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Brady Center to Prevent Gun Violence v. U.S. Department of Justice

United States District Court, District of Columbia

September 28, 2019

BRADY CENTER TO PREVENT GUN VIOLENCE, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, and BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         The Brady Center to Prevent Gun Violence (“Brady Center”) brings this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, action against the U.S. Department of Justice and one of its components, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), seeking the release of records it claims Defendants have improperly withheld. Dkt. 1 (Compl.). The Brady Center submitted two FOIA requests to the ATF-one seeking records relating to a paper written by a senior ATF official about ways to reduce gun regulations (“White Paper Request”), and the other seeking records relating to ATF inspections of federally-licensed gun dealers (“Warning Letters Request”). Dkt. 1-2; Dkt. 1-3. As required by order of this Court, the ATF released records responsive to the White Paper Request, but withheld certain records in whole or in part, and started releasing records responsive to the Warning Letters Request, but with substantial redactions. Although the ATF’s response to the Warning Letters Request is not yet complete, the Court granted the Brady Center’s request for a briefing schedule on (1) the adequacy of the ATF’s response to the White Paper Request, and (2) the lawfulness of the ATF’s redaction of certain information from records responsive to the Warning Letters Request. Minute Order (June 25, 2018).

         Consistent with that scheduling order, the parties filed cross-motions for partial summary judgment addressing those issues. Dkt. 16; Dkt. 17. For the reasons explained below, the Court will grant in part and deny in part the parties’ respective cross-motions. With respect to the White Paper Request, the Court holds that the ATF did not conduct an adequate search for responsive records; that the ATF lawfully concluded that unrelated attachments to responsive emails were outside the scope of the FOIA request; and that the parties’ dispute regarding assertion of the deliberative process privilege has been resolved by the Brady Center’s acquiescence in certain withholdings and the ATF’s decision to release other previously withheld records. With respect to the Warning Letters Request, the Court holds that the ATF lawfully redacted certain information but that, without a Vaughn index or additional information regarding the specifics of each redaction, the Court cannot determine whether each redaction was permissible.

         I. BACKGROUND

         The Brady Center submitted the first of the two FOIA requests at issue here on March 29, 2017. Dkt. 1-2. That request-the White Paper Request-sought:

(1) All communications between ATF employees related to the January 20, 2017 White Paper titled “Federal Firearm Regulations-Options to Reduce or Modify Firearms Regulations[;]”
(2) All communications between ATF employees and members of the Presidential Transition Team related to the January 20, 2017 White Paper . . . [;]
(3) All communications between ATF employees and non-government employees, including but not limited to representatives from gun manufacturers or the National Rifle Association, related to the January 20, 2017 White Paper . . . [; and]
(4) All other documents, including drafts, related to the January 20, 2017 White Paper . . . .

Dkt 1-2 at 2. By the time the Brady Center filed suit six months later, the ATF had yet to make a final determination with respect to the White Paper Request. Dkt. 1 at 2.

         The Brady Center submitted the second of the requests at issue-the Warning Letters Request-on August 7, 2017. Dkt. 1-3. That request sought:

(1) All warning letters, warning conference notices, and the underlying reports of violations and firearms inspection narrative reports, issued to federal firearms licensees from July 1, 2015 through June 30, 2017[; and]
(2) All notices of revocation of license and the accompanying ATF Form 4500s issued to federal firearms licensees from July 1, 2015 through June 30, 2017.

Dkt. 1-3 at 2. As with the White Paper Request, the ATF failed to make a final determination with respect to the Warning Letters Request by the time the Brady Center brought suit.

         At an initial status conference, the ATF explained that it had gathered many-but not all-of the records responsive to the White Paper Request for the purpose of responding to a similar request made by the House Committee on Oversight and Government Reform. Minute Entry (Dec. 21, 2017). The Court, accordingly, directed that the ATF promptly release any non-exempt records that it had already gathered and that the parties file a joint status report addressing the remaining issues. The ATF subsequently released 1, 134 pages responsive to the White Paper Request and provided the Brady Center with a Vaughn index regarding its withholdings, and the parties agreed to a briefing schedule to address their remaining differences regarding the ATF’s response to the White Paper Request. In the meantime, the ATF started to release records responsive to the Warning Letters Request, albeit with substantial redactions. Many of those redactions were made pursuant to FOIA Exemption 3 on the ground that the ATF was precluded from releasing the redacted information by an appropriation’s rider, known as the Tiahrt Rider, which precludes the ATF from expending any funds to disclose “any information required to be kept by [federal firearms] licensees pursuant to [18 U.S.C. §] 923(g) . . . or required to be reported [to the ATF] pursuant to paragraphs (3) and (7) of such section.” Consolidated and Further Continuing Appropriations Act of 2012, Pub. L. No. 112-55, 125 Stat. 552, 609 (2011).

         Against this backdrop, the Brady Center filed a motion requesting that the Court set a briefing schedule to address (1) the adequacy of the ATF’s search for records responsive to the White Paper Request; (2) the ATF’s decision to withhold attachments to responsive emails as “out of scope” of the FOIA request; (3) the ATF’s withholding of records responsive to the White Paper Request based on the deliberative process privilege; and (4) the ATF’s redactions of records responsive to the Warning Letters Request based on the Tiahrt Rider. Dkt. 13.

         In response, the ATF agreed that the parties should brief the issues relating to the White Paper Request but argued that the Brady Center’s request for an opportunity to address the ATF’s application of the Tiahrt Rider was premature because the ATF was still processing records responsive to the Warning Letters Request. Dkt. 14 at 2. Following a status conference held to address these and other issues, the Court set a schedule for the parties to file cross-motions for summary judgment addressing (1) all issues posed by the ATF’s responses to the White Paper Request, and (2) the application of the Tiahrt Rider to the ATF’s responses to the Warning Letters Request. Minute Order (June 25, 2018). The Court held oral argument on the parties’ cross-motions for partial summary judgment on September 11, 2019, and the parties subsequently filed supplemental briefs addressing questions posed at oral argument, Dkt. 31; Dkt. 32.

         II. LEGAL STANDARD

         To prevail on a motion for summary judgment, the moving party must “show that there is no genuine dispute as to any material fact and . . . [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA action, this means that “the agency must demonstrate that it has conducted a ‘search reasonably calculated to uncover all relevant documents.’” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To make this showing, the agency must provide a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Agencies may withhold responsive documents uncovered in that search only if those documents fall within one of the exemptions enumerated in 5 U.S.C. § 552(b). Insofar as the agency withholds responsive records pursuant to those exemptions, it must provide an index of that information and the justification that supports withholding each record. Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973).

         III. ANALYSIS

         The pending cross-motions address all issues posed by the ATF’s responses to the White Paper Request and address one, discrete issue posed by the ATF’s (not yet complete) responses to the Warning Letters Request. The Court will address each set of issues in turn.

         A. White Paper Request

         The Brady Center initially identified three alleged deficiencies in the ATF’s responses to the White Paper Request: the adequacy of the ATF’s search for responsive records; the ATF’s invocation of FOIA Exemption 5 to withhold purportedly deliberative records; and the ATF’s determination that otherwise non-responsive attachments to responsive emails fell outside the scope of the FOIA request. Dkt. 13. The second of these alleged deficiencies is no longer contested, however. The Brady Center has now withdrawn its objection to the ATF’s withholding of drafts of materials relating to inquiries from the House Oversight and Government Reform Committee, and the ATF has now released previously withheld drafts of the White Paper. Dkt. 31 at 2; Dkt. 32 at 2. As a result, the ATF is entitled to summary judgment with respect to the agency’s assertion of FOIA Exemption 5, with the exception of the Brady Center’s challenge to the ATF’s withholding of the drafts of the White Paper, which is now moot in light of the ATF’s release of the records at issue.

         The Court will, accordingly, limit its analysis of the White Paper Request to two issues: the adequacy of the search and the ATF’s “out of scope” determination.

         1. Adequacy of the Search

         The Brady Center lodges two distinct challenges to the adequacy of the search the ATF conducted: the first concerns the adequacy of the search done by the author of the White Paper, former Acting Deputy Director (“ADD”) Ronald Turk, of his own personal email for responsive records, and the second concerns the search conducted by the ATF of its electronic and other files. Dkt. 17-2.

         a. Acting Deputy Director Turk’s Search of ...


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