845 F.2d 1060 (D.C. Cir. 1988), 86-5625, Tax Analysts v. U.S. Dept. of Justice

Docket Nº:86-5625.
Citation:845 F.2d 1060
Case Date:April 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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845 F.2d 1060 (D.C. Cir. 1988)




No. 86-5625.

United States Court of Appeals, District of Columbia Circuit.

April 29, 1988

Argued Oct. 16, 1987.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-01878).

William A. Dobrovir, Washington, D.C., for appellant.

Jonathan S. Cohen, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Roger M. Olsen, Asst. Atty. Gen., Michael L. Paul and Gayle P. Miller, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, MIKVA, Circuit Judge, and McGOWAN, [*] Senior Circuit Judge.

Opinion for the Court filed by Chief Judge WALD.

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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. Sec. 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 law, seeks access to district court decisions located in the Department's Tax Division case files.

After limited discovery and cross-motions for summary judgment, the district court held that it lacked jurisdiction because the documents were not "improperly withheld" under the FOIA. See Tax Analysts v. Department of Justice, 643 F.Supp. 740 (D.D.C.1986). The Department, in response to an earlier FOIA request, already makes available to Tax Analysts and other tax publishers logs of the names and originating courts of the tax cases sought here. 1 So identified, the documents sought by Tax Analysts are, at least in theory, 2 available from the district courts themselves. Therefore, the court concluded that the Tax Division's refusal to make its copies available to the plaintiff did not constitute "improper withholding" forbidden by the Act. Id. at 745. See 5 U.S.C. Sec. 552(a)(4)(A) (district court jurisdiction "to order production of agency records improperly withheld from complainant").

The issue in this case, then, is whether the Department's disclosure of the name, docket number, and other identifying information about tax cases is sufficient, in light of their availability as public documents from the district courts in question, to discharge its responsibility not to "improperly withhold" agency records. 3 We conclude that the district court decisions are agency records that must be made available to Tax Analysts by the Department itself and remand to the district court with instructions to enter an order requiring the Department to provide some reasonable form of access to its copies of the district court opinions and orders.


Tax Analysts is a nonprofit organization that disseminates news and information about federal tax law through a number of printed and electronic media. 4 Since 1972, the organization's principal publication has been Tax Notes, a weekly magazine that reports summaries of decisions and news affecting federal tax law to a readership of tax attorneys, accountants, and economists. As a supplement to the magazine, Tax Analysts offers full text reporting of all federal court tax decisions in microfiche form. Tax Analysts also compiles an electronic database, Tax Notes Today, comprised of news and commentary as well as all available federal tax decisions.

In the course of its reporting, Tax Analysts has had persistent difficulty obtaining the tax decisions of some United States District Courts. While decisions of the United States Supreme Court, United States Courts of Appeals, the United States Tax Court, and the United States Claims Court can apparently be easily obtained on request, Tax Analysts' undisputed claim is

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that securing 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.

Tax Analysts also has been unsuccessful in its attempts to secure the decisions from taxpayers' attorneys. As a last resort, it has sought them pursuant to the FOIA from the Tax Division of the Justice Department, which litigates, and consequently receives a copy of all decisions rendered, in the more than 20,000 tax cases filed in United States District Courts each year. Upon receipt, the Division classifies each decision as a win, partial win, or loss, and puts the decision in an individual case file. If the government prevails before the district court, and the taxpayer appeals, the case file, including the district court decision, is forwarded to the Division's appellate staff. If the taxpayer prevails, the file and decision are sent to the Solicitor General, who decides whether to take an appeal. If an appeal is prosecuted, the Division's appellate staff utilizes the case file and decision in appellate briefing and argument.

Tax Analysts' initial FOIA request to the Justice Department, filed on July 20, 1979, sought all opinions and orders received by the Tax Division earlier that month from United States District Courts, United States Courts of Appeals, and the United States Claims Court. The request was denied by the Department on the ground that the decisions were not "agency records." Tax Analysts appealed the denial but later withdrew its request. In December 1979, Tax Analysts sought and was granted access to the Division's weekly log of tax cases decided by the federal courts. These weekly logs, which list the court, the name and nature of the case, the docket number, the attorneys for the taxpayer and the government, and the date and type of disposition, have been provided to Tax Analysts since that time.

In November 1984, Tax Analysts initiated a new request for copies of all district court decisions, opinions, and orders identified in the Division's weekly log. The Justice Department denied these requests. Tax Analysts filed this suit on July 7, 1985, seeking "weekly access" to all such district court decisions and a permanent injunction against future denial of access to such documents. After limited discovery, both parties filed motions for summary judgment.

The district court granted the Justice Department's motion to dismiss the complaint, finding that 5 U.S.C. Sec. 552(a)(4)(B), which confers jurisdiction in the district court only when "agency records" have been "improperly withheld," did not apply here. Tax Analysts v. Department of Justice, 643 F.Supp. 740 (D.D.C.1986). The documents sought by Tax Analysts, the court said, "already are available from their primary sources, the district courts," and because they are "on the public record" cannot be deemed "improperly withheld." Id. at 743-44. In the case of records already publicly available, the FOIA's primary purpose, to prevent "secret agency law," is not at risk. Id.

The district court also concluded that the specific relief Tax Analysts sought, i.e., an injunction against any future withholding of such decisions, is unavailable under the FOIA. The requested order or injunction, the court held, "amounts to giving [Tax Analysts] automatic access to the decisions without the need for making specific FOIA requests. The FOIA refers to existing documents, not to documents which [the Tax Division] may receive in the future." Id. at 745 (citations omitted). This appeal followed. 5


The government defends the district court's dismissal of the complaint, contending

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that none of the FOIA's three jurisdictional requirements has been met. "Under 552(a)(4)(B)," the Supreme Court has said, "federal jurisdiction is dependent upon a showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.' Judicial authority to ... enjoin agencies can only be invoked, under ... Sec. 552, if the agency has contravened all three components of this obligation." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). The district court looked no further than the first two components, holding that the requested documents could not be deemed "improperly withheld" if they were publicly available from the courts, despite practical difficulties in obtaining them promptly by mail or phone. Tax Analysts, 643 F.Supp. at 743-44. The government defends this rationale on appeal, and renews its additional argument that the decisions are not "agency records."

  1. Have the Documents Been "Improperly Withheld"?

    Agency records may normally be withheld only if the agency sustains its burden of proving that they fall within a specific exemption in the statute. 6 See Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 975 (3rd Cir.1981). Neither an agency nor a court may impose its own additional criteria as to when disclosure is proper; the settled policy of the FOIA is one of "full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). 7 Indeed, we have said more than once that a "refusal to release documents that are in [an] agency's 'custody' or 'control' for any reason other than those set forth in the Act's enumerated exceptions would constitute 'withholding.' " McGehee v. CIA, 697 F.2d 1095, 1110 (emphasis added; footnote omitted), aff'd in part and vacated in part on other grounds, 711 F.2d 1076 (D.C.Cir.1983). Most important, the statute itself is clear on the point: "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...

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