NEW YORK – In March 2018, Everytown for Gun Safety Support Fund sued the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) over ATF’s failure to produce certain firearms tracing data sought under the Freedom of Information Act (“FOIA”). The lawsuit, filed in the U.S. District Court for the Southern District of New York, focuses on aggregate statistical data concerning firearms traced by ATF after recovery from scenes of suicide or attempted suicide. Researchers at Everytown have sought this data to study America’s growing suicide-related public health crisis, to educate the public about the relationship between gun laws and suicide risk, and to improve policymaking. Everytown is represented by attorneys from its litigation arm, Everytown Law, and Newark-based Gibbons P.C.
In its FOIA denial and subsequent motion for summary judgment, ATF has opposed Everytown’s FOIA request, citing a 2012 appropriations law called the “Tiahrt Rider” which restricts ATF’s use of appropriated funds to disclose portions of its firearms trace system database. However, the Tiahrt Rider also contains a number of exceptions, including one—identified in Everytown’s opposition and cross-motion for summary judgment—which allows ATF to disclose “statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.” Everytown also argues that the text of the Tiahrt Rider is insufficient to bar disclosure under FOIA, as amended by the Open FOIA Act of 2009.
On August 19th, 2019 the district court granted Everytown’s Motion for Summary Judgment, ordering the ATF to produce the requested data. The ruling, coming from the U.S. District Court for the Southern District of New York, breaks new ground as the only federal court decision to hold that the Tiahrt Rider, a Congressional appropriations law backed by the NRA, cannot be used by the ATF to withhold data on gun violence under federal FOIA requests.
ATF appealed the district court’s ruling to the U.S. Court of Appeals for the Second Circuit, filing its appellant’s brief in February 2020. On appeal, ATF contends that the Open FOIA Act’s criteria for FOIA withholding statutes, as applied to the Tiahrt Rider, infringes on the Article I power of future Congresses to pass withholding statutes. But as Everytown argues in its response brief filed May 26, 2020, ATF’s new argument misapplies relevant case law, and ignores that the Open FOIA Act is a proper exercise of congressional authority that in no way obstructs future Congresses. Moreover, ATF neglects powerful evidence that when Congress wanted to create withholding statutes, it used Open-FOIA-Act-compliant language that is indisputably absent from the Tiahrt Rider.