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Journalists Win Big in Ninth Circuit Freedom of Information Act Appeal

Shot of a programmer working on a computer code at night
By Laura Temme, Esq. on December 09, 2020 2:36 PM

Journalists in the Ninth Circuit may have an easier time accessing government data after an appeals panel held that search query results fall under the scope of the Freedom of Information Act. The panel concluded that government agencies must turn over gun tracing records requested by the Center for Investigative Reporting (CIR) the same way they would a paper record.

CIR wanted to report on how often guns formerly owned by law enforcement agencies end up in the hands of criminals. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has traced the origins of firearms linked to criminal activity for decades. It has a database of more than six million traces known as the Firearms Tracing System. But the agency denied an FOIA request for the data for reasons that are, frankly, baffling in the modern era.

Seriously, What Year Is It?

ATF claims that running a search in the Firearms Tracing System for guns that can be linked back to law enforcement would create a "new" agency record. If this logic were accepted, ATF would not be required to disclose since the FOIA only establishes rights of access to existing agency records.

The problem is, the FOIA was enacted in 1966. No one at the time could have contemplated the amount of information now held in government databases, much less the value it would have to a free press. Congress partially addressed the issue in 1996 with the Electronic Freedom of Information Act Amendments. They amended the term "record" to include "any information that would be an agency record...in any format, including an electronic format." And other circuits have acknowledged that although accessing information via computer is a different process than producing hard copies, "these differences may not be used to circumvent the full disclosure policies of the FOIA."

Ninth Circuit Remands

The district court sided with ATF, reasoning that because ATF had not prepared a formal, annualized report on the information CIR sought, it was not subject to disclosure under the FOIA.

The Ninth Circuit disagreed. In a 2-1 decision, the panel held that:

"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 [it]."

The case has been remanded back to the district court, where ATF will have to provide more information on how a search for the requested data would work and the form the search results would take.

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