16-ORD-177

16-ORD-177

August 25, 2016

In re:        Insider Louisville/ Louisville Metro Police Department

        Summary:        Because relevant federal law, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), prohibits disclosure of the requested firearms trace summary data, the denial by the Louisville Metro Police Department is affirmed.                

Open Records Decision

        Editor Sarah Kelley, Insider Louisville, initiated this appeal by letter dated July 15, 2016, challenging the denial by the Louisville Metro Police Department (“LMPD”) of Insider Louisville Staff Writer Joe Sonka’s June 15, 2016, request for a copy of “the firearms trace summary data provided to LMPD by the ATF for each homicide committed with a firearm in 2015 in which the weapon was recovered and such information was requested from the ATF.”  In a timely written response, LMPD advised Mr. Sonka that “Firearms Trace Summary Reports are prepared by the Department of Justice/Bureau of Alcohol, Tobacco, Firearms and Explosives [“ATF”].”  These “intelligence reports,” LMPD asserted, “constitute ‘antiterrorism protective measures’ within the meaning of KRS 61.878[(1)(m)1.]. Disclosure of the requested records would create vulnerability in preventing or protecting against a terrorist act because the information used is not available to the public.”  According to LMPD, release of reports containing Firearms Trace Summary Data “would threaten the public safety by disclosing sensitive information available only to law enforcement,” which is “used to monitor potential criminal activity and terrorist acts,” and the reports are thus exempt pursuant to KRS 61.878(1)(m)1.  On appeal Ms. Kelley challenged the agency’s position that “Firearms Trace Summary Data” can be properly characterized as “antiterrorism protective measures” and questioned “how releasing this data would make the public vulnerable to terrorism.”

        Upon receiving notification of Ms. Kelley’s appeal from this office, Assistant Jefferson County Attorney Sarah Stewart Ashburner responded on behalf of LMPD. Ms. Ashburner provided the following background:

[T]he Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) created the National Tracing Center (NTC) to track recovered firearms in order to link suspects to a firearm in a criminal investigation, to identify potential traffickers, and to detect interstate, intrastate, and international patterns regarding the sources and types of crime guns (see Fact Sheet-eTrace attached hereto . . .). The NTC is the only organization authorized to trace U.S. and foreign manufactured firearms for International, Federal, State and local law enforcement agencies. The reports generated by the NTC are for exclusive use by Federal, State and local law enforcement agencies. In fact, LMPD is required to enter a Memorandum of Understanding with the ATF in which LMPD agrees not to share any portion of the information collected by the NTC with a third party.

LMPD then briefly elaborated as to how disclosure of the sensitive data in dispute would hinder the ability of law enforcement to detect potential threats in attempting to justify invocation of KRS 61.878(1)(m)1.

In the alternative, LMPD asserted that disclosure of the records being sought is prohibited under federal law and the records are thus exempt pursuant to KRS 61.878(1)(k).¹  Ms. Ashburner acknowledged that LMPD did not initially cite KRS 61.878(1)(k) or the relevant federal law incorporated into the Open Records Act per that provision. However, LMPD was correct in arguing that “The Consolidated and Further Continuing Appropriations Act of 2012, (PL 112-55) effective November 18, 2011, restricts the disclosure of any part of the contents of the Firearms Tracing System or any information required to be kept by the Federal Firearms Licensees pursuant to 18 USC 923(g), or required to be reported pursuant to 18 USC 923(g)(7).”  Because the Firearms Trace Summary Data requested is exempt from disclosure under the cited federal law, this office makes no finding relative to KRS 61.878(1)(m)1.² but affirms the denial by LMPD on that basis. 

At this juncture, additional backdrop against which to view the 2012 Consolidated and Further Continuing Appropriations Act, Pub. L. No. 112-55, 125 Stat. 552, upon which LMPD relied, is useful. The March 2016 Fact Sheet – eTrace: Internet-Based Firearms Tracing and Analysis enclosed with Ms. Ashburner’s August 2, 2016, appeal response confirms that “[p]ursuant to the Gun Control Act (GCA) of 1968, the U.S. [A]ttorney [G]eneral is authorized to administer firearms tracing. The [A]ttorney [G]eneral has delegated ATF the sole federal agency authorized to trace firearms.”  However, the NTC “is only authorized to trace a firearm for a law enforcement agency involved in a bona fide criminal investigation.”  According to information available on the ATF website, entitled “ATF Disclosure of Firearms Trace Data,” https://www.atf.gov/firearms/docs/guide/atf-disclosure-firearms-trace-data-atf-p-331211, recognizing the crucial role of ATF in the criminal investigative process, the U.S. Congress “acted to protect that sensitive data” by enacting a “budgetary appropriations restriction, which, since 2003, has contained a nondisclosure provision applicable to trace data.”  In light of this restriction, the “longstanding policy” of ATF “has been to provide total access to trace results to the law enforcement agency that has jurisdiction with respect to the trace request, but to safeguard those results from third parties.”  

Congress’ appropriations restriction “simply codifies ATF’s longstanding policy of sharing trace data with other law enforcement agencies for the purpose of conducting a criminal investigation.”  The referenced online publication cites the “2006 Consolidated Appropriations Act, Public L. 109-108, 18 U.S.C. § 923 note (2005)” in support of the following three-part guideline for disclosure of trace data by ATF: “1) the requesting agency must be [a law enforcement agency (“LEA”)]; 2) [t]he requesting LEA must have geographical jurisdiction, and 3) the information must be for a bona fide criminal investigation (and jurisdictional-based aggregate analysis of trafficking patterns and trends).”  Likewise, the 2012 Consolidated and Further Continuing Appropriations Act clearly reflects the Congressional intent to ensure that such data remains protected following its disclosure by ATF to a law enforcement agency.

This office has consistently deferred to agencies’ reasonable interpretations of confidentiality provisions (incorporated into the Open Records Act by operation of either KRS 61.878(1)(k) or (l)) binding upon them absent legal authority to the contrary. 97-ORD-33; 04-ORD-252; 08-ORD-177; 10-ORD-080; 11-ORD-168; 14-ORD-025; compare 11-ORD-028; 11-ORD-049.  “Even if no deference was required or appropriate under this line of authority, however, the overall position, and in particular the interpretation of the [italicized language]” set forth below is “entirely persuasive and effectively reflects our independent assessment.”  11-ORD-168, p. 9.  The relevant section of the 2012 Consolidated and Further Continuing Appropriations Act confirms that upon receipt of trace data from the ATF, a local law enforcement agency such as LMPD is also prohibited from disclosing that data. The Act provides: 

[D]uring the current fiscal year and in each fiscal year thereafter, no funds appropriated under this or any other Act may be used to disclose part or all of the contents of the Firearms Trace System database maintained by the [NTC] of the [ATF] or any information required to be kept by licensees pursuant to [18 U.S.C. §923(g)] or required to be reported pursuant to paragraphs (3) and (7) of such section, except to: (1) a Federal, State, local, or tribal law enforcement agency, or a Federal, State, or local prosecutor; or (2) a foreign law enforcement agency solely in connection with or for use in a criminal investigation or prosecution; or (3) a Federal agency for a national security or intelligence purpose . . . and no person or entity described in (1), (2) or (3) shall knowingly and publicly disclose such data; and all such data shall be immune from legal process, shall not be subject to subpoena or other discovery, shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, . . .

(Emphasis added.)

Because KRS 61.878(1)(k) excludes from disclosure “[a]ll public records or information the disclosure of which is prohibited by federal law,” and the federal law quoted above expressly prohibits disclosure of the requested trace data, this office affirms the denial by LMPD of Mr. Sonka’s June 15, 2016, request for the Firearms Trace Summary Data from 2015.

        Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

                                                Andy Beshear

                                                Attorney General

                                                Michelle D. Harrison

                                        Assistant Attorney General 

#298

Distributed to:

Sarah Kelley

Pamela A. King

Sarah Stewart Ashburner