Codrea v. ATF, No. 21-2201, 2022 WL 4182189 (D.D.C. Sept. 13, 2022) (Contreras, J.)

Codrea v. ATF, No. 21-2201, 2022 WL 4182189 (D.D.C. Sept. 13, 2022) (Contreras, J.)

Re:  Request for records concerning handgun incident in 2018 allegedly involving Hunter Biden, son of then-Presidential candidate Joe Biden

Disposition:  Granting defendant’s motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  The court holds that “[t]he Request Letter supports ATF’s view [of the scope of plaintiff’s request].”  “The letter begins by informing ATF of the relevant background:  ‘[o]n or about October 18, 2018, a handgun disappeared from a car belonging to Robert Hunter Biden, son of Democrat presidential candidate Joe Biden.’”  “It then asks for ‘copies of law enforcement and administrative reports, communications, correspondence, and work papers’ ‘including any case handling instructions’ that would explain ‘the way the case has been resolved and why.’”  The court finds that “ATF is right that the request does not seek records explaining the agency’s enforcement policies – ‘unless they were also about the alleged handgun incident involving Mr. Biden.’”  “The inclusion of ‘administrative reports, communications, correspondence, and work papers’ merely attempts to capture the various forms of potentially responsive records; it does not expand the scope of the request itself.”  “[Plaintiff’s] contrary interpretation makes no sense.”  “If the sentence containing ‘administrative reports, communications, correspondence, and work papers’ broadens the request, it would sweep too broadly.”  “That sentence, read alone, would seek virtually all files within ATF’s possession regardless of subject matter, which is plainly impermissible.”
   
• Exemption 7, Threshold:  The court holds that “ATF has satisfied Exemption 7(C)’s threshold requirement that the requested information, if it exists, was compiled for law enforcement purposes.”  The court relates that “ATF’s ‘principal function is law enforcement.’”  “In this case, [plaintiff] seeks information from ATF about the 2018 handgun incident.”  “The ‘nexus’ between ATF’s law enforcement duties and these records (to the extent they exist) is plainly rational . . . as any responsive records ATF possesses ‘would be part of an investigation by a law enforcement agency into alleged illegal acts.’”
   
• Exemption 7(C):  The court holds that “ATF’s Glomar response was appropriate.”  Regarding the privacy interests, the court finds that “Hunter Biden’s privacy interest is substantial.”  “[D]isclosure would reveal whether Hunter Biden was criminally investigated by ATF.”  The court relates that “[plaintiff] cites a news article stating that an FBI-seized laptop shows that Hunter Biden allegedly sent text messages discussing the handgun incident and a police investigation.”  “The Court is skeptical that one’s private texts can so easily be repurposed into public acknowledgment of a criminal investigation.”  “Even assuming, without granting, that these texts constitute a public statement by Hunter Biden, they still do not diminish his privacy interest because ‘acknowledging a police investigation is not the same thing as acknowledging an ATF investigation.’”  “Nor did Hunter Biden’s privacy interests diminish because he published a memoir that purportedly discusses his drug usage.”  “[Plaintiff] places great emphasis on the existence of the memoir, but the Court fails to see how it reduces Hunter Biden’s privacy interest in whether ATF investigated him.”  Additionally, the court finds that “no outside event has diminished Hunter Biden’s privacy interest, either.”  Finally, the court notes that “ATF has never officially acknowledged that it investigated Hunter Biden.”
  
  Regarding the public interests, “[t]his is a close call, but the Court concludes that [plaintiff] need not make an evidentiary showing of government misconduct.”  The court explains that “[i]f this were the only public interest [plaintiff] invoked, then he would indeed need to ‘produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.’”  “But revealing government misconduct is not the only public interest in this case.”  “Here, [plaintiff] has identified a separate public interest in understanding ATF’s substantive law enforcement policies.”  “Here, [plaintiff] is ‘not only[ ] seeking to show that the government’s [ ] policy is legally improper, but rather to show what that policy is and how’ it is used.”  “Therefore, [plaintiff] has ‘established a sufficient reason for disclosure independent of any impropriety,’ and need not produce any evidence of government impropriety . . . .”  “As such, [plaintiff] needs only to show that ‘the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,’ and that ‘the information is likely to advance that interest.’”  “Before delving into an analysis of the public interest, the Court must first explain how it should be framed in this case.”  “Although ATF filed a Glomar response, the public interest is not just in the existence of this information, but its contents as well.”  The court finds that “[t]he public interest in ATF’s handling of this case is significant.”  “Here, the public has an interest in knowing how ATF handled the 2018 handgun incident, including whether (and with what diligence) it investigated Hunter Biden, and whether ATF ‘pulled its punches.’”  “Moreover, this incident has been the subject of some media and congressional attention.” 
  
  When balancing the interests, the court finds that “[t]he public interest in this case . . . is weaker [than in other cases].”  The court explains that, “here, Hunter Biden is a private citizen allegedly involved in a standalone handgun incident.”  “ATF’s handling of this isolated incident represents a ‘single instance,’ . . . [so it] may not necessarily ‘reveal a great deal about law enforcement policy’ . . . .”  “[T]he Court finds that Hunter Biden’s substantial privacy interest is not ‘outweighed by the public interest in disclosure.’”  “In addition to correctly invoking Exemption 7(C), ATF properly applied it.”  “The Court finds that ATF’s categorical approach of refusing to confirm or deny the existence of any information is the only ‘workable manner’ of protecting Hunter Biden’s privacy in this case.”  “Here, because Hunter Biden is the focus of the 2018 handgun incident and allegedly the owner of the handgun, acknowledging that ATF investigatory files about this incident exist would inherently risk associating Hunter Biden with a criminal investigation.”  “Thus, requiring ATF to ‘submit a Vaughn Index’ or the equivalent would ‘itself adversely affect [Hunter Biden’s] interest in not being associated with an investigation in the first place.’”