debate, often relying on statistical
data as they advocate for their preferred policy outcomes.
This debate is unquestionably one of public importance. For
its part, the Executive Branch has long recognized the
importance of quantitative data in this arena and, to that end,
has spent decades systematically investigating, or “tracing,”
the origins of firearms linked to criminal activity. As of
2018, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) had compiled the results of over
6,876,808 of those traces in an electronic database called the
Firearms Tracing System (FTS).
6 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
The Center for Investigative Reporting (CIR)
participates in the national debate surrounding guns in
America. CIR specifically wants to report on the use in
crimes of guns that had at one time been owned by law
enforcement agencies. To prepare that report, CIR sought
hard data from ATF, filing a FOIA request asking ATF for
records depicting the “[t]otal number of weapons traced back
to former law enforcement ownership, annually from 2006
to the present.” ATF, however, had never before released
that information to the public, and it refused to change
course in light of CIR’s request. It instead contended that
Congress had forbidden the release of that information by
approving the Tiahrt Rider to the Consolidated
Appropriations Acts of 2005, 2008, 2010, and 2012. ATF
also contended that FOIA did not require ATF to run this
search in the FTS database because such a query would
require it to create a new agency record.
We do not agree. The Tiahrt Rider does not exempt the
data sought by CIR from disclosure under FOIA, nor does it
deprive ATF of the funding it needs to turn over this data.
Moreover, the use of a query to search for and extract a
particular arrangement or subset of existing data from the
FTS database does not require the creation of a “new”
agency record under FOIA. The only question that thus
remains is whether the FTS database is currently capable of
producing the information CIR seeks in response to a search
query. We cannot answer that question on the existing
record and accordingly reverse and remand for further
factual development consistent with this opinion.
I.
The disputes in this case arise from two federal statutes
passed in the 1960’s—FOIA and the Gun Control Act of
1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213 (1968)—and
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 7
from Congress’s evolving understanding of the
circumstances in which ATF should disclose gun-tracing
data gathered under the GCA. We therefore recount the
history of these statutes, Congress’s recent involvement in
this area, and then the case at hand.
A.
In 1966, Congress enacted FOIA to usher in a newfound
era of transparency in the Executive Branch. Milner v. Dep’t
of Navy, 562 U.S. 562, 565 (2011). FOIA mandated that
federal agencies “disclose records on request, unless they
fall within one of nine exemptions.” Id. “These exemptions
are ‘explicitly made exclusive’” and “must be ‘narrowly
construed.’” Id. (quoting Envt’l Prot. Agency v. Mink,
410 U.S. 73, 79 (1973); Fed. Bureau of Investigation v.
Abramson, 456 U.S. 615, 630, (1982)). They thus “do not
obscure the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.” Rose, 425 U.S. at 361. Over
the years, Congress has repeatedly updated and strengthened
FOIA. See, e.g., OPEN FOIA Act of 2009, Pub L. No. 111-
83, § 564, 123 Stat. 2142, 2184 (2009); Electronic Freedom
of Information Act Amendments of 1996, Pub. L. No. 104-
231, 110 Stat. 3048 (1996) (E-FOIA).
Meanwhile, a year after passing FOIA, and in the wake
of the assassinations of President John F. Kennedy, Attorney
General Robert Kennedy, and Martin Luther King Jr.,
Congress passed the Gun Control Act of 1968. The GCA
sought to reduce the incidence of “crime and violence,”
§ 101, 82 Stat. at 1213, by, among other things, creating a
statutory licensing and recordkeeping scheme for firearms
manufacturers, importers, retailers, and dealers, see
18 U.S.C. § 923. The Attorney General or his current
designee, ATF, may obtain and inspect the inventory and
sales records created under this scheme for certain
8 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
enumerated reasons, including as part of a criminal
investigation. Id. § 923(g).
ATF has used this statutory authority to implement
“tracing”—“the systematic tracking of a recovered firearm
from its manufacturer or importer, through its subsequent
introduction into the distribution chain (wholesaler/retailer),
to identify an unlicensed purchaser.” As explained in the
First Declaration of Charles Houser, Chief of the National
Tracing Center Division of ATF, any law enforcement
agency in the country can request that ATF trace a firearm.
Upon such a request, ATF tracks a firearm from its
manufacturer or importer, through the supply chain of
licensed dealers and wholesalers, and on to the first retail
purchaser of that gun. A trace usually, but not always, stops
with the first retail purchaser, because those purchasers are
not subject to the GCA’s recordkeeping requirements.
ATF documents each trace it conducts. These tracing
records are maintained in the Firearm Tracing System, an
electronic database that logs the “trace data” for each
individual trace. As of April 2018, the FTS database
contained information from over 6.8 million traces. The
FTS database retains substantial information about each
individual trace, including:
(i) information about the law enforcement
agency requesting the trace, such as the
agency’s name, address, case number, and
investigative notes provided by the agency;
(ii) information provided by the requesting
agency regarding its recovery of the firearm,
such as the date and location where the traced
firearm was taken into custody by the
requesting agency; (iii) information about
purchasers of the traced firearm;
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 9
(iv) information about possessors of the
traced firearm and any associates (i.e.,
persons with the possessor of the firearm
when the firearm comes into police custody),
such as their names and addresses, driver’s
license information and social security
numbers, and any related vehicle
information; (v) information identifying each
[Federal Firearms License] that has sold the
traced firearm; and (vi) information about the
traced firearm such as the manufacturer,
importer, model, weapon type, caliber, and
serial number.
This information is situated in the FTS database in “over
75 tables with a combined total of 800 columns/fields, not
including subsystems and integrated or associated systems.”
When it completes a firearms trace, ATF enters a “close-
out-code” in the FTS database to signal the status of the
completed trace. Firearms traced to a government or law
enforcement agency generally receive the close-out code
“S5.” Three other codes also reveal that ATF traced a
firearm to a law enforcement or government agency: “S6,”
“SH,” and “DN.”
ATF prepares various reports and statistical analyses
using the FTS database, which it shares with the public on
its website and with partnered government and law
enforcement agencies. ATF prepares these reports through
specialized search queries. After receiving the results of the
query, it processes, verifies, and organizes that data through
statistical software. Often, ATF creates “visual depictions,”
such as graphs or charts from the data, and a “multi-level
review process” ensues to verify the accuracy of the data and
10 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
format. “[E]xperienced specialists at the ATF” generally
complete this process.
Because the FTS database contains large volumes of
quantitative data regarding guns in the United States, ATF
has received FOIA requests for permutations of this data.
See, e.g., City of Chi. v. U.S. Dep’t of Treas., Bureau of
Alcohol, Tobacco & Firearms, 287 F.3d 628, 632 (7th Cir.
2002), vacated by 537 U.S. 1229 (2003). And, prior to 2003,
those requests were at times successful in obtaining
responsive information. See, e.g., id. at 638.
B.
That status quo began to shift in 2003, when Congress
first attached a provision commonly referred to as the
“Tiahrt Rider” or “Tiahrt Amendment” to its Consolidated
Appropriations Resolution. See Consolidated
Appropriations Resolution, 2003, Pub. L. No. 108-7, § 644,
117 Stat. 11, 473–74 (2003) (“2003 Rider”). The 2003 Rider
directed that “no funds appropriated” in that Act “or any
other Act with respect to any fiscal year shall be available to
take any action based upon any provision of 5 U.S.C. § 552with respect to” firearms tracing records, “except that such
records may continue to be disclosed to the extent and in the
manner that records so collected, maintained, or obtained
have been disclosed under 5 U.S.C. § 552 prior to the date
of the enactment of this Act.” § 644, 117 Stat. at 473–74.
That is, no appropriated funds could be used to make any
new types of FOIA disclosures of firearms tracing records.
Congress has included some version of the Tiahrt Rider
in the subsequent Consolidated Appropriations Acts in 2005,
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2008, 2010, and, most recently, 2012. 1 These Tiahrt Riders
have become more restrictive—with each Consolidated
Appropriations Act since 2005 providing that, beginning in
the current fiscal year “and thereafter, no funds appropriated
under this or any other Act with respect to any fiscal year
may be used to disclose part or all of the contents of the
Firearms Trace System database.” 118 Stat. at 2859;
121 Stat. at 1904; 123 Stat. at 3128; 125 Stat. at 609. Each
Tiahrt Rider since 2005 has also qualified this general “use
of funds prohibition” with varying limitations and
exceptions.
The 2005 Rider contained three exceptions to this
prohibition. First, it permitted the use of funds to disclose
such records to “a Federal, State, or local law enforcement
agency or a prosecutor,” but “solely in connection with and
for use in a bona fide criminal investigation or prosecution
and then only such information as pertains to the geographic
jurisdiction of the law enforcement agency requesting the
disclosure.” 118 Stat. at 2859. Second, the 2005 Rider
permitted the use of trace data in actions commenced by
ATF to enforce the GCA or in review of such actions, but it
otherwise provided that trace data could not be used, was
“immune from legal process,” and could not “be subject to
subpoena or other discovery” in any civil action or
proceeding. Id. at 2859–60. Third, the 2005 Rider permitted
“the disclosure of statistical information concerning total
1
See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447,
118 Stat. 2809, 2859–60 (2004) (2005 Rider); Consolidated
Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844, 1903–
04 (2007) (2008 Rider); Consolidated Appropriations Act, 2010, Pub. L.
No. 111-117, 123 Stat. 3034, 3128–29 (2009) (2010 Rider);
Consolidated and Further Continuing Appropriations Act, 2012, Pub. L.
No. 112-55, 125 Stat. 552, 609–10 (2011) (2012 Rider).
12 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
production, importation, and exportation by each licensed
importer . . . and licensed manufacturer.” Id. at 2860.
The 2008 Rider made six changes that broadened these
exceptions. First, it now permitted disclosure to tribal and
foreign law enforcement agencies in addition to Federal,
State, and local law enforcement agencies or prosecutors.
121 Stat. at 1903–04. Second, it conditioned those
disclosures only on their connection to a criminal
investigation or prosecution, eliminating the geographic
jurisdiction requirement. Id. at 1904. Third, it newly
allowed disclosure to “a Federal agency for a national
security or intelligence purpose.” Id. Fourth, the 2008 Rider
stated that trace data was not only immune from legal
process and beyond the reach of subpoena and discovery, but
also prohibited from being “used, relied on, or disclosed in
any manner” in those proceedings, including through
“testimony or other evidence . . . based on the data,” subject
to the same exceptions for ATF’s actions enforcing the GCA
and in review of such actions. Id.
Fifth and sixth, the 2008 Rider retained the exception for
statistical information, now deemed Exception (A), but
added two additional lettered exceptions. Exception (B)
provided for even greater freedoms to share that information
with law enforcement agencies, prosecutors, and national
security agencies and officials. Meanwhile, Exception
(C)—at issue in this case—allowed for “the publication of
annual statistical reports on products regulated by the [ATF],
including total production, importation, and exportation by
each licensed importer (as so defined) and licensed
manufacturer (as so defined), or statistical aggregate data
regarding firearms traffickers and trafficking channels, or
firearms misuse, felons, and trafficking investigations.” Id.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 13
The 2010 Rider further altered this scheme in three ways.
First, though it retained the exception for disclosure to
Federal, State, local, tribal, and foreign law enforcement
agencies and Federal, State, or local prosecutors, it limited
the requirement that such information be “in connection with
or for use in a criminal investigation or prosecution” to
sharing information with foreign law enforcement agencies.
123 Stat. at 3128. Second, disclosure to any law
enforcement agency or prosecutor was prohibited if it
“would compromise the identity of any undercover law
enforcement officer or confidential informant, or interfere
with any case under investigation.” Id. Third, it prohibited
any law enforcement officer, agency, or prosecutor that
obtained such data from “knowingly and publicly disclosing
the data.” Id.
The 2012 Rider is identical to the 2010 Rider, except in
the precise language discussing its application for the
“current fiscal year and in each fiscal year thereafter.”
125 Stat. at 609. Congress has passed no subsequent Tiahrt
Rider, and other than the 2003 Rider, no Rider cites FOIA.
C.
In preparation for a report on gun violence and the links
between crime and guns once owned by law enforcement,
CIR submitted the FOIA request at issue here. In March
2017, it requested, in relevant part, that ATF provide the
“total number of weapons traced back to former law
enforcement ownership, annually from 2006 to the
present.” 2 CIR maintains that “access to public records
2
The Chief of the National Tracing Center Division of ATF
concedes that this request “concerns law enforcement data from the
ATF’s Firearms Trace System database.”
14 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
about the involvement of law enforcement weapons in crime
is especially important in a functioning civil society” and
that this information “is essential for journalists to study so
that they may inform the public and ensure government
accountability.” When ATF failed to provide a substantive
response to its FOIA request, CIR brought this FOIA action
to compel disclosure.
The district court found that ATF was not required to
disclose the requested information under FOIA and granted
summary judgment in favor of the agency. The district court
reasoned that the 2005 and 2008 Tiahrt Riders “are still
effective prospectively,” were not required to cite FOIA
specifically when enacted, and therefore, qualify as
withholding statutes under FOIA Exemption 3, 5 U.S.C.
§ 552(b)(3). To the extent that CIR requested “statistical
aggregate data” that fell outside the Tiahrt Rider’s
prohibition, the district court held that ATF could not
disclose that information without creating a new record,
something FOIA does not require the agency to do. The
district court entered partial judgment for the Government,
and, after the stipulated dismissal of the other claims, this
appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We
review a grant of summary judgment in FOIA cases de novo,
“employ[ing] the same standard used by the trial court under
Federal Rule of Civil Procedure 56(c).” Animal Legal Def.
Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 988 (9th
Cir. 2016) (en banc). We thus “view the evidence in the light
most favorable to the nonmoving party, determine whether
there are any genuine issues of material fact, and decide
whether the district court correctly applied the relevant
substantive law.” Id. at 989.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 15
III.
We consider first whether the Tiahrt Riders render the
information CIR seeks exempt from disclosure under FOIA.
FOIA Exemption 3 relieves an agency of its obligation to
disclose material “specifically exempted from disclosure by
statute,” but only if that statute (1) “requires that the matters
be withheld from the public in such a manner as to leave no
discretion on the issue” or “establishes particular criteria for
withholding or refers to particular types of matters to be
withheld,” and (2) “if enacted after the date of enactment of
the OPEN FOIA Act of 2009, specifically cites to this
paragraph.” 5 U.S.C. § 552(b)(3). In applying this
exemption, we must ask “whether the statute identified by
the agency is a statute of exemption within the meaning of
Exemption 3.” Hamdan, 797 F.3d at 776 (citing Cent.
Intelligence Agency v. Sims, 471 U.S. 159, 167 (1985)). If
so, we assess “whether the withheld records satisfy the
criteria of the exemption statute.” Id. (citing Sims, 471 U.S.
at 167).
A.
While that inquiry sounds straightforward, we must
answer a preliminary question here: which Tiahrt Rider (or
Tiahrt Riders) is the asserted “statute of exemption”? After
all, Congress passed Tiahrt Riders in five different years, and
most of them reflect differing restrictions on ATF’s
disclosure of data from the FTS database. Moreover, some
of these Riders were passed before the enactment of the
OPEN FOIA Act of 2009, while others were enacted after
that Act. That timing matters because Riders passed before
the OPEN FOIA Act could serve as statutes of exemption
without citing to 5 U.S.C. § 552(b)(3), but those passed
afterwards must expressly cite to that subsection to
constitute statutes of exemption. Given all this, we must
16 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
determine which Tiahrt Rider or Riders are currently
operative law.
We conclude that the 2012 Rider—which enacted the
language of the 2010 Rider without any alteration—is the
only operative Rider because the 2010 Rider impliedly
repealed the 2005 and 2008 Riders in full. 3 Having reached
that conclusion and upon looking to the 2010 Rider, we
conclude that it is not a statute of exemption for the simple
reason that, though enacted after the OPEN FOIA Act of
2009, it makes no reference to 5 U.S.C. § 552(b)(3).
1.
While “[r]epeals by implication are not favored,”
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154
3
The parties identify no binding or other appellate case law that
answers this question, and the district courts that have directly addressed
the implied repeal issue are split. Compare Everytown for Gun Safety
Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
403 F. Supp. 3d 343, 353 (S.D.N.Y. 2019) (“Congress intended each
Rider to comprehensively replace its predecessor.”), appeal docketed,
No. 19-3438 (2d Cir. Oct. 21, 2019), with Abdeljabbar v. Bureau of
Alcohol, Tobacco & Firearms, 74 F. Supp. 3d 158, 175 (D.D.C. 2014)
(“Congress’s decision to incorporate similar language into
appropriations bills after 2009 demonstrates its intent to continue the
disclosure prohibition.”). The other district court cases cited by the
Government either blindly follow Abdeljabbar or otherwise gloss over
the OPEN FOIA Act and the implied repeal issue. See Reep v. U.S. Dep’t
of Just., 302 F. Supp. 3d 174, 183 (D.D.C. 2018); Fowlkes v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 139 F. Supp. 3d 287, 292
(D.D.C. 2015); Higgins v. U.S. Dep’t of Just., 919 F. Supp. 2d 131, 145
(D.D.C. 2013); see also P.W. Arms, Inc. v. United States, No. C15-1990-
JCC, 2017 WL 319250, at *4 (W.D. Wash. Jan. 23, 2017). Moreover,
in many of these cases, including Abdeljabbar, the plaintiff proceeded
pro se. Abdeljabbar, 74 F. Supp. 3d at 164; Reep, 302 F. Supp. 3d at 179;
Fowlkes, 139 F. Supp. 3d at 288; Higgins, 919 F. Supp. 2d at 137.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 17
(1976) (quoting United States v. United Cont’l Tuna Corp.,
425 U.S. 164, 168 (1996)), the Supreme Court has
recognized “two well-settled categories of repeals by
implication[:] (1) where provisions in the two acts are in
irreconcilable conflict . . . . ; and (2) [where] the later act
covers the whole subject of the earlier one and is clearly
intended as a substitute,” id. (quoting Posadas v. Nat’l City
Bank of N.Y., 296 U.S. 497, 503 (1936)); In re Glacier Bay,
944 F.2d 577, 581 (9th Cir. 1991). “In either case, the
intention of the legislature to repeal must be clear and
manifest,” Posadas, 296 U.S. at 503, based usually on “the
language or operation of [the] statute,” Kremer v. Chem.
Constr. Corp., 456 U.S. 461, 470 (1982). Otherwise, “the
later act is to be construed as a continuation of, and not a
substitute for, the first act,” and the later act “will continue
to speak, so far as the two acts are the same, from the time
of the first enactment.” Posadas, 296 U.S. at 503.
CIR argues that each of the subsequent Riders was a
substitute for the prior one. We thus examine whether the
2010 Rider, repeated in the 2012 Rider in full, “cover[s] the
whole subject covered by an earlier act, embraces new
provisions, and plainly shows that it was intended . . . to
prescribe the only rules with respect thereto.” United States
v. Lovely, 319 F.2d 673, 679–80 (4th Cir. 1963) (finding
such an implied repeal); accord United States v. Tynen, 78
U.S. 88, 92 (1870) (same); see also 1A Norman J. Singer &
Shambie Singer, Sutherland Statutory Construction § 23:13
(7th ed. 2013) (“Legislation which operates to revise the
entire subject to which it relates gives strong implication of
a legislative intent to repeal former statutory law and also to
supersede the common law relating to the same subject.”).
While not necessarily an exhaustive list, this analysis
involves examining at least: how Congress described its own
actions in the subsequent act, Posadas, 296 U.S. at 502; how
18 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
many aspects of the statutory scheme differ and in what
depth, id.; and whether the subject matter addressed in both
acts is identical in scope, Tynen, 78 U.S. at 92; Lovely,
319 F.2d at 679–80.
2.
Applying these principals here, we conclude that
Congress impliedly repealed the 2005 and 2008 Tiahrt
Riders through its later passage of the 2010 and 2012
Riders. 4 Because the 2008 Rider was the last version passed
before the OPEN FOIA Act, which provided that Exemption
3 would apply to only those statutes enacted thereafter that
“specifically cited” to it, and the 2010 Rider was the first
version passed after the passage of the OPEN FOIA Act, our
analysis focuses there.
The 2008 Rider provides that:
[B]eginning in fiscal year 2008 and
thereafter, no funds appropriated under this
or any other Act may be used to disclose part
or all of the contents of the Firearms Trace
System database . . . except to
(1) a Federal, State, local, tribal, or foreign
law enforcement agency, or a Federal, State,
or local prosecutor, solely in connection with
4
We note also that there is no meaningful distinction between the
2012 Rider and the 2010 Rider. The 2012 Rider applies in the “current
fiscal year and in each fiscal year thereafter,” a slightly different wording
from the concept expressed in the 2010 Rider, “beginning in fiscal year
2010 and thereafter.”
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 19
and for use in a criminal investigation or
prosecution; or
(2) a Federal agency for a national security or
intelligence purpose;
and all such data shall be immune from legal
process, shall not be subject to subpoena or
other discovery, shall be inadmissible in
evidence, and shall not be used, relied on, or
disclosed in any manner, nor shall testimony
or other evidence be permitted based on the
data, in a civil action in any State . . . or
Federal court or in an administrative
proceeding other than a proceeding
commenced by the [ATF to enforce the Gun
Control Act] . . . or a review of such an action
or proceeding . . . .
2008 Rider (emphases added to identify portions affected by
the 2010 Rider). In addition, the 2008 Rider includes the
three lettered exceptions to the use of funds prohibition,
including “that this proviso shall not be construed to prevent
. . . (C) the publication of annual statistical reports . . . or
statistical aggregate data regarding firearms traffickers and
trafficking channels, or firearms misuse, felons, and
trafficking investigations.” Id.The 2010 Rider made substantive modifications to the
use of funds prohibition, providing that:
[B]eginning in fiscal year 2010 and
thereafter, no funds appropriated under this
or any other Act may be used to disclose part
20 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
or all of the contents of the Firearms Trace
System database . . . except to:
(1) a Federal, State, local, or tribal law
enforcement agency, or a Federal, State, or
local prosecutor; or
(2) a foreign law enforcement agency solely
in connection with or for use in a criminal
investigation or prosecution; or
(3) a Federal agency for a national security or
intelligence purpose;
unless such disclosure of such data to any of
the entities described in (1), (2) or (3) of this
proviso would compromise the identity of any
undercover law enforcement officer or
confidential informant, or interfere with any
case under investigation; and no person or
entity described in (1), (2) or (3) shall
knowingly and publicly disclose such data;
and all such data shall be immune from legal
process, shall not be subject to subpoena or
other discovery, shall be inadmissible in
evidence, and shall not be used, relied on, or
disclosed in any manner, nor shall testimony
or other evidence be permitted based on the
data, in a civil action in any State . . . or
Federal court or in an administrative
proceeding other than a proceeding
commenced by the [ATF to enforce the Gun
Control Act] . . . or a review of such an action
or proceeding . . . .
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 21
2010 Rider (emphases added to reflect modifications from
the 2008 Rider). The 2010 Rider maintained the same three
lettered exceptions as the 2008 Rider.
We have no doubt that the 2010 Rider “cover[s] the
whole subject of the” matters discussed in the 2005 and 2008
Riders. See Lovely, 319 F.2d at 679. Like those earlier
Riders, it lays out a prohibition on the use of appropriated
funds to disclose trace data and spells out a series of specific
exceptions to that general prohibition. It likewise generally
purports to insulate this data from administrative or civil
discovery and bars the use of this data in adjudicatory
proceedings. Finally, it also lists scenarios where ATF may
both turn over certain types of information from the FTS
database and use generally appropriated funds for that
purpose.
Moreover, the 2010 Rider is, like its predecessors,
clearly intended to prescribe the only rules for the release of
data from the FTS. It presumptively bans the disclosure of
all such data, making exceptions only as provided in that
2010 Rider. It does not cross reference other statutes or
regulations that discuss the FTS data, and neither we nor the
parties have located another federal law outside the Tiahrt
Rider that speaks directly to the data contained in the FTS.
Congress has also effectively endorsed this view, given that
it anticipated the 2010 Rider to apply “beginning in fiscal
year 2010 and thereafter.” See also Everytown, 403 F. Supp.
3d at 353 (“The use of express repetition of language of
futurity in every [Rider] indicates that Congress understood
each Rider to provide specific, ongoing rules for Firearms
Trace System database disclosure that did not necessitate
examining prior enactments on the subject.”).
Furthermore, the 2010 Rider and the two “new
provisions” it “embrace[d]” redefined what FTS disclosures
22 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
are even possible. See Lovely, 319 F.2d at 679–80 (noting
two operative differences). Consider that the 2010 Rider, in
one respect, broadened the scope of the disclosures allowed
by the 2008 Rider, because it allowed disclosures to law
enforcement without any “connection to a criminal
investigation or prosecution.” Yet the 2010 Rider also
simultaneously cut back on the previously allowed FTS
disclosures because it prohibited disclosures that might
compromise the identity of undercover agents or informants.
Given these asymmetric changes, a permissible disclosure
under the 2008 Rider may or may not be permissible under
the 2010 Rider. Or it may still be impermissible, but for a
new reason entirely—e.g., a request by law enforcement,
unrelated to a criminal investigation or prosecution, may
nevertheless pose a risk of revealing an undercover agent’s
identity. In short, it makes no sense to look back to the 2005
or 2008 Riders, as the government suggests, because they do
not reflect current law. Cf. Gallenstein v. United States,
975 F.2d 286, 292 (6th Cir. 1992) (“The second category of
implied repeal is where the later statute fills the entire area
of law such that the prior statute has no effect.”).
The above analysis convinces us that Congress intended
the 2010 Rider to repeal the previous 2008 Rider. See Tynen,
78 U.S. at 92; Lovely, 319 F.2d at 679–80. Indeed, this case
presents a situation far different from Posadas, in which an
amendment added only one provision to a much larger and
largely independent statutory scheme and in which the
Supreme Court concluded that the Federal Reserve Act of
1916 did not impliedly repeal the Federal Reserve Act of
1913, but instead only amended six of the earlier Act’s thirty
sections. See Posadas, 296 U.S. at 502.
That this case is quite distinct from Posadas and its
progeny is further evidenced by the fact that the 2010 Rider
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 23
does not reference previous Riders or explicitly purport to
“amend” previous Riders. 296 U.S. at 502. Indeed,
Congress’s refusal to use the word “amend” in the 2010
Rider is notable, as it used the phrase “is amended” 49 times
throughout the entire 2010 Consolidated Appropriations
Act. See, e.g., § 326, 123 Stat. at 3106 (“The matter under
the heading ‘Community Development Fund,’ . . . is
amended by striking ‘: Provided further, That none of the
funds provided under this heading may be used by a State or
locality as a matching requirement, share, or contribution for
any other Federal program.”); § 176, 123 Stat. at 3068
(“Section 51314 of title 46, United States Code, is amended
in subsection (b) by inserting at the end ‘Such fees shall be
credited to the Maritime Administration’s Operations and
Training appropriation, . . . .’”). This language suggests that
Congress viewed the 2010 Rider as something other than an
“amendment.” See Russello v. United States, 464 U.S. 16,
23, (1983) (“[W]here Congress includes particular language
in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposefully in the disparate inclusion or
exclusion.”).
The D.C. district court’s analysis in Abdeljabbar, on
which the district court in this case heavily relied, does not
persuade us otherwise. That decision does not contemplate
the issue of repeal by comprehensive replacement. Rather,
the Abdeljabbar court rested its holding that the 2005 and
2008 Riders remained in effect despite the passage of the
2010 and 2012 Riders solely on its conclusion that the
statutes were not in “irreconcilable conflict.” Citing United
States v. Fausto, 484 U.S. 429, 453 (1988), for the
proposition that “a later statute will not be held to have
implicitly repealed an earlier one unless there is a clear
repugnancy between the two,” the district court found that at
24 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
the abstract level of “disclosure prohibitions” the 2008 and
2010 Riders were consistent. Abdeljabbar, 74 F. Supp. 3d
at 175 (quoting Fausto, 484 U.S. at 453). Its strong disbelief
“that Congress intended to repeal by implication a disclosure
prohibition, at least with respect to FOIA, by reiterating that
very prohibition in” the 2010 Rider is thus unjustified. Id.
Depending on the statute under consideration and its context,
the recitation of a previous prohibition with modifications
can be evidence of either a mere amendment or of a decision
to repeal and replace. Compare Posadas, 296 U.S. at 505(describing this as a “well-approved form” of “amendment”)
with Singer & Singer, supra, § 23.13 (noting that even
comprehensive legislative overhauls may “restate, or at least
[] include, some provisions of a former law”).
Moreover, Abdeljabbar’s inference that Congress meant
to confirm “the plethora of decisions . . . holding that the
appropriations language in question” satisfies Exemption 3
by its “uninterrupted use of [the general prohibition] in
appropriations bills after 2009,” Abdeljabbar, 74 F. Supp. 3d
at 175, is flawed.
First, just seven weeks before passing the 2010 Rider,
Congress enacted the OPEN FOIA Act. The OPEN FOIA
Act was a direct response to “exemption creep,” whereby
“an alarming number of FOIA (b)(3) exemptions” were
snuck into legislation “to the detriment of the American
public’s right to know.” 155 Cong. Rec. S3175 (daily ed.
Mar. 17, 2009) (statement of Sen. Leahy). To address this
problem, the OPEN FOIA Act directed courts and agencies
to consider future legislation as exempting documents from
disclosure only if Congress “cites to [5 U.S.C. § 552(b)(3)].”
5 U.S.C. § 552(b)(3)(B). This measure guaranteed “an open
and deliberative process in Congress” before any future
statute exempted documents from disclosure under FOIA
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 25
and promised “to reinvigorate and strengthen FOIA.”
155 Cong. Rec. S3175 (daily ed. Mar. 17, 2009) (statement
of Sen. Leahy).
If anything, the enactment of the OPEN FOIA Act
represented a clear break from Congress’s past habit of
creating statutes of exemption in a legislative dead of night.
That the 2010 Rider may have sufficed to exempt FTS data
from disclosure before the Open FOIA Act is thus irrelevant.
“[I]nsofar as Congress wished to enact statutes that would
exempt Firearms Trace Database data from disclosure
following the enactment of the OPEN FOIA Act, it gave
itself explicit instructions for how to do so.” Everytown,
403 F. Supp. 3d at 354; see, e.g., Nat’l Def. Authorization
Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat 1298,
1600–01, 1604 (2011) (demonstrating Congress’s
compliance with the OPEN FOIA Act). 5
5
We note also that whether the 2005 and 2008 Riders qualified as
withholding statutes was by no means settled when the OPEN FOIA Act
was enacted in 2009. Other than a handful of district court decisions, it
appears that only the Seventh Circuit had held that those earlier Riders
qualified as withholding statutes. See City of Chi. v. U.S. Dep’t of Treas.,
Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777, 780 (7th Cir.
2005); Cornish F. Hitchcock, Guidebook to the Freedom of Information
and Privacy Acts § 8:9 (2020 ed.) (collecting cases). The parties do not
cite, and we have not found, any additional precedent on this issue.
Moreover, arguably the 2005 and 2008 Riders are not in fact
withholding statutes. We have held that “only explicit nondisclosure
statutes . . . will be sufficient to qualify under . . . [E]xemption [3],”
whether or not the statute was enacted prior to the OPEN FOIA Act. Cal-
Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105, 108 (9th Cir. 1992)
(quoting Church of Scientology v. U.S. Postal Serv., 633 F.2d 1327, 1329
(9th Cir. 1980)). The 2005 and 2008 Riders do not explicitly prohibit
the disclosure of trace data itself. They merely prohibit the use of funds
to make disclosures and make this data “immune from legal process.”
26 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
In sum, the 2010 Rider impliedly repealed the 2005 and
2008 Riders. The 2012 Rider simply reenacted the 2010
Rider. Neither qualifies as a withholding statute because
they were both enacted after the effective date of the OPEN
FOIA Act and do not cite to 5 U.S.C. § 552(b)(3).
Therefore, the documents requested by CIR are not
exempted from disclosure under FOIA, 5 U.S.C
§ 552(b)(3). 6
At best, one might have argued before the OPEN FOIA Act that this
“achieve[d] an Exemption 3 effect in an indirect fashion,” Hitchcock,
supra, § 8.9, but it was by no means an explicit prohibition on disclosure
itself.
But “if Congress intended to prohibit the release of [information]
under FOIA—as opposed to the expenditure of funds in releasing the
[information]—it could easily have said so.” Cal-Almond, 960 F.2d at
108. In fact, Congress did say so elsewhere in the 2008 Consolidated
Appropriations Act. See Br. for Jack Jordan as Amicus Curiae in Supp.
of Appellant and Reversal at 24. The 2008 Act stated,
“[n]otwithstanding section 552 of title 5, United States Code, . . . the
Secretary may not disclose to any person any information obtained”
under 6 U.S.C. § 488a, which concerned the maintaining of records of
the sale or transfer of ammonium nitrate, Consolidated Appropriations
Act, 2008, Pub. L. No. 110-161, § 899B, 121 Stat. 2084–85 (2007)
(quoting 6 U.S.C. § 488a(h)). Thus, Abdeljabbar’s reasoning that
Congress intended to confirm a “long-standing” interpretation of the
Tiahrt Rider as a withholding statute is unpersuasive. See 74 F. Supp.
3d at 176–77.
6
We acknowledge that, in a prior unpublished memorandum
disposition of our court, we held that “ATF correctly relied on the
Appropriations Act of 2010 as a withholding statute explicitly barring
disclosure [of trace data] under FOIA Exemption 3.” Caruso v. U.S.
Bureau of Alcohol, Tobacco & Firearms, 495 F. App’x 776, 778 (9th
Cir. 2012). Unpublished dispositions are not precedential, however. Nor
is Caruso of any persuasive value, as the panel failed to address the
doctrine of implied repeal or the impact of the OPEN FOIA Act, possibly
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 27
B.
The dissent does not object to our discussion regarding
the implicit repeal of previous Tiahrt Riders. Instead, it
criticizes the OPEN FOIA Act’s prospective definition of
statutes of exemption as those that cite to 5 U.S.C.
§ 552(b)(3) as an impermissible legislative entrenchment on
a later Congress’s ability to create statutes of exemption. For
our part, we have found no federal precedent addressing this
weighty issue, and the dissent cites none. We thus view this
question as one of first impression. 7
But this is not the case to address that question, for the
issue is clearly waived. Neither party raised this point before
the district court, see Conn. Gen. Life Ins. Co. v. New Images
of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003), and no
party or amici discussed this issue in briefing this appeal, see
United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011).
Indeed, the parties did not “frame[] this case as [] whether
the Tiahrt Amendment or the OPEN FOIA Act governs.”
Dissenting Op. at 51. They have instead asked us to resolve
whether the 2005 and 2008 Tiahrt Riders remain in effect,
even after the enactment of the 2010 and 2012 Tiahrt Riders.
See, e.g., Br. of Appellee at 19 (arguing and quoting
because the parties there failed to raise these issues below. See Caruso
v. U.S. Bureau of Alcohol, Tobacco, & Firearms, No. Civ. 10-6026-HO,
2011 WL 669132, at *3 n.1 (D. Or. Feb. 16, 2011).
7
We note that, because the 2010 and 2012 Tiahrt Riders do not
explicitly purport to repeal the OPEN FOIA Act, this issue at least
implicates the following: (1) whether there exists an “irreconcilable
conflict” between the Rider and the OPEN FOIA Act, see, e.g., In re
Glacier Bay, 944 F.2d 577, and (2) the Supreme Court’s “especially
strong” aversion to implied repeals of standalone laws through
appropriation riders. Me. Cmty. Health Options v. United States, 140 S.
Ct. 1308, 1323 (2020) (internal quotation marks and citation omitted).
28 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
Abdeljabbar to assert there is no need to address the OPEN
FOIA Act’s effect, because the 2005 and 2008 Riders
“provide[] a permanent prohibition against disclosure”);
Reply Brief of Appellant at 4 (noting correctly that the
government did not “provide any statutory argument
regarding” the application of the OPEN FOIA Act and
instead relied on Abdeljabbar’s reasoning).
Indeed, the first—and only—mention of legislative
entrenchment came at oral argument, when our dissenting
colleague asked the parties about this principle. The
government admitted it had not made this argument and that
it chose to focus on whether the 2010 and 2012 Tiahrt Riders
implicitly repealed prior Tiahrt Riders. Recording of March
6, 2020 Oral Argument at 17:35–18:00. 8 And even after oral
argument, the government has not sought to explore this
issue through further briefing. CIR, meanwhile, has never
offered any briefing on this issue, as it reasonably
understood the government had not pursued this argument.
The dissent is, of course, correct that “we have discretion
to affirm on any ground supported by the law.” Upper Skagit
Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654 (2018). But
“in this case we think restraint is the best use of discretion,”
id., as we lack the benefit of analysis from the concerned
parties and the district court on this weighty issue of first
impression. That course seems doubly wise because, based
on oral argument, it appears that the government knew of
this potential argument, but may have deliberately chosen
not to raise it. See generally United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020) (“As a general rule, our
system ‘is designed around the premise that parties
represented by competent counsel know what is best for
8
https://tinyurl.com/y5orpf3l (last visited Nov. 25, 2020)
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 29
them, and are responsible for advancing the facts and
argument entitling them to relief.’” (quoting Castro v.
United States, 540 U.S. 375, 386 (2003) (Scalia, J.,
concurring in part and concurring in judgment))).
IV.
Although neither the 2010 nor 2012 Tiahrt Riders
exempts the records CIR seeks, they nevertheless generally
preclude the expenditure of funds to disclose any of the FTS
database’s contents. 9 However, the Riders contain three
exceptions to the stated funding prohibitions, and CIR
contends that one of those exceptions applies. Specifically,
it maintains that its request for “the total number of weapons
traced back to former law enforcement ownership, annually
from 2006 to the present” fits within Exception (C) of the
Tiahrt Rider, which has been included in each Tiahrt Rider
since 2008. Exception (C) provides that the Tiahrt Rider:
shall not be construed to prevent: . . . (C) the
publication of annual statistical reports on
products regulated by the [ATF], including
total production, importation, and
exportation by each licensed importer (as so
defined) and licensed manufacturer (as so
defined), or statistical aggregate data
regarding firearms traffickers and trafficking
channels, or firearms misuse, felons, and
trafficking investigations.
9
In other words, under FOIA, the agency has a legal obligation to
disclose the materials that CIR seeks, but it cannot fulfill that obligation
using congressionally appropriated funds. See, e.g., Me. Cmty. Health
Options, 140 S. Ct. at 1324.
30 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
123 Stat. at 3129. We agree that this exception applies in
this case.
CIR’s request seeks statistical aggregate data.
“Statistical” is defined as “of, relating to, based on, or
employing the principles of statistics.” Merriam-Webster
Online Dictionary. 10 “Statistics” in turn is defined as “a
branch of mathematics dealing with the collection, analysis,
interpretation, and presentation of masses of numerical
data.” Id. 11 “Aggregate” refers to a summary form of
information “formed by the collection of units or particles
into a body, mass, or amount.” Id. 12 Given these definitions,
ATF concedes that the number of firearms traced to each
state annually, the numbers of each type of firearm recovered
annually, and the top source states for firearms, are each
examples of “statistical aggregate data” within the meaning
of Exception (C). Similarly then, “[t]he total number of
weapons traced back to former law enforcement ownership,
annually from 2006 to the present” likewise reflects an
aggregated statistic derived from an underlying set of data.
Moreover, ATF’s production of these documents to CIR
will result in the “publication” of this data. Because the
Tiahrt Rider does not define that term, we begin with that
word’s plain meaning. The plain meaning of “publication”
signifies “disclosure to the public, rather than the disclosure
of information to another individual or corporation within
the context of a business or professional relationship.”
Integrated Genomics, Inc. v. Gerngross, 636 F.3d 853, 861
10
https://tinyurl.com/y2ydrvak (last visited Nov. 25, 2020)
11
https://tinyurl.com/yxgbvuny (last visited Nov. 25, 2020)
12
https://tinyurl.com/y4b4zfc8 (last visited Nov. 25, 2020)
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 31
(7th Cir. 2011) (collecting dictionary definitions); see also
Oxford English Dictionary Online (“The action of making
something publicly known.”). 13 In the legal context, the
phrase generally suggests “the act of declaring or
announcing to the public,” Black’s Law Dictionary (11th ed.
2019), or “[n]otification or communication to a third party
or to a limited number of people regarded as representative
of the public,” Oxford English Dictionary Online.
Turning over data regarding firearms in the United States
to “a reporter” or “a representative of the news-media” like
CIR, which reports on the topic of guns in the United States,
will make that data “generally known” to the public. Indeed,
the record reveals that the requested data will play a role in
CIR’s upcoming “project” on gun violence. That ATF’s
compliance with its FOIA obligation will thus result in the
publication of the data CIR seeks is not surprising: news
media organizations are precisely the sort of
“representative[s] of the public” through which individuals
and entities commonly distribute information to the public.
Cf. Courthouse News Serv. v. Planet, 750 F.3d 776, 786 (9th
Cir. 2014) (“We have observed that the news media, when
asserting the right of access, are surrogates for the public.”
(internal quotation marks and citation omitted)). Given that
complying with its legal obligation under FOIA will make
generally known the statistical aggregate data that CIR seeks
here, the Tiahrt Rider authorizes ATF’s expenditure of funds
to complete this request. 14
13
https://tinyurl.com/yxhe3p85 (last visited Nov. 25, 2020)
14
We do not share the dissent’s slippery-slope concerns about
defining “who counts as a ‘representative of the news-media.’”
Dissenting Op. at 55 n.8. After all, courts must already grapple with this
32 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
The government and dissent object, maintaining that
“publication” refers only to the formalized distribution of
prepared, formal information—though they reach that
conclusion for different reasons. We turn first to the dissent,
which notes that Congress used both the words “disclosure”
and “publication” in the 2012 Rider and fears that our
definition of publication subsumes the word “disclosure.”
“Disclosure” suggests “revealing new or secret
information” or “the action of making something openly
known.” Oxford English Dictionary Online 15; see also
Black’s Law Dictionary (11th ed. 2019) (defining
“disclosure” as “[t]he act or process of making known
something that was previously unknown; a revelation of
facts”). Thus, unlike publication, “disclosure” does not
necessarily connote revealing information to the public at
large. An agency can disclose information to a limited
number of people or under conditions such that information
is unlikely to spread amongst the public.
Of course, some disclosures may also effectively
constitute publication. For example, if ATF discloses
information to the entire public, whether in printed form or
not, that information becomes generally known. Similarly,
if ATF turns over information to a “representative of the
public,” such as a reporter, it in effect makes that information
generally known to the public. But such an equivalence is
by no means a sure thing. If ATF sought to provide records
to a limited number of people, who did not fairly represent
issue in the FOIA context. See 5 U.S.C. § 552(a)(4)(A)(ii); Cause of
Action v. Fed. Trade Comm’n, 799 F.3d 1108, 1118–1125 (D.C. Cir.
2015).
15
https://tinyurl.com/y2wmpacy (last visited Nov. 25, 2020)
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 33
the public, the Tiahrt Rider’s “publication” exception would
not permit the use of congressionally appropriated funds.
In this way, both “disclosure” and “publication” retain
contextually distinct meanings in the Tiahrt Rider. As
relevant here, the Rider first forbids the use of funds for
“disclos[ing] part or all of the contents of the [FTS],”
125 Stat. at 609 (emphasis added), meaning that ATF cannot
turn this material over to even a single person. Later, the
Rider explains that this funding bar does not apply to “(A)
the disclosure of statistical information concerning” the
production, exportation, or importation of guns. Id. at 610
(emphasis added). In other words, ATF may use
appropriated funds to reveal this information to whomever
and however many people it likes, and appropriated funds
are available regardless of how ATF exercises that
discretion. Finally, the Rider permits the use of appropriated
funds for “the publication of” certain “annual statistical
reports . . . or statistical aggregate data.” Id. (emphasis
added). ATF can thus use these funds to release these
materials only if doing so would make these reports or data
generally known to the public. 16
The plain meanings of these words also comport with
FOIA’s use of those terms. FOIA does not explicitly define
the terms “disclosure” or “publication.” See 5 U.S.C. § 551.
But its use of the term “disclosure” clearly covers some
situations where it envisions the wide dissemination of
information to the public, see, e.g., id. § 552(a)(4)(A)(iii)
16
None of this means that ATF, specifically, is “publish[ing]
information.” Dissenting Op. at 55. For though the Tiahrt Rider permits
the use of funds to enable “publication” it never states that such
“publication” must come at the direct hand of ATF. 125 Stat. at 610.
The statute is agnostic in this regard.
34 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
(asking whether “disclosure” will “contribute significantly
to public understanding”), and some situations when it does
not, see, e.g., id. § 552(a)(8)(A)(i)(I). “Publication,”
meanwhile, is always used in a manner that suggests
widespread dissemination. See id. § 552(a)(2)(E);
552(a)(4)(A)(ii). Tellingly, FOIA also uses the term
“publication” to connote more than “the act or process of
publishing printed matter or an issue of printed material
offered for distribution or sale.” Dissenting Op. at 53;
compare 5 U.S.C. § 552(a)(2)(E) (discussing “publication”
in the Federal Register) with id. § 552(a)(4)(A)(ii)
(explaining “[a] freelance journalist shall be regarded as
working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through
that entity,” and that such entities include “television or radio
stations broadcasting to the public at large” (emphasis
added)). 17 These understandings of “disclosure” and
“publication” thus accord with both the Tiahrt Rider’s
context and FOIA’s use of those words.
Meanwhile, reading the word “publication” to reference
only the “formalized, prepared release of information”
because the Tiahrt Rider contemplates the “publication” of
“reports,” Dissenting Op. at 53–54, is itself a misadventure
in contextual analysis. Such a reading ignores that the Tiahrt
Rider also permits publication of “statistical aggregate data.”
17
Though we therefore conclude that the use of the terms
“disclosure” and “publication” in FOIA correspond with the meanings
we discussed earlier, we view that fact as confirmatory, not
determinative. The 2012 Rider is, after all, not a part of FOIA’s organic
statute. And while it affects the funding available to ATF to comply with
its FOIA obligations, it also speaks both to ATF’s funding for
“disclosing” FTS data to law enforcement agencies and those entities’
abilities to disclose this information. See 125 Stat. at 609–10. It thus
addresses a broader array of issues than FOIA.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 35
125 Stat. at 610. The word “data” does not carry an
inference of formal dissemination. See Oxford English
Dictionary (defining “data” as “information considered
collectively, typically obtained by scientific work used for
reference, analysis, or calculation”). 18 So even if the word
“reports” standing alone could support reading “publication”
in the way the dissent suggests, the full context of the Tiahrt
Rider simply doesn’t lend itself to the dissent’s preferred
meaning of “publication.” See S.D. Warren Co. v. Me. Bd.
of Envt’l Prot., 547 U.S. 370, 379–80 (2006) (explaining that
the contextual canon of “noscitur a sociis is no help absent
some sort of gathering [of words] with a common feature to
extrapolate”).
The government’s reading of the legislative history
commits the same error. It notes that in discussing
Exemption C, Congress stated:
[t]he Committee is concerned that the
previous year’s language has been interpreted
to prevent publication of a long-running
series of statistical reports on products
regulated by ATF. This was never the
intention of the Committee, and the fiscal
year 2008 language makes clear that those
reports may continue to be published in their
usual form as they pose none of the concerns
associated with law enforcement sensitive
information.
H.R. Rep. No. 110-240, at 63 (2007). But again, while this
statement provides context for understanding Congress’s
intention as to “statistical reports,” it casts no light on
18
https://tinyurl.com/yy7qdgjm (last visited Nov. 25, 2020)
36 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
Congress’s intention with regard to the release of “aggregate
data.” 125 Stat. at 610. And the meaning of “publication”
must account for both of the items that Congress listed in
Exemption C.
ATF itself appears to have recognized in past cases that
Exemption C’s use of the term “publication” encompasses
more than formal statistical reports. For example, it has used
appropriated funds to release aggregate trace data during
litigation. See, e.g., Def.’s Br. in Opp’n to Pls.’ Mot. to
Suppl. the Administrative Record at 5 n.2, Ron Peterson
Firearms, LLC v. Jones, Civil No. 11-CV-678 JC/LFG, 2013
WL 12091518 (D.N.M. Mar. 27, 2013). After all, aggregate
data does not “jeopardiz[e] criminal investigations and
officer safety” or impinge upon “the privacy of innocent
citizens.” H.R. Rep. No. 107-575, at 20 (2002); cf. H.R.
Rep. No. 110-240, at 63 (noting that the disclosure of
statistical reports “pose[s] none of the concerns associated
with law enforcement sensitive information”). 19
V.
According to ATF, the court nevertheless cannot compel
disclosure for a separate reason: ATF is not required to
disclose under FOIA the “[t]otal number of weapons traced
19
If Exemption C did not apply, there could still be other ways to
address this funding issue besides the use of congressionally
appropriated funds. To begin, the record does not reveal the extent to
which fulfilling CIR’s request would require the use of government
funds. Moreover, we note that FOIA provides for the charging of fees
“applicable to the processing of requests,” but those fees are limited to
“reasonable standard charges for document duplication when records are
not sought for commercial use and the request is made by . . . a
representative for the news media.” 5 U.S.C. § 552(a)(4)(A). Finally, in
some cases the requesting party has offered to pay for the disclosure of
the requested records. See, e.g., Cal-Almond, 960 F.2d at 108.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 37
back to former law enforcement ownership, annually from
2006 to the present,” because FOIA establishes a right of
access to existing agency records only, and searching its
trace database would require the creation of a new record.
As CIR and amici recognize, whether a search query of
an existing database entails the creation of a “new record” is
a question of great importance in the digital age.
“[D]atabase journalism is now fundamental to modern
newsrooms,” and “exactly how journalists can request and
use information from [government] databases . . . has the
potential to make or break efforts to hold the government
accountable using its own data.” Br. of Amici Curiae Five
Media Organizations & Sixteen Data Journalists in Supp. of
Appellant & Reversal (Media Orgs. Br.) at 10. Amici also
explain that the number of government databases is ever
expanding, as agencies continue to collect massive amounts
of data about American society, which they store in
electronic databases. Br. of Amicus Curiae Elec. Frontier
Found. in Supp. of Pl.-Appellant at 1–3. Moreover, as in this
case, “[r]eleasing statistical aggregate data from government
databases” may sometimes prove the “only[] way to comply
with FOIA’s mandate while properly balancing the public’s
and the government’s interests in safeguarding sensitive
information.” Id. at 2. Thus, if running a search across these
databases necessarily amounts to the creation of a new
record, much government information will become forever
inaccessible under FOIA, a result plainly contrary to
Congress’s purpose in enacting FOIA.
A.
FOIA establishes a right of access to existing agency
records only. See NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 161–62 (1975). Although FOIA requires federal
agencies to make “reasonable efforts to search for” the
38 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
records requested, 5 U.S.C. § 552(a)(3)(C), it does not
require agencies to create new records, Kissinger v. Reps.
Comm. for Freedom of the Press, 445 U.S. 136, 151–52
(1980); see also Inst. for Just. v. Internal Revenue Serv.,
941 F.3d 567, 569 (D.C. Cir. 2019) (“FOIA imposes no duty
on agencies to create new records in response to FOIA
requests.”); Yagman v. Pompeo, 868 F.3d 1075, 1080–81
(9th Cir. 2017) (explaining that an agency is under no duty
to simply answer questions under FOIA). However, “the
burden is on the agency to demonstrate, not the requester to
disprove, that the materials sought are not [currently
existing] agency records.” U.S. Dep’t of Just. v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989) (internal quotation
marks omitted).
Against this backdrop, in 1996, Congress enacted the
Electronic Freedom of Information Act Amendments of
1996 (E-FOIA) to update FOIA. Congress recognized that
“FOIA face[d] a new challenge” as the federal government
began storing and analyzing massive amounts of information
on electronic networks and in electronic databases. See H.R.
Rep. No. 104-795, at 11 (1996). So that “FOIA [may] stay
abreast of these developments,” id. at 12, Congress amended
the term “record” to include “any information that would be
an agency record subject to the requirements of this section
when maintained by an agency in any format, including an
electronic format,” 5 U.S.C. § 552(f)(2). Thus, “computer
database records are agency records subject to the FOIA.”
H.R. Rep. No. 104-795, at 19 (1996); accord Inst. for Just.,
941 F.3d at 571. And recognizing the malleability of digital
data, E-FOIA also required that the agency “provide the
record in any form or format requested by the person if the
record is readily reproducible by the agency in that form or
format.” § 5, 110 Stat. at 3050.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 39
E-FOIA also amended the definition of “search” to mean
“to review, manually or by automated means.” Id. Congress
acknowledged that “[c]omputer records found in a database
rather than a file cabinet may require the application of codes
or some form of programming to retrieve the information,”
but emphasized that “the review of computerized records
would not amount to the creation of records.” H.R. Rep. No.
104–795, at 22 (1996). Thus, E-FOIA codified a principle
already established by the courts of appeal: “Although
accessing information from computers may involve a
somewhat different process than locating and retrieving
manually-stored records, these differences may not be used
to circumvent the full disclosure policies of the FOIA.” Inst.
for Just., 941 F.3d at 571 (quoting Yeager v. Drug Enf’t
Admin., 678 F.2d 315, 321 (D.C. Cir. 1982)).
Applying E-FOIA, courts have consistently held that
database searches do not involve the creation of new records.
See id. at 569. Moreover, district courts have held that
sorting, extracting, and compiling pre-existing information
from a database does not amount to the creation of a new
record. See Long v. Immigr. & Customs Enf’t, No. 17-cv-
01097 (APM), 2018 WL 4680278, at *4 (D.D.C. Sept. 28,
2018) (“[N]either sorting a pre-existing database of
information to make information intelligible, nor extracting
and compiling data . . . as to any discrete pieces of
information that [an] agency does possess in its databases,
amounts to the creation of a new agency record.” (internal
quotation marks omitted)); Nat’l Sec. Couns. v. Cent.
Intelligence Agency, 898 F. Supp. 2d 233, 270 (D.D.C. 2012)
(Nat’l Sec. Couns. I) (“[S]orting a pre-existing database of
information to make information intelligible does not
involve the creation of a new record.”); Schladetsch v. Dep’t
of Hous. & Urb. Dev., 2000 WL 33372125, at *3 (D.D.C.
Apr. 4, 2000) (“Because HUD has conceded that it possesses
40 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
in its databases the discrete pieces of information which
[plaintiff] seeks, extracting and compiling that data does not
amount to the creation of a new record.”).
We agree that using a query to search for and extract a
particular arrangement or subset of data already maintained
in an agency’s database does not amount to the creation of a
new record. 20 In some ways, typing a query into a database
is the modern day equivalent of physically searching through
and locating data within documents in a filing cabinet. The
subset of data selected is akin to a stack of redacted paper
records. It makes no difference if the query produces a set
of documents, a list, a spreadsheet, or some other form of
results that the agency has not previously viewed. For one
thing, “[a] request is not flawed simply because the agency
has not anticipated it and preassembled the desired
information.” Ferri v. Bell, 645 F.2d 1213, 1220 n.9 (3d Cir.
1981). Further, “[t]he fact that [the agency] may have to
search numerous records to comply with the request and that
the net result of complying with the request will be a
document the agency did not previously possess is not
unusual in FOIA cases nor does this preclude the
applicability of the Act.” Disabled Off.’s Ass’n v. Rumsfeld,
428 F. Supp. 454, 456 (D.D.C. 1977), aff’d, 574 F.2d 636(D.C. Cir. 1978); Schladetsch, 2000 WL 33372125, at *3
(applying this principal to electronic databases). So long as
the relevant information and data fields already exist in the
20
We use the term “query” as defined by amici Five Media
Organizations and Sixteen Data Journalists: “A query is an instruction
that tells a database management system to select a specific subset of
information from a database and return it in a particular arrangement.”
Media Orgs. Br. at 15.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 41
database maintained by the agency, the result produced by a
query is an existing record, regardless of the form it takes. 21
The nature of electronic databases firmly grounds this
principal in common sense. Unlike paper documents, which
present information in a largely fixed form, “databases store
information in a highly structured format that is easily
divided and recombined into a variety of arrangements.”
Media Orgs. Br. at 24; see also id. at 12–13. Thus, as amici
argue, an agency that stores information in a database creates
“a multitude of different arrangements [of the data] . . . ,
each of which is in the agency’s possession or control.” Id.
at 22 (internal quotation marks omitted). The agency has
access to these different arrangements of data, and under E-
FOIA, the public presumably has the same rights of access.
Were we to agree with ATF that the results of a search
query run across a database necessarily constituted the
creation of a new record, we may well render FOIA a nullity
in the digital age. The federal government has increasingly
recognized the importance of aggregate data, and, as amici
again point out, uses this information in significant ways,
implicating profound issues of public importance.
21
We reject the bright-line distinction some courts have made
between producing “particular points of data” and producing a “listing
or index” of a database. Nat’l Sec. Couns. I, 898 F. Supp. 2d at 271. It
cannot be that some arrangements of data available through a query of a
database are “records” created and obtained by an agency, while others
are not. See Nat’l Sec. Couns. v. Cent. Intelligence Agency, 960 F. Supp.
2d 101, 160 n.28 (D.D.C. 2013) (Nat’l Sec. Couns. II) (calling the
content-index distinction “legal hair-splitting” and “fraught with
tension”).
42 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
B.
ATF insists that CIR did not request trace records
themselves, but statistical information about those records
that does not already exist in the FTS database. The district
court agreed, reasoning that ATF had not yet prepared and
published a formal, annualized report on the number of
firearms traced back to former law enforcement ownership.
The absence of an annual statistical report does not end the
inquiry, however, because CIR’s request does not ask for nor
necessarily require the production of such a formal report. 22
CIR argues that ATF can obtain the information
requested with a simple query using preexisting close-out
codes to sort the FTS database. ATF concedes that the FTS
database “includes close-out codes for each trace, including
those related to law enforcement and government agencies”
and that it could search the FTS database to identify the trace
records involving traces back to former law enforcement
ownership. Yet ATF admits it has not conducted a search of
the FTS database in response to CIR’s request for statistical
aggregate data.
ATF can theoretically respond to CIR’s request in at
least two ways. First, it could search the FTS database for
records tagged with the relevant close-out codes and produce
the resulting traces or list of traces, with any necessary
redactions, for CIR to tabulate. Although the 2012 Tiahrt
Rider prohibits ATF from using appropriated funds to do so,
the Rider is not a withholding statute for purposes of FOIA,
22
We reject ATF’s argument that complying with disclosure would
require it to engage in a further review process after running a search.
The fact that ATF voluntarily engages in a multi-step review process
when preparing and publishing its own statistical reports does not require
it to do the same in response to an otherwise proper FOIA request.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 43
and ATF does not contend that any of FOIA’s other limited
exemptions apply. Second, ATF could produce the precise
statistical aggregate data that CIR seeks, with no further
counting or analysis required, if, for example, a query or
queries for the relevant close-out codes produces a “hit
count” reflecting the number of records involving a firearm
traced to law enforcement, the number of matching records
is contained in FTS metadata, or if the database produces an
otherwise responsive result separate from the trace data
itself. Because the Tiahrt Rider permits the disclosure of
such statistical aggregate data, this second option would
avoid any unauthorized use of funds.
Without a further understanding of the specifics of the
FTS database, however, these are only theoretical
possibilities. We have an insufficiently developed record
from which to determine with any certainty whether the
information CIR seeks could be produced by a reasonable
search of the FTS database or would require more significant
human analysis. The record evidence only generally
describes the FTS database and does not describe its search
functions or the form that the results of a query or search of
the database will take. As a result, CIR can only speculate
based on data that ATF produced in other proceedings that
“the FTS database already appears to contain the responsive
count” or that it otherwise contains responsive data.
Likewise, amici can only surmise “to the best of its
knowledge” that the FTS database “is built in Oracle, a
relational database management system” and that it can
analyze its capabilities based on “a typical relational
database,” not evidence specific to how the FTS database
itself is organized and functions. Media Orgs. Br. at 13–14.
Because ATF bears the burden of justifying that records
were properly withheld, Tax Analysts, 492 U.S. at 142 n.3,
we remand to the district court to provide ATF the
44 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
opportunity to better explain the nature of the FTS database,
and determine whether CIR’s search query will yield the
responsive information it seeks.
VI.
For the reasons stated herein, we REVERSE the district
court’s grant of summary judgment and REMAND for
further proceedings. 23
BUMATAY, Circuit Judge, dissenting:
The Constitution provides that once legislation is
approved by both houses of Congress and signed by the
President, it becomes law. With today’s decision, the
majority approves another requirement: that an act must also
conform to “magical passwords” dictated by previous
congresses. The majority also misconstrues federal law as
requiring FOIA disclosures that Congress has expressly
prohibited. For these reasons, I respectfully dissent.
I.
Against the weight of precedent, the majority holds that
the Tiahrt Amendment of 2012 must conform to an earlier
statute—the OPEN FOIA Act of 2009—to be effective. As
I explain below, this offends our constitutional scheme.
23
CIR’s motion for judicial notice is DENIED AS MOOT.
Likewise, amicus Jack Jordan’s three motions for miscellaneous relief
are DENIED AS MOOT.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 45
A.
For a bill to become law, the Constitution’s sole
requirements are bicameralism and presentment. See U.S.
Const. art. I, § 7, cl. 2; see also I.N.S. v. Chadha, 462 U.S.
919, 951 (1983) (“It emerges clearly that the prescription for
legislative action in Art. I, §§ 1, 7 represents the Framers’
decision that the legislative power of the Federal government
be exercised in accord with a single, finely wrought and
exhaustively considered, procedure.”). The Constitution
imposes no requirement that new statutes must comply with
past statutes. In other words, when passing laws, Congress
is not bound by previous congresses. Chief Justice Marshall
articulated this early on: “one legislature cannot abridge the
powers of a succeeding legislature.” Fletcher v. Peck,
10 U.S. 87, 135 (1810); see also United States v. Winstar
Corp., 518 U.S. 839, 873 (1996) (“[W]e have recognized
that a general law . . . may be repealed, amended or
disregarded by the legislature which enacted it, and is not
binding upon any subsequent legislature[.]”) (simplified).
Congressional enactments that attempt to bind subsequent
congressional action are known as entrenchments. See John
C. Roberts & Erwin Chemerinsky, Entrenchment of
Ordinary Legislation: A Reply to Professors Posner and
Vermeule, 91 Cal. L. Rev. 1773, 1777–78 (2003). Such
legislative entrenchments cannot bind future congresses. As
long as we are dealing with “general law enacted by the
legislature”—and not “a constitutional provision”—the law
“may be repealed, amended, or disregarded by the legislature
which enacted it.” Manigault v. Springs, 199 U.S. 473, 487
(1905).
The prohibition on legislative entrenchment has ancient
roots and stems from the fundamental nature of legislative
power itself. See, e.g., 1 W. Blackstone, Commentaries on
46 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
the Laws of England 90 (1765) (“Acts of parliament
derogatory from the power of subsequent parliaments bind
not.”). As a result, members of the founding generation took
the revocability of ordinary (non-constitutional) legislation
as self-evident. The Virginia Statute for Religious Freedom
of 1779—introduced by Madison and drafted by Jefferson—
stated that “we well know that this Assembly, elected by the
people for the ordinary purposes of legislation only, ha[s] no
power to restrain the acts of succeeding Assemblies,
constituted with powers equal to our own, and that therefore
to declare this act irrevocable would be of no effect in law.”
A Bill for Establishing Religious Freedom, 18 June 1779; 1
see also John O. McGinnis & Michael B. Rappaport,
Symmetric Entrenchment: A Constitutional and Normative
Theory, 89 Va. L. Rev. 385, 405 (2003) (Evidence of
Madison’s public embrace of the “antientrenchment
principle” “strongly suggests . . . [it] was widely accepted
among the Framers’ generation.”). 2
Entrenchment also runs counter to the principles of our
representative democracy. “Frequent elections are
unquestionably the only policy by which” the legislature’s
accountability to the People can be achieved. The Federalist
No. 52, at 251 (James Madison) (David Wootton ed., 2003).
1
https://founders.archives.gov/documents/Jefferson/01-02-02-0132-
0004-0082
2
Some commentators suggest that entrenchment is also in tension
with Article I’s Rulemaking Clause, which says that “[e]ach House may
determine the Rules of its Proceedings.” U.S. Const. art. I, § 5, cl. 2.
They argue that this clause, properly understood, represents a “powerful
constitutional principle that effectively walls off the entire process of
enacting legislation from outside scrutiny or control”—including the
control of former congresses. Roberts & Chemerinsky, supra, at 1789–
95.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 47
Accordingly, each “election furnishes the electorate with an
opportunity to provide new direction for its representatives.”
Julian N. Eule, Temporal Limits on the Legislative Mandate:
Entrenchment and Retroactivity, 1987 Am. B. Found. Res.
J. 379, 404–05. Yet, this “process would be reduced to an
exercise in futility were the newly elected representatives
bound by the policy choice of a prior generation of voters.”
Id.Express-statement laws are no exception to this rule. See
Marcello v. Bonds, 349 U.S. 302, 310 (1955); Dorsey v.
United States, 567 U.S. 260, 274 (2012). Express-statement
laws are a form of entrenchment: they require a later enacted
law to expressly reference a prior law if it is to actually
supersede that law. But express-statement laws cannot
impose some sort of “recitation requirement” on future
congresses. As Justice Scalia observed, “[w]hen the plain
import of a later statute directly conflicts with an earlier
statute, the later enactment governs, regardless of its
compliance with any earlier-enacted requirement of an
express reference or other ‘magical password.’” Lockhart v.
United States, 546 U.S. 142, 149 (2005) (Scalia, J.,
concurring).
In Marcello, the Court held that the Administrative
Procedure Act’s hearing provisions did not apply to
deportation proceedings, notwithstanding the immigration
statute’s failure to include an express statement of exemption
as required by the APA. 349 U.S. at 310. The Court
reasoned that “[u]nless we are to require the Congress to
employ magical passwords in order to effectuate an
exemption from the Administrative Procedure Act, we must
hold that the present statute expressly supersedes the hearing
provisions of that Act.” Id.48 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
Similarly, in Dorsey, the Court found that a more
recently enacted sentencing law impliedly repealed an
earlier one, despite the later statute’s failure to comply with
the express-statement requirement in the prior statute.
567 U.S. at 273–74. The Court concluded that “statutes
enacted by one Congress cannot bind a later Congress, which
remains free to repeal the earlier statute, to exempt the
current statute from the earlier statute, to modify the earlier
statute, or to apply the earlier statute but as modified.” Id. at
274. For the Court, the express-statement requirement was
merely a “background principle of interpretation,” not a
binding rule. Id.Altogether, the weight of constitutional history and
precedent show that where two statutes conflict, the later
statute controls, regardless of attempts by past congresses to
hobble the current legislature. As Hamilton stated, as
“between the interfering acts of an equal authority, that
which was the last indication of its will should have the
preference.” The Federalist No. 78, at 468 (Alexander
Hamilton) (Clinton Rossiter ed., 1961). Simply put,
Congress is not bound by the dead hand of the past—at least
not when it comes to statutory law.
B.
Against that backdrop, this case is a straightforward one.
The OPEN FOIA Act contains a legislative entrenchment: it
says that, to be effective, any exemption from FOIA
disclosure must “specifically cite[] to this paragraph
[5 U.S.C. § 552(b)(3)(B)]” if enacted after the 2009 law.
5 U.S.C. § 552(b)(3)(B). The Act, thus, purports to prevent
future congresses from passing FOIA exemptions without an
express citation to “5 U.S.C. § 552(b)(3)”—in other words,
without using the “magical password.”
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 49
The 2012 Tiahrt Amendment doesn’t contain any
passwords, but still seeks to exempt certain information from
disclosure. Subject to a few exceptions, it explicitly prevents
any funds appropriated by Congress from being used to
“disclose part or all of the contents of the Firearms Trace
System [FTS] database” maintained by the ATF. Pub. L.
No. 112-55, 125 Stat. 552, 609–10 (2011). As an
appropriations rider, whatever release of information FOIA
mandates, the Amendment blocks funding when it comes to
the FTS database. 3
As is clear from their texts, the two laws conflict. Under
the OPEN FOIA Act, the Tiahrt Amendment would not be a
lawful exemption to FOIA’s disclosure rules since it doesn’t
reference § 552(b)(3)(B). Conversely, the Tiahrt
Amendment withdraws funding from any attempt to disclose
FTS data under FOIA or any other law. Functionally, then,
the OPEN FOIA Act says “disclose,” and the Tiahrt
Amendment says “do not disclose.” The majority sides with
the earlier OPEN FOIA Act rather than the Tiahrt
Amendment, reasoning that Congress gave itself “explicit
instructions” for how “to enact statutes that would exempt
[FTS] data from disclosure.” Maj. Op. at 25 (quoting
Everytown for Gun Safety Support Fund v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 403 F. Supp. 3d
3An appropriations rider is no little matter. Under the
Appropriations Clause, “[n]o Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law.” U.S. Const. art.
I, § 9, cl. 7. “This straightforward and explicit command means simply
that no money can be paid out of the Treasury unless it has been
appropriated by an act of Congress.” United States v. McIntosh,
833 F.3d 1163, 1174 (9th Cir. 2016) (simplified). Congress has given
this clause criminal bite through the Antideficiency Act, which penalizes
unauthorized government expenditures with hefty fines and
imprisonment. See 31 U.S.C. §§ 1341(a)(1), 1350.
50 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
343, 354 (S.D.N.Y. 2019)). Congress’s instructions to its
future self are not controlling, though. The only binding
limitations on how a particular Congress can exercise its
legislative power are those outlined in the Constitution. 4
Because these two statutes are in conflict, I would
construe the OPEN FOIA Act’s express-statement rule as
merely a “background principle of interpretation,” Dorsey,
567 U.S. at 274, and hold that the later-enacted Tiahrt
Amendment controls.
C.
The majority doesn’t meaningfully contest any of the
foregoing analysis and mainly contends that the parties did
not analyze the law as I have. But this criticism ignores our
longstanding precedent that “we can affirm a ruling on any
ground supported by the record, even if that ground is not
asserted by the appellee.” Angle v. United States, 709 F.2d
570, 573 (9th Cir. 1983).
While it is true that we generally rely on the arguments
advanced by the parties, see Maj. Op. at 28–29 (quoting
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020)), we never abdicate our independent role in
interpreting the law. If the parties don’t offer the correct
reading of a particular statute, we are not bound to blindly
follow their lead. Instead, as judges, our duty is to get the
4
If the Act instead premised future FOIA exemptions on
lawmakers’ performance of the Cha Cha Slide on the Senate floor, surely
the majority wouldn’t uphold such an “explicit instruction” as binding.
What about a rule requiring a “supermajority” for an FOIA exemption?
Or an explicit instruction that the OPEN FOIA Act can’t be repealed?
Would the majority hold them as binding on future congresses? Surely
not, but who can tell from their ruling today?
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 51
law right. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991) (“When an issue or claim is properly before
the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law.”). As Justice Ginsburg aptly
stated, “a court is not hidebound by the precise arguments of
counsel.” Sineneng-Smith, 140 S. Ct. at 1581. This principle
applies even if the matter involves a “weighty issue of first
impression.” Maj. Op. at 28. After all, judges are not like
lemmings, following the parties off the jurisprudential cliff.
Here, the parties framed this case as to whether the Tiahrt
Amendment or the OPEN FOIA Act governs. I believe the
doctrine against legislative entrenchment answers that
question. Ironically, so does the majority. For all the pages
spent dissecting why the Tiahrt Amendment is not a FOIA
withholding statute, the majority ends up at exactly the same
place I do—the Tiahrt Amendment governs nonetheless. So,
the majority’s holding on this score is in no conflict with my
own; even if a statute is not a recognized exemption under
the OPEN FOIA Act, a later-enacted law prevails.
II.
Because the Tiahrt Amendment controls, the next
question is whether it prohibits ATF from disclosing the
information requested by the Center for Investigative
Reporting (“CIR”). The Amendment prevents ATF from
disclosing the contents of the FTS database save a few,
specific exceptions. Pub. L. No. 112-55, 125 Stat. 552, 609–
10 (2011). One of those exceptions is “the publication of .
. . [1] annual statistical reports on [the importation and
manufacturing of] products regulated by [ATF] . . . or
[2] statistical aggregate data regarding firearms traffickers
52 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
and trafficking channels, or firearms misuse, felons, and
trafficking investigations.” Id.CIR requests FTS data showing the total number of
weapons traced back to former law enforcement ownership
from 2006 to the present. It contends that ATF may disclose
this information under the Tiahrt Amendment’s exception
for “statistical aggregate data.” But that exception allows for
the “publication of . . . statistical aggregate data,” not the
FOIA disclosure of such data. Pub. L. No. 112-55, 125 Stat.
552, 609–10 (2011) (emphasis added). To the contrary, the
disclosure of that data is explicitly prohibited by the main
provision of the Amendment. See id. (“[N]o funds
appropriated under this or any other Act may be used to
disclose part or all of the contents of the Firearms Trace
System database[.]”). That Congress used both
“disclos[ure]” and “publication” in the Tiahrt Amendment
indicates that the two terms mean different things. As our
court has explained, “[i]t is a well-established canon of
statutory interpretation that the use of different words or
terms within a statute demonstrates that Congress intended
to convey a different meaning for those words.” SEC v.
McCarthy, 322 F.3d 650, 656 (9th Cir. 2003). Thus,
distinguishing between “publication” and “disclos[ure]” is
essential to this case.
Without statutory definitions, we look to the common,
contemporary meaning of the words when enacted. See
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,
2362 (2019). Dictionaries define “disclose” as “expos[ing]
to view . . . mak[ing] known” or “mak[ing] secret or new
information known.” Pocket Oxford American Dictionary
(2d. ed., 2008); Merriam-Webster’s Collegiate Dictionary
(2d. ed., 2008). In contrast, “publication” references the
release of prepared information usually in print or electronic
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 53
form. See Pocket Oxford American Dictionary, supra
(defining “publish” as “to prepare and issue a book,
newspaper, piece of music for public sale” or to “print
something in a book, newspaper, or journal so as to make it
generally known”). Thus, in common usage, “publication”
means “the act or process of publishing printed matter” or
“an issue of printed material offered for distribution or sale.”
Merriam-Webster’s Collegiate Dictionary, supra; see also
American Heritage Dictionary (5th ed., 2020) (defining
“publication” as “[c]ommunication of information to the
public, [as in] the publication of the latest unemployment
figures”).
The context of the Amendment supports this plain-
meaning interpretation. See Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It
is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.”)
(simplified). The Amendment permits “publication” of two
specific materials: (1) “annual statistical reports” and
(2) “statistical aggregate data.” 125 Stat. at 610. While
“data” could be disseminated in formal and informal ways,
the word “reports” commonly refers to a formal—i.e.,
published—distribution of prepared information. 5
Consequently, the most natural reading of “publication” in
5
See Report, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/162917? (“An evaluative account or
summary of the results of an investigation, or of any matter on which
information is required (typically in the form of an official or formal
document), given or prepared by a person or body appointed or required
to do so.”).
54 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
the statute refers to the formalized, prepared release of
information by the ATF. 6
How Congress uses “disclosure” and “publication” in the
FOIA context also supports this plain meaning construction.
In FOIA itself, Congress repeatedly used “disclosure” to
describe an agency’s direct release of information under the
Act to a requester. See, e.g., 5 U.S.C. § 552(a)(8), (b)(3),
(b)(6), (c)(1). FOIA’s uses of “publication” or “publish,” by
contrast, unambiguously refer to the formal release of
information to the public at large by the agency. For
example, FOIA requires agencies to “publish” its general
rules and procedures “in the Federal Register for the
guidance of the public.” Id. § 552(a)(1). It similarly
provides that an agency must provide certain information in
electronic format “unless the materials are promptly
published and copies offered for sale.” Id. § 552(a)(2).
Thus, FOIA itself uses “publication” differently from
“disclos[ure].” 7
6
To be sure, the word “publication” does have a broader meaning.
For example, some dictionaries also define “publication” to mean the
“[c]ommunication of information to the public.” Publication, Merriam-
Webster’s Collegiate Dictionary, supra. Nevertheless, as discussed
above, this broader meaning doesn’t fit into Congress’s specific use of
the term in the Tiahrt Amendment.
7
The majority discounts these examples as non-determinative
because, as it says, the Tiahrt Amendment is not a “part of FOIA’s
organic statute.” Maj. Op. at 34 n.17. But, “courts generally interpret
similar language in different statutes in a like manner when the two
statutes address a similar subject matter.” United States v. Novak,
476 F.3d 1041, 1051 (9th Cir. 2007); see also Brown & Williamson
Tobacco Corp., 529 U.S. at 133 (“[T]he meaning of one statute may be
affected by other Acts.”). Accordingly, FOIA’s use of the same terms
as the Tiahrt Amendment can inform the latter’s meaning.
CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 55
Although the majority acknowledges that “publication”
means widespread dissemination to the public while
“disclosure” means production only to another individual, it
finds no problem in conflating the two. See Maj. Op. 30–31.
That’s because, says the majority, the ATF’s “disclosure” of
the data here will count as a “publication” since CIR intends
to make that data public. Thus, according to the majority,
ATF publishes information if it discloses such information
to someone else who happens to be a “representative of the
news-media,” who will then communicate it to the masses.
Maj. Op. at 31. 8 This novel interpretation of “publication”
apparently turns, not on ATF’s actions, but on the actions of
the requesters who receive the information from ATF. This
reasoning improperly shoehorns “disclosure” into the
definition of “publication” and eviscerates the prohibition on
funding in the Tiahrt Amendment. Every disclosure request
for data is now a publication request so long as the requester
claims an intention to disseminate the information widely.
The majority thus permits a narrow, textually limited
exception to circumvent the prohibition on disclosure itself. 9
8
What’s more, the majority doesn’t define who counts as a
“representative of the news-media” or what amount of attenuation, if
any, is too much for the majority’s definition of “publication.” For
example, is a citizen journalist with a Twitter account a “representative
of the news-media”? What if ATF gives the information to someone
who then promises to give it to someone else who publishes it? Does
that count? The majority’s analysis opens up a can of worms ripe for
endless litigation. And it does so by missing the law’s simple command:
it is ATF’s “publication” of the data, not the requester’s, that is permitted
by the Tiahrt Amendment.
9
The majority believes FOIA justifies its analysis because it permits
the “disclosure” of certain information without charge if it will
“contribute significantly to public understanding.” See Maj. Op. at 33–
34 (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). This subparagraph just
56 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ
But the accurate interpretation of “publication of . . .
statistical aggregate data” dooms CIR’s case. This exception
refers to ATF’s publication of prepared, formal documents
of aggregated statistics—not ad hoc responses to FOIA
requests. Because the Tiahrt Amendment prohibits the type
of disclosure sought by CIR, and no exceptions apply, the
district court’s grant of summary judgment in favor of ATF
should be affirmed.
III.
As the majority observes, the discourse over guns, crime,
and firearms regulation ignites passions across our country.
CIR’s wish to further that public debate with the evidence
from ATF may be laudable. CIR’s FOIA request may very
well, as the majority surmises, advance an issue of public
importance. But that a party comes before this court for
pure-hearted reasons does not empower us to rewrite the law.
Our duty always remains the same—to say what the law is.
And here, Congress has spoken: the law prohibits disclosure
of the information CIR seeks. Because the majority holds
otherwise, I respectfully dissent.
acknowledges the obvious point that the “disclosure” of information to
a requester can lead to its widespread dissemination. But this doesn’t
turn the word “disclosure” into “publication.” Tellingly, this
subparagraph of FOIA doesn’t use the word “publication” at all. Instead,
it describes exactly what is happening here—the production of
information to a news media entity that will distribute it to an audience—
yet explicitly refers to that course of conduct as a “disclosure.”
Accordingly, despite the majority’s reinvention of terms, the Tiahrt
Amendment only permits “publication” of certain FTS data by the ATF
and prohibits the release of any of the FTS information sought by CIR.