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.

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

  1. So, they’re not wrong.

    It does depend on what “is” is. We’ve been told that by someone in authority.

    • The FOIA section of the BATFE has numerous references to the fact that it’s an agency and the type of records they must provide…

      I’m betting this is just a legal stalling tactic, however if I was the judge I would put the gov lawyers in jail for contempt of court.

      • Dream on. If judges were willing to put bureaucrats in jail for contempt, we would have to build new federal prisons to contain them all. Worse, and more frightening, is that they have no practical power to do so. Consider a judge telling the DOJ to put someone from the ATF in jail for contempt. They would be ignored. Remember Lois Lerner?

        • Well child the Fourth C\Federal Circuit Court of Appeals just ruled that phone records held by service providers are covered by the Fourth Amendment.

          Always with the nay sayers with the negative vibes… The trouble with those who give into despair is that they lack the testicular fortitude to stay the course. The whole damned country is become whining whimps that lack conviction to do what is necessary.

          “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”
          ― Samuel Adams

          “It does not take a majority to prevail … but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men.”
          ― Samuel Adams

          “The liberties of our country, the freedoms of our civil Constitution are worth defending at all hazards; it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors. They purchased them for us with toil and danger and expense of treasure and blood. It will bring a mark of everlasting infamy on the present generation – enlightened as it is – if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of designing men.”
          ― Samuel Adams

      • Just curious: did you miss my sarcasm and the subtle reference to how general it is that political weasels try to…weasel…out of responsibility?

      • Indeed. Simply handing the unconstitutional duties of a bunch of lying incompetents over to an equally crooked agency that really knows how to bury its skeletons is not a step forward.

        At least we know the BATFE couldn’t manage a decent cover-up if its entire budget depended on it.

      • @gary-
        The Constitution no longer matters is exactly what this article is about, which means no right to abolish the government, as the Founders intended with the use of the Second Amendment.

    • It’s no business of the FBI, and I’d hate to see what the former ATF could do with the resources and pull of the FBI. The BATFE’s duties are mostly that of glorified tax collectors. It should be handled by the Dept. of Revenue and the individual states.

      • Thank you for being honest and not just blaming us millennials.

        Older Americans have forgotten that they are responsible for the laws that we are living under now. When the entire country is in a position of voting based on low information the best people do not fill the open positions. Information allows those older folks to become informed and then they realize that both parties are the same thing. The American political system that has been allowed is statist vs all others

        The switching of power was what made people think they had a say in government, but they didn’t have the information available to show the truth. Policy is enacted to shore up the governments power, but the two parties have to act like they resist the others plans. The politicians publicly play checkers while stripping America clean of Liberty in a game of chess.

        • I have to agree. The hippies are a big problem. Their behavior says a lot about “the greatest generation’s” terrible parenting skills.

        • If anything can be funny as we find us at this point, is that what the pothead libtard babyboomers wanted and have created is “coming home to roost”. Just as they are retiring. They wanted to implode the system and Social Security starts melt down in about a year. They STILL just don’t understand unintended consequences and reality. Karma – she’s a beetch.

      • Exactly!!!!
        The Greatest Generation spawned baby boom generation which was divided between hippies and straits (at the time term “strait had nothing to do sexual preference) think short for strait arrow. I hate old fart hippies politicians!

        • The so called “Greatest Generation” sucked at much more than parenting. The New Deal was all theirs. As was military buildup in WW2. And, although arguably their parents more than them, the Fed and the federal income tax.

          Anyway, America became a dump with the Antitrust Act or thereabouts. The beginning of progressivism with it’s attendant belief that “government can be a force for good,” rather than, at the very best, an absolute pest to be tolerated in extreme moderation if at all. And it’s been nothing but an unbroken, continuous downhill from there. Until reaching the totalitarian, dystopian hellhole we are today. And, sure as the sun rising in the east, we’ll be even worse tomorrow…… And so on, and so on……

  2. Do they haven’t learned their lesson about calling trusts not people, so they’re calling their agency not an agency?

    If they’re indeed ruled not an agency, what unintended side effects will come with that?

    Do we not have to listed to their regulations, since not-an-agency isn’t a regulatory body?

    • “If they’re indeed ruled not an agency, what unintended side effects will come with that?”

      The Iron Yoke of Law has already been widely accepted by comfortable cowards, and this method of government only killed 66,000,000 humans.

      “Do we not have to list to their regulations, since not-an-agency isn’t a regulatory body?”

      They become state “Organs” like in Stalinist Russia.

  3. If your bureaus name is an alphabet and you revive money as part of the government budget your an agency.

    But government being government rules do not apply here.

    • Edward Snowden wasn’t scum, remember, there are plenty of people doing 9-5 just trying to make a life who work for a alphabet soup agency.

      The biggest problem, IMO, is we have crooked bastards who have been calling the shots for generations now, who are setting the stage for crooked bastard Jr. to take the reigns when they retire.

  4. This should be an interesting one to watch. On the one hand, judges practically need to wear neck braces, such is their typical haste to bend over and lick the federal government’s taint. Still, there are limits, and few judges take kindly to having their intelligence so blatantly insulted.

  5. OK, you’re not an agency of the feral government.
    Motion the court to add the Department of Injustice to the defendants list.

  6. Looks like they took a page from the supreme court’s playbook – words don’t mean what they commonly mean, or are defined as in the law itself, they mean whatever is convenient at the time. Yay government.

    • @bob109
      “If they are not an agency as they claim, should they still have law enforcement authority?”
      The government would order its employees to slaughter us all in order to not relinquish that authority. The employees would gladly follow that order, if disobedience meant they would lose their pension.

  7. Better question – who is the judge assigned to this matter? It makes all the difference in the world. Hillary is learning one of Bill’s appointees is tired of her sh!t (much like Bill is, I am certain). . .. . . Judge Sullivan forced her and her top minions to affirm under oath about the email server. . . . need the same balls from the judge hearing this. If ATF is not an agency, then they don’t need $$ going to agencies. . . . wonder also if anyone has contacted the congressional oversight committees with ATF under their watch and let them know. . . if not an agency, why does congress get to review the ATF or does the Senate get to affirm its head? Just saying.

  8. “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.”

    I believe the word your looking for is ” ROGUE”.

  9. “bio page shows … is either inflating his importance or he doesn’t understand what he’s in charge of.”

    You Sir, defined 90% of the people working for government.

  10. Ridiculous. Even if they aren’t ruled an agency, they are part of one- the next rung up. As part of that agency they’re still required to comply with FOIA. Hopefully the judge if he agrees on the technical term of agency and whether it applies to BATFE– will then simply order them to comply with the FOIA as part of XXX agency. (DOJ?)

    • ETA: as you noted, they specifically acknowledge they have a requirement to respond to FOIA requests which make their legal claim to not be an agency under FOIA even more ridiculous. You would think that instead they would have simply responded to the FOIA with a denial citing one of the ‘nine exemptions and three exclusions contained in the statute’. Sounds like some person in a critical position in the agency wasn’t willing to go along with that.

    • It’s a stalling tactic. They know it will cost time and money to pursue this. They’re hoping the plaintiff will give up.

      They know it will be laughed out of court by a judge, but that will take time. When the judge orders them cough up the info, they’ll deny the request on the grounds of one of the exemptions. This will be fought in court, another chance to delay and bleed their adversary of funds. This will continue until a judge slaps them down. It’s like fighting an insurance company. Deny and delay.

      • “They know it will cost time and money to pursue this. ”

        Which justifies a budget increase so it’s a win/win for them.

      • Federal judges are famously free-handed when it comes to issuing sanctions orders under FRCP Rule 11, sanctions that include the other side’s attorney’s fees.

      • Nick- Exactly. The only thing missing is a civil forfeiture shoved down their opponent’s throats so they can no longer afford their lawyer,

  11. Here’s the specific wording they claim to not fall within:
    ‘ “agency” as defined in section 551 (1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency’

    So they are claiming not to be an establishment in the executive branch of the Government? Pretty sure they have been established, and that they fall within the executive branch. Not sure how they could weasel out of that at all.

  12. The law clearly states that an agency includes any organization under the executive branch, including government owned corporations. This is a stalling tactic. They know it won’t hold up in court, but God help us all if it does. That would essentially gut FOIA.

  13. It is a good thing I am not the Federal Judge. I think I would tell them to produce the documents or be prepared to surrender to the US Marshals on a contempt citation. If they even hesitated in saying yes sir I would hit them a contempt citation on the spot.

  14. you need to remember these are the same people that brought us Ruby Ridge, Waco, & a shoelace is A machine gun. They’ve been drunk on their own power for so long they think they can control everything. And they actually do have the machine guns to back it up.

  15. I can look it up, but if anyone knows which congressional committees oversee BATF, please post. Time to raise hell about this.

  16. if the ATF excuse me BATF and really really big Fires isn’t a law enforcement agency why are they enforcing laws that pertain to the civilian populace you can’t have it both ways you’re either a law enforcement agency or your smock standing on the side of the road with a vest with a couple letters on it. it should be against the law for them to declare themselves not a police federal law enforcement agency. I’m for disbanding the ATF and having them eggs or by Department of Defense or another agency altogether get rid of them. Or knock them back down to a state regulated law enforcement agency instead of a federal one. That would get rid of all the headache we have with the ATF. They’d be governed by the state’s governor. and prevent them from running a s*** up their own ass all the time. can’t stand in agency or law enforcement agency I should say that doesn’t play by the same rules everybody else has to. if all department did s*** like they do we’d all be in jail, but they do it and do some craziness illegal craziness and they get reprimanded Wow big big trouble verbal reprimand. please give me a break. disband the ATF!

  17. What ever lawyer came up with load of crap about not being an agency should be disbarred, if not taken out back and shot… smh

  18. So if they deny that they are a federal agency, we will start arresting anyone claiming to be an ATF agen for impersonating an officer and carrying an illegal weapon if they don’t have a CCW.

  19. “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….

    OK, I’ll bite.

    5 U.S.C. § 552(f) states:

    (f) For purposes of this section, the term—
    (1) “agency” as defined in section 551 (1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency;

    There’s a reference to 5 U.S.C. § 551(1) there, which states:

    For the purpose of this subchapter—
    (1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—
    (A) the Congress;
    (B) the courts of the United States;
    (C) the governments of the territories or possessions of the United States;
    (D) the government of the District of Columbia;
    or except as to the requirements of section 552 of this title—
    (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
    (F) courts martial and military commissions;
    (G) military authority exercised in the field in time of war or in occupied territory; or
    (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641 (b)(2), of title 50, appendix;

    My layman’s reading of this says that unless something in 5 U.S.C. § 551(1)(H) exempts them (and I imagine there’s no “there” there; title 12 pertains to “Banks and Banking” [the listed subsections refer to insurance on mortgages and building houses], title 49 to “Transportation” [subsections on airport development], and title 50 to “War and National Defense” [subsections on accountability and reporting requirements of the President]), they are an “agency” within the statutory definition.

    This statement in defense is crap, and I for one hope they get called to the carpet on it, and hard.

    • On second reading, I suppose it’s possible they consider themselves a “military authority” (i.e. a standing army) operating in “occupied territory” (i.e. on U.S. soil), and thus exempt under 5 U.S.C. § 551(1)(G).

      But that would be pretty ballsy of them, wouldn’t it? [/sarcasm]

  20. If they are no such agency, then they have no such authority. Their badges and uniforms mean nothing. You don’t have to do what they say, and if they show up at your house uninvited, shoot ’em.

  21. If they win the argument that they are not an agency as defined by 552(f), which includes the definition of agency in 551, which happens to be identical to the definition of agency under the APA see 701 …

    Then it is possible that they will be barred from ever using “agency descresion” or “deference” in a FOIA or APA case ever again due to Judicial Estoppel.

  22. How ridiculous! Keep up the pressure, Codrea. I wonder what the ATF is hiding this time? They still haven’t recovered from the epic PR nightmare that was Fast and Furious thanks to codrea and Vanderboegh.

  23. A bunch of damn word twisters who believe the law is “what we say it is” because “we are a federal non-agency, and we can do whatever we want to you and there’s nothing you can do about it.”

    This is the same non-agency that is going to be enforcing John Cornyn’s bill that promises “reasonable” regulations and all the “due process” that can be brought to bear against all us mental defectives. They earn a paycheque infringing upon that which shall not be infringed.

  24. If they’re not an agency for the purpose of FOIA, does that mean I’m not a person for the purposes of GCA ’68 / NFA? How exactly does this self-assumed entitlement for the sake of convenience thing work?

  25. If they don’t want to be called an ‘agency’,let’s call them what they really are,a dangerous terrorist gang.

  26. The ATF and IRS are not agents of a Constitutional government, they operate under the
    territorial Clause 4:3:2: under trust 62 out of Porto Rico, when Probation ended in 1935 the federal
    police force operating under F.A.A. federal Alcohol Admission ended and they retreated to Porto Rico
    and change their names to Internal Revenue and other aliases.

    Article 1:8:1-18 of the U.S. Constitution does not allow a federal police force to excised and
    also see: City of N. York v. Miln, 11 Pet 102 :
    see: US Constitution hyperlink (page 13 (c))
    “All those powers which relate to merely municipal
    legislation, or which may be properly called internal police,
    are not surrendered (by the State) or restrained, and
    consequently in relation to those authority of a State is
    complete, unqualified, and exclusive.”

  27. The ATF is in fact correct in this claim. Their lies are catching up to them. Many of us have known this for a long time. Everything that we believe to be Government or Agencies of Government are in fact private corporations disguised as Government or Government Agencies. They have been forced to admit, and hope few notice, that they are immune from FOI requests because, contrary to what they claim in public, they are private corporations acting as imposters.

  28. Well, douche bagger, not an agency – then shut it down. Nyeht (NO) pension, no more pay. Don’t let the door hit you all in the rear on the way out. so what ur saying mr tommy brandon, ur about as good as a used tampon?

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