Gunowners rip ATF clawback order for unredacted document

WASHINGTON (CN) — A D.C. Circuit panel on Thursday seemed skeptical it could reverse a lower court’s order that allowed the Bureau of Alcohol, Tobacco, Firearms and Explosives to claw back a document listing individuals whose firearm purchases were monitored after it was released without redactions. 

The three-judge panel heard arguments in a case brought by the Gun Owners of America and the Gun Owners Foundation, who requested a series of 13 documents from the federal agency under the Freedom of Information Act and argue the clawback of the 13th document amounted to an unlawful gag order.

Robert Olson, of firm William Olson and representing the gun rights groups, argued the order had inflicted irreparable harm on his clients by blocking them from informing any of their members that they have been subject to the agency’s surveillance. 

“Plaintiff’s lawyers have been prohibited from communicating with their clients about that production, and since I was the one who originally reviewed that production before the gag order was entered, I’m ordered to not even have the thoughts in my head,” Olson said. “I don’t know how to comply with that. I don’t know how to unknow something.”

The gun rights groups’ request centered on the agency’s use of the National Instant Criminal Background Check System. 

They specifically sought records showing the number of individuals monitored, records showing the purpose of the surveillance, records discussing the legality of the system, records showing the number of individuals prosecuted as a result and records demonstrating any improper use of the system. 

After producing 12 sets of documents, the agency mistakenly turned over 115 pages containing unapplied redactions for personally identifiable material, with red boxes surrounding text that was meant to be redacted. When a user hovered a cursor over the red boxes, only then would it change to black, applying the redactions and the relevant Freedom of Information exemption. 

The rights groups subsequently asked the agency to provide a redacted version of the document, to which the agency asked the groups to delete their copy before providing the redacted version. 

U.S. District Judge Amy Berman Jackson, a Barack Obama appointee, ordered the gun rights groups to sequester the documents and barred them from disseminating or disclosing the information within. 

U.S. Circuit Judge J. Michelle Childs, a Joe Biden appointee, asked Olson whether his argument would allow agencies to request a clawback of certain documents for honest mistakes.

Olson said judges have no authority to issue such an order and an agency has no right to demand the documents be returned. 

“Litigation mistakes have consequences,” Olson said. 

He pointed to U.S. District Judge Randolph Moss’ decision in 100Reporters v. Department of State, another Freedom of Information Act case in which Moss determined there is no legal authority for a court to order a Freedom of Information recipient to return documents. 

U.S. Circuit Judge Bradley Garcia, a Biden appointee, asked whether a judge could order the return of classified documents inadvertently turned over. 

Olson suggested the burden would be on the government to obtain an order from the court to block that production, but would likely be unable to do so in a Freedom of Information context. 

Justice Department attorney Maxwell Baldi argued the gun rights groups’ arguments were moot since they received 12 productions of documents and agreed to destroy the unreacted information it received in the 13th production. 

“There is a real risk that the fact that it has been disclosed in FOIA means that the ATF is powerless to protect the specific information that they release in future cases, and the district court entered a sensible order giving effect to their offer to destroy it,” Baldi said.”

The case garnered attention from media organizations, with a coalition of 25 outlets led by the Reporters Committee for Freedom of the Press filing an amicus brief urging the panel to vacate Jackson’s gag order, calling it a “classic example” of prior restraint. 

“If a news organization can be subject to what would otherwise be an unconstitutional court order restraining its publication of information lawful obtained under [the Freedom of Information Act] merely because an agency processed and released records in response to a [Freedom of Information] request after a complaint was filed, the press will be deterred from seeking to vindicate its statutory right to access agency records in court,” the coalition warned. 

“And agencies, for their part, will be encouraged both to avoid responding to [Freedom of Information] requests outside of litigation and to routinely demand that district courts restrain the publication of information released under the Act that the government later decides it would have preferred to have withheld,” the coalition added. 

U.S. Circuit Judge Cornelia Pillard, an Obama appointee, rounded out the panel. 

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