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CENTER TO PREVENT HANDGUN VIOLENCE v. U.S. DEP'T O

October 20, 1997

CENTER TO PREVENT HANDGUN VIOLENCE, Plaintiff,
v.
U.S. DEPARTMENT OF THE TREASURY, et al., Defendants.



The opinion of the court was delivered by: ROBERTSON

 This Freedom of Information Act case concerns FOIA requests to the Bureau of Alcohol, Tobacco, and Firearms ("ATF") for data submitted to ATF by federally licensed gun dealers in Florida, Georgia, Alabama, and Mississippi pursuant to 18 U.S.C. § 923(g)(3)(A). That statute requires gun dealers to report to ATF and local law enforcement authorities the sale within five consecutive business days of two or more handguns to the same individual. These reports, called multiple sales reports, are the starting points for investigations of illegal gun trafficking.

 ATF officials informed plaintiff that its FOIA request would encompass 28,000 reports and cost $ 17,000 to process. Plaintiff then requested preferred fee status under 5 U.S.C. § 522(a)(4)(A). Plaintiff and ATF officials met and decided on a compromise request: plaintiff would review a random 10 percent sampling of the reports before proceeding with its request for the rest of them, and ATF would provide the 10 percent sampling for free.

 ATF turned over the agreed sample but redacted from the reports the serial numbers of the guns reported sold and information that would identify the gun sellers. Plaintiff appealed the redaction, but did not address in its appeal the release of the rest of the reports or the fee issue. ATF denied plaintiff's appeal, invoking FOIA Exemptions 4 (confidential commercial information) and 7(C) (law enforcement reports whose release would lead to an unwarranted invasion of privacy).

 In this action, plaintiff not only challenges ATF's claims of exemption, but it also demands the release of the remaining 28,000 documents and asks that it be awarded preferred fee status. Both parties have moved for summary judgment. For the reasons stated below, summary judgment will be awarded to plaintiff on the claims challenging ATF's applied exemption. Plaintiff's claim for preferred fee status as to the remaining documents will be dismissed.

 1. Fee status

 Plaintiff failed to exhaust its administrative remedies regarding its fee status. Its claim of entitlement to "equitable tolling" of the exhaustion requirement because it entered into its agreement with ATF "in good faith" is not compelling. Strict enforcement of the exhaustion doctrine is favored in FOIA cases. See, e.g., Dettmann v. United States Dep't of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472 (D.C. Cir. 1986).

 2. The FOIA exemptions

 a. Exemption 4

 FOIA Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person [that are] privileged and confidential." 5 U.S.C. § 552(b)(4). The parties agree that the information at issue in this case is commercial in nature. The question is whether the information is confidential. Information is confidential for Exemption 4 purposes if: (1) disclosure is likely to cause substantial harm to the competitive position of the person from whom it was obtained; or, (2) disclosure is likely to impede the government's future efforts to obtain such information. National Parks & Conservation Ass'n v. Morton, 162 U.S. App. D.C. 223, 498 F.2d 765 (D.C. Cir. 1974).

 The first element requires a showing of "actual competition and a likelihood of serious injury" if the requested documents are released. CNA Fin. Corp. v. Donovan, 265 U.S. App. D.C. 248, 830 F.2d 1132, 1152 (D.C. Cir. 1987). ATF has not satisfied that test. Its argument that releasing the reports would allow competitors to sell the same weapons listed in the reports at lower prices, Pritchett Decl. P 29, is not persuasive. The prices at which guns are sold are not shown on multiple sales reports. Pltf.'s Brief, Weil Decl. P 10.

 ATF goes on to argue that releasing the reports would subject licensees to unwarranted criticism and harassment. However that may be, the harm contemplated by Exemption 4 is that which may flow from competitors' use of the released information, not from any use made by the public at large or customers. Public Citizen Health Res. Grp. v. FDA, 227 U.S. App. D.C. 151, 704 F.2d 1280 (D.C. Cir. 1983).

 Applying the second element of the National Parks test, a court may assume that, as a general matter, releasing information will not impede the government's efforts to obtain the information when the requested information has been gathered pursuant to a statutory obligation. National Parks, 498 F.2d at 770. The multiple sales reports are mandatory, and the government can enforce the filing obligation. See Washington Post Co. v. U.S. Dep't of Health, 223 U.S. App. D.C. 139, 690 F.2d 252 (D.C. Cir. 1982). Nor has ATF shown that the accuracy of the information in multiple sales reports would be jeopardized by public disclosure. The chief of ATF's disclosure branch declares that firearms dealers might be ...


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