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Codrea v. Bureau of Alcohol, Tobacco, Firearms and Explosives

United States District Court, District of Columbia

March 7, 2017

DAVID CODREA, et al., Plaintiffs,



         The plaintiffs, David Codrea, Len Savage and FFL Defense Research Center, [1] 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, is granted.

         I. BACKGROUND

         The plaintiffs submitted a FOIA request, dated March 12, 2015, to the ATF for six categories of records, including, as pertinent here:

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.

         Over 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.

         Document 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 four pages.

         The ATF's application of FOIA Exemption 7(E) to withhold these four contested pages is analyzed below.


         Federal 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).

         In 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)).


         As noted, the four disputed pages were withheld under Exemption 7(E), which the plaintiffs contend “is inapplicable to these documents.” ...

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