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If gun control advocates received a dollar for each time they exposed the National Rifle Association’s calls to “just enforce the gun laws on the books” as hypocritical and disingenuous, we’d be among the best-funded groups in Washington. The latest affront comes as the gun lobby effectively enlisted one of its staunch congressional allies to block the Supreme Court from resolving an important case involving the public’s right to know “what their government is up to” (as the Court said in 1994 in U.S. Department of Defense v. Federal Labor Relations Authority) when it comes to enforcing federal gun laws. Arguments in Department of Justice v. City of Chicago had been scheduled to take place on March 4. The case involves the city’s request under the Freedom of Information Act for crime gun tracing and multiple handgun sales data collected by the Bureau of Alcohol, Tobacco, Firearms, and Explosives in furtherance of its enforcement mission. The ATF contends that two FOIA exemptions shield the requested data from ever being released: one, for information that would interfere with law enforcement proceedings under Section 7(A); and two, for information that would constitute an unwarranted invasion of privacy under Section 7(C). However, the U.S. Court of Appeals for the 7th Circuit in Chicago rebuffed the ATF, declaring that its claims of interference with law enforcement relied on “far-fetched hypothetical scenarios.” Nor would the release of the requested information constitute an unwarranted invasion of personal privacy, declared the 7th Circuit, given the importance of “keeping the activities of government agencies open to the sharp eye of public scrutiny.” Rather than capitulate, the ATF petitioned the Supreme Court, relying heavily on the privacy issues relating to the requested information as a basis to withhold it permanently. FUNDING SILENCE Enter the NRA’s congressional foot soldiers. Perhaps recognizing that arguments against release of the data through the FOIA begin to wither under close scrutiny, last month the NRA moved swiftly in an attempt to ensure that the ATF’s information ban would stay in place. The NRA turned to a good friend, Rep. George Nethercutt Jr. (R-Wash.), who slipped language, designed to foreclose access to the data for everyone, into the final version of a massive omnibus appropriations bill. The change by Nethercutt, who enjoys an A-plus rating from the NRA and who benefited from more than $25,000 in NRA campaign contributions and independent expenditures during the last two congressional elections, seeks to bar the ATF from spending any funds to release the tracing or multiple sales data at issue in the lawsuit. This language was passed by the House in an earlier version of the bill. It was part of an effort by pro-gun legislators to frustrate litigation against the gun industry. The Senate twice rejected the provision. Nethercutt, though, got the language into the final version of the bill. He defends it by claiming that he wanted to prevent the Supreme Court from rushing to judgment, even though the dispute began three years ago. This 11th-hour legislative trick worked like a charm. Less than one week before oral arguments, the Supreme Court issued a one-sentence order sending the case back to the court of appeals “to consider what effect, if any” the appropriations bar has on the case. That the interests of the ATF and the NRA converge comes as no surprise. The ATF has a history � under presidents 41 through 43 � of leaving its citizens in the dark. And the NRA maintains a deep-rooted fear of public access to impartial information regarding guns and a paranoid view of gun-owner “privacy.” That the Bush administration is the most tight-lipped, pro-gun administration in recent memory doesn’t help matters, either. Chicago seeks the handgun tracing and sales data to support its claim that gun industry distribution practices have directly contributed to elevated levels of firearms violence in the city, especially among juveniles. The ATF trace database holds information collected when a law enforcement agency requests a trace on a particular firearm in connection with a criminal investigation. Each year, the ATF handles more than 200,000 tracing requests from more than 17,000 law enforcement agencies, reporting the results to the requesting agencies. At issue is the ATF’s permanent withholding of information pertaining to the location at which a crime gun is recovered, as well as identifying information regarding the original point of sale and chain of possession. In addition, Chicago seeks purchaser information from the multiple sales database, which contains the name and address of any person who purchases two or more handguns from the same source during any five consecutive business days. And while the ATF erects a roadblock for members of the public who want access, and have a right, to this information, all of the contested information is routinely disclosed by the agency to selected researchers to assess the agency’s enforcement activities. The ATF, effectively acting as an “information oligopolist,” engages these researchers as contractors and subjects them to the agency’s own self-generated nondisclosure criteria before affording them access to the data. They may disclose their research findings, but not the underlying data. To their credit, the researchers who have been fortunate enough to see the data have used them to great effect in important studies. But the notion that the ATF alone should decide who, if anyone, gets access to information necessary to understand and evaluate agency conduct was precisely the argument Congress rejected when passing the FOIA. ADVANCING THE PUBLIC INTEREST In briefs to the Supreme Court, the Justice Department defended the ATF’s recalcitrance by contending that the requested information fails to advance the public interest. Nothing could be further from the truth. For example, one of the disputed categories of information is recovery location data � where the gun being traced was found � which provides crucial information about trafficking, i.e., the flow of guns between their first retail purchase and subsequent criminal possession and use. This information helps determine whether a crime gun is local or the product of interstate trafficking � legal or illegal � and can be used to shape localized law enforcement efforts. Another category of withheld information concerns the identity of the purchaser of the traced gun or the multiple handgun purchaser. These data provide insight into the role played by “straw purchasers,” individuals who buy guns for unauthorized persons from federally licensed dealers. For example, one analysis of trace data revealed that a small number of persons were the first purchasers of guns recovered across wide regions. Such conclusions have resulted in targeted enforcement activities designed to shut down illegal gun markets. The public interest application of this information is clear: by shining a light on the ATF’s performance of its enforcement responsibilities, legislators and policymakers can act with precision to address particular gun violence problems. A final category of withheld information includes the names of the most recent possessors of guns recovered at crime scenes and their associates. Such information has proven invaluable in understanding whether those named obtained their gun from a federally licensed dealer or purchased it through the secondary market. These data also can be linked with purchaser data to provide a fuller picture of gun trafficking. Indeed, the experience of my own organization, the Violence Policy Center, with analogous identification data underscores their value. In the early 1990s the VPC was investigating a program run by the ATF that had the sole purpose of restoring the firearm privileges of convicted felons. After discovering through the FOIA that those rearmed by the program included rapists, murderers, and at least one terrorist, the VPC asked for the names of successful applicants who were subsequently re-arrested. As it turned out, many of those who had their firearm privileges restored after committing a nonviolent felony were subsequently convicted of violent crimes. The information on recidivists convinced Congress to shut the program down. (This past December, the Supreme Court upheld Congress’ action in United States v. Bean.) Now that the release of the data has been further delayed, Chicago must return to the appeals court where it prevailed once already. The city undoubtedly will contend that Congress made no change to substantive law under the FOIA; that the appropriations bar simply means that the city will have to pay for the data; and that Congress overstepped its constitutional authority by interfering with the judiciary’s interpretation and the executive branch’s application of the FOIA. If the city of Chicago � whose supporters include diverse public interest groups such as the VPC and the Reporters Committee for Freedom of the Press, and municipal advocates, such as the U.S. Conference of Mayors and the National League of Cities � ever gets to have its day in the high court, the justices will be faced with a stark choice: They can side with the ATF and quash the guarantee of an open government, effectively asking the public to place blind faith in the ATF’s assurances that it is doing its utmost to enforce our nation’s gun laws. Or they can give real meaning to the core purpose of the FOIA, allowing advocates, researchers, and the public to, in the Court’s own words from its 1978 decision in National Labor Relations Board v. Robbins Tire & Rubber Co., “hold the governors accountable to the governed.” And there’s also another option: Congress can repeal this language that has subverted the judicial process, and let the justices rule now on the importance of living in a country “of the people, by the people, for the people.” Mathew S. Nosanchuk is litigation director and legislative counsel at the Violence Policy Center, a D.C.-based nonprofit gun control research and advocacy group. With the MacArthur Justice Center in Chicago and Jenner & Block, the VPC submitted an amicus brief in support of Chicago.

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