Last week @reveal won 2-1 in the 9th Circuit Court of Appeals a case against the Department of Justice to get access to gun data from the Bureau of Alcohol Tobacco and Firearms @ATFHQ . Below is more about the case...

There are 4 reasons why this opinion is interesting for FOIA nerds and those who care about transparency of government data. I'll take them one by one!

First, the decision underscores the importance of the OPEN FOIA Act in 2016, in which Congress said: "hey if we are gonna pass a law that thwarts disclosure of government records we have to cite to FOIA in it - to make sure we know what we are doing." https://www.justice.gov/oip/blog/foia-post-2010-congress-passes-amendment-exemption-3-foia

The law at issue called the Tiahrt bars disclosure of gun data BUT does not fulfill OPEN FOIA's requirement: it doesn't cite FOIA. This is "exemption creep" is what Congress was worried about. The 9th Cir agreed Tiahrt fails; now OPEN FOIA will be regularly applied to statutes!

Second, 9th Cir. said, EVEN IF the statute (Tiahrt Amendment) applied, it still doesn't permit withholding of this gun data - because Tiahrt has an exception to the general rule that no gun data can be released. Exception C requires "publication of statistical aggregate data."

The Court said of course releasing records to journalists like @reveal is "publication." (This changes 12 years of precedent where ATF was not allowed to release data previously after a 2008 case that went up to the Supreme Court!)

Third, perhaps the biggest holding of the case was that ATF searching its database did not amount to the production of a new record, as the ATF argued.

This holding ensures that ALL government databases are open to FOIA, which is especially important as more info becomes digital! Increasingly ALL government data is held in databases! (This argument was supported well by amici @EFF & @aaron_d_mackey, cited in the brief!)

We also had a wonderful amicus brief from @BKCHarvard written by @KendraSerra @NCPtarmigan that got a great quote in the case highlighting the importance of "data journalism."This helps reporters at places like @reveal @themarkup @propublica that use FOIA for data journalism.

Finally, fourth, while the 9th Circuit decided this case - a similar case brought by @Everytown is pending in the Second Circuit Court of Appeals. A letter was filed by DOJ in that case discussing the the 9th Cir. dissent (written by J. Bumatay), that would negatively impact FOIA

@Everytown also filed a 28(j) in the Second Circuit Case.

Depending on what is the outcome of that case - the cases could be appealed to the Supreme Court (hopefully not). We will see...

That all said it's important to note that @reveal had amazing counsel from @FenwickWest @andrewbridges and @meghanfenzel - our fellow @rache_book and intern @ShawnMusgrave were also a huge help. I don't know what we would have done without this team!

But the biggest shout out goes to gumshoe reporter @AlainStephens who was writing a story about law enforcement selling their guns into the marketplace that later end up in crimes (yes that happens!) - who originally requested the records. I <3 Alain. https://www.thetrace.org/2020/12/atf-trace-data-gun-reveal-lawsuit-foia-federal-government/