Everytown v. ATF

19-3438
Everytown v. ATF
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 19-3438
EVERYTOWN FOR GUN SAFETY SUPPORT FUND,
Plaintiff-Appellee,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: OCTOBER 13, 2020
DECIDED: DECEMBER 23, 2020
Before: Walker and Menashi, Circuit Judges. *
* Judge Ralph K. Winter, originally a member of the panel, died on
December 8, 2020. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP
E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. l998).
1
Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 (2018), Everytown for Gun Safety Support Fund (“Everytown”)
sought disclosure of certain data stored in the Firearms Trace System
(“FTS”) database maintained by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”). The ATF denied Everytown’s FOIA
request on the grounds that (1) appropriations riders known as the
Tiahrt Riders exempt FTS data from FOIA disclosure and (2) properly
responding to Everytown’s FOIA request would require the ATF to
create records. The district court rejected both bases for nondisclosure
and granted summary judgment to Everytown. The district court held
that the operative 2012 Tiahrt Rider, 18 U.S.C. § 923 note, did not
qualify as an exemption from the FOIA because it did not meet the
requirements for statutory exemptions specified in the OPEN FOIA
Act of 2009, 5 U.S.C. § 552(b)(3)(B).
A prior statute, however, cannot prevent a later-enacted statute
from having effect. If the plain import or fair implication of the 2012
Tiahrt Rider is to exempt FTS data from FOIA disclosure, the statute
must be given effect even if it does not meet the requirements of the
OPEN FOIA Act. In light of the statutory text and history, we
conclude that the 2012 Tiahrt Rider exempts FTS data from FOIA
disclosure and that the exemption applies to the data Everytown
seeks. Given this conclusion, we do not address whether Everytown’s
FOIA request required the ATF to create records. We REVERSE the
district court’s order granting summary judgment to Everytown and
REMAND with instructions to enter judgment for the ATF.
2
ALLA LEFKOWITZ, Everytown Law, New York, NY (Eric
A. Tirschwell and James Miller, Everytown Law, New
York, NY, and Lawrence S. Lustberg, Gibbons P.C.,
Newark, NJ, on the brief), for Plaintiff-Appellee.
TOMOKO ONOZAWA, Assistant United States Attorney
(Benjamin H. Torrance, Assistant United States Attorney,
on the brief), for Audrey Strauss, Acting United States
Attorney for the Southern District of New York, New
York, NY, for Defendant-Appellant.
MENASHI, Circuit Judge:
The Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) maintains the Firearms Trace System (“FTS”) database, a
national database that stores information relating to the manufacture,
importation, and distribution of certain firearms. Everytown for Gun
Safety Support Fund (“Everytown”) submitted a request pursuant to
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2018),
seeking the disclosure of data from the FTS database. In this appeal,
we decide whether Congress has exempted data stored in the FTS
database from disclosure pursuant to the FOIA. The district court
concluded that Congress has not. We disagree. The ATF therefore
properly denied Everytown’s FOIA request. We reverse the district
court’s order granting summary judgment to Everytown and remand
with instructions to enter judgment for the ATF.
In the early 2000s, Congress adopted a series of appropriations
riders known as the Tiahrt Riders, each of which protected FTS data
3
from disclosure. 1 In response to court decisions subjecting FTS data
to disclosure under the FOIA, Congress strengthened the language of
the Tiahrt Riders. Based on the language first adopted in 2005, federal
courts uniformly understood the Tiahrt Riders to exempt FTS data
from FOIA disclosure. See, e.g., City of Chicago v. U.S. Dep't of the
Treasury, 423 F.3d 777, 780-81 (7th Cir. 2005). Accordingly, the ATF
could withhold FTS data pursuant to Exemption Three of the FOIA,
which allows records to be withheld when “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3).
In October 2009, Congress adopted the OPEN FOIA Act of
2009. Department of Homeland Security Appropriations Act, Pub. L.
No. 111-83, 123 Stat. 2142, 2184 (2009) (codified at 5 U.S.C.
§ 552(b)(3)(B)). Congress thereby amended the FOIA to provide that,
in order for a statute enacted after the OPEN FOIA Act’s effective date
to qualify as a statutory exemption under Exemption Three, it must
not only require the withholding of information but also “specifically
cite[]” Exemption Three. Id.Two months later, Congress reenacted a Tiahrt Rider that
contained essentially the same antidisclosure language as the Tiahrt
Rider it had enacted the previous year. Stat. App’x 6 (2010 Tiahrt
Rider). In 2012, Congress again reenacted a Tiahrt Rider with the same
antidisclosure language. Id. at 7-8 (2012 Tiahrt Rider). The language
of these riders paralleled that of riders enacted before the OPEN FOIA
Act and did not specifically cite Exemption Three.
1 For ease of reference, all iterations of the Tiahrt Rider are reproduced in
the statutory appendix to this opinion. The opinion references the statutory
appendix as “Stat. App’x” and the joint appendix submitted by the parties
as “J. App’x.”
4
The 2012 Tiahrt Rider is the last-enacted version and currently
operative. The district court concluded that because the 2012 Tiahrt
Rider does not comply with the requirement of the OPEN FOIA Act
to specifically cite Exemption Three, it does not qualify as a statutory
exemption to the FOIA and does not permit the ATF to withhold FTS
data from Everytown.
We disagree. An earlier-enacted statutory requirement cannot
prevent the “‘plain import’ or ‘fair implication’” of a later-enacted
statute from taking effect. Dorsey v. United States, 567 U.S. 260, 275
(2012). It is axiomatic that an earlier statute “cannot bind a later
Congress, which remains free … to exempt the current statute from
the earlier statute, to modify the earlier statute, or to apply the earlier
statute but as modified,” and Congress “remains free to express any
such intention either expressly or by implication as it chooses.” Id. at
274. In the event of a conflict, “the later enactment governs, regardless
of its compliance with any earlier-enacted requirement of an express
reference.” Id. (quoting Lockhart v. United States, 546 U.S. 142, 149
(2005) (Scalia, J., concurring)). Congress may establish a “background
principle of interpretation” to guide courts in understanding
subsequently enacted statutes. Id. But it cannot constrain those
subsequent statutes.
Ultimately the question before us is relatively straightforward:
whether the 2012 Tiahrt Rider, either expressly or by implication,
exempts FTS data from FOIA disclosure. We conclude that it does.
Had Congress continued to rely on the 2009 Tiahrt Rider, it would
unquestionably exempt FTS data from FOIA disclosure because the
specific-citation requirement of the OPEN FOIA Act would not apply
to that rider. We do not believe that Congress’s decision to reenact
essentially the same antidisclosure language in subsequent years can
5
be understood to reverse its meaning—that is, to subject FTS data to
FOIA disclosure. Rather, if the statutory language of the 2009 Tiahrt
Rider exempted FTS data from FOIA disclosure, that same statutory
language reenacted as the 2012 Tiahrt Rider must have the same
meaning and legal effect. Congress does not use the same words to
accomplish the opposite objective. Accordingly, FTS data remains
exempt from FOIA disclosure, and the district court erred in
concluding otherwise.
BACKGROUND
I
Enacted in 1966, the FOIA requires federal agencies to “make ...
records promptly available to any person” upon a proper request.
5 U.S.C. § 552(a)(3). The FOIA exempts certain categories of records
from this general rule of disclosure. Id. § 552(b). As relevant here,
Exemption Three protects records “specifically exempted from
disclosure by [a] statute” that meets certain criteria. Id. § 552(b)(3).
Since the turn of this century, Congress has sought to prevent
FOIA requesters from obtaining information stored in the FTS
database, which houses data relating to the manufacture,
importation, and distribution of certain firearms. In 2003, Congress
passed the first of a series of appropriations riders known as the
Tiahrt Riders, named for U.S. Representative Todd Tiahrt. Each
iteration of the rider applied to the fiscal year of the appropriations
bill in which it was enacted and to every year thereafter. See Stat.
App’x. In explaining its view of the purpose of the first Tiahrt Rider,
the House of Representatives Appropriations Committee expressed
“concern[] that certain law enforcement databases may be subject to
public release under the Freedom of Information Act.” H.R. Rep. No.
6
107-575, at 20 (2002). The committee worried that “information
collected and maintained by ATF related to ongoing criminal
investigations of firearms, arson or explosive offenses could be
released, potentially compromising those cases.” Id. The committee
stated that “comprehensive” disclosure of this information “to the
public” would “pose a risk” not only “to law enforcement and
homeland security, but also to the privacy of innocent citizens.” Id.
The committee believed that the addition of the Tiahrt Rider to that
year’s appropriations bill would “ensur[e] that no appropriated funds
may be available to ATF to take any action under the FOIA with
respect to such law enforcement records.” Id.
That original version of the rider stipulated that, subject to
some exceptions, no appropriated funds would “be available to take
any action based upon any provision of 5 U.S.C. 552”—that is, the
FOIA—“with respect to records collected or maintained” pursuant to
the ATF’s management of the FTS database. Consolidated
Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11, 473-
74 (2003). In 2004, Congress removed the direct reference to the FOIA,
replacing it with language stating that appropriated funds could not
be used “to disclose to the public the contents” of information
collected pursuant to the ATF’s management of the FTS database.
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat.
3, 53 (2004). In the 2005 appropriations bill, Congress strengthened
the prohibition on disclosure, adding language providing that “all
such data shall be immune from legal process and shall not be subject
to subpoena or other discovery in any civil action in a State or Federal
court or in any administrative proceeding other than a proceeding
commenced by the [ATF].” Consolidated Appropriations Act, 2005,
Pub. L. No. 108-447, 118 Stat. 2809, 2859-60 (2004).
7
Congress enacted the Tiahrt Riders and strengthened the
antidisclosure language in response to judicial decisions that
subjected FTS data to FOIA disclosure. In 2002, the Seventh Circuit
affirmed a district court decision requiring FOIA disclosure of FTS
data. City of Chicago v. U.S. Dep’t of Treasury (Chicago I), 287 F.3d 628,
631 (7th Cir. 2002), vacated, 537 U.S. 1229 (2003). The Supreme Court
granted certiorari in November 2002. 537 U.S. 1018 (2002). Congress
then enacted the original Tiahrt Rider in February 2003, and the
Supreme Court vacated the Seventh Circuit’s decision and remanded
the matter for consideration of the new statute’s effect on the case. 537
U.S. 1229 (2003). On remand, the Seventh Circuit concluded that the
2003 and 2004 Tiahrt Riders were not Exemption Three statutes
because the riders were “indirect” prohibitions on disclosure, effected
through a restriction on appropriations, and therefore established a
procedural rather than a substantive obstacle to disclosure. City of
Chicago v. U.S. Dep’t of the Treasury (Chicago II), 384 F.3d 429, 432-33,
36 (7th Cir. 2004), vacated on reh’g, 423 F.3d 777 (7th Cir. 2005).
Congress subsequently enacted the 2005 Tiahrt Rider, which added
the language that “all such data shall be immune from legal process.”
Consolidated Appropriations Act, 2005, 118 Stat. at 2859; Stat. App’x
2. The Seventh Circuit then vacated its earlier decision, concluding
that Congress’s “intent to bar access to [FTS] information is
unmistakable” and that the 2005 Tiahrt Rider therefore “qualifies as
an Exemption 3 statute.” City of Chicago v. U.S. Dep't of the Treasury
(Chicago III), 423 F.3d 777, 782 (7th Cir. 2005).
Congress adopted this same antidisclosure language in
subsequent Tiahrt Riders, which were included in the 2006, 2008, and
2009 appropriations acts. See Stat. App’x 3-6. In addition to the
Seventh Circuit, other courts interpreted the Tiahrt Riders to prohibit
8
the disclosure of FTS data pursuant to a FOIA request. See Skinner v.
DOJ, 744 F. Supp. 2d 185, 204 (D.D.C. 2010) (collecting cases);
Muhammad v. DOJ, No. 06-0220, 2007 WL 433552, at *2 (S.D. Ala. Feb.
6, 2007).
In October 2009, Congress passed the OPEN FOIA Act of 2009.
See Department of Homeland Security Appropriations Act, 123 Stat.
at 2184. The OPEN FOIA Act amended Exemption Three to require
that for any law passed after the effective date of the Act to qualify as
a withholding statute under Exemption Three, that statute must
“specifically cite[]” Exemption Three’s U.S. Code paragraph. Id.
(codified at 5 U.S.C. § 552(b)(3)(B)).
Two months after it passed the OPEN FOIA Act, Congress
included a Tiahrt Rider in the 2010 appropriations bill. See
Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat.
3034, 3128-29 (2009). This rider contained the same antidisclosure
language as the 2009 iteration of the Tiahrt Rider. See Stat. App’x 5-7.
Congress, however, did not add a citation to Exemption Three’s U.S.
Code paragraph. Congress included another Tiahrt Rider in the 2012
appropriations bill that was identical to the 2010 version (except for
its opening line). See Consolidated and Further Continuing
Appropriations Act, 2012, Pub. L. No. 112-55, 125 Stat. 552, 609-610
(2011) (codified at 18 U.S.C. § 923 note). Congress has not passed a
Tiahrt Rider since then.
II
In December 2016, Everytown sent the ATF a FOIA request
seeking “records containing aggregate trace data that document”
information relating to firearms used in suicides and suicide attempts
in the years 2012 and 2013. J. App’x 23-26. The ATF denied
9
Everytown’s request the next April, citing Exemption Three and the
2012 Tiahrt Rider. Everytown appealed this decision to the Office of
Information Policy at the Department of Justice, which upheld the
ATF’s determination in July 2017.
Everytown filed a complaint in March 2018 seeking an order
directing the ATF to disclose the requested data. In its motion for
summary judgment, the ATF argued that the Tiahrt Riders exempted
the requested information from disclosure and that, regardless,
responding to Everytown’s request would require the ATF to create
new records, which the FOIA does not require an agency to do. See,
e.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,
152 (1980).
Before the district court, the ATF argued that the Tiahrt Riders
adopted before the OPEN FOIA Act, to which the specific-citation
requirement does not apply, still exempt FTS data from FOIA
disclosure. The district court rejected that argument and granted
summary judgment in favor of Everytown. It concluded that the 2010
and 2012 Tiahrt Riders impliedly repealed the earlier Tiahrt Riders,
and because the 2012 Tiahrt Rider did not specifically cite Exemption
Three, the 2012 rider could not shield FTS data from FOIA disclosure.
Everytown for Gun Safety Support Fund v. ATF, 403 F. Supp. 3d 343, 351-
54 (S.D.N.Y. 2019). In holding that FTS data is subject to FOIA
disclosure, the district court rejected contrary decisions of courts
outside our circuit that have addressed this issue. Id. at 354-55. 2 The
2 See Caruso v. ATF, 495 F. App’x 776, 778 (9th Cir. 2012) (unpublished
memorandum); Ctr. for Investigative Reporting v. DOJ, No. 17-CV-6557, 2018
WL 3368884, at *8-11 (N.D. Cal. July 10, 2018); Reep v. DOJ, 302 F. Supp. 3d
174, 183 (D.D.C. 2018); P.W. Arms, Inc. v. United States, No. C15-1990, 2017
10
district court also rejected the ATF’s record-creation defense.
Everytown, 403 F. Supp. 3d at 360. The ATF timely appealed.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment in a
FOIA case de novo. Ctr. for Constitutional Rights v. CIA, 765 F.3d 161,
166 (2d Cir. 2014). The defending agency has the burden of showing
that the withheld records are exempt from the FOIA. Carney v. DOJ,
19 F.3d 807, 812 (2d Cir. 1994).
DISCUSSION
Our decision in this case turns on the meaning of the 2012
Tiahrt Rider. The ATF does not meaningfully challenge the district
court’s conclusion that Congress has impliedly repealed the earlier
Tiahrt Riders, and we agree with that determination. That conclusion,
however, does not resolve the case. Even accepting that only the 2012
Tiahrt Rider remains operative, it must be given effect if the plain
import or fair implication of that rider is to bar FOIA disclosure of
FTS data, regardless of its noncompliance with the requirements of
the OPEN FOIA Act. See Dorsey, 567 U.S. at 273-75. The “established
rule” is that “a later adopted provision takes precedence over an
earlier, conflicting provision of equal stature.” Tenn. Wine & Spirits
Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2462 (2019). In light of the
WL 319250, at *4 (W.D. Wash. Jan. 23, 2017); Fowlkes v. ATF, 139 F. Supp. 3d
287, 291-92 (D.D.C. 2015); Abdeljabbar v. ATF, 74 F. Supp. 3d 158, 175-76
(D.D.C. 2014); Smith v. ATF, No. 13-13079, 2014 WL 3565634, at *5 n.2 (E.D.
Mich. July 18, 2014); Higgins v. DOJ, 919 F. Supp. 2d 131, 144-45 (D.D.C.
2013); McRae v. DOJ, 869 F. Supp. 2d 151, 163 (D.D.C. 2012); Penn v. DOJ,
No. CIV S-10-2494, 2012 WL 761741, at *6 n.3 (E.D. Cal. Mar. 7, 2012), R. & R.
adopted, 2012 WL 1131537 (E.D. Cal. Mar. 28, 2012).
11
text and history of the 2012 Tiahrt Rider, we conclude that it exempts
FTS data from FOIA disclosure. 3
I
The district court correctly concluded that Congress impliedly
repealed the Tiahrt Riders predating the OPEN FOIA Act “by
comprehensive revision.” Everytown, 403 F. Supp. 3d at 351. A later
statute impliedly repeals an earlier statute if “the latter Act covers the
whole subject of the earlier one and ‘is clearly intended as a
substitute.’” Carcieri v. Salazar, 555 U.S. 379, 395 (2009) (quoting Branch
v. Smith, 538 U.S. 254, 273 (2003) (plurality opinion)); accord Force v.
Facebook, Inc., 934 F.3d 53, 72 (2d Cir. 2019); see also United States v.
Tynen, 78 U.S. 88, 92 (1870) (“[E]ven where two acts are not in express
terms repugnant, yet if the latter act covers the whole subject of the
first, and embraces new provisions, plainly showing that it was
intended as a substitute for the first act, it will operate as a repeal of
that act.”).
Here, the 2012 and 2010 Tiahrt Riders—which are essentially
identical—and the 2009 Tiahrt Rider contain the same basic text and
structure. Moreover, the 2010 rider altered some of the 2009 rider’s
3 In a recent published decision, the Ninth Circuit concluded that the 2012
Tiahrt Rider does not exempt FTS data from FOIA disclosure “because [it
was] enacted after the effective date of the OPEN FOIA Act and do[es] not
cite to 5 U.S.C. § 552(b)(3).” Ctr. for Investigative Reporting v. DOJ, No. 18-
17356, 2020 WL 7064638, at *10 (9th Cir. Dec. 3, 2020). The court declined to
consider, as we do here, whether “the Tiahrt Amendment of 2012 must
conform to an earlier statute—the OPEN FOIA Act of 2009—to be
effective.” Id. at *17 (Bumatay, J., dissenting); see id. at *10 (majority opinion)
(declining “to address th[e] question” raised by the dissent because “the
issue is clearly waived”).
12
exceptions to the general prohibition on disclosure and added
language to clarify that data disclosed pursuant to those exceptions
cannot be disclosed to the public. See Stat. App’x 5-7; see also
Everytown, 403 F. Supp. 3d at 352-53. The district court, therefore,
correctly held that Congress impliedly repealed the Tiahrt Riders
predating the OPEN FOIA Act.
II
The ATF argues that even if Congress repealed the earlier
Tiahrt Riders, the 2012 Tiahrt Rider exempts FTS data from FOIA
disclosure. We agree. 4
4 Everytown argues that the ATF waived this argument by failing to raise
it before the district court and by previously stating that the 2010 and 2012
Tiahrt Riders “do not ‘specifically cite to’ 5 U.S.C. § 552(b)(3) as currently
required.” Def. ATF’s Mem. of Law in Supp. of Its Mot. for Summ. J. at 14,
Everytown, 403 F. Supp. 3d 343 (No. 18-CV-2296), ECF No. 18. “Once a
federal claim is properly presented,” however, “a party can make any
argument in support of that claim; parties are not limited to the precise
arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534
(1992). Here, the ATF has maintained throughout this litigation that the
data Everytown seeks are exempt from FOIA disclosure, and the ATF is
“not confined here to the same arguments which were advanced in the
courts below upon [the] federal question there discussed.” Dewey v. City of
Des Moines, 173 U.S. 193, 198 (1899). We have explained that the rule in Yee
does not require but permits us to consider a party’s additional arguments
“for a proposition presented below.” Eastman Kodak Co. v. STWB, Inc., 452
F.3d 215, 221 (2d Cir. 2006). Exercising that discretion is proper here for two
reasons. First, the ATF’s additional argument “presents a question of law
and there is no need for additional fact-finding.” Kashef v. BNP Paribas S.A.,
925 F.3d 53, 62 (2d Cir. 2019) (quoting Bogle-Assegai v. Connecticut, 470 F.3d
498, 504 (2d Cir. 2006)). Second, the ATF’s argument asks us to consider the
import of a statute passed by Congress, the 2012 Tiahrt Rider, in light of
13
A
The 2012 Tiahrt Rider provides that no appropriated funds may
be used “to disclose part or all of the contents of the [FTS] database,”
subject to certain exceptions, and that “all such data shall be immune
from legal process.” 18 U.S.C. § 923 note. An order directing the ATF
to produce the requested records pursuant to the FOIA—such as the
order issued by the district court in this case—is “unquestionably
‘legal process’” and therefore prohibited by the statute. Chicago III,
423 F.3d at 781.
It is true that the FOIA, as amended by the OPEN FOIA Act in
2009, suggests a different conclusion. The FOIA requires a federal
agency to disclose records unless those records fall within an
exemption, 5 U.S.C. § 552(a)(3), and FTS data do not appear to fall
within one of the FOIA’s enumerated exemptions, see id. § 552(b).
While Exemption Three applies to records “specifically exempted
from disclosure by statute,” it does so only if the statute “specifically
cites” Exemption Three. Id. § 552(b)(3). The 2012 Tiahrt Rider contains
no such specific citation.
When Congress enacted the 2012 Tiahrt Rider, however, it was
not bound to follow the specific-citation requirement it had adopted
in the OPEN FOIA Act. When enacting subsequent legislation,
Congress “remains free ... to exempt the current statute from the
earlier statute, to modify the earlier statute, or to apply the earlier
basic principles of statutory interpretation. Refusing to do so would amount
to ignoring applicable law. Cf. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of
Am., Inc., 508 U.S. 439, 447 (1993) (“[T]here can be no estoppel in the way of
ascertaining the existence of a law.”) (quoting S. Ottawa v. Perkins, 94 U.S.
260, 267 (1877)).
14
statute but as modified.” Dorsey, 567 U.S. at 274. And when it adopts
the later statute, Congress “remains free to express any such intention
either expressly or by implication as it chooses.” Id.Accordingly, the specific-citation requirement of the OPEN
FOIA Act does not dictate the outcome in this case. It provides a
“background principle of interpretation” of which we assume
Congress is “aware … when it enacts new … statutes.” Id. But if
“ordinary interpretive considerations” nevertheless indicate that
Congress intended to depart from the background principle when it
adopted the later statute, we must give that statute the full effect that
its “plain import or fair implication” demands. Id. at 275 (internal
quotation marks omitted); see also Tenn. Wine & Spirits, 139 S. Ct. at
2462. In such cases, “the later enactment governs, regardless of its
compliance with any earlier-enacted requirement of an express
reference.” Dorsey, 567 U.S. at 274 (quoting Lockhart, 546 U.S. at 149(Scalia, J., concurring)).
The Supreme Court confronted a similar issue in Dorsey, which
addressed “whether the Fair Sentencing Act’s more lenient
mandatory minimums apply to offenders whose unlawful conduct
took place before, but whose sentencing took place after, the date that
Act took effect.” Id. at 272. The Court explained that the strict
application of an 1871 saving statute would dictate that the new
minimums applied only to offenders whose unlawful conduct
occurred after the Fair Sentencing Act’s effective date. Id. By the terms
of the 1871 statute, the Fair Sentencing Act could have avoided this
interpretation only if it “expressly provide[d]” for an exemption from
the 1871 statute, which it did not. Id. (quoting 1 U.S.C. § 109). Based
on ordinary interpretative considerations, however, the Court
concluded that the plain import or fair implication of the Fair
15
Sentencing Act was that the new minimums apply to pre-Act
offenders who were sentenced after the Act took effect. See id. at 273-
81. The Court therefore ruled that the lower minimums should apply
in those cases even though the Act did not “expressly provide” for an
exception from the 1871 savings statute, as the earlier statute
purported to require. Id. at 273.
B
In this case, “ordinary interpretive considerations ... clearly”
indicate that the “‘plain import’ or ‘fair implication’” of the 2012
Tiahrt Rider is to exempt FTS data from FOIA disclosure. Id. at 275.
“We start, of course, with the statutory text.” BP Am. Prod. Co.
v. Burton, 549 U.S. 84, 91 (2006). That text, in relevant part, reads:
Provided further, That, during the current fiscal year and
in each fiscal year 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 maintained by
the National Trace Center of the Bureau of Alcohol, Tobacco,
Firearms and Explosives or any information required to be
kept by licensees pursuant to section 923(g) of title 18,
United States Code, or required to be reported pursuant
to paragraphs (3) and (7) of such section, 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
16
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
(including the District of Columbia) or Federal court or
in an administrative proceeding other than a proceeding
commenced by the Bureau of Alcohol, Tobacco, Firearms
and Explosives to enforce the provisions of chapter 44 of
such title, or a review of such an action or proceeding.
18 U.S.C. § 923 note (emphases added). The text of the rider thus
provides that no appropriated funds may be used to disclose “the
contents of the Firearms Trace System database” and other specified
information collected by the ATF—subject to exceptions for law
enforcement, national security, and intelligence uses—and that “all
such data shall be immune from legal process.” Because the ATF
operates only with appropriated funds, and because FOIA disclosure
occurs subject to legal process, the rider exempts FTS data from FOIA
disclosure. See Chicago III, 423 F.3d at 780-82. 5
5 At oral argument, Everytown suggested that the phrase “all such data
shall be immune from legal process” could refer to the information the rider
excepts from the appropriations-based disclosure restriction as opposed to
the data subject to the disclosure restriction as a whole. That argument
conflicts with the most straightforward reading of the statute. The rider
includes a separate clause that specifically prohibits individuals who
receive FTS data pursuant to one of the rider’s exceptions from “knowingly
and publicly disclos[ing]” that data. 18 U.S.C. § 923 note. Moreover, “[t]he
only data [described] in the paragraph prior to the reference to ‘such data’”
are the data subject to the disclosure restriction “and those data are the clear
17
Whether or not considering the 2012 Tiahrt Rider in isolation
would lead us to conclude that it exempts FTS data from FOIA
disclosure following the enactment of the specific-citation
requirement in the OPEN FOIA Act, there can be no doubt from the
history and text of the rider that Congress intended to continue to
exempt FTS data from FOIA disclosure. The enactment of the 2012
Tiahrt Rider marked the eighth time that Congress passed such a rider
in the decade spanning 2003 to 2012. See Stat. App’x. Congress passed
the first Tiahrt Rider after the Seventh Circuit affirmed a district court
decision requiring FOIA disclosure of FTS data. See Chicago I, 287 F.3d
at 631; see also H.R. Rep. No. 107-575, at 20. It strengthened the rider’s
antidisclosure language to include the phrase “all such data shall be
immune from legal process,” Consolidated Appropriations Act, 2005,
118 Stat. at 2859; Stat. App’x 2, after the Seventh Circuit continued to
maintain that FTS data was subject to FOIA disclosure, see Chicago II,
384 F.3d at 432-33. The Seventh Circuit then recognized that
Congress’s “intent to bar access to [FTS] information is
unmistakable.” Chicago III, 423 F.3d at 782. Congress continued to use
this antidisclosure language throughout the 2000s and courts
uniformly held that the Tiahrt Riders exempted FTS data from FOIA
antecedent to the phrase ‘such data.’” Chicago III, 423 F.3d at 780-81. Finally,
“[u]nder [Everytown’s] strained construction of the statute, the portion of
the databases in law enforcement’s hands would be ‘immune from legal
process,’ but the remaining portion of the databases, the extensive data not
produced to law enforcement, would be accessible.” Id. at 781.
18
disclosure. See Skinner, 744 F. Supp. 2d at 204 (collecting cases);
Muhammad, 2007 WL 433552, at *2.6
There is no question, therefore, that when Congress passed the
2009 Tiahrt Rider, it did so intending to exempt FTS data from FOIA
disclosure. See Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc., 576 U.S. 519, 536 (2015) (“If a word or phrase
has been ... given a uniform interpretation by inferior courts ..., a later
version of that act perpetuating the wording is presumed to carry
forward that interpretation.”) (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 322 (2012));
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (“Congress is
presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it re-enacts a statute
without change.”) (quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)).
Because the 2009 Tiahrt Rider applied to “fiscal year 2009 and
6 The opinion in City of New York v. Beretta U.S.A. Corp., 429 F. Supp. 2d 517(E.D.N.Y. 2006), is not to the contrary. That case involved the use of trace
data obtained via a subpoena served on the ATF in 2004 for the production
of records in ongoing civil litigation. The court had required the ATF to
produce these documents, rejecting its argument that the 2004 rider
prohibited it. Id. at 520-22. After Congress strengthened the antidisclosure
language in 2005, and added language in 2006 indicating that FTS data is
inadmissible in any civil action, the district court nonetheless held that the
already released data could be used in the litigation, id. at 524-29,
interpreting the rider in the manner rejected by the Seventh Circuit, see
supra note 5. The court’s strained interpretation of the rider relied on the
particular facts that the data in that case were “already disclosed, analyzed,
and ready to be used at trial” and were “obtained by explicit order of the
court supervising discovery” rather than by “a general FOIA request.”
Beretta, 429 F. Supp. 2d at 529. This case, by contrast, involves a FOIA
request.
19
thereafter,” Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123
Stat. 524, 575 (2009) (emphasis added); Stat. App’x 5, that disclosure
exemption would remain in effect today if Congress had not passed a
subsequent Tiahrt Rider, and it unquestionably did not require a
citation to Exemption Three, see 5 U.S.C. § 552(b)(3)(B) (providing that
the specific-citation requirement does not apply to statutes enacted
prior to the effective date of the OPEN FOIA Act).
When Congress employed the same antidisclosure language in
the 2010 Tiahrt Rider and later the 2012 Tiahrt Rider, Congress is best
understood to have intended that language to continue to exempt FTS
data from FOIA disclosure. See Consolidated Appropriations Act,
2010, 123 Stat. at 3128-29; 18 U.S.C. § 923 note. 7 The interceding
enactment of the OPEN FOIA Act’s specific-citation requirement does
not overcome the elementary principle that Congress uses the same
language to accomplish the same objective. Under Everytown’s
reading, by contrast, Congress would have enacted the 2010 Tiahrt
Rider to subject FTS data to FOIA disclosure. We do not believe that
Congress would have reenacted the exact same language in 2010 and
2012 as it did in 2009 in order to accomplish the opposite result.
Therefore, we conclude that the plain import of the 2012 Tiahrt
Rider exempts FTS data from FOIA disclosure, and that statute must
7 As noted above, the 2010 Tiahrt Rider altered some of the 2009 rider’s
exceptions to the general prohibition on disclosure and added language to
clarify that data disclosed pursuant to those exceptions cannot be disclosed
to the public. The language for the general prohibition on disclosure
remained identical. See Stat. App’x 5-7. The 2012 Tiahrt Rider is identical to
the 2010 rider (save for the first line). See 18 U.S.C. § 923 note; Stat. App’x 7-
8.
20
be given effect regardless of the specific-citation requirement of the
OPEN FOIA Act, an earlier statute.
C
Everytown argues that the foregoing analysis cannot establish
that the 2012 Tiahrt Rider meets the standard for an implied repeal of
the OPEN FOIA Act. See, e.g., Maine Cmty. Health Options v. United
States, 140 S. Ct. 1308, 1323 (2020). But Dorsey established that a statute
need not meet that standard to create an exemption from an earlier
statute. The later statute need only express, by its plain import or fair
implication, that the earlier statute does not constrain it. See Dorsey,
567 U.S. at 273-75. The dissent’s position, which favored the more
rigorous standard for implied repeals, did not prevail. See id. at 290(Scalia, J., dissenting) (“The considerations relied upon by the Court
do not come close to satisfying the demanding standard for repeal by
implication.”); id. (disagreeing with the Court’s opinion because “the
implication from the subsequently enacted statute must be clear
enough to overcome our strong presumption against implied
repeals”). 8
8 Even under the dissent’s view, “a clear demonstration of congressional
intent” to exempt a later statute from an earlier statute would effect an
implied repeal. Dorsey, 567 U.S. at 289 (Scalia, J., dissenting). We believe that
standard would be met in this case. The text and history of the 2012 Tiahrt
Rider would overcome the “aversion to implied repeals” that the Supreme
Court has described as “especially strong in the appropriations context.”
Maine Cmty, 140 S. Ct. at 1323 (internal quotation marks omitted). Unlike
those cases in which the Court has declined to read an implied repeal into
an appropriations rider, the 2012 Tiahrt Rider does not “merely
appropriate[] a less amount than that required to satisfy the Government’s
obligation, without expressly or by clear implication modifying [the
21
Everytown also claims that the Supreme Court “vigorously
enforce[ed]” a specific cross-reference requirement—similar to the
specific-citation requirement of the OPEN FOIA Act—two years after
deciding Dorsey. Appellee’s Br. 22. Everytown’s argument relies on
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), in which the
Court invalidated a regulation promulgated by the Department of
Health and Human Services as part of its administration of the Patient
Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124
Stat. 119 (2010). Hobby Lobby, 573 U.S. at 688-91. The Court held that
the regulation conflicted with the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. § 2000bb et seq. Hobby Lobby, 573 U.S. at 688-91.
In a footnote to its opinion, the Court rejected the dissent’s
argument that Congress intended to exempt the ACA from the RFRA
because Congress declined to adopt a proposed “conscience
amendment” to the ACA. Id. at 719 n.30. The Court explained that it
could not rely on a rejected amendment to conclude that the statute
was exempt from the RFRA because the RFRA provides that all
subsequent laws are “subject to [the RFRA] unless such law explicitly
excludes such application by reference to [the RFRA].” Id. (quoting
42 U.S.C. § 2000bb-3(b)). The “meager legislative history on which the
dissent relie[d]” failed to make it “plausible to find such an explicit
reference.” Id. This piece of legislative history was not reflected in the
statutory text and did not overcome the background interpretive
principle of an explicit reference requirement. Cf. ACLU v. Clapper, 785
F.3d 787, 807-08 (2d Cir. 2015) (noting that a court “should exercise
previous law].” Id. at 1324 (internal quotation marks and alteration
omitted). The rider specifically mandates that the ATF may not disclose FTS
data, a result that is “irreconcilable” with the requirements of the OPEN
FOIA Act. Id. at 1325.
22
caution” in “attempting to discern Congress’s intent” from its
rejection of a proposed amendment). The Court, therefore, did not
repudiate the holding of Dorsey that the plain import or fair
implication of a statute must “govern[], regardless of [the statute’s]
compliance with any earlier-enacted requirement of an express
reference.” Dorsey, 567 U.S. at 274.
Additionally, Everytown contends that accepting the ATF’s
argument would undermine Congress’s ability to legislate clear rules
for executive agencies and its desire that Exemption Three
“establish[] ... clear guidelines” for withholding on which courts and
agencies can rely. Ray v. Turner, 587 F.2d 1187, 1219 (D.C. Cir. 1978)
(Wright, C.J., concurring) (internal citation omitted). Adopting the
ATF’s position, in Everytown’s view, would impede Congress’s
purpose in enacting the OPEN FOIA Act. See, e.g., 155 Cong. Rec.
16,234 (2009) (statement of Senator Leahy) (stating that the OPEN
FOIA Act “provides a safeguard against the growing trend towards
FOIA exemptions and would make all FOIA exemptions clear and
unambiguous, and vigorously debated, before they are enacted into
law”).
We think these concerns are overstated given the statutory
history of the 2010 and 2012 Tiahrt Riders, in which Congress
reenacted a longstanding FOIA exemption that predated the OPEN
FOIA Act. Nothing in our decision today prevents the “background
principle of interpretation” that the OPEN FOIA Act establishes from
guiding the interpretation of other, more ambiguous statutes. See
Dorsey, 567 U.S. at 274. Yet we must give effect to the plain import of
new statutes passed by Congress. For that reason, Everytown’s
argument that we must mandate disclosure here to vindicate the
OPEN FOIA Act proves too much. Congress may subsequently
23
choose to depart from the requirements adopted in the OPEN FOIA
Act, and that is its prerogative. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803) (“[An] ordinary legislative act[] ... is
alterable when the legislature shall please to alter it.”); Fletcher v. Peck,
10 U.S. (6 Cranch) 87, 135 (1810) (“[O]ne legislature cannot abridge
the powers of a succeeding legislature.”). It is up to Congress whether
to preserve or to modify its preceding enactments.
III
Our conclusion that the 2012 Tiahrt Rider exempts FTS data
from disclosure pursuant to a FOIA request does not fully resolve this
case. The 2012 Tiahrt Rider, like its predecessors, contains certain
exceptions to the general prohibition on disclosure. See 18 U.S.C. § 923note. Everytown argues that the data it seeks, raw trace data relating
to firearms used in suicides and attempted suicides, falls within one
of those exceptions—namely, the exception for “publication of ...
statistical aggregate data regarding ... firearms misuse, felons, and
trafficking investigations.” Id. Everytown contends that the word
“publication” means something substantially similar to disclosure
and that, therefore, the rider does not prevent disclosure of data
relating to firearms misuse by individuals completing or attempting
suicide. We disagree.
If the publication exception means that FTS data relating to
firearms misuse is freely available to FOIA requesters, it would
eviscerate the rider’s general prohibition on disclosure. The
publication exception allows the ATF, at its own initiative, to release
statistical aggregate data regarding firearms misuse, felons, and
trafficking investigations to the public. The rider uses the term
“disclosure” in a different exception. See id. (providing that the statute
24
shall not be construed to prevent “the disclosure of statistical
information concerning total production, importation, and
exportation” by firearms manufacturers and importers). We will not
override Congress’s careful choice of language by equating
“publication” with “disclosure.” When “Congress uses certain
language in one part of the statute and different language in another
... [we] assume[] different meanings were intended.” Mary Jo C. v. N.Y.
State & Local Ret. Sys., 707 F.3d 144, 156 (2d Cir. 2013). Moreover, the
House committee report that accompanied the 2008 Tiahrt Rider—the
first to include the publication exception—noted the committee’s
“concern[] that the previous year’s language ha[d] been interpreted
to prevent publication of a long-running series of statistical reports on
products regulated by ATF” and that the “2008 language makes clear
that those reports may continue to be published.” H.R. Rep. No. 110-
240, at 63 (2007). We conclude that this argument by Everytown is
without merit. 9
9 Here too we disagree with the Ninth Circuit. The Ninth Circuit
understood “publication” to mean “disclosure to the public” or “the act of
declaring or announcing to the public.” Ctr. for Investigative Reporting, 2020
WL 7064638, at *11. Though these definitions would seem to exclude
disclosure pursuant to a FOIA request, the Ninth Circuit further held that
FOIA disclosure to “a reporter” or “a representative of the news-media”
was permissible because that FOIA requester “w[ould] make that data
‘generally known’ to the public.” Id. at *12. The Tiahrt Rider, however,
allows the ATF to disclose FTS data only through its own “publication of ...
statistical aggregate data regarding ... firearms misuse, felons, and
trafficking investigations.” 18 U.S.C. § 923 note. It does not authorize
disclosure whenever the data will be published by a third party. The Ninth
Circuit’s position “improperly shoehorns ‘disclosure’ into the definition of
‘publication’ and eviscerates the prohibition on funding in the Tiahrt
25
***
The 2012 Tiahrt Rider prohibits the ATF from disclosing the
data that Everytown seeks in its FOIA request, and the district court
therefore erred in granting summary judgment to Everytown. Given
this conclusion, we need not address the parties’ arguments
regarding record creation. We REVERSE the district court’s judgment
and REMAND with instructions to enter judgment for the ATF.
Amendment.” Ctr. for Investigative Reporting, 2020 WL 7064638, at *21
(Bumatay, J., dissenting).
26
Statutory Appendix: Text of Tiahrt Riders
2003 Tiahrt Rider
Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117
Stat. 11, 473-74 (2003)
SEC. 644. No funds appropriated under this 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. 552 with respect to records collected or
maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided
by Federal, State, local, or foreign law enforcement agencies in connection
with arson or explosives incidents or the tracing of a firearm, 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.
2004 Tiahrt Rider
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 3, 53
(2004)
Provided further, That no funds appropriated under this or any other Act
may be used to disclose to the public the contents or any portion thereof of
any information required to be kept by licensees pursuant to section 923(g)
of title 18, United States Code, or required to be reported pursuant to
paragraphs (3) and (7) of section 923(g) of title 18, United States Code,
except that this provision shall apply to any request for information made
by any person or entity after January 1, 1998.
1
2005 Tiahrt Rider
Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat.
2809, 2859-60 (2004)
Provided further, That 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 maintained by the National
Trace Center of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
or any information required to be kept by licensees pursuant to section
923(g) of title 18, United States Code, or required to be reported pursuant
to paragraphs (3) and (7) of such section 923(g), to anyone other than a
Federal, State, or local law enforcement agency or a prosecutor 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 and
not for use in any civil action or proceeding other than an action or
proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, or a review of such an action or proceeding, to enforce the
provisions of chapter 44 of such title, and all such data shall be immune
from legal process and shall not be subject to subpoena or other discovery
in any civil action in a State or Federal court or in any administrative
proceeding other than a proceeding commenced by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives to enforce the provisions of that chapter,
or a review of such an action or proceeding; except that this proviso shall
not be construed to prevent the disclosure of statistical information
concerning total production, importation, and exportation by each licensed
importer (as defined in section 921(a)(9) of such title) and licensed
manufacturer (as defined in section 921(a)(10) of such title).
2
2006 Tiahrt Rider
Science, State, Justice, Commerce, and Related Agencies Appropriations
Act, 2006, Pub. L. No. 109-108, 119 Stat. 2290, 2295-96 (2006)
Provided further, That 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 maintained by the National
Trace Center of the Bureau of Alcohol, Tobacco, Firearms and Explosives or
any information required to be kept by licensees pursuant to section 923(g)
of title 18, United States Code, or required to be reported pursuant to
paragraphs (3) and (7) of such section 923(g), to anyone other than a
Federal, State, or local law enforcement agency or a prosecutor 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 and
not for use in any civil action or proceeding other than an action or
proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms and
Explosives, or a review of such an action or proceeding, to enforce the
provisions of chapter 44 of such title, and all such data shall be immune
from legal process and 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 upon such data, in any civil action pending on or filed after
the effective date of this Act in any State (including the District of
Columbia) or Federal court or in any administrative proceeding other than
a proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms and
Explosives to enforce the provisions of that chapter, or a review of such an
action or proceeding; except that this proviso shall not be construed to
prevent the disclosure of statistical information concerning total
production, importation, and exportation by each licensed importer (as
defined in section 921(a)(9) of such title) and licensed manufacturer (as
defined in section 921(a)(10) of such title).
3
2008 Tiahrt Rider
Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat.
1844, 1903-04 (2007)
Provided further, That, beginning 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 maintained by the
National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and
Explosives or any information required to be kept by licensees pursuant to
section 923(g) of title 18, United States Code, or required to be reported
pursuant to paragraphs (3) and (7) of such section 923(g), except to: (1) a
Federal, State, local, tribal, or foreign law enforcement agency, or a Federal,
State, or local prosecutor, solely in connection with 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 (including the District of Columbia)
or Federal court or in an administrative proceeding other than a proceeding
commenced by the Bureau of Alcohol, Tobacco, Firearms and Explosives to
enforce the provisions of chapter 44 of such title, or a review of such an
action or proceeding; except that this proviso shall not be construed to
prevent: (A) the disclosure of statistical information concerning total
production, importation, and exportation by each licensed importer (as
defined in section 921(a)(9) of such title) and licensed manufacturer (as
defined in section 921(1)(10) of such title); (B) the sharing or exchange of
such information among and between Federal, State, local, or foreign law
enforcement agencies, Federal, State, or local prosecutors, and Federal
national security, intelligence, or counterterrorism officials; or (C) the
publication of annual statistical reports on products regulated by the
Bureau of Alcohol, Tobacco, Firearms and Explosives, including total
4
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.
2009 Tiahrt Rider
Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123 Stat. 524, 575-
76 (2009)
Provided further, That, beginning in fiscal year 2009 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 maintained by the
National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and
Explosives or any information required to be kept by licensees pursuant to
section 923(g) of title 18, United States Code, or required to be reported
pursuant to paragraphs (3) and (7) of such section 923(g), except to: (1) a
Federal, State, local, tribal, or foreign law enforcement agency, or a Federal,
State, or local prosecutor, solely in connection with 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 (including the District of Columbia)
or Federal court or in an administrative proceeding other than a proceeding
commenced by the Bureau of Alcohol, Tobacco, Firearms and Explosives to
enforce the provisions of chapter 44 of such title, or a review of such an
action or proceeding; except that this proviso shall not be construed to
prevent: (A) the disclosure of statistical information concerning total
production, importation, and exportation by each licensed importer (as
defined in section 921(a)(9) of such title) and licensed manufacturer (as
5
defined in section 921(a)(10) of such title); (B) the sharing or exchange of
such information among and between Federal, State, local, or foreign law
enforcement agencies, Federal, State, or local prosecutors, and Federal
national security, intelligence, or counterterrorism officials; or (C) the
publication of annual statistical reports on products regulated by the
Bureau of Alcohol, Tobacco, Firearms and Explosives, 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.
2010 Tiahrt Rider
Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat.
3034, 3128-29 (2009)
Provided further, That, beginning in fiscal year 2010 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 maintained by the
National Trace Center of the Bureau of Alcohol, Tobacco, Firearms and
Explosives or any information required to be kept by licensees pursuant to
section 923(g) of title 18, United States Code, or required to be reported
pursuant to paragraphs (3) and (7) of such section 923(g), 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
6
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 (including the
District of Columbia) or Federal court or in an administrative proceeding
other than a proceeding commenced by the Bureau of Alcohol, Tobacco,
Firearms and Explosives to enforce the provisions of chapter 44 of such title,
or a review of such an action or proceeding; except that this proviso shall
not be construed to prevent: (A) the disclosure of statistical information
concerning total production, importation, and exportation by each licensed
importer (as defined in section 921(a)(9) of such title) and licensed
manufacturer (as defined in section 921(a)(10) of such title); (B) the sharing
or exchange of such information among and between Federal, State, local,
or foreign law enforcement agencies, Federal, State, or local prosecutors,
and Federal national security, intelligence, or counterterrorism officials; or
(C) the publication of annual statistical reports on products regulated by
the Bureau of Alcohol, Tobacco, Firearms and Explosives, 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.
2012 Tiahrt Rider
Consolidated and Further Continuing Appropriations Act, 2012, Pub. L.
No. 112-55, 125 Stat. 552, 609-10 (2011) (codified at 18 U.S.C. § 923 note)
Provided further, That, during the current fiscal year and in each fiscal year
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
maintained by the National Trace Center of the Bureau of Alcohol, Tobacco,
Firearms and Explosives or any information required to be kept by licensees
7
pursuant to section 923(g) of title 18, United States Code, or required to be
reported pursuant to paragraphs (3) and (7) of such section, 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 (including the
District of Columbia) or Federal court or in an administrative proceeding
other than a proceeding commenced by the Bureau of Alcohol, Tobacco,
Firearms and Explosives to enforce the provisions of chapter 44 of such title,
or a review of such an action or proceeding; except that this proviso shall
not be construed to prevent: (A) the disclosure of statistical information
concerning total production, importation, and exportation by each licensed
importer (as defined in section 921(a)(9) of such title) and licensed
manufacturer (as defined in section 921(a)(10) of such title); (B) the sharing
or exchange of such information among and between Federal, State, local,
or foreign law enforcement agencies, Federal, State, or local prosecutors,
and Federal national security, intelligence, or counterterrorism officials; or
(C) the publication of annual statistical reports on products regulated by
the Bureau of Alcohol, Tobacco, Firearms and Explosives, 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.
8