In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2167
City of Chicago,
Plaintiff-Appellee,
v.
United States Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3417--George W. Lindberg, Judge.
Argued January 16, 2002--Decided April 25, 2002
Before Bauer, Rovner and Williams, Circuit
Judges.
Bauer, Circuit Judge. The City of
Chicago (City) brought an action under
the Freedom of Information Act (FOIA), 5
U.S.C. sec. 552, against the United
States Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms (ATF),
seeking certain records maintained by ATF
regarding the multiple sales of handguns
and the tracing of firearms involved in
crimes. Both parties moved for summary
judgment on the issue of whether certain
FOIA exemptions protected some of the
requested data from disclosure. The
district court granted summary judgment
in favor of the City and held that none
of the FOIA exemptions permit ATF to
withhold any of the requested records.
ATF appealed this decision. For the
following reasons, we affirm.
BACKGROUND
On November 12, 1998, the City filed a
civil suit against certain manufacturers,
distributors and dealers of firearms in
Illinois state court. The suit charges
those defendants with creating and
maintaining a public nuisance in the city
by intentionally marketing firearms to
city residents and others likely to use
or possess the weapons in the city, where
essentially possession of any firearm
except long-barrel rifles and shotguns is
illegal. The suit complains that the
defendants’ conduct undermines the City’s
ability to enforce its gun control
ordinances and the City’s theory of
liability rests in part on the
defendants’ distribution practices. The
City seeks injunctive relief, as well as
compensatory and punitive damages for the
costs that the City incurs as a result of
the presence of illegal guns in Chicago.
In furtherance of the City’s state court
litigation and in order to gain
information about local and nationwide
firearm distribution patterns, the City
sought certain records from ATF. ATF is a
criminal and regulatory enforcement
agency within the Department of Treasury
and is responsible for, among other
things, enforcing federal firearms laws,
including the Gun Control Act. Under this
Act, firearms manufacturers, importers,
dealers or collectors are required to
keep records of firearms acquisition and
disposition and make such records
available to ATF under certain
circumstances. These records must contain
the name, address, date and place of
birth, height, weight and race of any
firearm transferee without a firearm
license. The records also identify the
transferred firearm by manufacturer,
model and serial number.
ATF maintains these records in
comprehensive databases. The City sought
information from two particular ATF
databases: the Trace Database and the
Multiple Sales Database. The Trace
Database consists of information compiled
when a law enforcement agency contacts
ATF and requests that a trace be
conducted on a weapon that the law
enforcement agency recovered in
connection with a crime. ATF then uses
the serial number on the weapon to
determine its manufacturer. ATF contacts
the manufacturer to determine to which
dealer or distributor the weapon was
sold. The tracing then continues down the
line until ATF discovers the name of the
individual consumer who purchased the
gun. This information is then relayed
back to the law enforcement agency that
made the initial inquiry, and ATF inputs
this data into the Trace Database.
The Multiple Sales Database is compiled
of information submitted to ATF by
firearm dealers. Pursuant to the mandates
of the Gun Control Act, when a non-
licensed individual purchases more than
one gun from the same dealer within a
five day period, the dealer is required
to inform ATF. 18 U.S.C. sec.
923(g)(3)(A). ATF then inputs this
information into the Multiple Sales
Database.
On March 3, 2000, the City submitted a
formal FOIA request to ATF, seeking
certain records on firearm traces and
multiple sales both nationwide and in
Chicago from 1992 to the present. On
March 8, in response to the City’s FOIA
request, ATF provided trace data for
firearms recovered in Chicago and
multiple sales data for the Chicago area
for only some of the requested time
frame. Eventually, ATF provided the City
with some of the requested nationwide
records, but still refused to disclose
significant information in these records.
In particular, ATF withheld all names and
addresses of manufacturers, dealers, pur
chasers and possessors from both the
Trace Database and the Multiple Sales
Database records. ATF also withheld the
weapon recovery locations, serial number
and manufacture date from records in the
Trace Database. In addition, the
purchased weapon serial numbers, weapon
types, number of firearms and transaction
dates were withheld from the Multiple
Sales Database records.
According to ATF, it is agency policy to
withhold certain information in both the
Trace and Multiple Sales Databases for a
certain number of years in order to
protect against the possibility of
interference with an open or prospective
investigation. In addition, ATF withholds
indefinitely the individual names and
addresses of all firearm purchasers, man
ufacturers, dealers and importers in both
databases for privacy reasons. ATF claims
that FOIA Exemptions 6, 7(A) and 7(C)
allow for the withholding of this
information for privacy and law
enforcement purposes.
On June 7, 2000, the City filed suit
against ATF in federal district court
under FOIA, seeking disclosure of the
withheld information. Both parties filed
motions for summary judgment, including
affidavits in support of their respective
positions. The district court ordered a
hearing on the issue of whether the FOIA
exemptions warranted ATF’s withholding of
the records. Several witnesses for both
parties testified as to these issues at
the hearing.
On March 6, 2001, the district court
granted summary judgment in favor of the
City, holding that FOIA requires full
disclosure of all requested data to the
City because ATF failed to satisfy its
burden to demonstrate that the requested
information was properly withheld under
Exemptions 6, 7(A) or 7(C). In the
alternative, the district court held that
even if the identity of specific
individuals or weapons falls within the
scope of any FOIA exemption, this
information is reasonably segregable from
the remainder of the records and ATF
could easily delete or encrypt the
sensitive portions while maintaining the
integrity of the remainder of the
information. ATF appeals this decision.
DISCUSSION
ATF challenges the district court’s
decision to grant the City’s motion for
summary judgment. We review the district
court’s grant of summary judgment with
respect to a FOIA request by determining
first, whether the district court had an
adequate factual basis to make its
decision and, if so, whether its decision
was clearly erroneous. Solar Sources,
Inc. v. United States, 142 F.3d 1033,
1038 (7th Cir. 1998). Because both
parties in the instant case provided the
district court with numerous affidavits,
as well as witness testimony at an
evidentiary hearing, we conclude that the
district court did have an adequate
factual basis to make its decision. As
such, we will overturn its decision only
upon a finding of clear error. Id.
FOIA requires the Department of
Treasury, ATF, and other government
agencies to make their records available
to the public. Its basic purpose is to
"ensure an informed citizenry, vital to
the functioning of a democratic society."
NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978). In enacting FOIA,
Congress sought to "pierce the veil of
administrative secrecy and to open agency
action to the light of public scrutiny."
Rose v. Dept. of Air Force, 495 F.2d 261,
263 (2d Cir. 1974). While disclosure is
the dominant objective of FOIA, there are
a number of exemptions from the statute’s
broad reach. United States Dept. of Def.
v. Fed. Labor Relations Auth., 510 U.S.
487, 494 (1994). Such exemptions are to
be narrowly construed in order to further
the statute’s broad disclosure policy. In
Re Wade, 969 F.2d 241, 246 (7th Cir.
1992). A government agency bears the
burden of justifying a decision to
withhold requested information pursuant
to a FOIA exemption. Solar Sources, 142
F.2d at 1037.
A. Exemption 7(A)
Among the list of FOIA exemptions, 7(A)
shields from disclosure records "compiled
for law enforcement purposes but only to
the extent that the production of such
law enforcement records . . . could
reasonably be expected to interfere with
enforcement proceedings." 5 U.S.C. sec.
552(b)(7)(A). ATF first argues on appeal
that the district court erred in failing
to recognize that Exemption 7(A), 5
U.S.C. sec. 552(b)(7)(A), permits ATF to
withhold certain information from the
City because such records are sensitive
in nature and could potentially interfere
with law enforcement proceedings. We
disagree.
We note at the outset that ATF is
mistaken in its assertion that because it
is a government agency the district court
was required to give deference to its
reasons for non-disclosure. It is true
that we do not question the expertise of
the agency or its reasons for withholding
documents where nothing appears to raise
the issue of good faith. Maroscia v.
Levi, 69 F.2d 1000, 1003 (7th Cir. 1977);
In Re Wade, 969 F.2d at 246. However,
this deference is limited only to
situations in which the agency has
demonstrated with specificity a logical
connection between the information
withheld and identified investigations,
and where the agency has submitted
uncontroverted affidavits. Am. Friends
Serv. Comm. v. Dept. of Def., 831 F.2d
441, 444 (3d Cir. 1987). These two
limitations have not been met here.
Instead, ATF failed to identify any
particular ongoing investigations, and
the City put the veracity of ATF’s
affidavits into controversy by submitting
their own affidavits and testimony. As a
result, the district court was correct in
refusing to defer to ATF’s submissions on
its reasons for withholding the
documents.
In enacting Exemption 7(A), "Congress
recognized that law enforcement agencies
had legitimate needs to keep certain
records confidential, lest the agencies
be hindered in their investigations or
placed at a disadvantage when it came
time to present their case." Robbins
Tire, 437 U.S. at 224. However, Congress
did not intend to preclude disclosure of
any investigatory records; rather,
Congress sought to protect against
interference with investigatory files
prior to the completion of an actual or
contemplated enforcement proceeding. Id.
at 232.
Utilizing this framework, we conclude
that ATF has failed to demonstrate that
Exemption 7(A) shields the requested data
from disclosure. ATF argues that it has
demonstrated with "concrete examples" the
way in which the premature public release
of the requested data could interfere
with enforcement proceedings. However,
the potential for interference set forth
by ATF is only speculative and not the
"actual, contemplated enforcement
proceeding" that Congress had in mind
when drafting Exemption 7(A). Robbins
Tire, 437 U.S. at 232. We have held that
interference with open or prospective
cases means hindering an agency’s ability
to control its investigation, enabling
suspects to elude detection and
intimidate witnesses, or prematurely
revealing evidence or strategy. Solar
Sources, Inc., 142 F.3d at 1039. ATF has
not affirmatively established any
potential interference of this nature.
In the district court, ATF offered the
testimony of its Chief of the Disclosure
Division and the Assistant Director of
Field Operation, both of whom attempted
to prove the various ways in which the
disclosure of this information might
interfere with an investigation or other
law enforcement proceeding. For example,
they testified that if an individual
pieced any withheld information together
with what has already been disclosed,
that individual might deduce that a
particular investigation is underway.
However, ATF concedes that it is not
aware of a single instance in which
information has been pieced together in
this type of scenario. ATF’s witnesses
also testified that release of this data
might threaten the safety of law
enforcement agents, result in witness
intimidation, or otherwise interfere with
an ongoing investigation. Again, ATF’s
witnesses failed to testify as to any
specific instances in which disclosing
the type of records requested did result
in interference with any proceeding or
investigation. ATF’s hypothetical
scenarios do not convince us that
disclosing the requested records puts the
integrity of any possible enforcement
proceedings at risk.
In addition, in all its affidavits,
documents and testimony, ATF could not
identify a single concrete law
enforcement proceeding that could be
endangered by the release of this
information. ATF itself is not and does
not plan to conduct any relevant
investigations. It does not track the
status of investigations surrounding
traced weapons, and law enforcement
agencies do not inform ATF of the status
of any investigation surrounding any
traced weapon. ATF has a policy of
withholding some types of information for
one year, and other types for five years
in order to avoid any interference with
investigations. This time line is based
only on speculation that a given
investigation will likely be closed after
a certain number of years. This policy is
not based on any concrete knowledge of
whether an investigation is actually
contemplated or ongoing. ATF has made
simply no showing that enforcement
proceedings are "pending or reasonably
anticipated" beyond mere hypothetical
scenarios.
Conversely, the City had several
witnesses at the evidentiary hearing in
the district court who testified that the
release of this data was unlikely to
compromise any police investigations. The
City also argues that, as to the Trace
Database records, any highly sensitive
traces are coded and were not included in
the City’s FOIA requests. Moreover, the
City noted that the multiple sales data
reveals nothing about any potential or
ongoing investigation, and anyone making
a multiple purchase is most likely well-
aware that the purchase information is
immediately reported to ATF. Thus, it is
highly improbable that any revelation of
this information could endanger an
investigation.
In sum, ATF’s arguments that the
premature release of this data might
interfere with investigations, threaten
the safety of law enforcement officers,
result in the intimidation of witnesses,
or inform a criminal that law enforcement
is on his trail are based solely on
speculation. Nothing the agency submitted
is based on an actual pending or
reasonably anticipated enforcement
proceeding. Under the ATF’s suggested
approach, all investigative records would
be within the scope of Exemption 7(A) and
the limitation that the records be
reasonably "expected to interfere with
law enforcement proceedings" would be
meaningless. This result contradicts the
congressional intent in fashioning FOIA
and its exemptions. Exemption 7(A) was
not intended to "endlessly protect
material simply because it was in an
investigatory file." Robbins Tire, 437
U.S. at 230. The exemption requires a
government agency to show by more than
conclusory statements how the particular
kinds of investigatory records would
interfere with a pending enforcement
proceeding. Campbell v. Dept. of Health
and Human Serv., 682 F.2d 256, 265-66
(D.C. Cir. 1982). ATF has failed to do
so. Accordingly, we agree with the
district court that the production of the
requested data here would not "interfere
with enforcement proceedings" within the
meaning of Exemption 7(A) of FOIA.
B. Exemption 6
In addition, ATF argues that the
individual names and addresses in the
records are protected from disclosure un
der FOIA Exemption 6, 5 U.S.C. sec.
552(b)(6), because the disclosure of such
records constitutes an invasion of
personal privacy. Under Exemption 6,
FOIA’s disclosure requirements do not
apply to "personnel and medical files and
similar files the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C.
sec. 552(b)(6); United States Dept. of
State v. Washington Post Co., 456 U.S.
595, 598 (1982). Thus, when the records
are not personnel or medical files, the
threshold test for Exemption 6 is whether
the records at issue are "similar files."
Only then is it necessary to consider
whether the disclosure of the files would
result in a clearly unwarranted invasion
of privacy. The district court held that
the exemption did not apply because the
requested law enforcement files are not
"similar files" since the information
sought is not "information analogous to
the type of sensitive information
generally kept in a personnel or medical
file, as would be protected by Exemption
(6)." We agree.
ATF relies on Washington Post Co., in
which the United States Supreme Court
stated that the "similar files" provision
in Exemption 6 includes "information
which applies to a particular
individual." Washington Post Co., 456
U.S. at 602. In that case, the Washington
Post filed a FOIA request with the
Department of State for documents on
whether certain Iranian nationals held
valid United States passports. The
Department of State refused to comply
with the FOIA request on the grounds that
Exemption 6 did not require disclosure.
The agency submitted affidavits
explaining that the subjects of the
newspaper’s request were prominent
figures in Iran’s Revolutionary
Government, and disclosure of the
documents would cause a real threat of
physical harm to the men. The Supreme
Court held that Exemption 6 protected
this information from disclosure because
it was within the scope of the "similar
files" provision. In so doing, the Court
noted that this exemption was intended to
"cover detailed Government records on an
individual which can be identified as
applying to that individual." Id.
(internal citations omitted).
ATF argues that based on this Supreme
Court precedent, the names and addresses
in the instant case are shielded from
FOIA’s disclosure mandates. This reliance
on Washington Post Co. is misplaced.
Exemption 6 was enacted primarily "to
protect individuals from the injury and
embarrassment that can result from the
unnecessary disclosure of personal
information," and to "provide for the
confidentiality of personal matters." Id.
at 599-600. The information sought in
Washington Post Co. was highly personal
and it was undisputed that the disclosure
of the information would threaten the
safety of the individuals. This is
precisely the sensitive situation
Congress intended Exemption 6 to protect.
On the contrary, in the instant case,
the City seeks records pertaining to gun
buyers and sellers. It is well-
established that one does not possess any
privacy interest in the purchase of a
firearm. See, e.g., Ctr. to Prevent
Handgun Violence v. United States Dept.
of Treasury, 981 F.Supp. 20, 23 (D.D.C.
1997). Firearms manufacturers, dealers
and purchasers are on notice that records
of their transactions are not
confidential and are subject to
regulatory inspection. United States v.
Biswell, 406 U.S. 311, 316 (1972)
(holding that when authorized by the Gun
Control Act, a warrantless inspection of
a gun dealer’s storeroom does not violate
the Fourth Amendment). Unlike the
Washington Post Co. case, the names and
addresses requested here are not of such
a sensitive nature that their disclosure
could harm or embarrass the individual.
We therefore hold that the names and
addresses the City requested are not
"personnel files and medical files and
similar files" to which Exemption 6
applies.
C. Exemption 7(C)
Section 7(C) of FOIA exempts from
disclosure "records or information
compiled for law enforcement purposes . .
. to the extent that the production . .
. could reasonably be expected to
constitute an unwarranted invasion of
personal privacy." 5 U.S.C. sec.
552(b)(7)(C). In order to establish that
this exemption applies, a government
agency must prove first that a privacy
interest is implicated by the release of
the records, and second, if there is such
a privacy interest, that it is not
outweighed by the public interest served
by the release. United States Dept. of
Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 762 (1989). ATF
argues that it has met this burden
because the individual names and
addresses at issue raise legitimate
privacy concerns protected by Exemption
7(C) and there is no cognizable public
interest in disclosing this information
to the City. ATF’s argument is
unpersuasive.
Exemption 7(C) requires us to balance
the public’s broad right to information
guaranteed under FOIA against the privacy
rights that Congress intended to protect
under the FOIA exemptions. Marzen v.
Dept. of Health and Human Serv., 825 F.2d
1148, 1154 (7th Cir. 1987). Using this
framework, we first examine the privacy
rights at issue. We agree with the
district court that the release of the
requested names and addresses does not
raise any legitimate privacy concerns
because the purchase of a firearm is not
a private transaction. See, e.g., Ctr. to
Prevent Handgun Violence, 981 F.Supp. at
23-24. The Gun Control Act requires that
a transaction for the sale of a firearm
be recorded and every dealer is required
to make business records available to
investigation. Again, every purchaser of
a firearm is on notice that their name
and address must be reported to state and
local authorities and ATF. Id.; Biswell,
406 U.S. at 316. As a result, there can
be no expectation of privacy in the
requested names and addresses.
Even if we were to find a minimal
privacy interest in this information, it
is substantially outweighed by the
public’s interest in allowing the City to
further its suit in the state court. To
outweigh any privacy interest, there must
be some public interest in disclosure
that reflects FOIA’s core purpose of
"shed[ding] light on an agency’s
performance of its statutory duties."
Reporters Comm., 489 U.S. at 773. In
other words, the information sought must
"contribute significantly to public
understanding of the operations or
activities of the government." Id. at
775. Exemption 7(C) ensures that "the
Government’s activities be opened to the
sharp eye of public scrutiny, not that
information about private citizens that
happens to be in the warehouse of the
government be so disclosed." Id. at 774
(emphasis omitted).
ATF correctly asserts that the City’s
particular interests in enforcing its gun
ordinances do not weigh into the equation
under Exemption 7(C). Nevertheless, the
public’s interest in disclosure is
compelling. Inherent in the City’s
request for the records is the public’s
interest in ATF’s performance of its
statutory duties of tracking, investigat
ing and prosecuting illegal gun
trafficking, as well as determining
whether stricter regulation of firearms
is necessary. ATF has acknowledged that
its missions include analysis of firearm
distribution and trafficking patterns,
aiding local governments to enforce their
own gun control laws and informing the
public of the nature and extent of
illegal gun trafficking. The
effectiveness of ATF’s performance
impacts the City’s interests in
preventing illegal handgun trafficking
and preserving the integrity of Chicago’s
gun control ordinances. There is a strong
public policy in facilitating the
analysis of national patterns of gun
trafficking and enabling the City to
enforce its criminal ordinances.
Disclosure of the records sought by the
City will shed light on ATF’s efficiency
in performing its duties and directly
serve FOIA’s purpose in keeping the
activities of government agencies open to
the sharp eye of public scrutiny.
When one balances the public interest in
evaluating ATF’s effectiveness in
controlling gun trafficking and aiding
the City in enforcing its gun laws
against the non-existent or minimal
privacy interest in having one’s name and
address associated with a gun trace or
purchase, the scale tips in favor of
disclosure. As a result, we hold that
Exemption 7(C) does not protect any
portion of the records from disclosure to
the City.
Finally, ATF challenges the district
court’s alternative holding that even if
the exemptions did permit the withholding
of some sensitive information, this
information was "reasonably segregable"
from the remainder in the records and ATF
was required to encrypt this sensitive
information while producing all other
information. Because we find that none of
the purported exemptions apply to any
portion of the records requested in this
case, the district court’s alternative
holding on this point is irrelevant and
we need not address the issue of
encrypting any portion of the records.
CONCLUSION
For the foregoing reasons, we AFFIRM the
decision of the district court granting
summary judgment in favor of the City.