ATF Denies Being an ‘Agency’ to Avoid FOIA Compliance Requirements

ScreenHunter_12 Aug. 10 17.29

A legal response filed by the Bureau of Alcohol, Tobacco, Firearms and Explosives claims a Freedom of Information Act-related complaint improperly targets them. “The ATF is not an ‘agency’ within the meaning of the F.O.I.A., 5 U.S.C. § 552 (f) (1), and is, therefore, not a proper party defendant,” the response claims . . .

The complaint, filed June 23 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 Tucson attorney David T. Hardy. Plaintiffs include this correspondent, firearms designer and president of Historic Arms, LLC, Len Savage, and the FFL Defense Research Center. The information, as noted in the announcement of the lawsuit, is being sought to ensure consistency in rulings, policies and compliance enforcement.

“Ok, I’ll bite,” Savage responded upon learning of the government’s defense argument. “If, as they claim, they are not an agency under Title 5 FOIA, then why do they have a disclosure division? How is an FFL supposed to comply with ATF policy that is kept secret? Perhaps that’s the point, to not be able to comply?”

Indeed, if it is not an “agency,” why does ATF claim it is one in its fiscal 2016 Congressional budget submission?

“Established as an independent Bureau in 1972, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is the Federal agency charged with enforcing the Gun Control Act (GCA) and the National Firearms Act (NFA),” ATF asserts in its overview/introduction. “ATF’s FY 2016 budget request … is focused on providing … the core resources necessary to advance the agency’s mission to reduce violent crime.”

“The agency has developed strategies to address violent crime spikes and takes the lead role in operations that weaken and dismantle armed violent criminal organizations in,” ATF elaborates.

“ATF is the only agency with the responsibility and authority to inspect the storage of explosives by Federal explosives licensees and to track thefts, losses, and recoveries of explosives,” the age… uh … bureau adds. “Because of its licensing authority, ATF is the only Federal agency authorized regular access to these records.

“ATF also participates in other multi-agency efforts,” the budget justification continues. “ATF was officially identified to lead the DOJ efforts to manage [Emergency Support Function] #13 … to support incident operations, consistent with Federal agency authorities and resource availability.”

They’ve even “developed a Performance Measurement Index tool that helps facilitate informed decision making regarding the Agency’s priorities, activities, and resources. And then of course, they directly address the issue of their FOIA obligations on their website. Guess how they refer to themselves:

Like all federal agencies, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) generally is required under the Freedom of Information Act (FOIA) to disclose records requested in writing by any person. However, agencies may withhold information pursuant to nine exemptions and three exclusions contained in the statute. The FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the courts, or by state or local government agencies. Each state has its own public access laws that should be consulted for access to state and local records.

Not to beat this to death, but if we’re to believe ATF lawyers (and why wouldn’t we?), his bio page shows Acting Director Thomas Brandon is either inflating his importance or he doesn’t understand what he’s in charge of. And if you scroll down there a bit, ditto for his Young Turk.

It looks like an agency, walks like an agency and quacks like an agency. It calls its field operatives “agents,” not “bureaucrats.” It’s an agency when it wants to be, when there’s something to gain, like an approved budget, or more power and prestige. When that’s perceived as a liability, when there’s something to hide, something to stonewall, something to lose, they all of a sudden become something else.

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