An unnamed representative of the Bureau of Alcohol Tobacco Firearms and Explosives has requested the removal of a document from this website. The document in question was published more than 2 years ago in January 2010 when this website was less than six months old. The document is effectively one page in length, with a cover and an information page listing a phone number and contact information. The one page of content in the document describes an incident in September 2008 when a quantity of “Magnum Ultra” explosive detonator material from a supply store in Concord, North Carolina.
This website hosts more than a dozen documents from the ATF, most of which are restricted in some fashion. It is unclear why this document was identified by the ATF as meriting a removal request, given that it contains little to no sensitive information, and there are several other ATF documents on this website that bear similar markings. The unnamed ATF representative cites the fact that the document is “law enforcement sensitive” a designation which has no legal basis and functions as an internal restriction on employees and those who have signed non-disclosure agreements with the originating organization. The ATF representative then reproduces a warning from the bottom of the document to substantiate the position that this document should be removed: “All information, analysis, data, and methodology included herein are considered official products of work, owned by the Federal Government and held for the benefit of the public. No information contained herein may be duplicated, reproduced, or disseminated without the express authorization of the Bureau of Alcohol, Tobacco, Firearms and Explosives.”
The warning is interesting in that it describes the document as property of the ATF that cannot be duplicated or reproduced without the consent of the ATF. A similar warning can be found on FBI documents, like this one: “This information is the property of the FBI and may be distributed to state, tribal, or local government law enforcement officials with a need-to-know.” The problem with these assertions is that is unclear how the contents of a government document may be considered property. All works of the Federal Government and its employees in the performance of their official duties are inherently prohibited by law from copyright protection in 17 USC § 105. Most “sensitive but unclassified” government documents, such as this example from the ATF, make it clear that the “for official use only” and “law enforcement sensitive” markings only exempt a document from “mandatory disclosure” under the Freedom of Information Act. Unclassified markings are not binding upon members of the general public. In fact, even classified material can legally be disseminated by members of the general public.