FOIA Post (2003): Supreme Court Vacates and Remands in ATF Database Case

Supreme Court Vacates and Remands in ATF Database Case

For the second time in recent years, an unusual last-minute development has taken a Freedom of Information Act case off the docket of the United States Supreme Court just days before oral argument in the case was to be heard.

The Supreme Court was scheduled to hear oral argument earlier this month in United States Department of Justice v. City of Chicago, No. 02-322, a law enforcement record case involving both Exemption 7(A) and Exemption 7(C) of the FOIA. In the Supreme Court, the government was seeking reversal of an adverse decision issued by the Seventh Circuit Court of Appeals last year, see City of Chicago v. United States Dep't of the Treasury, 287 F.3d 628 (7th Cir.), amended upon denial of reh'g en banc, 297 F.3d 672 (7th Cir. 2002), cert. granted, 123 S. Ct. 536 (2002). That decision ordered the disclosure of two investigative databases maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) -- known as its Trace and Multiple Sales Databases -- which pertain to the sale and use of firearms. See FOIA Post, "Supreme Court to Decide Law Enforcement Database Case" (posted 11/22/02).

On February 13, however, Congress passed a statute that specifically prohibits ATF from using appropriated funds to comply with any FOIA request seeking records of the type that were at issue in the case, which suddenly raised a new issue for the Supreme Court to deal with on very short notice. That legislative prohibition, enacted as Section 644 of the Consolidated Appropriations Resolution of 2003, H.J. Res. 2, 108th Cong., 1st Sess., Pub. L. No. 108-007, 117 Stat. 11 (2003), was signed into law on February 20, less than two weeks before the scheduled March 4 oral argument in the case.

Both the Solicitor General and counsel for the FOIA requester quickly filed briefs with the Supreme Court addressing the full effect of this legislative development, including the proper course for the case to take in light of it. Counsel for the requester argued against any change of course, while the Solicitor General argued to the contrary. None of the nearly dozen groups that participated as amicus curiae in the case was heard on that procedural issue.

On February 26, the Supreme Court flatly rejected the requester's position that the case should go forward; instead, it cancelled the scheduled oral argument and sent the case back down to the lower courts. See Dep't of Justice v. City of Chicago, 71 U.S.L.W. 3565 (U.S. Feb. 26, 2003) (No. 02-322). Most significantly, the Court found it appropriate under the circumstances to vacate the Seventh Circuit decision from which the government appealed -- which means that that controversial Exemption 7(A) and Exemption 7(C) decision now is null and void. See id. The case will now be reconsidered at the court of appeals and perhaps district court levels (possibly in conjunction with other related litigation), in light of the recent legislation.

This sudden development in a FOIA case at the Supreme Court level is reminiscent of what occurred three years ago in an Exemption 1 FOIA case, United States v. Weatherhead, 528 U.S. 1042 (1999), in which an oral argument before the Court was cancelled at almost the last minute due to a sudden change in circumstances in the case. See FOIA Update, Vol. XX, No. 1, at 1. In Weatherhead, too, the Supreme Court vacated the underlying appellate court decision that the Solicitor General no longer was able to challenge on appeal. See id.; see also FOIA Update, Vol. IV, No. 4, at 11 (describing such action in a case in which the FOIA requester withdrew its request in the face of Supreme Court review); FOIA Update, Vol. III, No. 2, at 5 (same).

Lastly, as a small procedural point of note in the case, one that reflects current homeland security concerns, the United States Department of Justice was substituted for the United States Department of the Treasury in the case's caption during its pendency before the Supreme Court, due to ATF's organizational transfer into the Justice Department in January under the provisions of the Homeland Security Act of 2002. See FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute" (posted 1/27/03). (posted 3/25/03)

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