United States District Court, District of Columbia
A. HOWELL, CHIEF JUDGE
plaintiffs, David Codrea, Len Savage and FFL Defense Research
Center,  filed this action under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552,
against the Bureau of Alcohol, Tobacco, Firearms and
Explosive (“ATF”) challenging four pages in two
versions of the same document that were withheld under FOIA
Exemption 7(E) from a total of 6, 875 pages produced in
response to the plaintiffs' original FOIA request.
Pending before the Court is the ATF's Motion for Summary
Judgment, ECF No. 13, which, for the reasons discussed below,
plaintiffs submitted a FOIA request, dated March 12, 2015, to
the ATF for six categories of records, including, as
1. Any instructions, policies or guidance given to agents who
serve as hearing officers, or to their superiors, in
connection with determining whether an FFL's license
should be revoked or suspended, or issuance of a license be
denied, or a civil fine imposed.
Compl., Ex. 1 (FOIA Request, Dated March 12, 2015), ECF No.
1. When the ATF failed to respond, the plaintiffs initiated
this lawsuit on June 23, 2015.
the next nine months, the ATF made four rolling productions
of responsive records to the plaintiffs, releasing 943 pages
on December 14, 2015; 1, 044 pages on December 23, 2015; 476
pages on December 30, 2015; and 4, 412 pages on March 15,
2016. Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s
Mem.”), Decl. of Stephanie M. Boucher, Chief,
Disclosure Div., ATF (“Boucher Decl.”),
¶¶ 6-9, ECF No. 13-1; see also Pl.s'
Notice (March 28, 2016), ECF No. 12 (advising the Court that
the ATF “completed processing plaintiffs' FOIA
request” on March 15, 2016). The plaintiffs initially
challenged withholdings on 31 pages associated with
Bates-stamped numbers 2197-2227 from the December 30, 2015
production, see Boucher Decl. ¶ 10, but have
now winnowed the contested withholdings down to only four
pages from two documents with Bates-stamped numbers 2199,
2223-25, Pls.' Opp'n Def.'s Mot. Summ. J.
(“Pls.' Opp'n”) at 2, ECF No. 14.
1, containing contested page 2199, is described in the Vaughn
Index as a “Lesson Plan Overview for Hearing Officer
Training, ” entitled “Basis for
Revocation-Willful Violations, ” dated “May 2001,
” and Document 5, containing the other three contested
pages, 2223-25, has the same title but a later date of
“March 2010.” Def.'s Mem. Ex. G (“ATF
Vaughn Index”), ECF No. 13-1. Both Documents 1 and 5
are different versions of a training guide used in “a
training course designed for hearing officers who preside
over administrative regulatory proceedings where the
Government and the Federal Firearms Licensee present all
relevant evidence and arguments regarding the denial or
revocation of a license or permit.” Boucher Decl.
¶ 23. The small portions withheld from these two
versions of the training guide are the answers to two
questions: (1) “What type of evidence establishes
knowledge and intentional disregard of statutes and
regulations?” and (2) “What type of evidence
establishes a licensee's plain indifference to the
requirements of the law?” Pls.' Opp'n, Ex.
(Excerpts from Documents 1 and 5) at 5, 11-13, ECF No. 14-1.
The answers to these questions were withheld and redacted
from the production to the plaintiffs under FOIA Exemption
7(E) because “[d]isclosure of how [the] ATF determines
if a Federal Firearms Licensee has violated the Gun Control
Act or its regulations, and whether the violations were
willful, would provide bad actors with a means to circumvent
the law by avoiding detection of willful violations/actions
by, or on behalf of, the Federal Firearms Licensee.”
ATF Vaughn Index at 1, 2. The plaintiffs' only challenge
to the ATF's response to their FOIA request is to the
agency's invocation of Exemption 7(E) to withhold these
ATF's application of FOIA Exemption 7(E) to withhold
these four contested pages is analyzed below.
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “In FOIA cases, ‘summary judgment may be
granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.'” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (quoting Consumer Fed'n of Am. v. U.S.
Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir.
2006)). Indeed, the D.C. Circuit has observed that “the
vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
litigation challenging the sufficiency of “the release
of information under the FOIA, ‘the agency has the
burden of showing that requested information comes within a
FOIA exemption.'” Public Citizen Health
Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir.
1999) (quoting Niagra Mohawk Power Corp. v. U.S. Dept. of
Energy, 169 F.3d 16, 18 (D.C. Cir. 1999).); see also
DOJ v. Landano, 508 U.S. 165, 171 (1993) (noting that
“[t]he Government bears the burden of establishing that
the exemption applies” (citing 5 U.S.C. §
552(a)(4)(B))); U.S. Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)
(same); Elec. Frontier Found. v. DOJ, 739 F.3d 1, 7
(D.C. Cir. 2014) (same). “Ultimately, an agency's
justification for invoking a FOIA exemption is sufficient if
it appears ‘logical' or
‘plausible.'” Judicial Watch, 715
F.3d at 941 (quoting ACLU v. U.S. Dep't of
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson
v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir.
2009) (quoting Wolf v. CIA, 473 F.3d 370, 374-75
(D.C. Cir. 2007)).
noted, the four disputed pages were withheld under Exemption
7(E), which the plaintiffs contend “is inapplicable to
these documents.” ...