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In early 2017, I filed a public records request with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to answer a simple question: How many guns once owned by police departments had been found at crime scenes?
The Freedom of Information Act request was part of a collaboration between Reveal from The Center for Investigative Reporting and KUT, Austin’s public radio station, interrogating the police practice of reselling retired service weapons to the public. I wanted to know whether the behavior was arming the criminals who officers had sworn to stop. In response to my request, an ATF spokesperson told me that former police guns were indeed ending up in crimes – but refused to provide any additional details.
It’s a common result for journalists who are seeking information on crime guns. Every year, the ATF produces thousands of trace reports at the request of local law enforcement agencies. These reports – which detail the provenance of crime guns, including their first owner and point of sale – live in a massive database and present an incredible resource for journalists, policymakers and regular citizens who want to know how guns move from the marketplace to crime scenes. But for nearly two decades, the ATF has blocked the reports’ release.
The ATF’s refusal to provide trace reports is the product of the Tiahrt Amendment, a law passed in 2003 forbidding the agency from releasing gun trace data to the public. The amendment was supported by gun manufacturers and the National Rifle Association, which up until the amendment’s passage were suffering from a rash of bad publicity. In the late ’90s, more than 40 cities, including New York, San Francisco and St. Louis, used trace reports as the basis for a flurry of lawsuits that accused the gun industry of knowingly oversaturating markets and arming criminals.
However, the Tiahrt Amendment does have certain exemptions. While the law makes clear that actual trace reports cannot be released, the agency is allowed to release statistics and aggregate data.
Citing this exemption, Reveal lawyers sued the ATF to compel the agency to turn over the data. Last week, the Ninth Circuit Court of Appeals ruled in our favor. According to the majority opinion, aggregate gun trace data, such as the number of guns traced back to a general location or the number of failed trace attempts, falls outside the Tiahrt Amendment’s scope. The ruling opens the door to a number of requests that would provide a new understanding of gun violence and trafficking.
The court rejected the ATF’s stance that such data violated privacy or exposes law enforcement operations.
The ruling has broad implications for government transparency. Judges rejected the federal government’s argument that the querying and searching of government databases amounts to the creation of a “new document.” In the past, this argument has been used by agencies across the country to deny the release of public information. The Electronic Frontier Foundation and a group of free press advocacy groups had filed amicus briefs in opposition to the federal government’s arguments.
“The case also ensures that the government’s duty to disclose records extends to databases,” said D. Victoria Baranetsky, who litigated the case as Reveal’s general counsel. “Without access to these electronic banks of information that are swiftly replacing paper records, FOIA would become irrelevant and government accountability would be at risk.”
The court agreed. “Were we to agree with ATF that the results of a search query run across a database necessarily constituted the creation of a new record, we may well render FOIA a nullity in the digital age,” Judge Kim Wardlaw wrote in the majority opinion.
And that project on police guns? My initial reporting found that in Texas alone, 21 of the 50 largest law enforcement agencies had sold over 10,000 weapons back to the public in a 10-year time span. The sales of handguns, snipers rifles and assault rifles often financed the acquisition of more weapons and training. Without the records from the ATF, I wasn’t able to determine precisely how many of those guns were used in crimes, but now we may get that chance. Meanwhile, although some departments have moved away from the practice of selling weapons, many still do.
Alain Stephens was a Reveal Investigative Fellow in 2016-17. He is the western correspondent for The Trace.