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On Thursday, the U.S. Ninth Circuit Court of Appeals said authorities must hand over database records just as if they were paper records in a file cabinet.
Judge Kim McLane Wardlaw wrote: “Government transparency is critical to ensure the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies.”
Reveal, the Center for Investigative Reporting (CIR), originally sued for records in November 2017. The Department of Alcohol, Tobacco, and Firearms (ATF) never responded. ATF’s gun tracing database lists 6.8 million firearms linked to criminal activity. Reveal sought records for any gun traced back to law enforcement ownership.
When Congress passed the Freedom of Information Act (FOIA) in 1966, modern databases did not exist. ATF argued that a search query exporting the results amounted to a “new” record, which agencies aren’t required to disclose under the FOIA statute. The court disagreed.
“As CIR and amici recognize, whether a search query of an existing database entails the creation of a ‘new record’ is a question of great importance in the digital age. ‘[D]atabase journalism is now fundamental to modern newsrooms,’ and ‘exactly how journalists can request and use information from [government] databases. … has the potential to make or break efforts to hold the government accountable using its own data,’” the court wrote.
The opinion cited a lengthy “amicus,” or “friend of the court” brief filed by the Harvard Law School Cyberlaw Clinic on behalf of 16 data journalists and five media-support organizations.
“Amici also explain that the number of government databases is ever-expanding. Moreover, as in this case, ‘[r]eleasing statistical aggregate data from government databases’ may sometimes prove the ‘only[] way to comply with FOIA’s mandate while properly balancing the public’s and the government’s interests in safeguarding sensitive information.’
“Thus, if running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA, a result plainly contrary to Congress’s purpose in enacting FOIA,” the court held.
Harvard Law’s Cyberlaw Clinic wrote the amicus brief, joined by Investigative Reporters and Editors, The Media Law Resource Center, the MuckRock Foundation, the Freedom of the Press Foundation and the Reporters Committee for Freedom of the Press.
The brief also included support from the following data journalists:
Lucia Walinchus, attorney and journalist at Eye on Ohio, the Ohio Center for Journalism;
Dana Amihere, data editor at Southern California Public Radio (KPCC);
Zita Arochais, an Associate Professor of Practice in Journalism at the University of Texas-El Paso;
Tim Broderick, data reporter for Modern Healthcare magazine;
Carli Brosseau, data reporter at The News & Observer in Raleigh;
Meredith Broussard, an Assistant Professor at the NYU Arthur L. Carter Journalism Institute;
Matt Carroll, a former investigative reporter with The Boston Globe;
Stephen K. Doig, a professor of data journalism at the Cronkite School of Journalism of Arizona State University;
Dan Keating of the The Washington Post;
Dhrumil Mehta, a database journalist at FiveThirtyEight;
Miguel Paz a journalist, digital media strategist and Distinguished Lecturer in Data Journalism at the Craig Newmark Graduate School of Journalism at CUNY;
Cheryl Phillips, the Lorry I. Lokey Visiting Professor in Professional Journalism at Stanford University’s Department of Communication and director of the Big Local News project;
Jeff Southhas, an associate professor in the Robertson School of Media and Culture at Virginia Commonwealth University;
Samantha Sunne, a freelance journalist based in New Orleans;
Serdar Tumgoren, of the Stanford University Graduate Journalism Program; and
Fedor Zarkhin, a data reporter for The (Portland) Oregonian/OregonLive.
The court also ruled that the 2012 Tiahrt Amendment, which severely limits access to the Firearms Tracing System database, does not apply to the FOIA, because the 2012 Tiahrt was passed after congress amended FOIA in 2009. The 2009 amendments mandate that statutes creating additional FOIA restrictions have to specifically cite the FOIA in their text.
“To our amici: Thank you all for adding your voice to the call for increased government transparency – your dedication has paid off today!” emailed Mason Kortz, Clinical Instructor at the Harvard Law School Cyberlaw Clinic.
The Department of Justice has not yet responded to requests for comment.
