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DOJ Opposition Brief

Posted on Jan. 6, 2021

Citations: U.S. Dept. of Justice v. Tax Analysts; No. 88-782

SUMMARY BY TAX ANALYSTS

DOJ Opposition Brief, U.S. Dept. of Justice v. Tax Analysts, U.S., 88-782

U.S. Dept. of Justice v. Tax Analysts

UNITED STATES DEPARTMENT OF JUSTICE,
Petitioner,
v.
TAX ANALYSTS,
Respondent.

In The Supreme Court of the United States

October Term, 1988

BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

WILLIAM A. DOBROVIR
(Counsel of Record)
Dobrovir & Gebhardt
Suite 1105
1025 Vermont Avenue, N.W.
Washington, D.C. 20005
(202) 347-8118

Attorney for Respondent

BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

Counterstatement of the Case

This case does not present a significant federal legal issue requiring this Court's consideration. The petition for certiorari is a federal agency's grumble of objection to a FOIA-required change in its standard procedure for handling documents; one that will greatly facilitate public access to federal district court decisions, and shift the task of processing requests for copies of decisions from overburdened district court clerks to the Department of Justice, far better equipped (and budgeted) to perform it.

Respondent here is the publisher of a weekly periodical reporting to the public on federal tax matters. It requested petitioner Department of Justice's Tax Division to make currently available under the Freedom of Information Act (FOIA) the copies of federal district court tax decisions that petitioner receives in the normal course of its business. It was undisputed that respondent had “had persistent difficulty obtaining the tax decisions of some United States District Courts,” App. 3a, Tax Analysts v. U.S. Dep't of Justice, 845 F.2d 1060,1062 (D.C. Cir. 1988).

[S]ecuring the tax decisions rendered by the ninety-odd, far-flung federal district courts from their clerks' offices on any timely or regular basis has proven impossible. The clerks often do not respond at all to telephone requests for copies of tax opinions; even when they do, mailings take too long for prompt reporting because reproduction costs generally must be calculated and paid in advance.

App. 4a, 845 F.2d at 1063.

Throughout the proceedings petitioner claimed, as it claims here, that to make the requested tax case decisions available would place an enormous burden on it. The Court of Appeals viewed that claim skeptically. It found "that the burden in this case need not be so excessive as the Department makes out.” Petitioner could comply with its duties under the FOIA by doing no more than having the Tax Division attorney of record send a copy of each decision he receives to the Department's public reference room1 in the regular interoffice mail. The court expressly remitted to petitioner “discretion over precisely how it responds to those requests, consistent with the FOIA, its own regulations, and this opinion.” App. 12a-14 and id. nn. 13-15, 19a n. 21, 845 F.2d at 1066-67, and id. nn. 13-15, 1069 n. 21.

Reasons for Denying the Writ

Summary

Petitioner argues that it has not "improperly withheld" the decisions in its files. It also argues that the decisions are not its "agency records," and it claims administrative burden.

There is no doubt that petitioner possesses the documents and that it has "withheld" them. Its argument for a narrow definition of "improperly" has been consistently rejected by this Court and the courts of appeals. (I, infra).

By any definition of the term, petitioner's copies of court decisions in cases in which it represents the government are "agency records” as much as are the motions, briefs and other papers that it and opposing counsel file in the courts and serve on each other. Any doubt that such documents are agency records, subject to disclosure under FOIA, was laid to rest several years ago in Crooker v. U.S. Parole Comm'n, 469 U.S. 926 (1984), see App. 15a n. 17, 845 F.2d at 1068 n. 17, and again in U.S. Dep't of Justice v. Julian, ____ U.S ____, 108 S.Ct. 1606 (1988). (II, Infra).

Petitioner's claim of administrative burden is not an excuse from FOIA compliance recognized either in the statute or by the courts. Congress recently has specified how the cost of FOIA compliance should be borne. Petitioner's claim of administrative burden and expense is addressed to the wrong Branch. (III, infra).

I. The Court of Appeals Held Correctly That the Records at Issue Here Were “Improperly Withheld”

Petitioner would define “improperly withheld” to include only the withholding of records to hide wrongdoing. Pet. at 10. That is not the law. In GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375, 385-86 (1980), the Court explained that "improperly' withheld" covered not only conscious effort “to hide mistakes or irregularities," but also the very kind of withholding at issue here: "needless denials of information,” i.e. any denial of “requests for documents without an adequate basis for nondisclosure.” As examples of the “needless denial” that Congress had in mind the Court cited the “refusal of the Secretary of the Navy to release telephone directories,” and “refusal to release the names of postal employees.”2 Petitioner's refusal to grant easy public access to its files of court decisions is of the same ilk.

As this Court holds, withholding of agency records is “improper" unless justified by a stated exemption in the Act or by a specific court order (as in GTE). The FOIA compels "'agency disclosure unless information is exempted under clearly delineated statutory language.'” Department of Air Force v. Rose, 425 U.S. 352, 360-61 (1976), citing S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). Withholding is unauthorized “except as specifically stated” in the Act. Id. The nine exemptions in § 552(b) are “exclusive,” 425 U.S. at 361, citing EPA v. Mink, 410 U.S. 73, 79 (1973), and the exemptions “must be narrowly construed.” 425 U.S. at 361. Unless a specific exemption applies, “FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978).

The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b). Congress created these exemptions because it “realized that legitimate governmental and private interests could be harmed by release of certain types of information." Nonetheless, "[t]he mandate of the FOIA calls for broad disclosure of Government records," and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed.

U.S. Dep't of Justice v. Julian, ____  U.S. at ____, 108 S.Ct. at 1611 (citations omitted).

Petitioner urges a new exception to this plain doctrine: that potential availability of the records elsewhere exempts the agency from FOIA's duty of disclosure. Pet. at 12-14. No case supports the argument. In each case petitioner cites the court declined to compel production of documents under FOIA where, and because, the agency itself had properly disclosed the documents in another manner; i.e., the agency had not “withheld” the documents at all. The Court of Appeals pointed this out. App. 8a-10a and id. nn. 9, 10, 845 F.2d at 1064-65 and id. nn. 9, 10.

The statute, as this Court construes it, is clear. Withholding of agency records is improper unless the agency can point to a specific provision in the FOIA excusing it from the obligation to disclose. That the records might be obtainable elsewhere does not matter.

II. The Court of Appeals Held Correctly That the Records at Issue Here are “Agency Records”

Petitioner argues that federal district court decisions it receives, incorporates into its files and uses are not its own “agency records.” Its argument dredges up the pre-sentence report controversy laid to rest in Crooker and Julian. Pet. at 15-17.

A series of cases have considered the “agency record” issue for records, including pre-sentence reports, that originate outside the defendant agency but which it acquires in the normal course of its business. App. 14a-18a, 845 F.2d at 1067-69. The factors that determine whether such a document is a record of the possessor defendant agency are “distilled” into a four-part test articulated in Lindsey v. U.S. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir.), vacated, 469 U.S. 1082 (1984), and applied by the Court of Appeals here:

[1] the intent of the document's creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency's record system or files.

App. 17a, 845 F.2d at 1069.

Petitioner does not dispute that the records here pass the Lindsey test, as the Court of Appeals held. The courts have relinquished control over the copies of decisions sent to counsel. Petitioner uses its copies and files them “as it sees fit.” Agency lawyers read, rely on, consider and use their copies. The copies are carefully integrated into Department of Justice files. Lindsey, 736 F.2d at 1465; App. 17a, 845 F.2d at 1068.

All petitioner can do is ask this Court to disapprove Lindsey. It asks the Court to follow Warth v. United States Dep't of Justice, 595 F.2d 521, 523 (9th Cir. 1979), instead. Warth held that "as a matter of law, a court document [there a trial transcript] is not an 'agency record' for purposes of the FOIA even when held by the DOJ [Department of Justice]. ' ' Warth not only stands alone but is dubious authority even in the Ninth Circuit. Berry v. Dep't of Justice, 733 F.2d 1343, 1350 n. 11 (9th Cir. 1984) (citations omitted):3

Additionally, unlike Warth, the vast majority of federal cases to address the issue conclude that judicial transcripts in the possession of agencies constitute agency records. Those courts then look to the FOIA exemptions to determine if the documents must be disclosed. Perhaps as a result of this, Warth does not cite a single case in support of its ultimate holding.

Berry went on to reach the opposite result from Warth. It held that pre-sentence reports were agency records under FOIA. It reasoned that “agency records" should be defined to serve the FOIA goal of enabling the public to determine how agencies reach decisions. In this, Berry and the decision below are consistent. Compare 733 F.2d at 1349-50 with App. 11a n. 12, 845 F.2d at 1066 n. 12. And both decisions are consistent with the considerations that Berry quoted from Forsham v. Harris, 445 U.S. 169, 177 n. 7 (1980): “[r]eliance or use" of a document by an agency "may well be relevant . . . to the question of whether a record in the possession of an agency is an 'agency record.'” 733 F.2d at 1350. Here the agency's reliance on and use of the documents is admitted. App. 17a, 845 F.2d at 1068.

III. Petitioner's Claim of Administrative Burden Lacks Substance

Lastly, petitioner argues administrative burden and cost. Pet. at 18-20. Administrative burden is no excuse for withholding records otherwise covered by the FOIA. See Sears v. Gottschalk, 502 F.2d 122, 126 (4th Cir. 1974), cert. denied sub nom. Sears v. Dann, 422 U.S. 1056 (1975); Ferguson v. Kelly, 455 F.Supp. 324, 326 (N.D. Ill. 1978); see also Long v. United States Internal Revenue Service, 596 F.2d 362 (9th Cir. 1979), cert. denied, 446 U.S. 917 (1980). Petitioner cites no cases. It has no more success in framing even a colorable legal argument here than it did in oral argument to the Court of Appeals, where it was reduced to relying only on “instinct.” App. A 13a n. 16, 845 F.2d at 1067 n. 16.4

The Act by its existence imposes administrative burdens on agencies, for reasons that Congress decided promoted the public good. Petitioner's compliance with the Court of Appeals' decision will fulfill “the goals of the FOIA” by ensuring “prompt[er] public access to federal court decisions.” App. 12a n. 13, 845 F.2d at 1066 n. 13.

Implementation of the decision below will not increase the burden of trouble and expense on the government as a whole. It will, however, shift the job of providing the public with copies of decisions from 90-odd district courts to a single central reference room at Justice. Not only will this reduce the total burden on the government, but it will relieve the courts' increasingly swamped clerks' offices of the burden altogether.5 While perhaps not within the narrow interests of the administrative apparatus at the Department of Justice, this result is certainly in the interest of the public, the taxpayer and the government at large.

Petitioner's complaints about the cost of compliance, Pet. at 18-20, are addressed to the wrong Branch, as the Court of Appeals pointed out, App. 13a n. 16, 845 F.2d at 1067 n. 16. Only a year ago Congress amended the FOIA to provide specific criteria for deciding which costs are to be borne by the requester and which by the agency. Pub. L. No. 99-570, §§ 1801-04, 100 Stat. 3207, 3207-48 (1986), amending 5 U.S.C. § 552(a)(4).

Congress decided that agencies should bear the cost where disclosure will contribute significantly to public understanding of government operations, unless the requester has a strong commercial (i.e. profit) interest. 5 U.S.C. § 552(a)(4)(A)(iii) 1987); see Office of Management & Budget, The Freedom of Information Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines (OMB Guidelines), 52 Fed. Reg. 10012, 10013, 10017 (March 27, 1987); Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act, App. II (December 1987). Representatives of the “news media,” defined to include periodicals such as respondent, are exempt from all charges but copying costs. 5 U.S.C. § 552(a)(4)(A)(ii)(II); OMB Guidelines, 52 Fed. Reg. at 10014, 10015, 10018. The final determination of the charges that petitioner may properly make to respondent under the 1986 FOIA amendments and OMB and Department of Justice guidelines should be made by the District Court on remand, not by this Court as petitioner suggests, Pet. at 18.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

WILLIAM A. DOBROVIR
(Counsel of Record)
Dobrovir & Gebhardt
Suite 1105
1025 Vermont Avenue, N.W.
Washington, D.C. 20005
(202) 347-8118

Attorney for Respondent

 

FOOTNOTES

1In light of petitioner's maintenance of such a facility, 28 C.F.R. § 16.2(4) (1987), App. 13a n. 15, 845 F.2d at 1067 n. 15, the reference to security considerations, Pet. at 20 n. 14, is most puzzling.

2The Court of Appeals referred to this. App. 18a n. 20, 845 F.2d 1069 n. 20. Other examples in the House report were agency refusals to publish their rules and a description of their organization and operations. H.R. Rep. No. 1497, 89th Cong., 2d Sess. 5-6, reprinted in 1966 U.S. Code Cong. & Admin. News 2418, 2422-2423.

3Berry, which petitioner also cites, was a pre-sentence report case like Lindsey, Crooker and Julian. To the extent that the Berry test differs from the Lindsey test, the difference is now moot.

4The entire colloquy was:

MR. COHEN [Attorney for the Department of Justice]: I think this is a case that is almost easier to decide on the basis of instinct, gut reaction.

QUESTION: I know, but if that —

MR. COHEN: And then you have got to make up some legal reasons for it, and that is your job. That is not Justice's job.

QUESTION: But you are supposed to help us.

MR. COHEN: Well, I try. I try.

[Laughter]

But the reaction instinctively of both lawyers and non-lay people is this isn't — and, indeed, Mr. Dobrovir says, this isn't precisely what Congress intended, this is really not what Congress intended. Now, for goodness sake, when your instinct points you that way, when the consequence seems so wanton, there ought to be some good leagl [sic] reasons. Over the course of 20 years of this statute being on the books —

QUESTION: That is probably one of the more candid legal arguments.

[Laughter]

Tr. of Oral Argument, Tax Analysts v. U.S. Department of Justice, No. 86-5625 (D.C. Cir., October 16, 1987), at 23-24.

5The difficulty respondent has experienced in obtaining tax decisions from district court clerks reflects the workload and additional burden that such continuing requests, from respondent and others, impose on overburdened Clerk's offices, themselves constrained by Gramm-Rudman. The minimal per-copy fees that the courts are permitted to charge hardly cover the cost of the time of clerk personnel to answer Respondent's and other publishers' (CCH, Prentice-Hall, Bureau of National Affairs, Research Institute of America, Callaghan (Mertens), Lexis and Westlaw) telephone calls, note the request, find the decision, make the copy, put it in an envelope and transmit it.

END FOOTNOTES

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