Everytown for Gun Safety Support Fund et al v. Bureau of Alcohol, Tobacco, Firearms and Explosives et al

Filing 28

ORDER granting #21 Letter Motion to Seal. The Court grants the government leave to file portions of the AR under seal.. (Signed by Judge Andrew L. Carter, Jr on 4/26/2021) (nb)

U.S. Department of Justice

Page 1

United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007

April 23, 2021
By ECF
The Honorable Andrew L. Carter, Jr.
United States District Judge
Southern District of New York
40 Foley Square
New York, NY 10007
Re:

April 26, 2021

Everytown For Gun Safety Support Fund et al. v. ATF et al., 21 Civ. 376 (ALC)

Dear Judge Carter:
This Office represents the Government in this Administrative Procedure Act matter
related to the issuance of a federal firearms license by the Bureau of Alcohol, Tobacco, and
Firearms and Explosives (“ATF”). Under the schedule previously endorsed by the Court, the
Government will be producing an administrative record (“AR”) comprising over 700 pages to
Plaintiffs today. I write respectfully to request leave to file portions of the AR under seal and to
request entry of a protective order governing the use of a subset of law-enforcement related
records to be included in the AR.
Leave to File Portions Under Seal
In accordance with Rule 6(C)(ii) of the Court’s Individual Practices, ATF requests leave
to file portions of the AR under seal such that the publicly-docketed version will contain certain
redactions necessary to: protect law-enforcement-sensitive information and comply with
statutory obligations to shield disclosure of “trace information,” as well as withhold personallyidentifying information (“PII”). While judicial documents are accorded a presumption of public
access, see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006), courts
may issue protective orders permitting the redaction of information for “good cause,” Fed. R.
Civ. P. 5.2(e)(1).
As the declaration submitted by ATF in support of its application attests, portions of the
AR consist of logs, reports, and other records wholly derived from the contents of the Firearms
Trace System Database, public disclosure of which Congress has prohibited. Declaration of
Megan A. Bennett ¶ 9 (citing statute).1 In addition, pages ATF 712-746 of the AR contain
privileged law enforcement information outlining ATF procedures for conducting certain
investigations and taking certain enforcement actions; disclosure of this information would
compromise the integrity of ongoing and future ATF operations. Id. ¶¶ 5-6. Finally, discrete
1

The relevant pages of the AR are ATF 0142-144; ATF 0149-150; ATF 0179-182; ATF 0186;
ATF 209; ATF 0213-214; ATF 0229-231; ATF 0233-234; ATF 0238-243; ATF 0248-253; ATF
0257; ATF 0272-281; ATF 0287-292; ATF 0342-346; ATF 0349; ATF 0351-377; ATF 0416-425;
ATF 0427; ATF 0428-429; ATF 0431-432; ATF 0434-471; ATF 0583; and ATF 0585.

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redactions made in the AR are necessary to shield PII, including addresses, driver’s license
numbers, and credit card numbers, the release of which would constitute an unwarranted
invasion of privacy that would not shed any light on the subject matter of this litigation. Id.
¶¶ 11-12. All of the foregoing are appropriate bases for filing documents under seal with
appropriate and narrow redactions made on the public docket. See Everytown for Gun Safety
Support Fund v. ATF, 984 F.3d 30, 42 (2d Cir. 2020) (holding that Congress intended for firearm
trace system data to be shielded from disclosure in FOIA context); Lugosch, 435 F.3d at 120
(“countervailing factors [to common law right of public access] include but are not limited to
‘the danger of impairing law enforcement or judicial efficiency’ and ‘the privacy interests of
those resisting disclosure’”) (citation omitted).
While the Government seeks to produce portions of pages ATF 712-746 subject to entry
of a Protective Order as described below, those pages contain law-enforcement privileged
information, disclosure of which would not be appropriate even with entry of the Protective
Order. See Kusuma Nio v. Dep’t of Homeland Security, 314 F. Supp. 3d 238, 243 (D.D.C. 2018)
(explaining that “notwithstanding . . . clear relevance” to APA claim, information covered by the
law enforcement privilege may “be withheld from Plaintiffs, and provided only to the Court for
in camera review”). Accordingly, the version of the AR that the Government will produce to
Plaintiffs subject to the provisions of the proposed Protective Order will contain redactions to
protect that privileged information. An unredacted version of the complete AR, including
without the redactions within pages ATF 712-746, accordingly will be filed ex parte under seal
to enable the Court’s review. The version of the AR as produced to Plaintiffs will also be filed
under seal and accessible to the parties for the Court’s reference, in addition to the redacted
version of the AR filed on the public docket.2
Plaintiffs consent to the request to file under seal, reserving their right to challenge the
redactions after receiving the documents.
Entry of Protective Order
The Government also respectfully requests that the Court enter a Protective Order
governing the use of sensitive law-enforcement records disclosed to Plaintiffs as part of this
litigation, as found on pages ATF 712-746. Courts in this District have routinely entered orders
to protect such records. See United States v. Smith, 985 F. Supp. 2d 506, 531 (S.D.N.Y. 2013)
(collecting cases). Accordingly, the Government has submitted a proposed Protective Order
through ECF pursuant to the Local Rules for the Court’s consideration and entry. While the rest
of the AR will be produced today, the Government respectfully seeks leave to await entry of the
Protective Order before producing pages ATF 712-746 forthwith to Plaintiffs. Plaintiffs consent
to the Government’s application, reserving their right to request modification of the Protective
Order upon review of the records at issue.

2

The Government notes that the AR filed under seal contains a number of discrete redactions on
the first two pages: these redactions of what appear to be PII were evidently made previously in
the context of FOIA litigation, and the pages with these pre-existing redactions were the only
versions of these documents that the agency was able to obtain.

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For the reasons stated above, the Court should grant leave to file portions of the AR
under seal and with certain redactions on the public docket, and enter a Protective Order
governing the use of sensitive law-enforcement-related information. Thank you for your
consideration of this matter.
Respectfully submitted,
AUDREY STRAUSS
United States Attorney
By:

/s/
STEPHEN CHA-KIM
Assistant United States Attorney
[phone]
[e-mail]

April 26, 2021
The Court grants the government leave to file
portions of the AR under seal.