Petition for Writ of Certiorari

United States Department of Justice,
petitioner
v.
Tax Analysts

In the Supreme Court of the United States
OCTOBER TERM, 1988

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHARLES FRIED
Solicitor General
WILLIAM S. ROSE, JR.
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
ROY T. ENGLERT, JR.
Assistant to the Solicitor General
JONATHAN S. COHEN
MARY FRANCES CLARK
Attorneys

Department of Justice
Washington, D.C. 20530

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[* * * Missing pages in the original document * * *]

Cases:

Statutes:

Miscellaneous:

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The Solicitor General, on behalf of the United States Department of Justice, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-19a) is reported at 845 F.2d 1060. The opinion of the district court (App., infra, 20a-30a) is reported at 643 F. Supp. 740.

JURISDICTION

The judgment of the court of appeals (App., infra, 31a-32a) was entered on April 29, 1988. A petition for rehearing was denied on July 15, 1988 (App., infra, 33a-35a). On October 5, 1988, Chief Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including November 12, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552, provides in pertinent part:

The Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552, provides in pertinent part:

5 U.S.C. 551 provides in pertinent part:

For the purpose of this subchapter —

* * * * *.

STATEMENT

1. This Freedom of Information Act (FOIA) case arose out of a series of 26 weekly requests submitted to the Tax Division of the Department of Justice by respondent Tax Analysts, seeking copies of all United States District Court orders and opinions in tax cases that the Tax Division had received during the previous week. The Tax Division denied the requests. Respondent then brought this action in the United States District Court for the District of Columbia to compel the Department of Justice to provide weekly access to United States District Court decisions, opinions, and orders in tax cases as they are received by the Tax Division, and to enjoin permanently the continued withholding of such documents. App., infra, 22a.

The Tax Division is responsible for the prosecution and defense of all civil federal tax cases in the courts of the United States and in state courts. More than 20,000 civil tax cases are filed each fiscal year.¹ Because it represents a party in litigation, the Tax Division receives copies of all opinions and orders rendered in the cases it handles or supervises (App., infra, 4a). The opinions and orders it receives in those cases are not assembled or collected into a single file. Instead, as each opinion or order is received, it is logged in to the appropriate trial section, it is then routed to the trial attorney primarily responsible for the case, and it is eventually sent to the litigation file for the case to which it relates (C.A. App. 19-20).

Respondent publishes a weekly magazine reporting legislative, judicial, and regulatory developments in the field of federal taxation, for which it charges its subscribers an annual fee of $595. The magazine includes summaries of the most recent judicial opinions on tax issues. Respondent provides copies of documents it summarizes in return for costs. Respondent also compiles and sells subscriptions to a weekly microfiche database that supplies the full text of all judicial opinions that respondent summarizes, and respondent supplies full texts of all available court decisions in tax cases to major electronic databases on a daily basis. App., infra, 20a-21a.

Since 1979, the Tax Division, pursuant to FOIA, has provided respondent and other commercial tax services with weekly logs identifying the tax cases decided by the United States District Courts, the United States Courts of Appeals, and the United States Claims Court.² Beginning in November 1984, respondent submitted a series of 26 weekly requests to the Tax Division, seeking access to all district court decisions, opinions, and final orders identified in the log that had been released to it the previous week. Those requests were denied, and the denial was sustained on administrative appeal. Respondent then filed this action under FOIA. App., infra, 22a.

Although it is undisputed that the opinions are available to the public from the district courts, respondent has contended that the documents are not as a practical matter publicly available because of the difficulties respondent has encountered in obtaining the documents (App., infra, 25a). Respondent alleges that it must request the opinions either from the Department of Justice attorney assigned to the case or from the taxpayer's counsel. Alternatively, it must obtain the opinions through a request directed to a district court clerk, who, respondent claims, may not respond in a timely fashion or at all. Respondent must send advance payment for photocopying, and then must wait for the opinion to arrive by mail (id. at 21a). Respondent claims that it has been unable to obtain approximately 25 percent of such opinions and orders. As the court of appeals has recognized, however, such opinions and orders are “practically unavailable” only in the sense that respondent is not “willing to expend” the resources necessary to secure them by means other than a FOIA request (id. at 2a n.2).

2. Following the denial of its FOIA requests and its administrative appeal from that denial, respondent filed this action, seeking to compel the Department of Justice to provide it with weekly access to all United States District Court decisions, opinions, and orders in tax cases as they are received by the Tax Division, and to obtain a permanent injunction against the continued withholding of such documents (App., infra, 22a). The district court granted the government's motion to dismiss the complaint, holding that 5 U.S.C. 552(a)(4)(B), which confers jurisdiction on the district court only when “agency records” have been “improperly withheld,” does not apply here. The court ruled that, because the documents sought by respondent “already are available from their primary sources, the District Courts,” and because the documents are “publicly available for inspection and copying almost immediately upon issuance,” they cannot be deemed “improperly withheld” (App., infra, 25a). The court did not address the question whether the orders and opinions are “agency records” (id. at 23a).

The court of appeals reversed. It first rejected the district court's determination that these public documents had not been “improperly withheld” under FOIA. The court recognized that judicial opinions and orders are available to the public through the courts (App., infra, 2a), but it nevertheless held that FOIA requires a requested document to be made available by an agency itself (id. at 11a, 14a). The court of appeals then held that, under considerations set forth in Lindsey v. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir.), vacated, 469 U.S. 1082 (1984), the district court opinions and orders must be considered “agency records” under FOIA (App., infra, 17a-18a). Although the court said that it was “trouble[d]” (id. at 11) by the administrative burdens that its decision would impose, and essentially acknowledged (ibid.) that FOIA was not intended to bring about the result reached here, the court “f[ou]nd in the words of the statute [no] exemption to cover such a situation” (id. at 12a). The court therefore held that the Tax Division could not refuse to provide respondent with copies of the court opinions and orders, and it remanded the case to the district court with instructions to enter an order requiring the Department of Justice “to provide some reasonable form of access to its copies of the district court opinions and orders” (id. at 3a). The court of appeals, with two dissenting votes, subsequently denied rehearing en banc (id. at 34a-35a).

REASONS FOR GRANTING THE PETITION

This case represents a plain abuse of FOIA in an effort to impose on the Executive Branch (and, ultimately, the taxpayer) costs and burdens that stem from what respondent alleges is lackadaisical performance by the Judicial Branch in making its records available to the public. The costs and burdens that respondent seeks to transfer to the Executive Branch are more properly borne by respondent. The decision below, moreover, incorrectly construes both the “improperly withheld” and “agency records” criteria that are prerequisites to judicial action under FOIA. On the “agency records” point, it is clear that the government would have prevailed in this action under the case law of the Ninth Circuit dealing with other kinds of court-generated records.

There are no other cases in which courts of appeals have directly addressed the proper treatment of a request for judicial opinions under FOIA (a void that, in and of itself, says something about the plausibility of the D.C. Circuit's result here), but this is not a case in which we can await the development of that kind of square conflict in the circuits before seeking review in this Court. The decision below, if not reviewed by this Court, will be binding precedent in the United States District Court for the District of Columbia, where any FOIA requester always can (see 5 U.S.C. 552(a)(4)(B)) and presumably will bring any future action seeking court documents that might be covered by the reasoning of the court of appeals in this case.³ Moreover, we submit that the Tax Division (and any other government component threatened with suit in the District of Columbia) should not be required to bear the very substantial burdens that have erroneously been imposed by the decision below during the years that it could take to develop a circuit conflict if that were even possible. For these reasons, we respectfully contend that review by this Court is appropriate at the present time.

1. FOIA gives the district courts jurisdiction “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.” 5 U.S.C. 552(a)(4)(B). This Court has held that jurisdiction under FOIA “is dependent upon a showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.' Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980). The district court here, in accordance with this Court's precedent, construed the statutory phrase “improperly withheld” as one having substantive content, and the court determined that the Department of Justice did not improperly withhold anything by directing respondent to the original source of the requested documents rather than providing them itself. The court of appeals, by contrast, construed “improper[ ] withh[olding]” to mean virtually any refusal to produce documents that is not explicitly authorized by one of FOIA's enumerated exceptions (App., infra, 6a-8a), and it found that “[n]o exemption applies to the district court opinions” (id. at 8a (footnote omitted)). Accordingly, it held that there had been “improper[ ] withh[olding]” on the part of the Tax Division.

The term “improper[ ] withh[olding],” however, should not be so broadly construed — in a manner without reference to the statutory purpose. Indeed, although this Court in Kissinger, 445 U.S. at 150, declined to “decide the full contours of a prohibited 'withholding,' ” in GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375 (1980), it determined — in contrast to the decision of the court of appeals here — that documents had not been “improperly withheld” by an agency in circumstances that were not covered by any of FOIA's exemptions. At issue in GTE Sylvania was a FOIA request for various accident reports submitted by television manufacturers to the Consumer Product Safety Commission. In separate litigation, the Commission had been enjoined from disclosing those reports. The Court there (445 U.S. at 384-386) examined the legislative history of the Act to determine whether the documents had been “improperly withheld,” a term that Congress had not defined in the statute. That history showed that “Congress was largely concerned with the unjustified suppression of information by agency officials” (id. at 385). The Court observed that “[t]he attention of Congress was primarily focused on the efforts of officials to prevent release of information in order to hide mistakes or irregularities committed by the agency * * * and on needless denials of information” (ibid.).⁴

There is no effort to hide mistakes or irregularities in this case, nor is there any needless denial of information.⁵ 

ndeed, there is not the slightest suggestion here that agency information is being withheld from the public. Rather, the district court orders and opinions are generated by the courts, and they are made available to the public by the courts. As the district court in this case correctly noted, “[t]he danger of 'secret agency law' is not a consideration here” (App., infra, 27a). In this case, as in GTE Sylvania, the concerns underlying FOIA are simply inapplicable.

Accordingly, the Tax Division's refusal to provide documents that the courts already make available to the public is not an improper withholding under FOIA.⁶ Information that is in the public record — at a location that the agency is perfectly willing to specify — is not withheld or concealed, and an agency's refusal to copy and furnish to requesters such public documents does not restrict their availability to the public. By definition, such documents are already available to the public; accordingly, the refusal of an agency to copy and furnish to requesters documents that are publicly available at a location the agency will specify does not implicate the provisions of FOIA.⁷

Two courts of appeals have agreed with that proposition. In SDC Development Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) (Kennedy, J.), the court held that FOIA did not require an agency to produce a computer database of medical information, the substance of which was freely available in various publications, since the computer tapes already were made available to the public on payment of a fee. In Lead Industries Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979) (Friendly, J.), the court determined that, in response to a FOIA request, an agency did not have to provide material that already had appeared in an agency's published report, because “it is already on the public record and need not be disclosed.” See also City of West Chicago v. NRC, 547 F. Supp. 740, 749 (N.D. 111. 1982) (“Material already on the public record need not be disclosed.”). The court of appeals here acknowledged the principle that an agency need not respond to a FOIA request if the information already is available (App., infra, 8a-9a), but it limited that rule to situations in which the agency itself provides access to the information, stating that “it is the agency's responsibility to make its records available, whatever their source” (id. at 11a).

That limitation does conveniently serve to distinguish the SDC and Lead Industries cases on their facts (although the Second and Ninth Circuits mentioned no such limitation), but it is a principle that the court of appeals simply announced without attempting to justify it.⁸ When one branch of government (here, the courts) originates the documents at issue and would ordinarily be assumed by everyone to have the responsibility for their public dissemination, there is no persuasive basis for shifting that responsibility to an agency within another branch. A mere insistence that a federal agency — and no one else — must take full responsibility for the dissemination of public documents, “whatever their source,” is neither a realistic reading of what Congress could have intended nor a sensible rule of decision.

The court of appeals held that the public availability provided by the courts is not public availability insofar as the agency is concerned. There is neither legal nor logical support for that proposition. Public availability of documents means that the documents have been disclosed and are available to respondent and any other member of the public.⁹ The court of appeals therefore erred in holding that the Department of Justice “improperly withheld” the records that respondent requested.

2. In order to hold for respondent, the court of appeals had to conclude that the public availability of documents is immaterial to FOIA's disclosure requirement, because the public availability is provided by the courts rather than by the Department of Justice. Further, the court was required to make a determination that the opinions and orders of the United States District Courts, which are expressly not subject to FOIA requests directed to the courts (see 5 U.S.C. 551(1)(B)), are nonetheless “agency records” under FOIA and must be produced on demand by an agency that has received copies of such opinions and orders. But the district court opinions and orders that respondent seeks, and that the decision requires the Department of Justice to produce, are no more “agency records” of the Department when they have been transmitted to the Department and placed in its files than they are in the offices of the district court clerks or when they are collected in a volume of the federal reporters that an agency maintains in its library.

The Act does not define the term “agency records.” It does, however, define “agency,” and the courts of the United States are expressly excluded from FOIA (see 5 U.S.C. 551(1)(B)). Unquestionably the court opinions and orders sought here are records of the courts. Those documents were created by the courts as part of their function of resolving cases and controversies between parties, one of which happens to be the United States, represented by the Tax Division of the Department of Justice.

We recognize that there is only scant authority on the question whether, and in what circumstances, a document generated by another branch of government may become an agency record. Most of the cases that have addressed that issue have dealt with documents generated by another branch of government that were not publicly available, but that nevertheless were used by an agency of the Executive Branch. See, e.g., Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (confidential transcript of congressional hearing), cert. denied, 445 U.S. 927 (1980); Lindsey v. Bureau of Prisons, 736 F.2d 1462 (11th Cir.) (presentence report), vacated, 469 U.S. 1082 (1984).

There is, however, authority from the Ninth Circuit that directly supports our position in this case. When a public judicial record (a trial transcript) was requested under FOIA, the Ninth Circuit squarely held that such a court document is not an agency record for purposes of FOIA, even when a copy is held by the Department of Justice. Warth v. Department of Justice, 595 F.2d 521, 523 (1979). In Berry v. Department of Justice, 733 F.2d 1343, 1349 (1984), the Ninth Circuit confirmed that its case law requires that a court-generated document be “prepared substantially to be relied upon in agency decisionmaking” before it will be deemed an “agency record” under FOIA. Judicial opinions, which are prepared to resolve cases or controversies and not particularly as an aid to agency decisionmaking, are not “agency records” under that test.¹⁰

The court below did not follow. Warth and Berry. Rather, it adopted the multifaceted analysis used by the Eleventh Circuit to determine the status of a presentence report. See Lindsey v. Bureau of Prisons, supra. But that approach is not helpful in resolving the question here. And even under the Lindsey approach, the only sense in which it could be said that a court opinion is transformed into an executive agency record would be through its integration into and use as part of an agency file. As the panel recognized, “[a]gencies must use or rely on the document to perform agency business, and integrate it into their files, before it may be deemed an 'agency record' ” (App., infra, 16a-17a). It is obvious, however, that respondent is not seeking production of Department of Justice records. It wants nothing more than the same court opinions that are on file in the district courts, but that are not as conveniently obtainable from those sources. The facts that such opinions and orders will ultimately be associated with particular Department of Justice files, and that the Tax Division may later use or rely on the opinions in those or other cases, are factors entirely irrelevant to respondent's requests.

In the context of documents generated by another branch of government, the only relevant consideration should be the control exercised by the originating branch. Here, the court of appeals purported to find that the Department of Justice controls disposition and dissemination of the documents. But it is the district courts, not the Justice Department, that have inherent control over the content and publication of their opinions. The Department of Justice has no power to suppress court documents that have been placed in the public record, and conversely it has no authority to disclose or to publicize opinions and orders that courts have ordered sealed. Cf. Warth, 595 F.2d at 523.

The metamorphosis of court opinions into agency records is unjustified by the Act's terms and is alien to its intent.¹¹ The court of appeals lost sight of FOIA's purpose of disclosing information about agency law and operations, and the court has transformed the statute into a means to compel an agency to compile public documents that are widely scattered throughout the agency and to provide the compilation to respondent. It is plain that respondent seeks nothing specific to the Tax Division files. It simply seeks to shift to the Department of Justice the economic and administrative burden of obtaining court opinions for respondent's use.

3. The erroneous decision of the court of appeals is sufficiently important to merit this Court's attention because it would impose enormous administrative costs and burdens on the government. Respondent's request alone — just one of the many that can be expected if the reasoning of the court of appeals becomes the law — will impose very significant costs. The record reflects that an actual experiment conducted in order to determine the burden of complying with respondent's request disclosed that an experienced paralegal required 80 hours to locate 29 of the opinions identified in just one of respondent's 26 weekly requests. On the basis of that experiment, the government estimated that filling respondents' requests on a regular basis would have an annual direct compensation cost of nearly $75,000 for search time alone. C.A. App. 28-29.

Moreover, as the district court noted (App., infra, 29a), “the consequences of holding that time consuming or unreliable procedures for obtaining publicly available documents from a primary source or a public depository of such documents, such as a library,” justify requiring an agency to produce them, would have effects far wider than this case. Nothing in the decision of the court of appeals would limit its applicability to tax cases or to the Tax Division. In 1987 alone, almost 800,000 cases were terminated in the federal courts of appeals, district courts, and bankruptcy courts, and the United States was a party to 115,314 cases begun in the United States District Courts. 1987 Annual Report of the Director of the Administrative Office of the United States Courts 1-31.¹² If we assume at least one opinion or order for each case that was terminated in 1987, there were several hundred thousand orders and opinions issued in that one year in cases involving the United States. If any substantial portion of those opinions and orders were to be sought for production pursuant to FOIA under the decision in this case, the logistical difficulties would be crushing. With each passing year, the opinions held for continued public access would also serve to increase the storage problems.¹³

Under this decision, commercial publishers and law firms, which previously have obtained the materials needed for their research from the courts or from other sources, would now be given both the opportunity and a substantial cost incentive to impose on federal agencies the burden of collecting and supplying basic research materials.¹⁴ The Department of Justice, however, was not established as a public depository for publicly available documents, nor does FOIA require it to become one for the convenience of a requester. This decision represents an incorrect interpretation of FOIA, and in light of the extreme administrative burden that could be placed on the Department of Justice, as well as other agencies of the government that are engaged in the conduct of litigation, the question calls for resolution by this Court.

CONCLUSION

The petition for a writ certiorari should be granted. Respectfully submitted.

CHARLES FRIED
Solicitor General
WILLIAM S. ROSE, JR.
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
ROY T. ENGLERT, JR.
Assistant to the Solicitor General
JONATHAN S. COHEN
MARY FRANCES CLARK
Attorneys

November 1988

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APPENDIX A

Argued October 16, 1987
Decided April 29, 1988

Before Wald, Chief Judge, Mikva, Circuit Judge, and McGowan,^* Senior Circuit Judge.* Judge McGowan concurred in the judgment but died before this opinion issued.

Opinion for the Court filed by Chief Judge Wald.

Wald, Chief Judge: In this appeal we decide whether the Department of Justice (the Department) has any duty under the Freedom of Information Act (FOIA or Act), 5 U.S.C. § 552(a), to make available certain opinions and orders of United States District Courts that are regularly kept in its case files. Tax Analysts, a reporter and publisher of decisions and other news affecting federal tax [Missing text.]