Lindsay-Poland v. United States Department of Justice

Background

John Lindsay-Poland submitted a request under the Freedom of Information Act (FOIA) to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), seeking data from ATF’s Firearms Tracing System about firearms recovered in Mexico, Guatemala, Honduras, and El Salvador since December 31, 2014. He requested aggregate information by country and year, including the state, county, and ZIP code of the federal firearms licensee involved in the purchase, as well as firearm type, caliber, make, buyers, and purchase year.

Lindsay-Poland identified himself as a representative of the news media and requested a fee waiver. ATF denied the request and appeal under FOIA Exemption 3, which permits withholding when another statute specifically protects the information. ATF relied on the 2012 Tiahrt Rider, which restricts the use of appropriated funds to disclose information from the Firearms Tracing System. ATF did not address an exception in the Rider allowing publication of certain statistical aggregate data.

After Lindsay-Poland filed this lawsuit, the parties filed cross-motions for summary judgment. In support of the government’s motion, ATF submitted a declaration arguing for the first time that the Rider’s exception did not apply because Lindsay-Poland had not shown that he was a news-media representative. The declaration also argued that ZIP-code information might identify individual firearms licensees and therefore might not qualify as aggregate data. ATF had not actually run the requested database query.

Issues and analysis

The court identified two issues: whether the Tiahrt Rider qualifies as a statute supporting withholding under FOIA Exemption 3, and, if so, whether the Rider’s Exception C independently permits disclosure of the requested information.

The court declined to resolve the first issue because the second issue resolved most of the pending motions. Relying on binding Ninth Circuit precedent, the court explained that “publication” under Exception C means releasing information in a way that will make it generally known to the public; it does not require a formal report. The court found that Lindsay-Poland’s request, which described his prior research reports, opinion articles, documentary film, and website, sufficiently showed that disclosure could result in publication. The court also stated that, even if the FOIA definition of “representative of the news media” controlled, Lindsay-Poland met that standard or was its functional equivalent. The court assumed this point for purposes of the opinion and did not formally decide that the statutory definition governed.

The court found that the government’s treatment of the ZIP-code request was inadequately supported. The government assumed that “aggregate” data meant anonymized data, but cited no authority establishing that interpretation. Its analysis considered only three types of firearms licensees and did not adequately explain why other license types should be excluded. Most importantly, ATF had not performed the requested search, so it did not know whether the actual data would reveal individual licensees or whether only a small number of single-licensee ZIP codes would be implicated.

Ruling and disposition

Judge Edward Chen granted in part Lindsay-Poland’s motion for summary judgment and denied in part the defendants’ motion for summary judgment. The court remanded the matter to ATF for further proceedings consistent with the decision and stayed further proceedings in the lawsuit pending the remand. The court explained that, after remand, Lindsay-Poland could continue litigating if ATF continued to withhold documents. The order did not direct immediate production of all requested records and did not finally determine whether FOIA Exemption 3 applied.