FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE CENTER FOR INVESTIGATIVE No. 18-17356 REPORTING, Plaintiff-Appellant, D.C. No. 3:17-cv-06557- v. JSC UNITED STATES DEPARTMENT OF JUSTICE, OPINION Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding Argued and Submitted March 6, 2020 San Francisco, California Filed December 3, 2020 Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Wardlaw; Dissent by Judge Bumatay 2 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ SUMMARY * Freedom of Information Act The panel reversed the district court’s summary judgment, and remanded for further factual development, in an action brought by the Center for Investigative Reporting (“CIR”) under the Freedom of information Act (“FOIA”), requesting that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) provide records concerning weapon ownership. CIR sought records depicting the “[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present.” ATF alleged that Congress had forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2006, 2010, and 2012. The district court held that ATF was not required to disclose the requested information under FOIA. FOIA Exemption 3 relieves an agency of its obligation to disclose material specifically exempted from disclosure by statute if that statute meets certain requirements outlined in 5 U.S.C. § 552(b)(3). The panel held that the Tiahrt Rider did not exempt the data sought by CIR from disclosure under FOIA. The panel held that the 2012 Tiahrt Rider – which enacted the language of the 2010 Rider without any alteration – was the only * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 3 operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full. Looking to the 2010 Rider, the panel concluded that it was not a statute of exemption for FOIA purposes because even though it was enacted after the OPEN FOIA Act of 2009, it made no reference to 5 U.S.C. § 552(b)(3). Finally, the panel held that the issue of whether the OPEN FOIA Act’s prospective definition of statutes of exemption as those that cite to 5 U.S.C. § 552(b)(3) was an impermissible legislative entrenchment of a later Congress’s ability to create statutes of exemption was clearly waived. The panel held that the Tiahrt Rider did not deprive ATF of the funding it needed to turn over the data. The panel further held that the use of a query to search for and extract a particular arrangement or subject of existing data from the Firearms Tracing System database did not require the creation of a “new” agency record under FOIA. The panel held that based on the existing record it could not answer the question whether the Firearms Tracing System ...
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