Codrea: ATF’s Left Hand Doesn’t Know What Its Right Hand is Doing

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A complaint filed Tuesday in the United States District Court for the District of Columbia seeks an order to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives to comply with a Freedom of Information Act request filed in March and ignored in violation of federal law. The FOIA sought copies of policies and rulings relied on in enforcement and determination actions . . .

The complaint was filed by attorney David T. Hardy of Tucson on behalf of plaintiffs including Federal Firearms Licensee Len Savage, the not-for-profit FFL Defense Research Center, and this writer. It charges that the ATF did not respond to a joint Freedom of Information Act records request filed in March, with a required response period of 20 business days. And that administrative remedies for the plaintiffs have been exhausted.

Sought in the original request were copies of

instructions, policies or guidance given to agents who serve as hearing officers, or to their superiors, in connection with determining whether an FFL’s license should be revoked or suspended, or issuance of a license be denied, or a civil fine imposed; BATFE’s Federal Firearms Action Policy and Procedure … as currently in force; opinions or positions or determinations as to how complete a firearm receiver must be before it becomes a ‘firearm’ (the point when a ‘receiver blank’ becomes a ‘receiver’); opinions, rulings, policies or interpretations as to which [part] is the receiver for GCA or NFA purposes; opinions, rulings, policies or interpretations relating to or interpreting the term ‘readily restored’; [and] instructions, policies, criteria or guidance relating to granting or denying a remission or mitigation of a forfeiture or of a civil penalty.

The information requested is critical to ensure that citizens don’t suffer penalties due to conflicting rulings. Without clear policies, enforcing compliance and demanding accountability can become inconsistent and arbitrary.

As pointed out in a recent GUNS Magazine column, contradictory accountability expectations are hardly new. How they come about is hardly surprising; the current system appears to guarantee them.

In 2005, the Congressional Research Service published a memorandum regarding ATF firearms testing procedures. Among other things, it revealed that the ATF has “over 300 cubic feet of classification letters stored in file cabinets.” The Bureau hasn’t scanned any of these documents into a searchable database to assure consistency of interpretation, to identify and resolve regulatory conflicts. The extent to which this inconsistency has grown and compounded in intervening years is unknown and unknowable without a major organization and review effort.

The complaint filed by Hardy may be the first step in unraveling the ATF’s mess. It asks the court to “order defendant to disclose the requested records in their entireties and make copies available to plaintiffs … award plaintiffs their costs and reasonable attorneys fees; and … grant such other relief as the Court may deem just and proper.

The case has been assigned to Judge Beryl Howell. Howell’s an Obama appointee who nonetheless ruled for the plaintiff in another case where the government withheld names and addresses of landowners in a FOIA response to a Texas border fence inquiry. In the absence of a compelling interest – which is not evident in ATF’s situation – it’s difficult to fathom how the ATF can justify refusing to disclose its rules are to people they hold accountable for their compliance.