                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 01-2167
CITY OF CHICAGO,
                                                 Plaintiff-Appellee,
                                 v.


UNITED STATES DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL,
TOBACCO AND FIRERMS,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 00 C 3417—George W. Lindberg, Judge.
                          ____________
   ARGUED JULY 28, 2004—DECIDED SEPTEMBER 16, 2004
                     ____________



 Before BAUER, ROVNER and WILLIAMS, Circuit Judges.
   BAUER, Circuit Judge. The City of Chicago (“the City”)
seeks information from a federal database regarding the
sale of firearms and the tracing of firearms that have been
recovered by law enforcement. Two and a half years ago we
first heard this case and considered whether the Bureau of
Alcohol Tobacco and Firearms (“ATF”) could refuse to re-
lease the information to the City based on certain exemp-
tions in the Freedom of Information Act (“FOIA”). Following
2                                               No. 01-2167

our decision that ATF must release the information, ATF
appealed and the Supreme Court granted certiorari. While
that appeal was pending, Congress passed the Consolidated
Appropriations Resolution of 2003 which ordered that “no
funds . . . shall be available” to release the records in
question. This case now comes to us on remand from the
Supreme Court in order to determine what effect, if any,
§ 644 of the Consolidated Appropriations Resolution of 2003
has on this case. We find that the statutes in question
preclude the use of federal funds for the retrieval of the
information but do not substantively change the FOIA;
accordingly, ATF must provide the City access to the
databases.


                        Background
  ATF is a criminal and regulatory enforcement agency
within the Department of the Treasury. Pursuant to the
Gun Control Act, ATF maintains databases that contain in-
formation collected from firearms manufacturers, impor-
ters, dealers and collectors. The information concerns the
transfer of firearms and contains, among other things, the
names and addresses of non-licensed parties involved in the
transfer as well as identifying information for the firearms.
The City seeks information from two specific ATF data-
bases: the “Trace Database,” which contains information
regarding the history of weapons recovered in connection with
a crime; and the “Multiple Sales Database,” which contains
records of transactions wherein a non-licensed individual
purchases more than one gun from the same dealer within
a five-day period.
  On March 3, 2000, the City submitted a formal FOIA
request to ATF, seeking information in the databases dat-
ing from 1992 to the present. ATF released some of the
information the City had requested, but withheld other in-
formation. ATF informed the City that it had a policy of
No. 01-2167                                                        3

withholding certain information for a period of several
years after it was collected to protect against interference
in ongoing investigations. Litigation ensued.
  In the meantime, Congress enacted the Consolidated
Appropriations Resolution of 20031 and the Consolidated
Appropriations Act of 20042 prohibiting the use of federal
funds to disclose the information to the public. In light of
these recent events, both parties to the litigation have re-
briefed their arguments. ATF posits that the effect of the
laws is to exempt the information in the databases from the
FOIA’s general obligation of disclosure. ATF seeks to
prevail under several provisions of the FOIA, arguing in



1
    Pub. L. No. 108-7, § 644, 117 Stat. 11, (2003) states:
  No funds appropriated under this Act or any other Act with re-
spect to any fiscal year shall be available to take any action based
upon any provision of 5 U.S.C. § 552 [the Freedom of Information
Act] with respect to records collected or maintained pursuant to
18 U.S.C. §§ 846(b), 923(g)(3), or 923(g)(7), or provided by Federal,
state, local or foreign law enforcement agencies in connection with
arson or explosives incidents or the tracing of a firearm, except
that such records may continue to be disclosed to the extent and
in the manner that records so collected, maintained, or obtained
have been disclosed under 5 U.S.C. § 552 prior to the date of the
enactment of this Act.
2
  Pub. L. No. 108-199, 118 Stat. 3 (2004) provides in relevant
part:
   [N]o funds appropriated under this or any other Act may be
used to disclose to the public the contents or any portion thereof
of any information required to be kept by licensees pursuant to
section 923(g) of title 18, United States Code, or required to be
reported pursuant to paragraphs (3) and (7) of section 923(g) of
title 18, United States Code, except that this provision shall apply
to any request for information made by any person or entity after
January 1, 1998 . . . .
4                                               No. 01-2167

turn that the information has been specifically exempted
from FOIA disclosure, that the agency is not “improperly
withholding” the information, and that the information falls
under a FOIA exemption for information that would
interfere with an ongoing police investigation. For its part,
the City argues that the new laws merely pose procedural
hurdles to disclosure; to bypass these the City has offered
to cover all costs incurred in retrieving the information.


                        Discussion
  We review issues of statutory construction de novo. HA-
LO Industries, Inc. v. CenterPoint Properties Trust, 342 F.3d
794, 797 (7th Cir. 2003). Additionally, the burden is on the
government to demonstrate that the database information
falls within one of the FOIA’s exemptions. Solar Sources,
Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998).


I. Effect of the 2003 and 2004 Appropriations Acts
  While the parties arrive at this question from different
paths, the main issue before us is whether the 2003 and
2004 appropriations measures make a substantive change
to the FOIA by exempting the databases. Hence, we will
consider both pieces of legislation.
  The FOIA was enacted in 1966 in response to perceived
abuse by federal agencies of their discretion to disclose
information to the public; it was felt that such secrecy was
used by officials to cover mistakes and irregularities within
the agencies. GTE Sylvania, Inc. v. Consumers Union, 445
U.S. 375, 384-86 (1980). The goal of the FOIA was to
“establish a general philosophy of full agency disclosure.”
Id. at 385. Under the FOIA, courts recognize a “strong pre-
sumption in favor of disclosure.” N.L.R.B. v. Robbins Tire &
Rubber Co., 437 U.S. 214, 236 (1978). Accordingly, we
interpret exemptions to FOIA narrowly.
No. 01-2167                                                 5

  The framework of FOIA mandates that federal agencies
make information available to the public upon request
unless that information falls into one of nine exemptions
outlined in the statute. One of those exemptions allows in-
formation to be withheld if another statute specifically ex-
empts that information from disclosure. 5 U.S.C. § 552(b)(3).
To be in conformity with this exemption, the statute must
either require “that the matters be withheld from the public
in such a manner as to leave no discretion on the issue” or
refer to “particular types of matters to be withheld.” Id.
  On their face, the 2003 and 2004 appropriations measures
do not specifically exempt the databases from disclosure
under the FOIA, instead they direct that “no funds . . . shall
be available” to the ATF to disclose the information. This
sort of indirect language is not normally used to create
substantive exemptions under the FOIA, rather, in the past
when Congress desired to create a statutory exemption to
the FOIA legislation, it looked more like the following:
“Information concerning the nature and specific location of
a National Park System resource which is endangered . . .
may be withheld from the public in response to a [FOIA]
request . . . .” 16 U.S.C. § 5937. As a result of the unusual
language in the 2003 and 2004 appropriations measures,
the question to us is whether, in enacting the pertinent
provisions of the bills in question, Congress engaged in
“repeal by implication”—that is to say, whether Congress
intended to exempt the databases from FOIA’s generally
duty of disclosure, despite its failure to explicitly do so.
  As a rule of statutory construction, repeals by implication
are disfavored. Tennessee Valley Authority v. Hill, 437 U.S.
153, 189-90 (1978). The Supreme Court has noted that this
policy of disfavor “applies with full vigor” when the statute
in question is an appropriations measure, such as is the
case here. Id. at 190; see also Calloway v. District of Colum-
bia, 216 F.3d 1, 9 (D.C. Cir. 2000) (noting that “while
appropriation acts are ‘Acts of Congress’ which can substan-
6                                                     No. 01-2167

tively change existing law, there is a very strong presumption
that they do not.”) (internal quotations omitted) (quoting
Building & Construction Trades Dept., AFL-CIO v. Martin,
961 F.2d 269, 273 (D.C. Cir. 1992)). Further, when faced
with a conflict between appropriations legislation and a
substantive statute, we construe the appropriations legisla-
tion narrowly. Calloway, 216 F.3d at 9.
  While generally disfavored, repeals by implication will
work in two situations: (1) if one act is “clearly intended as
a substitute” for the other, or (2) if the two statutes are in
“irreconcilable conflict.” Branch v. Smith, 538 U.S. 254, 273
(2003). ATF is quick to highlight the cases in which courts
have found that appropriations measures repealed portions
of substantive legislation. We will discuss these.


    A. Clearly Intended Substitutes
  In Robertson v. Seattle Audubon Society, 503 U.S. 429
(1992), the Court considered the effect of the “Northwest
Timber Compromise.” The Compromise, a part of the 1990
appropriations measures, was passed in response to con-
troversy surrounding an endangered species—the northern
spotted owl—and the logging industry in the Northwest. It
established “a comprehensive set of rules to govern harvest-
ing” in thirteen national forests. Id. at 433. The Compromise
bears no resemblance to the 2003 and 2004 appropriations
measures. Rather than simply denying funding, it created
a detailed system to replace portions of other substantive
legislation.3 In short, it fell directly under what we


3
  The Robertson Court described the Northwest Timber Compromise
as follows: “The Compromise both required harvesting and expanded
harvesting restrictions. Subsections (a)(1) and (a)(2) required the
Forest Service and the BLM respectively to offer for sale specified
quantities of timber from the affected lands before the end of fiscal
year 1990. On the other hand, subsections (b)(3) and (b)(5)
                                                      (continued...)
No. 01-2167                                                       7

described above as a “clearly intended substitute” for
portions of the Migratory Bird Treaty Act and other sub-
stantive environmental legislation. In arriving at its
holding, the Court noted that the Compromise “provided by
its terms that compliance with certain new law constituted
compliance with certain old law, the intent to modify was
not only clear, but express.” Id. at 440 (emphasis in origi-
nal).


    B. Statutes with Irreconcilable Conflicts
  The remainder of the cases we discuss today involve ap-
propriations measures that were in “irreconcilable conflict”
with previously enacted substantive legislation—the more
likely scenario for ATF. In United States v. Dickerson, 310
U.S. 554 (1940) and United States v. Will, 449 U.S. 200 (1980),
the Supreme Court found that appropriations measures
substantively changed statutes regarding compensation for
federal employees. The underlying statutes in those cases
provided, respectively, an allowance to enlisted men and an-
nual pay raises for federal judges. In Dickerson, the Court
considered the legislative history and concluded that
Congress intended the 1938 appropriations bill to make the
same substantive change to enlistment allowances that its
predecessor appropriations bills had done (via direct
language) in 1934, 1935, 1936 and 1937. Dickerson, 310 U.S.


3
  (...continued)
prohibited harvesting altogether from various designated areas
withing those lands, expanding the applicable administrative pro-
hibitions and then codifying them for the remainder of the fiscal
year. In addition, subsections (b)(1), (b)(2), and (b)(4), specified
general environmental criteria to govern the selection of harvest-
ing sites by the Forest Service. Subsection (g)(1) provided for
limited, expedited judicial review of individual timber sales
offered under § 318.”
    Id. at 433-34.
8                                                No. 01-2167

at 561. In Will, all legislation in question ordered a simple
denial of funds for judicial salary increases. The Court—
recognizing repeal by implication is disfavored—found that
the “plain words” of the appropriations statutes showed
that Congress intended to substantively repeal the raises
for the judges for each of the years in question. Will, 449
U.S. at 222.
  Although these cases concluded that appropriations legi-
slation rendered a change to pre-existing substantive stat-
utes, the underlying substantive statutes involved were
significantly different from the FOIA. They concerned only
the transfer of funds by the government to government
employees, hence, by making the funds in question una-
vailable Congress was able to squarely defeat the purpose
of those statutes.
   Two courts of appeals have considered variations on the
themes in Will and Dickerson with differing results. In
Calloway v. District of Columbia, 216 F.3d 1 (D.C. Cir. 2000),
the D.C. Circuit considered appropriations measures in
which Congress capped the amount of attorneys’ fees that
the District could pay in suits brought under the Individuals
with Disabilities Education Act (“IDEA”). The court deter-
mined that, although the cap affected the District’s ability
to pay the fees, it did not affect the portions of the IDEA
that gave courts discretion in awarding attorneys’ fees. Id.
at 11. The court found that there was no irreconcilable con-
flict between the two provisions because they applied to two
different governmental bodies: the District and the courts.
Acknowledging that this would yield inconsistent results in
future IDEA litigation (i.e., courts awarding higher fees
than the District was permitted to pay), the court opined
that these conflicts would be for Congress to resolve, not the
judiciary. Id. at 9-10.
  Conversely, in McHugh v. Rubin, 220 F.3d 53 (2nd Cir.
2000), the Second Circuit considered the effect of an ap-
No. 01-2167                                                         9

propriations bill that ordered no funds would be available
to ATF to investigate and act upon applications by felons for
relief from federal firearms disabilities. Such applications
had been numerous, the subsequent investigations by ATF
agents of the individuals filing them was time-consuming
and costly. The Second Circuit determined that there was a
“positive repugnancy” between the statute authorizing ATF
review of the applications and the statute denying funds, such
that it was impossible for ATF to review applications
without expending funds. Id. at 57-58.4
  The substantive statute involved in McHugh more closely
resembles our case because it mandated more than a simple
transfer of funds; that legislation created a system for ATF
to conduct background investigations for applicants for relief
from firearms disabilities. However, in McHugh, the
investigations could only be conducted by ATF agents, and
due to the volume of applications and resources needed to
investigate they could not be conducted without federal
funding. Unlike McHugh’s application investigations, a FOIA
request involves nominal costs and may be conducted by
persons not connected with the agency. Cal-Almond, Inc. v.
United States Department of Agriculture, 960 F.2d 105, 108
(9th Cir. 1992) (finding no repeal by implication when
Congress banned the use of federal funds to disclose USDA
information). In considering an almost identical ban on
funds to disclose USDA information under the FOIA, the
Ninth Circuit had little trouble concluding that, so long as
the party seeking the information paid the cost to photocopy
the document in question, they should be allowed access. Id.


4
  The Supreme Court considered a factually similar situation in
United States v. Bean, 537 U.S. 71, 74-76 (2002), and quickly
disposed of its finding that it lacked jurisdiction to hear the appeal
because, without funding, the ATF had been unable to conduct a
review of the plaintiff ’s original application.
10                                              No. 01-2167

at 108-09. That court further noted that any remaining
costs to USDA, for example to monitor the photocopying or
give the photocopier directions to the right room, were de
minimis. Id. at 108.
  We agree with the Ninth Circuit. Unlike many other stat-
utes, the FOIA deals only peripherally with the allocation
of funds—its main focus is to ensure agency information is
made available to the public. Indeed, at oral argument both
parties to the immediate litigation conceded that the
financial cost to retrieve the data in question would not be
significant. Based on the nature of the FOIA, we have little
trouble concluding that there is no “irreconcilable conflict”
between prohibiting the use of federal funds to process the
request and granting the City access to the databases.
  On a final note, ATF urges us to consider the legislative
history of the 2003 and 2004 appropriations measures. We
find that the measures are facially unambiguous and ac-
cordingly decline to do so. Connecticut National Bank v.
Germain, 503 U.S. 249, 253-54 (1992).


II. Improper Withholding
  The FOIA provides that federal courts with jurisdiction to
enjoin an agency from withholding agency records and to
order the production of such records only if they are being
“improperly withheld from the complainant.” 5 U.S.C.
§ 552(a)(4)(B) (emphasis added). ATF urges that we lack
jurisdiction under the FOIA to resolve this matter because,
without proper funding, it cannot be expected to provide the
City access to the information—hence, its withholding is not
improper.
 ATF relies on the case GTE Sylvania, Inc. v. Consumers
Union to support this contention. 445 U.S. 375 (1980). In
Sylvania, the Supreme Court found that it did not have
No. 01-2167                                                  11

jurisdiction to compel disclosure of records when the
Consumer Product Safety Commission (“CPSC”) had been
enjoined from disclosing the information by another court.
Id. at 386-87. In coming to its conclusion, the Court focused on
the meaning of “improper” withholding under the frame-
work of 5 U.S.C. § 552(a)(4)(B) and found that the agency’s
withholding was not improper due to the injunction. Id. The
Court noted that if the CPSC did disclose the information,
it would be subject to contempt sanctions from the court
that had issued the injunction.
  To come within the purview of Sylvania, we would need
to find that the riders on the appropriations bills denying
the use of federal funds are equivalent to an injunction
prohibiting an agency from releasing information following
a FOIA request. This simply is not the case. Whereas
Sylvania’s injunction was a substantive order concerning
the release of specific information, the legislation in this case
merely creates a procedural hurdle to disclosure of the in-
formation. Further, the practical effect of the procedural
hurdle is not insurmountable.
  Access to the specific information requested by the City in
the Trace and Multiple Sales databases may be accessed by
running a single search and copying the results to disk.
Estimates by the City put the time involved at anywhere
from a few minutes to a couple of hours. We believe this task
is best accomplished through the use of a court-appointed
special master, paid for by the City. ATF protests that its
employees would still need to assist the special master
during the course of the data retrieval and that would re-
quire an expenditure of resources; we find these costs are de
minimis and do not bar the use of a special master. Cal-
Almond, 960 F.2d at 108.


III. FOIA Exemptions 7(A) and (C)
  In light of the new legislation, ATF urges us to reconsider
our earlier holding in this case that FOIA exemptions 7(A)
12                                            No. 01-2167

and (C) do not apply to the databases. Those sections
exempt disclosure in cases where disclosure of information
compiled for law enforcement purposes “could reasonably be
expected to interfere with enforcement proceedings” and
“could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. §§ 552(b)(7)(A) and
(C).
  ATF would have us infer from the denial of funds that
there is now an evidentiary showing of risk of interference
with law enforcement proceedings and unwarranted in-
vasions of privacy. We do not believe that the language of
the 2003 and 2004 appropriations measures demonstrate
this. Accordingly, we leave untouched our prior opinion on
these issues.


IV. Constitutional Questions
  The City urges that if the 2003 and 2004 appropriations
measures deny it access to the databases, then the mea-
sures violate the Constitution on a number of levels. Be-
cause we do not believe the City is denied access to the
information, we decline to consider these arguments.
                                                AFFIRMED.
No. 01-2167                                         13

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—9-16-04
