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Case TitleThe Center for Investigative Reporting (CIR) v. United States Department of Justice
DistrictNorthern District of California
CitySan Francisco
Case Number3:2017cv06557
Date Filed2017-11-13
Date Closed2018-11-13
JudgeMagistrate Judge Jacqueline Scott Corley
PlaintiffThe Center for Investigative Reporting (CIR)
Case DescriptionThe Center for Investigative Reporting submitted a FOIA request to the Bureau of Alcohol, Tobacco and Firearms for records concerning the agency's policies and procedures involving trace reports and aggregated information obtained from trace reports. The Center also requested expedited processing and a fee waiver. The agency acknowledged receipt of the request. CIR contacted the agency several times to check on the status of its request. However, after hearing nothing further from the agency, CIR filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Department of Justice
DefendantBrady Center to Prevent Gun Violence
AppealNinth Circuit 18-17356
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [39]
FOIA Project Annotation: A federal court in California has ruled that the Bureau of Alcohol, Tobacco and Firearms is not required to provide non-statistical aggregate data from its Firearms Trace System because to do so would require the agency to create a record in response to a multi-part request from the Center for Investigative Reporting concerning the database, including gun traces showing the number of times guns originating at law enforcement agencies were later used in crimes. CIR challenged the agency's decision not to search for aggregate data because it would require creation of a new record. Magistrate Judge Jacqueline Corley Scott found that the agency had not shown that it conducted an adequate search for records that were not contained in the FTS database. But she indicated that the 2003 Tiahrt Amendment memorializing the provisions of the Consolidated Appropriations Resolution prohibiting the agency from using funds to respond to FOIA requests for FTS gun trace data served as an Exemption 3 (other statutes) statute. CIR argued that the Tiahrt Amendment did not qualify because it provided agency discretion to disclose data and did not cite Exemption 3 as required by the 2009 OPEN FOIA Act. Corley rejected CIR's claims, noting that exceptions to non-disclosure in the Tiahrt Amendment did not expand the agency's ability to disclose the data. She pointed out that "the exceptions instead provide specific criteria allowing for the release of certain categories of information; if the information does not fall into one of those categories, it cannot be released. In other words, the exceptions do not give ATF discretion to choose the type of information it can release from the database." She then rejected CIR's contention that ATF had disclosed aggregate statistical data in another suit involving a challenge made under the Administrative Procedure Act. Corley distinguished that case, noting that "the former did not require the creation of new records, but instead, represented existing records that were part of the administrative record underlying the ATF action challenged by the plaintiffs." By contrast, here, Corley observed that "Plaintiff's request for statistical aggregate data derived from the FTS database requires a compilation of data points " all firearms traced to former law enforcement ownership since 2006 " and seeks information that does not currently exist." CIR argued that it was not asking ATF to tally the number of gun traces related to guns originating with law enforcement agencies, but to merely print and redact the data and then CIR could do the statistical analysis itself. Corley pointed out that "Exemption 3 through the Tiahrt Amendment bars production of data from the FTS database, and the Tiahrt Amendment necessarily extends to a collection of individual records. And [the exception for disclosure of statistical aggregate data in the Tiahrt Amendment] does not apply to Plaintiff's request: although what Plaintiff now seeks may loosely be described as 'aggregate data,' it does not constitute 'statistical aggregate data.'"
Issues: Litigation - Jurisdiction - Failure to State a Claim, Exemption 3 - Statutory prohibition of disclosure
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-11-131COMPLAINT for Injunctive Relief against United States Department of Justice (Filing fee $ 400, receipt number 0971-11872354). Filed by The Center for Investigative Reporting (CIR). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Civil Cover Sheet)(Baranetsky, Diana) (Filed on 11/13/2017) Modified on 11/22/2017 (slhS, COURT STAFF). (Entered: 11/13/2017)
2017-11-132Proposed Summons. (Baranetsky, Diana) (Filed on 11/13/2017) (Entered: 11/13/2017)
2017-11-133Case assigned to Magistrate Judge Jacqueline Scott Corley. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 11/27/2017. (as, COURT STAFF) (Filed on 11/13/2017) (Entered: 11/13/2017)
2017-11-224Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 2/8/2018. Initial Case Management Conference set for 2/15/2018 01:30 PM in Courtroom F, 15th Floor, San Francisco. (slhS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
2017-11-22Electronic filing error Re: 2 Proposed Summons filed by The Center for Investigative Reporting (CIR). This filing will not be processed by the clerks office. Please re-file in its entirety in accordance with FRCP 4(i). (slhS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
2017-11-225CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by The Center for Investigative Reporting (CIR).. (Baranetsky, Diana) (Filed on 11/22/2017) (Entered: 11/22/2017)
2017-11-276Proposed Summons. (Baranetsky, Diana) (Filed on 11/27/2017) (Entered: 11/27/2017)
2017-11-277Summons Issued as to United States Department of Justice. (slhS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
2017-11-308CERTIFICATE OF SERVICE by The Center for Investigative Reporting (CIR) (Attachments: # 1 Certificate/Proof of Service Proof of Service)(Baranetsky, Diana) (Filed on 11/30/2017) (Entered: 11/30/2017)
2017-12-089Application for Refund, Receipt Number 11872147 by The Center for Investigative Reporting (CIR). (Baranetsky, Diana) (Filed on 12/8/2017) (Entered: 12/08/2017)
2017-12-0810Application for Refund, Receipt Number 11872231 by The Center for Investigative Reporting (CIR). (Baranetsky, Diana) (Filed on 12/8/2017) (Entered: 12/08/2017)
2017-12-2111Refund status re 9 Application for Refund, Approved. (pals, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
2017-12-2112Refund status re 10 Application for Refund, Approved.(pals, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
2017-12-2913ANSWER to Complaint byUnited States Department of Justice. (Wall, Robin) (Filed on 12/29/2017) (Entered: 12/29/2017)
2018-01-0214CLERK'S NOTICE Re: Consent or Declination: Defendant shall file a consent or declination to proceed before a magistrate judge by 1/16/2018. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (ahm, COURT STAFF) (Filed on 1/2/2018) (Entered: 01/02/2018)
2018-01-0415CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by United States Department of Justice.. (Wall, Robin) (Filed on 1/4/2018) (Entered: 01/04/2018)
2018-01-1916NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Wall, Robin) (Filed on 1/19/2018) (Entered: 01/19/2018)
2018-01-1917ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Baranetsky, Diana) (Filed on 1/19/2018) (Entered: 01/19/2018)
2018-01-2218ADR Clerk's Notice Setting ADR Phone Conference on Friday, February 9, 2018, at 11:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
2018-02-0619CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. To all parties and counsel of record: Please take notice that due to the Court's unavailability, the case management conference currently scheduled for February 15, 2018 is continued to March 1, 2018 at 1:30 p.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco. A joint case management statement shall be filed seven days prior to the conference. (This is a text only docket entry, there is no document associated with this notice.) (ahm, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)
2018-02-0920ADR Remark: ADR Phone Conference held on 2/9/2018 by Howard Herman. (cmf, COURT STAFF) (Filed on 2/9/2018) (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 02/09/2018)
2018-02-2121Certificate of Interested Entities by The Center for Investigative Reporting (CIR) (Baranetsky, Diana) (Filed on 2/21/2018) (Entered: 02/21/2018)
2018-02-2222JOINT CASE MANAGEMENT STATEMENT and Rule 26(F) Report filed by The Center for Investigative Reporting (CIR). (Baranetsky, Diana) (Filed on 2/22/2018) Modified on 2/23/2018 (slhS, COURT STAFF). (Entered: 02/22/2018)
2018-03-0123Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Initial Case Management Conference held on 3/1/2018. If the issues are not resolved by the continued case management conference, the parties shall provide a motion for summary judgment briefing schedule. Joint Case Management Statement due by 3/29/2018. Further Case Management Conference set for 4/5/2018 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (Not Reported)(Time: 3 minutes) Attorney for Plaintiff: Diana Baranetsky. Attorney for Defendant: Robin Wall. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ahm, COURT STAFF) (Date Filed: 3/1/2018) (Entered: 03/02/2018)
2018-03-2924STIPULATION WITH PROPOSED ORDER regarding Briefing Schedule and Case Management Conference Scheduling; Proposed Order filed by United States Department of Justice. (Wall, Robin) (Filed on 3/29/2018) (Entered: 03/29/2018)
2018-04-0225ORDER by Magistrate Judge Jacqueline Scott Corley granting 24 Stipulation regarding Briefing Schedule and Case Management Conference Scheduling. (ahm, COURT STAFF) (Filed on 4/2/2018) (Entered: 04/02/2018)
2018-04-2626MOTION for Summary Judgment filed by United States Department of Justice. Motion Hearing set for 6/28/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 5/24/2018. Replies due by 6/7/2018. (Attachments: # 1 Declaration Of Charles J. Houser)(Wall, Robin) (Filed on 4/26/2018) (Entered: 04/26/2018)
2018-05-2427Cross MOTION for Summary Judgment and Opposition filed by The Center for Investigative Reporting (CIR). Motion Hearing set for 6/28/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 6/7/2018. Replies due by 6/21/2018. (Baranetsky, Diana) (Filed on 5/24/2018) (Entered: 05/24/2018)
2018-05-2428Declaration of D. Victoria Baranetsky in Support of 27 Cross MOTION for Summary Judgment and Opposition filed byThe Center for Investigative Reporting (CIR). (Attachments: # 1 Exhibit 1-26)(Related document(s) 27 ) (Baranetsky, Diana) (Filed on 5/24/2018) (Entered: 05/24/2018)
2018-05-2429Proposed Order re 27 Cross MOTION for Summary Judgment and Opposition by The Center for Investigative Reporting (CIR). (Baranetsky, Diana) (Filed on 5/24/2018) (Entered: 05/24/2018)
2018-05-3030MOTION for leave to appear in Pro Hac Vice for Paul Carberry ( Filing fee $ 310, receipt number 0971-12394102.) filed by Brady Center to Prevent Gun Violence. (Attachments: # 1 Certificate of Good Standing)(Carberry, Paul) (Filed on 5/30/2018) (Entered: 05/30/2018)
2018-05-3031NOTICE of Appearance by Heather Marie Burke (Burke, Heather) (Filed on 5/30/2018) (Entered: 05/30/2018)
2018-05-3032NOTICE of Appearance by Bijal Vijay Vakil (Vakil, Bijal) (Filed on 5/30/2018) (Entered: 05/30/2018)
2018-05-3133ORDER by Magistrate Judge Jacqueline Scott Corley granting 30 Motion for Pro Hac Vice as to Paul Carberry. (ahm, COURT STAFF) (Filed on 5/31/2018) (Entered: 05/31/2018)
2018-05-3134MOTION for Leave to File Amicus Curiae Brief filed by Brady Center to Prevent Gun Violence. (Attachments: # 1 Exhibit A - Amicus Curiae Brief, # 2 Proposed Order)(Burke, Heather) (Filed on 5/31/2018) (Entered: 05/31/2018)
2018-06-0735REPLY in Support (re 26 MOTION for Summary Judgment) and in Opposition re Plaintiff's 27 Cross-MOTION for Summary Judgment filed by United States Department of Justice. (Attachments: # 1 Declaration of Charles J. Houser)(Wall, Robin) (Filed on 6/7/2018) Modified on 6/11/2018 (slhS, COURT STAFF). (Entered: 06/07/2018)
2018-06-1936Order granting 34 Motion for Leave to File entered by Magistrate Judge Jacqueline Scott Corley. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 06/19/2018)
2018-06-2137REPLY (re 27 Cross MOTION for Summary Judgment and Opposition ) filed byThe Center for Investigative Reporting (CIR). (Attachments: # 1 Declaration Second Declaration, # 2 Exhibit Exhibits 1-3)(Baranetsky, Diana) (Filed on 6/21/2018) (Entered: 06/21/2018)
2018-06-2838Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 6/28/2018 re 26 MOTION for Summary Judgment filed by United States Department of Justice and 27 Cross MOTION for Summary Judgment filed by The Center for Investigative Reporting (CIR). The motions were argued, submitted, and taken under submission. (FTR Time: 9:01-9:44.) Attorney for Plaintiff: Victoria Baranetsky. Attorney for Defendant: Robin Wall. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ahm, COURT STAFF) (Date Filed: 6/28/2018) Modified on 8/1/2018: Matter transcribed by Tara Bauer (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 06/29/2018)
2018-07-1039ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 26 Motion for Summary Judgment; denying 27 Motion for Summary Judgment. Joint Case Management Statement due by 7/26/2018. Further Case Management Conference set for 8/2/2018 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (ahmS, COURT STAFF) (Filed on 7/10/2018) (Entered: 07/10/2018)
2018-07-2640JOINT CASE MANAGEMENT STATEMENT Joint Updated Case Management Conference Statement filed by United States Department of Justice. (Wall, Robin) (Filed on 7/26/2018) (Entered: 07/26/2018)
2018-08-0141TRANSCRIPT ORDER for proceedings held on 6/28/2018 before Magistrate Judge Jacqueline Scott Corley for Court Reporter FTR - San Francisco. (rjdS, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)
2018-08-0242Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Further Case Management Conference held on 8/2/2018. The parties expects to file a dismissal soon. Further Case Management Conference set for 9/6/2018 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (Not Reported)(Time: 02 minutes. Attorney for Plaintiff: Diana Baranetsky. Attorney for Defendant: Robin Wall. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ahm, COURT STAFF) (Date Filed: 8/2/2018) (Entered: 08/02/2018)
2018-08-0643Transcript of Proceedings of the official sound recording held on 06/28/18, before Magistrate Judge Jacqueline Scott Corley. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 9:01 - 9:44. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 41 Transcript Order ) Redaction Request due 8/27/2018. Redacted Transcript Deadline set for 9/6/2018. Release of Transcript Restriction set for 11/5/2018. (Related documents(s) 41 ) (tgb, COURT STAFF) (Filed on 8/6/2018) (Entered: 08/06/2018)
2018-08-1044TRANSCRIPT ORDER for proceedings held on June 28, 2018 before Magistrate Judge Jacqueline Scott Corley by United States Department of Justice, for Court Reporter FTR - San Francisco. (Wall, Robin) (Filed on 8/10/2018) (Entered: 08/10/2018)
2018-09-0645Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Further Case Management Conference held on 9/6/2018. The parties shall submit either a stipulation of dismissal or a briefing schedule for Plaintiff's motion for attorney's fees by 9/20/2018. (Not Reported) Attorney for Plaintiff: Diana Baranetsky. Attorney for Defendant: Robin Wall. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ahm, COURT STAFF) (Date Filed: 9/6/2018) (Entered: 09/06/2018)
2018-09-2046STIPULATION WITH PROPOSED ORDER Re Briefing Schedule filed by United States Department of Justice. (Wall, Robin) (Filed on 9/20/2018) (Entered: 09/20/2018)
2018-09-2447ORDER as modified by Magistrate Judge Jacqueline Scott Corley granting 46 Stipulation Re Briefing Schedule. (ahm, COURT STAFF) (Filed on 9/24/2018) Modified on 9/24/2018 (ahm, COURT STAFF). (Entered: 09/24/2018)
2018-09-2448TRANSCRIPT ORDER for proceedings held on June 28, 2018 before Magistrate Judge Jacqueline Scott Corley by The Center for Investigative Reporting (CIR), for Court Reporter FTR - San Francisco. (Baranetsky, Diana) (Filed on 9/24/2018) (Entered: 09/24/2018)
2018-11-0149Joint Statement and Proposed Judgment by United States Department of Justice. (Wall, Robin) (Filed on 11/1/2018) Modified on 11/2/2018 (mclS, COURT STAFF). (Entered: 11/01/2018)
2018-11-0550ORDER RE: PROPOSED JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 11/5/2018. (ahm, COURT STAFF) (Filed on 11/5/2018) (Entered: 11/05/2018)
2018-11-0951STIPULATION WITH PROPOSED ORDER re 50 Order Second Joint Statement and Stipulation; Proposed Judgment filed by United States Department of Justice. (Wall, Robin) (Filed on 11/9/2018) (Entered: 11/09/2018)
2018-11-1352ORDER DISMISSING CLAIM. Signed by Magistrate Judge Jacqueline Scott Corley on 11/13/2018. (ahm, COURT STAFF) (Filed on 11/13/2018) (Entered: 11/13/2018)
2018-11-1353JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 11/13/2018. (ahm, COURT STAFF) (Filed on 11/13/2018) (Entered: 11/13/2018)
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