Respondent's Brief

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

IN THE Supreme Court of the United States

October Term, 1988

On Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

BRIEF FOR THE RESPONDENT

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

Attorney for Respondent

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[MISSING TEXT]

K. Davis, Administrative Law Treatise (Supp. 1970)

A. Scalia, The Freedom of Information Act Has No Clothes, Regulation, Mar/April 1982

T. Troyer & A. Lauber, Supreme Court's TWR Decision Provides Guidance in 501(c)(3) Lobbying, 59 J. Tax'n (1983).

P. Wald, The Freedom of Information Act: A Short Case Study in the Perils and Paybacks of Legislating Democratic Values, 33 Emory L. J. (1984)

Bush Likely to Ask Lower Capital Gains Tax, N. Y. Times, Jan. 31, 1989, A17

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 BRIEF FOR THE RESPONDENT

STATEMENT OF THE CASE

At stake in this action is the public's ability to learn the content of federal district court decisions in tax cases as soon as petitioner Department of Justice's Tax Division and its client, the Internal Revenue Service, learn it.

Respondent and Its Request

Respondent is a nonprofit, charitable and educational organization. Its purpose is to increase the public's knowledge and understanding of federal tax laws, regulations, administration and interpretation, and of current issues in taxation. Affidavit of Thomas F. Field in Tax Analysts v. Department of Justice, C.A. No. 85-1878 (D.D.C.) (“Field Aff.”). Respondent was the first and remains the leading “public interest" law firm and information source in this field. Originally supported by foundation grants and contributions, respondent now supports its activities entirely with the revenues from its publications.

Respondent's weekly magazine, Tax Notes, publishes a wide range of opinions and scholarly analysis of major issues like President Bush's proposal to reduce taxes on capital gains, new I.R.C. § 89 requirements for employee benefit plans, tax policy changes in the offing, and taxes and the budget deficit.¹ It also publishes news of current developments in tax law and administration, including court decisions in tax cases. Field Aff. 1; see Tax Notes, Vol. 42, Nos. 7-10, Feb. 13, 20, 27, March 6, 1989. Respondent's board of directors and advisory board include two former Commissioners of Internal Revenue, high Treasury Department and Justice Department Tax Division officials from past Democratic and Republican administrations, leading economists (including one Nobel laureate), teachers and practitioners of tax law and accounting.²

Respondent has used the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to pursue its public education objectives and force government “secret law” into the public domain. Over vigorous government resistance, respondent has obtained disclosure of IRS' private letter rulings, IRS' internal legal opinions that embodied IRS' administrative law applied to taxpayers and the Treasury Department's files of communications with the Congress and others on tax policy issues.³

Respondent began its effort to remove the difficulties in timely obtaining and disseminating federal district court tax decisions in 1979 with an initial FOIA request to petitioner's Tax Division. Petitioner, counsel for the government in those cases, automatically receives the decisions as soon as they are issued. Petitioner persuaded respondent to withdraw its request in exchange for access to petitioner's weekly index of district court tax decisions. For five years respondent used the index and diligently sought to obtain copies of the listed decisions from the courts. Those efforts failed to obtain complete and timely access to the decisions. In 1984 respondent began making periodic formal FOIA requests to petitioner for copies of the decisions. Petitioner denied those requests and in 1985 respondent filed this suit. Pet. App. 21a-22a, 4a-5a.

For 10 years, at petitioner's request, respondent has used petitioner's weekly index to new district court decisions in efforts to obtain copies of them from the courts' clerks. With much difficulty and usually after considerable delay respondent has been able to obtain about 75% of them. The remaining 25%, about 470 decisions each year, are neither obtained nor published by respondent or any other publisher.⁴

The Records At Issue

Petitioner describes the district court decisions at issue here as if they are wholly alien to the work of its Tax Division, i.e. as papers merely “associated” with its litigation files, “under the exclusive control of the courts,” which Tax Division attorneys “read” but “keep on hand simply for reference.” Br. 8, 14, 21-22. The description does not do justice to the facts.

The decisions of federal district courts in tax cases are essential to the function, mission and operations of petitioner and its client, the Internal Revenue Service. Petitioner receives them during a litigation process in which the Tax Division and IRS are partners. U.S. Department of Justice, The Attorney's Guide to the Organization and the Operation of the Tax Division (“Attorney's Guide”) 4.⁵ The Tax Division handles for IRS such district court cases as taxpayer refund suits, IRS collection suits, criminal prosecutions, mandamus and injunction proceedings, declaratory judgment actions under § 7428 of the Internal Revenue Code and taxpayer challenges to jeopardy assessments. Id. 2-3.

The “association” between the documents and petitioner's “litigation files,” Br. 14, is far from remote. As soon as petitioner receives a decision it is “copied and the original incoming document sent to the Department's official file ('DJ File'), in the particular case.” Defendant's Answers to Plaintiff's First Set of Interrogatories, Tax Analysts v. Department of Justice, C.A. No. 85-1878 (Aug. 30, 1985) (“Def. Int. Ans.") 10.⁶

Tax Division receipt of a decision generates considerable activity. If the government has won the case, the Tax Division prepares and files a bill of costs. Attorney's Guide 66. If the decision awards a money judgment to the United States, the Tax Division is “responsible for collection." Attorney's Guide 65. If the government has lost and a refund is ordered, the Tax Division must ensure that the money is paid. Attorney's Guide 71. If the taxpayer seeks attorney's fees under 42 U.S.C. § 1988 (or 26 U.S.C. § 7430), the Tax Division defends. Id.

If the government has lost, the Tax Division also must consider filing a motion to alter or amend under Fed. R. Civ. P. 59., Def. Int. Ans. 6, 9, and must consider whether to recommend appeal. Attorney's Guide 67, 72. The recommendation process requires consideration and analysis of the district court decision not only in the Tax Division, but also by the IRS and the Solicitor General's office. The Tax Division sends a copy of the decision and other case file materials to the IRS for this purpose and to compute any refund due. Attorney's Guide 71; Def. Int. Ans. 10, 15, 16. The IRS' Office of Chief Counsel's Tax Litigation Division reviews the decision and prepares an appeal recommendation, styled an Action on Decision (“AOD”). Taxation With Representation Fund v. IRS, 646 F.2d 666, 672-73 (D.C. Cir. 1981). The AOD also recommends whether or not IRS should “non-acquiesce,” i.e. decline to apply the rule of the decision to other taxpayers. Id.

The AOD package (including the decision in issue) passes through the IRS hierarchy until a final recommendation is made. IRS relies on the AODs and the reasoning behind them as precedent in dealing with other taxpayers. Id. They are “widely disseminated” within IRS for use “in conferring with the public,” and IRS' “no appeal” decisions “clearly pertain to the law that will be applied by the agency henceforth. . . ." Id. 684.

With IRS' appeal recommendation in hand, the Department of Justice completes its own recommendation process, in which the recommendation and the supporting documents (including copies of the decision) are circulated among several offices and from 10 to 15 attorneys in the Tax Division and the Solicitor General's office. Def. Int. Ans. 11, 18-19. If the Solicitor General approves an appeal, the Tax Division prepares the record for transmission to the Court of Appeals and the joint appendix. Id. 67-68. Both must contain a copy of the decision. Whatever the appeal decision is, district court decisions are necessarily involved in the Tax Division's determination of litigation strategy, policy and tactics in concert with IRS. Id. 21-22.

Petitioner has 60 days to appeal tax (as all other federal government) cases. Sometimes a case is appealed before respondent or any other publisher, using petitioner's index and pursuing decisions in the 90-odd district courts, can obtain a copy of the decision and disseminate it. Relenting from its blanket policy of refusal, in such cases petitioner will, on its own motion (but two months or more after the decision came down), provide a copy of the district court decision to respondent. Field Aff. 5; id. App. A; Def. Int. Ans. 30.

Effects of Current Practice

Petitioner and its client, the IRS, “rely” on district court decisions, as precedents, “to obtain guidance on the probable disposition of other, similar cases in the future.” Br. 17. They rely on the decisions in “deciding whether to appeal an adverse decision, deciding litigation positions and strategy and framing legal arguments.” Pet. App. 17a (quoting petitioner's Answer to the complaint in this action). "The opinions of the courts tell the agency how it may act. . . .” Br. 18.

As the government counsel in all federal district court tax cases, petitioner's Tax Division receives copies of the decisions immediately. But respondent has found it “impossible” to secure and publish “the tax decisions rendered by the ninety-odd, far flung federal district courts from their clerk's offices on any timely or regular basis. . . .” Pet. App. 4a. About 25% are published by no one, p. 3, supra. Thus the members of the taxpaying public, their attorneys, accountants, tax planners and tax preparers are denied complete, timely and contemporaneous access to a body of law: the nearly 1900 tax decisions the district courts issue each year.

Government possession of precedents that the government's adversaries in other cases get only late, if ever, gives the government an advantage unintended by the courts and at odds with our adversary system. It gives the government an advantage over litigants in pending cases that involve issues similar to those decided in cases whose decisions petitioner receives, and over taxpayers contesting similar issues in the IRS administrative process.

Petitioner's Claims of Cost

Petitioner charges respondent with “commercial motivation,” with seeking “a taxpayer-subsidized source of records that” it “can obtain elsewhere, " and with abusing FOIA to impose "enormous” costs on the taxpayer. Petitioner predicts “crushing” difficulties from a horde of “commercial publishers and law firms.” Br. 20, 29-30; Pet. for Cert. 7, 18-20; see Pet. App. 11a-14a.

There is no substance to these claims. As the court of appeals wrote,

[t]his is not . . . a case in which a commercial publisher is seeking to shift its operating costs to federal taxpayers but rather one in which existing government machinery is being used to enhance the efficiency of a privately provided public service, ensuring prompt public access to federal court decisions. Such a result is not at odds with the goals of the FOIA.

Pet. App. 12a n. 13.

Moreover, petitioner's release of district court tax decisions would save respondent no more than the difference between the clerks' per-page copying charge and petitioner's. Indeed, under 5 U.S.C. § 552(a)(4)(A)(vi) petitioner may well be authorized to charge the same amount per page as do the clerks, see Br. 30.⁷ On the other hand, the feared burden of compliance is a creature of fairy tale. As the court of appeals suggested:

Compliance with the request for access to such decisions could involve no more than a memorandum to tax attorneys telling them to make an extra copy of district court decisions as they receive them and route such copies to a central file to which the plaintiffs would have access. No file searches need be involved at all.

Thus our decision that district court opinions qualifying as “agency records” cannot be withheld means only that extra copies of these decisions must be made available in an agency reading room.

Pet. App. 12a-13a (footnotes omitted).

SUMMARY OF ARGUMENT

Petitioner argues that its copies of the decisions are neither “agency records” within the compass of FOIA nor are they “improperly withheld” so as to justify judicial relief to compel disclosure. Both arguments are plainly wrong. They are rationales for petitioner's antipathy to change its practices even slightly to comply with its duties under FOIA, duties that it asked Congress to relieve it of, a request the Congress refused.

Petitioner argues that its copies of judicial decisions are not agency records because — and only because — the originals are court records. Yet petitioner admits that some court records are agency records. Petitioner's possession, control and use of these court-originated documents satisfy every element of this Court's holdings on what makes a document an agency record.

Petitioner's Tax Division receives the documents in the course of carrying out its functions as counsel for the government in federal district court tax cases. It uses them in numerous ways: in deciding whether the decision, if adverse, should be appealed or if not appealed how it must be obeyed; as precedents in shaping its positions, litigation strategy and advice to IRS in, and to predict the probable outcome of, other cases. Petitioner carefully incorporates one copy of each decision into its official, permanent “DJ” litigation file.

Petitioner also transmits a copy to its client, IRS, where more copies are made, distributed and used by IRS personnel to carry out IRS' functions. IRS also must decide whether it wants to appeal adverse decisions. If not, and if money therefore is due the plaintiff taxpayer, IRS must analyze the decision to compute how much is due and decide whether to adopt the decision as a correct interpretation of the Internal Revenue Code, or to reject it and issue an “Action on Decision” announcing its disagreement, or “non-acquiescence.”

Thus petitioner has “received” the documents, “possesses” them, “preserves” them “in the performance of its functions” and in every possible sense of the word, “controls” them. Forsham v. Harris, 445 U.S. 169, 1982-85 (1980). It incorporates them into its files and uses them for numerous purposes. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-52 (1980). The documents are “agency records” under the tests established in those cases.

Prompt public access to the documents after petitioner and IRS receive them is practicable only from petitioner and through the FOIA. Such public access is indispensable to public knowledge and understanding of the various agency functions that receipt of a decision trigger and to the public assessment of their performance. It also is indispensable to create an even playing field for the government and taxpayers, unlike the present one where the government often learns about changes in the rules considerably before the taxpayer.

Petitioner does not argue that any provision of the statute authorizes it to withhold the records at issue. Yet the statute, specifically 5 U.S.C. § 552(d), FOIA's legislative history and numerous decisions of this Court⁸ make it clear beyond doubt that the only withholding that is not "improper" is a withholding expressly authorized by one of the Act's nine specific exemptions. Nor is this case like GTE Sylvania v. Consumers Union of the United States, 445 U.S. 375 (1980), on which petitioner heavily relies, where a court order barred the agency from disclosure.

Aware of this, between 1981 and 1986, and beginning soon after respondent first requested district court opinions from petitioner under the FOIA, petitioner sought to persuade Congress to amend the FOIA expressly to permit withholding of court records. The Congress declined, because, it found, some “court records . . . are not readily accessible except through the government." S. Rep. No. 221, Freedom of Information Reform Act, 98th Cong., 1st Sess 20 (1983).

Petitioner's withholding of the documents is unjustified; it is the kind of needless denial condemned in GTE Sylvania, 445 U.S. at 385-86. Petitioner has the burden of establishing that the documents are exempt from disclosure. 5 U.S.C. § 552(a)(4)(B); Federal Open Market Committee of the Federal Reserve System v. Merrill, 443 U.S. 340, 352 (1979). Petitioner's weak plea of inconvenience and plainly transparent assertions of cost (as the court of appeals saw, Pet. App. 12a-13a nn. 13-15) fail to sustain that burden on any ground, much less under any language in the statute. Petitioner's withholding here is plainly improper.

ARGUMENT

I. The Records Are Agency Records That Petitioner Obtains, Receives, Possesses, Keeps, Uses and and Controls.

Twice the Court has faced the "agency records" issue. In Forsham v. Harris, 445 U.S. 169 (1980), the records (consultant's files) had never been "obtained" by the agency. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), one set of records, created by a non-agency (Dr. Kissinger while he was only National Security Advisor), had been stored at the agency and then removed from the agency's possession. 445 U.S. at 143, 155-56. Others had been created by the agency (Dr. Kissinger while he was Secretary of State) and then removed. Id. at 146-47, 1954-55.

In Forsham the Court held that the records were not "agency records" within the compass of FOIA. For records to be agency records there must be "some relationship" between the agency and the records. 445 U.S. at 178. The agency must "obtain" the record, and it must be a "record" within the definition of the Federal Records Act — a "paper . . . received by an agency . . . in connection with the transaction of public business," 445 U.S. at 182, 1983 (emphasis is the Court's). In adopting this definition the Forsham Court relied on and cited the Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (June 1967) as confirming Congress' intention to import the Records Act definition into FOIA. Id. 183. The 1967 memorandum expressly defined agency records, the records covered by what is now 5 U.S.C. § 552(a)(3), as "records in being and in the possession or control of an agency." 1967 Attorney General's Memorandum at 23 (emphasis added).

In Kissinger the Court adopted that same definition, holding that "agency possession or control" of a document "is prerequisite to triggering . . . duties under the FOIA,” which "ensure[s] 'access to the information possessed by [Government] servants.'” Kissinger, 445 U.S. at 151 (emphasis is the Court's). FOIA “require[s] agencies to disclose those 'agency records' for which they have chosen to retain possession or control.” Id. (footnote omitted). But mere “physical location” at an agency is not enough. Id. 157. The Act does not cover documents that “never entered the [agency's] files” and “were not used by the [agency] for any purpose.” Id.

Here petitioner admits and the record establishes that the Tax Division has “obtained” the documents at issue, that it “received” them “in connection with the transaction of public business” (federal tax litigation), that it has “possessed” the documents from the time it received them, that it has “chosen to retain possession,” that the documents have been incorporated in its permanent litigation files and that it has “used” them for several purposes. Under the tests this Court developed in Forsham and Kissinger, the documents are agency records.

Petitioner argues, however, that the courts, not the Tax Division, “control” the records at issue, Br. 8; see Kissinger, 445 F.2d at 151-52. Petitioner then explains that it means that petitioner does not control the “content” of judicial decisions nor does it “control" what the courts do with the original of the document and copies in the possession of the courts, their judges, clerks and other personnel.⁹ Br. 14. But petitioner's long set of variations on this theme, Br. 13-20, is a giant irrelevancy, as the Court of Appeals pointed out, Pet. App. 16a; see Br. 18. Petitioner indeed does control the copy it receives pursuant to its duty and function as counsel for the government in tax cases. It controls all the copies it makes. It files and preserves its original copy and makes more copies because it needs to preserve and use the records in order properly to perform its duties and functions “in those or other cases,” Br. 19.

Petitioner admits that some records, presentence reports, do “qualify as records of both the courts and Executive Branch agencies,” i.e. of petitioner itself. Br. 12.¹⁰ The same factors that forced petitioner to that concession for presentence reports in Crooker v. United States Parole Comm'n, 469 U.S. 926 (1984), apply to copies of district court decisions in petitioner's hands, as described at pp. 4-6, supra. As in Crooker, here the courts claim no authority and impose no special restraints on petitioner's use or disclosure of court decisions. Crooker, No. 83-2082 (October Term, 1984), Brief for the Respondent in Opposition at 15. As in Crooker, here the courts' clerks may not decline to furnish a copy of a decision to petitioner “and the court has no authority to prevent him from doing so." Id. 10. As in Crooker, here petitioner has no duty to return the decision to the court when it has finished using it. "Instead the [petitioner's] copy . . . is routinely sent to the Department of Justice's records center.” Id. As in Crooker, here petitioner must and does “consider” the decision, id., in making the appeal decisions in that case and strategy decisions in other cases. For court decisions here, as for presentence reports in Crooker, “an agency's receipt, possession, and official use of a document in this manner would lead to the conclusion that the document in question is an 'agency record.'" Id. 11.

As one court of appeals holds, “[t]he purpose of the Act” was “to give the public access to information on which the government bases action,” and that purpose “would be impeded if 'agency record' excluded documents that had moved the government to act.” General Electric Co. v. United States Nuclear Regulatory Comm'n, 750 F.2d 1394, 1400 (7th Cir. 1984).

Here, nothing could be more obvious than that the receipt of a district court tax case decision moves the government, i.e. both petitioner and its client the IRS, to act. If the decision is wholly favorable to the government's position, it influences petitioner's posture in pending cases if only to reinforce it, and encourages IRS in its determination to apply to other taxpayers the rule it urged in the case just decided. If unfavorable, it may lead to change in petitioner's arguments in pending actions or IRS' position vis-a-vis other taxpayers. If unfavorable, it also requires a decision by IRS and petitioner whether or not to appeal and a decision by IRS whether to “non-acquiesce.” If appealed, it “moves” petitioner and IRS to decide how, in the interim, to argue pending cases and treat taxpayer controversies still in IRS' administrative adjudication process.

Thus the relationship of the district court decisions at issue here to the purpose of the FOIA “'to open agency action to the light of public scrutiny,'” United States Dep't of Justice v. Reporters Committee for Freedom of the Press, No. 87-1379 (March 22, 1989), slip op. at 22, quoting Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976), is close indeed; see pp. 4-7, 9 supra. The facts here fall squarely within the Court's teaching in that case.

In Reporters Committee the Court established standards for the balancing, required by FOIA Exemption 7(C), of an individual's privacy interest in law enforcement records against the public's interest in disclosure. Slip op. at 5-6, 12. It held that the public's interest under Exemption 7(C) turned on whether the requested information would shed light on the activities of the government, id. 22-25, because “[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within” FOIA's purpose to protect and promote "the citizens' right to be informed about 'what their government is up to'.” Id. 23, quoting Environmental Protection Agency v. Mink, 410 U.S. 73, 105 (1973) (dissenting opinion). That purpose “is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but reveals little or nothing about an agency's own conduct.” Id.

Petitioner makes an argument here that would import into the definition of “agency records" the Reporters Committee definition of the public interest for Exemption 7(C) purposes. It contends that its copies of federal district court tax decisions are not agency records because they do not “reveal anything about the operations and decisions of an 'agency',” Br. 8, nor “enable the public to know what agencies . . . are doing,” id. 18.

Of course, this case presents no countervailing interest protected by the statute, as personal privacy is protected by Exemptions 6 and 7(C); see pp. 15-24 infra; Reporters Committee, slip op. at 4-5; Br. 26-27 n.11. But even if the Court's definition of the public interest for Exemption 7(C) purposes were applied to “agency records,” that test is satisfied here.

Copies of court decisions, circulating prolifically around and between the Tax Division and IRS, are the essential documentary base for a myriad of agency activities, see pp. 4-7 supra. Their availability to the public as soon as possible after petitioner's Tax Division receives its copies and the various processes described above begin will reveal much about agency operations and decisions, Br. 8, and will enable the public to know what petitioner and the IRS are doing, Br. 18. As petitioner admits, these court decisions “tell the agency how it may act,” id.

Hence the prompt public availability of district court decisions from petitioner under FOIA will provide “a means of finding out about the operations of government.” A. Scalia, The Freedom of Information Act Has No Clothes, Regulation, March/April 1982, at 16. Their prompt public availability from petitioner under FOIA will shed light on both petitioner's and the IRS' performance of their “statutory duties,” and will serve “citizens' right to be informed” about what the government's lawyers and the IRS are “up to” in matters that directly concern them as taxpayers and tax litigants, cf. Reporters Committee, slip op. at 23.

II. Petitioner Has Improperly Withheld The Records.

Petitioner argues that it has not “improperly withheld” the court decisions at issue here because they are available from the district courts' clerks' offices. Br. 22-30. Petitioner declared in 1967 that the FOIA “leaves no doubt that disclosure is a transcendent goal, yielding only to such compelling considerations as those provided for in the exemptions of the act.” 1967 Attorney General's Memorandum at iii. The statement was and still is correct. The language of FOIA, the legislative history of the original act and of subsequent amendments and this Court's consistent interpretations of the Act lead to but one conclusion. The only kind of voluntary withholding of agency records requested by a member of the public that is not “improper” is a withholding pursuant to one of FOIA's nine specific exemptions, 5 U.S.C. §552(b)(1)-(9).¹¹

A. The Statute Is Clear.

FOIA provides very simply, in a passage that must be quoted thousands of times in FOIA decisions:

This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.

5 U.S.C. § 552(d). It also provides, in language that petitioner omits from its recitation of Statutory Provisions Involved, Br. 2-3, that in FOIA actions like this “the burden is on the agency to sustain its action,” § 552(a)(4)(B).

Language could hardly be clearer. For a withholding not to be “improper,” the reasons for withholding must be found within the four comers of the Act, and the agency bears the burden of establishing that the statute does not require disclosure. Federal Open Market Committee, 443 U.S. at 352; Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973). There is no room for administrative or judicial invention of new reasons to justify an agency's refusal to produce one of its records.

Therefore, if

• a requester reasonably describes the record, 5 U.S.C. § 552(a)(3),

• follows the agency's published rules, id.,

• is willing to pay the fees, id.,

• the records are not already published in the Federal Register, available from the agency by purchase or made generally available (e.g. in the agency's public reading room) for inspection and copying, §552(a)(2), and

• the agency has no colorable claim of exemption under § 552(b)(1)-(9),

Then

• the agency must produce the record, refusal to do so is improper withholding, and the requester is entitled to judicial relief, i.e. a federal court order to the agency to produce the record.

B. The Legislative History Is Clear.

Rarely has the intent of Congress been made plainer in the legislative history of a statute than it has for the FOIA. It is that, as §552(d) expressly declares, agencies must disclose all their records unless a specific record is exempt under one of FOIA's nine exemptions.

The FOIA was enacted to reverse years of practice under Section 3 of the Administrative Procedure Act, to eliminate numerous agency excuses for refusing to disclose records to the public and “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language" S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965), reprinted in Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, 93rd Cong., 2nd Sess. 38 (1974) (hereafter cited as “1974 Source Book”). FOIA “requir[es] the availability, to any member of the public, of all of the executive branch records described in its requirements, except those involving matters which are within nine stated exemptions.” H. R. Rep. No. 1497, 89th Cong., 2nd Sess. 1 (1966), 1974 Source Book 22.

The Act had “the general objective of enabling the public readily to gain access to the information necessary to deal effectively and upon equal footing with Federal agencies.” S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965), 1974 Source Book 43. Moreover, “[t]he purpose of” what is now § 552(d) was "to make clear beyond doubt that all materials of the Government are to be made available to the public by publication or otherwise unless explicitly allowed to be kept secret by one of the exemptions in” what is now §552(b). S. Rep. No. 813 at 10, 1974 Source Book 45 (emphasis in original); see also H. R. Rep. No. 1497, 89th Cong., 2nd Sess. 11 (1966), 1974 Source Book 32. It was this "expressed . . . intent” that the principal sponsor of FOIA in the House, Rep. Moss, stated “we hope the courts will read with great care.” 1974 Source Book 48.

In enacting the 1974 amendments to the FOIA, Congress repeated its specific understanding and intent that the only exemptions “to the general rule of mandatory disclosure” are the nine listed in § 552(b), and that “the FOIA authorizes only the withholding 'specifically stated. . . .'” S. Rep. No. 854, 93rd Cong., 2nd Sess. 5, 6 (1974), reprinted in Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents, 94th Cong., 1st Sess. 157-58 (1975). A few years later, Congress dealt specifically with the question of disclosure of court records and made it clear that FOIA required agencies to disclose them.

In 1981 petitioner proposed to Congress amendments that would have provided “that an agency would not have to produce requested material that consists of . . . court records. . . .” The stated purpose of the proposal was to "free agencies from having to disclose information that is already publicly available.”¹²

As Senator Hatch, then Chairman of the Senate Judiciary Committee and sponsor of the proposed amendments, explained,

agencies are often burdened by requests for information that is publicly available in newspaper accounts or court records.

The bill would allow the agency to refer the requester to those public records without putting him or the agency to the expense of duplicating such records.

Hearings, p. 18 n. 12 supra, at 628.

Prompted by the Department of Justice's urgings, “the Senate Judiciary Committee undertook the most exhaustive examination of the Freedom of Information Act (FOIA) in its history." It "held nine hearings and entertained over sixty expert witnesses with the goal of drafting a bill that will improve the Act without compromising its mission of providing our citizenry with a tool to learn about federal government activities." S. Rep. 221, Freedom of Information Reform Act, 98th Cong., 1st Sess. 1 (1983); see id. at 3-6 for a detailed chronology of Congress' deliberations.

This extensive consideration resulted in Congress' refusal to absolve agencies from having to provide court records to requesters.¹³ Congress' reason was the very problem that caused respondent to file this case: “the concern that some public records (e.g., court records and even some newspapers and magazines) are not readily accessible except through the government. . . ." Id. (emphasis added).

The procedure petitioner has followed with respondent until now, and which it wishes to preserve, is to release a weekly index of decisions while refusing to produce copies of the decisions themselves. Br. 27 n.11. In claiming that it has “furnished respondent all of the information it should need to obtain the records it seeks from the” courts, Br. 24, petitioner is operating as if Congress had enacted, not rejected, the FOIA amendments it proposed in 1981 (and which, perhaps not coincidentally, it proposed after respondent's first request, in 1979, for the records at issue here, see p. 3 supra).

Congress' consideration and express rejection of petitioner's proposal to substitute an index for requested court records demonstrate that Congress intends, and that petitioner knows that Congress intends, the FOIA to require agencies to produce to requesters court-issued documents like decisions. Congress' “action strongly militates against a judgment that Congress intended a result that it expressly declined to enact." Gulf Oil Corporation v. Copp Paving Co., Inc. 419 U.S. 186, 200 (1974). Here there is “evidence of a congressional intent" to require disclosure of court records by agencies, like petitioner, that hold them. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, slip op. at 15; see id. 3, 17.¹⁴ Petitioner thus is simply wrong in asserting that “Congress did not intend FOIA to be used to obtain publicly available court-issued materials that can be obtained from the courts," Br. 9.¹⁵

We agree with petitioner that this Court should “seiz[e] every thing from which aid can be derived" in order "to discover the design of” Congress, Br. 30, quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805). Congress' design is easy to discover. It intended and intends the FOIA to cover court records because, like those at issue here, they are not "readily accessible" except through the Department of Justice. It does not intend the FOIA to let petitioner continue to substitute an index for the actual court records respondent has requested.

C. This Court's Opinions Are Clear.

This Court's numerous expressions of the plain intent and reach of FOIA are collected in Appendix I.¹⁶ From the Court's first occasion to discuss the Act in Environmental Protection Agency v. Mink, App. I p. 1a, to its most recent in United States Dep't. of Justice v. Julian, App. I p. 8a, there has been not a single hint, much less expression, to the contrary. Thus this Court declared in 1973:

• the nine exemptions "are explicitly made exclusive . . . and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed.” Congress has already balanced the competing interests between disclosure and secrecy: "the Act . . .[,] broadly conceived . . . seeks to permit access to official information long shielded unnecessarily from public view” and the exemptions "represent[ ] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.” Mink, App. I p. 1a, quoted in Chrysler Corp. v. Brown, 441 U.S. at 290 n. 9; Department of the Air Force v. Rose, 425 U.S. at 361-62, and Administrator, Federal Aviation Administration v. Robertson, App. I p. 2a.

In 1975:

• "As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions. . . .” Sears, App. I p. 2a.

In 1976:

To make crystal clear the congressional objective . . . Congress provided in § 552(c) that nothing in the Act should be read to "authorize withholding of information or limit the availability of records to the public, except as specifically stated. . . .” [The nine] exemptions from compelled disclosure. . . . set forth in § 552(b). . . . do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.

Rose, App. I p. 3a, quoted in Chrysler, 441 U.S. at 290 n. 10.

In 1978:

• “[U]nless the requested material falls within one of these nine statutory exemptions, 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, App. I p. 4a.

In 1979:

. . . [T]he purpose of the FOIA is “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” The Act makes available to any person all agency records. . . . It then defines nine specific categories of records to which the Act “does not apply”. . . . The burden in any such proceeding [action to compel disclosure] is on the agency to establish that the requested information is exempt."

Federal Open Market Committee of the Federal Reserve System v. Merrill, App. I p. 5a (emphasis added).

In 1982:

• “The Freedom of Information Act sets forth a policy of broad disclosure of Government documents. . . . and [Congress] provided nine specific exemptions under which disclosure could be refused.” FBI v. Abramson, App. I p. 6a.

  Once having completed the arduous and demanding task of balancing interests, and having recorded the results in the nine enumerated exemptions from the FOIA, Congress then attempted to insulate its product from judicial tampering and to preserve the emphasis on disclosure by admonishing that the “availability of records to the public” is not limited, “except as specifically stated.”

Id., dissenting opinion of O'Connor, J., App. I p. 7a. (emphasis in original).

In 1988:

• "A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in §552(b). . . . [W]e have consistently stated that FOIA exemptions are to be narrowly construed.” Julian, App. I p. 8a.

Against this array, petitioner relies mainly on GTE Sylvania, Inc. v. Consumers Union of the United States. It argues that GTE means that withholding is “improper” only if the withholding is intended to conceal agency misconduct. See Br. 9, 23-24, 31. Petitioner ignores the narrow issue in GTE: whether a withholding, not justified by one of the nine FOIA § 552(b) exemptions, was nevertheless not improper “when the agency holding the material has been enjoined from disclosing it by a federal district court.” GTE, 445 U.S. at 377.

In answering that question “yes,” this Court did not create a general charter for non-disclosure. The FOIA did not compel disclosure in GTE because the court orders enjoining disclosure meant that there was “simply . . . no discretion for the agency to exercise.” Id. at 386. The agency had made no effort to avoid disclosure; "indeed,” there, unlike this case, it was not the agency's "decision to withhold the documents at all,” id.

Petitioner recognizes, Br. 9, that the Court used the phrase "unjustified suppression” to cover not only conscious effort "to hide mistakes or irregularities,” but also “needless denials of information,” GTE at 385 (emphasis added). "[U]njustified suppression” included all denials of "requests for documents without an adequate basis for nondisclosure.” Id. Any such denial was "improper[ ],” “wrongful[ ]” or “unjustified.” Id. at 385-86. Among the examples the Court cited as “unjustified suppression” were two involving just such “needless denials” of routine information, not implicating any “irregularities” or “mistakes”: agencies' refusals “to release telephone directories” and “the names of postal employees.” Id. at 385.¹⁷

Petitioner's reasons for withholding here do not include a contrary court order. They are, it is said, cost, administrative inconvenience and unsupported assertions about respondent's motive. Br. 4, 11, 20, 22, 29. No court has ever accepted anything of the sort as a valid basis for withholding. 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). Nor do petitioner's asserted reasons have any basis in the record or in fact, see pp. 1-4, 7-8, supra, 24-25 infra.¹⁸

III. Petitioner Musters No Authority, Reason or Equity for the Result It Urges.

With no support in the decisions of this Court, petitioner retreats to suggesting that courts have some general equitable discretion to decline to order disclosure of records that do not fall within one of the nine exemptions but which agencies think it inconvenient to produce. See Br. 25 n. 9. This Court has laid this ghost to rest, not once but many times. See Rose, 425 U.S. at 360-61, citing what is now § 552(d); Robbins, 437 U.S. at 220-21, 223; Abramson, 456 U.S. at 621; Julian, 108 S.Ct. at 1611.

The cases petitioner cites have no relevance. In Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), and Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987), the plaintiffs had invoked the courts' traditional equitable jurisdiction to enforce statutory regulatory requirements (obtaining a permit in Weinberger, hearing and determination procedures in Amoco). Neither statute included directory language like § 552(d)'s. FOIA cases do not require resort to general equity jurisdiction to compel disclosure. 5 U.S.C. § 552(a)(4)(B). The FOIA spells out the court's jurisdiction and power “to order the production of . . . agency records." In Renegotiation Board v. Bannercraft Corp., 415 U.S. 1, (1974), the issue was a court's equitable power to enjoin a different agency proceeding while the plaintiffs' FOIA requests were sub judice, not equitable discretion to avoid FOIA's express command itself. See Freuhauf Corp. v. IRS, 522 F.2d 284 (6th Cir. 1975).

Moreover, Congress has made plain that the FOIA admits no such exercise of equitable discretion. H. R. Rep. No. 1419, 1975 Source Book 84:

Finally, some courts have decided for themselves that it is discretionary with them whether they order the production of information which is held not to be subject to the exemptions permitted by subsection (b) of the FOI Act. In effect, they are applying theories of equity to balance the need of the individual citizen to the information requested under the act and the need of the Government to withhold such information. Information requested under the act by the plaintiff should be considered only with respect to whether or not the Government's arguments fulfill the “burden of proof" requirement that the information is subject to the subsection (b) exemptions claimed. If the court finds that the Government has not met such test, the information should be ordered to be made promptly available to the plaintiff solely on the substantive merits of the case.

Even petitioner claims only that the equitable discretion argument “should be advanced in court only under strongly compelling circumstances.” U.S. Department of Justice, Office of Legal Policy, Freedom of Information Case List, Justice Department Guide to the Freedom of Information Act 478 (Sept. 1988). Strongly compelling circumstances are absent here. If anything, the equities weigh heavily for respondent. See pp. 6-8, 14, supra.

Petitioner's claim of cost and burden are chimerical; pp. 7-8, supra. At present petitioner and its client IRS have an advantage over taxpayers in the courts and the administrative process. The government knows well before the public what the district courts have held on tax law issues and in one fourth of the cases the public never learns.

It is understandable that the government may not wish to lose this advantage and place the public on an “equal footing,” H. R. Rep. No. 1497, p. 18, supra. That is not a principled reason for this Court to approve the withholding of records of such importance, even if the government's action is only greatly to impede or delay, not altogether to prevent the public from obtaining access to a body of tax law. “Secret law is an abomination,” Cox v. United States Dep't. of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978), quoting K. Davis, Administrative Law Treatise 137 (Supp. 1970); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975); United States Dep't of Justice v. Reporters Committee for Freedom of the Press, slip op. at 22 n. 20. Law that is only partially or temporarily secret may be less of an abomination, but it is pro tanto an abomination nonetheless. Prompt disclosure of decisions, possible only from petitioner under the FOIA, will to that extent “reveal . . . 'secret law' followed by an agency.” Br. 14.

If petitioner's concern is truly one of cost and not a hidden wish to preserve the status quo for strategic reasons, then its concern should be addressed not to this Court but to the Congress, as it did in 1981, see pp. 18-20, supra, and again less than a year ago.¹⁹ As the Court of Appeals recommended: “[i]f compliance with the FOIA, despite its provision for the payment of costs, takes on nightmarish qualities for agencies, congressional adjustments to the law are their own [sic; in the printed report of the decision, 845 F.2d 1060, 1067 n. 16, the word is “only”] answer.” Pet. App. 13a n. 16.

Petitioner's argument boils down to this — “there is simply no good reason" to construe FOIA to cover the copies of court decisions in petitioner's possession and control. Br. 15. But petitioner must do better than that. FOIA expressly puts the “burden” on the agency desiring to withhold records “to sustain its action,” 5 U.S.C. § 552(a)(4)(B), “to establish that the requested information is exempt.” Federal Open Market Committee of the Federal Reserve System v. Merrill, App. I p. 5a; Environmental Protection Agency v. Mink, App. I p. 1a.

Respondent does not have the burden of establishing a “good reason” for disclosure. Rather, petitioner has the burden of establishing a “good reason” for withholding. In this petitioner fails. Congress has struck the balance between what must be disclosed under FOIA and what may lawfully be withheld. At petitioner's urging, Congress has given agencies some of the discretion they sought to impose costs on requesters; see 5 U.S.C. § 552(a)(4)(A); U.S. Department of Justice, Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act, App. II (December 1987). Its request for relief here is addressed to the wrong branch.

CONCLUSION

The judgment of the court of appeals should be affirmed.

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