138 F.3d 1075 (6th Cir. 1998), 96-2531, Abraham & Rose, P.L.C. v. United States

Docket Nº:96-2531.
Citation:138 F.3d 1075
Party Name:ABRAHAM & ROSE, P.L.C., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:March 13, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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138 F.3d 1075 (6th Cir. 1998)

ABRAHAM & ROSE, P.L.C., Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 96-2531.

United States Court of Appeals, Sixth Circuit

March 13, 1998

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[Copyrighted Material Omitted]

Argued Dec. 2, 1997.

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Jerry R. Abraham (argued), Maurice A. Rose (argued and briefed), Abraham & Rose, Farmington Hills, MI, for Plaintiff-Appellant.

Murray S. Horwitz (argued and briefed), Jonathan S. Cohen (briefed), Charles H. Keen, U.S. Department of Justice, Appellate Section, Tax Division, Washington, DC, for Defendant-Appellee.

Before: BOGGS and MOORE, Circuit Judges; DOWD, District Judge. [*]


MOORE, Circuit Judge.

Plaintiff-Appellant, Abraham & Rose, P.L.C., appeals the district court's order granting summary judgment to defendant-appellee, the United States of America, acting through the Internal Revenue Service (the "IRS"), in this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. For the reasons that follow, we reverse and remand.


In January 1996, pursuant to FOIA, appellant requested access to computerized records of federal tax lien filings 1 from the Detroit and Cleveland Districts of the IRS. J.A. at 25-26 (Exs.1, 2). The IRS, citing various FOIA exemptions, denied appellant's FOIA requests. J.A. at 27-29 (Exs.3, 4). Appellant then filed an administrative appeal with the Commissioner of Internal Revenue. J.A. at 34 (Ex. 6). When appellant received no formal response from IRS officials with regard to its appeal within the statutorily set 20-working-day response period, appellant commenced this action in federal court on May 21, 1996 for declaratory and injunctive relief. See 5 U.S.C. § 552(a)(6)(A)(ii) and 552(a)(6)(C); J.A. at 4 (Compl.).

The district court denied appellant's motion for summary judgment and instead granted the government's cross-motion for summary judgment, based on its conclusion that (1) "the information plaintiff seeks is already public information in the various counties"; and (2) "plaintiff's request appears to be inapposite to the purpose of FOIA" since "[p]laintiff seeks information about private citizens for its own business purposes." J.A. at 7-8 (Order at 2-3). Having resolved the case on such grounds, the district court decided that it no longer needed to consider whether any exemptions applied to appellant's requests. J.A. at 8 (Order at 3). Both appellant and appellee agree that the district court's order was grounded on faulty reasoning as a matter of law, but while appellant further contends that the requested information does not fall within any FOIA exemption category, the government argues that it does. The district court had original jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B). This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 over

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the district court's final judgment in the instant case.


  1. Standard of Review

    Under FOIA, "each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3). This mandate does not apply however to information that falls within any of nine specific exemption categories listed at 5 U.S.C. § 552(b). An agency's decision to deny a FOIA request is subject to de novo review by a district court. See 5 U.S.C. § 552(a)(4)(B); Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93, 95 (6th Cir.1996). The propriety of a district court's grant of summary judgment in a FOIA proceeding is similarly reviewed de novo on appeal. See Detroit Free Press, 73 F.3d at 95.

  2. Availability through Alternative Sources

    Both parties on appeal contend that the district court erred when it decided not to address the applicability of the FOIA exemptions and instead withheld the information requested because it was already public information and available to appellant through a search of county records. J.A. at 7 (Order at 2); Appellant's Br. at 11-13; Appellee's Br. at 16-18. The parties are correct that this was an inappropriate basis for exemption under FOIA and that the district judge committed an error of law. In United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989), the Supreme Court explicitly rejected the proposition that the requested information--certain district court opinions--was properly withheld under FOIA by the Tax Division of the Department of Justice because the information was already publicly available. See id. at 150, 109 S.Ct. at 2850-51. The government in Tax Analysts argued, among other things, that "the structure of [FOIA] evinces Congress' desire to avoid redundant disclosures." Id. at 152, 109 S.Ct. at 2852. The Supreme Court rejected this argument, concluding that "[a]n agency must disclose agency records to any person under § 552(a), 'unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).' " Id. at 150-51, 109 S.Ct. at 2851 (quoting United States Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988)). The Supreme Court further established that the exemptions are " 'explicitly exclusive' " and that therefore "agency records which do not fall within one of the [nine] exemptions are improperly withheld." Id. at 151, 109 S.Ct. at 2851 (quoting FAA Adm'r v. Robertson, 422 U.S. 255, 262, 95 S.Ct. 2140, 2146, 45 L.Ed.2d 164 (1975) (internal quotation marks omitted)).

  3. Purpose of Request

    Courts have often commented that one of the main driving forces behind the enactment of FOIA was Congress's goal of opening up " 'agency action to the light of public scrutiny.' " United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976)). Yet, according to the parties before us today, whether or not a requester's purpose for information is consistent with this congressional purpose is not a proper factor, in and of itself without any regard to the applicability of any of the exemptions, to deny a request for access to information under FOIA. Appellant's Br. at 13-15; Appellee's Br. at 14-15. Case law suggests that the parties are correct that the district court below committed another error of law. First, as mentioned above, the Supreme Court has clearly announced that "[a] federal agency must disclose agency records [appropriately requested] unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b)." Julian, 486 U.S. at 8, 108 S.Ct. at 1611; see also Jones v. FBI, 41 F.3d 238, 244 (6th Cir.1994). Basing a denial of a FOIA request on a factor unrelated to any of these nine exemptions clearly contravenes this dictate. In general, any member of the public may invoke FOIA to obtain disclosure of agency records without regard to whether the requester has shown a

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    need for the information; the requester's intended use is also irrelevant in a FOIA action. See Parke, Davis & Co. v. Califano, 623 F.2d 1, 7 (6th Cir.1980) ("It is settled that the rights of a FOIA requester are neither increased nor decreased by the fact that the requester has an interest in the documents which is greater than that of the general public.") (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 1513 n. 10, 44 L.Ed.2d 29 (1975)); McDonnell v. United States, 4 F.3d 1227, 1237 (3d Cir.1993); North v. Walsh, 881 F.2d 1088, 1096 (D.C.Cir.1989). Even in evaluating the applicability of various exemptions, courts have generally remained consistent with the notion that " '[t]he Act's sole concern is with what must be made public or not made public' " rather than with the identity 2 of the person requesting the information or the "particular purpose for which the document is being requested." Reporters Comm., 489 U.S. at 772, 109 S.Ct. at 1481 (quoting Kenneth Culp Davis, The Information Act: A Preliminary Analysis, 34 U. CHI. L.REV. 761, 765 (1966-67)) (emphasis added); see also United Technologies Corp. v. FAA, 102 F.3d 688, 690 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2479, 138 L.Ed.2d 988 (1997) (noting that "[i]t is a basic principle under FOIA that the individuating circumstances of a requester are not to be considered in deciding whether a particular document should be disclosed."). Moreover, regardless of how a requester's purpose or intended use of the requested information might affect a court's analysis under a particular exemption, the district court below certainly erred when it considered this factor in a vacuum without giving any thought to the applicability of any of the exemptions.

  4. FOIA Exemptions

    The proper course would have been for the district court to determine whether any exemptions applied in the instant case and then to deny the FOIA requests to the extent that any did. In general, the agency denying a FOIA request bears the burden of establishing that the information requested falls within an exemption category. See 5 U.S.C. § 552(a)(4)(B); Kiraly v. FBI, 728 F.2d 273, 276 (6th Cir.1984). Furthermore, even if a section of a document is determined to be exempt, "[a]ny reasonably segregable portion of [the] record shall be provided to any person requesting such record after deletion of [the exempt] portions...." 5 U.S.C. § 552(b) (emphasis added).

    1. Exemption 2

      Appellee's first claim is that the requested records of federal tax lien filings were properly withheld from appellant in their entirety pursuant to Exemption 2 which permits the withholding of materials "related solely to the internal personnel rules and practices of an agency." S...

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