Calder v. I.R.S.

• Citation: 890 F.2d 781
• Decision Date: 21 December 1989
• Docket Number: No. 89-5508,89-5508
• Parties: -370, 90-2 USTC P 50,339, 17 Media L. Rep. 1283 James CALDER, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, and Lawrence B. Gibbs, Commissioner of Internal Revenue, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 781

890 F.2d 781

65 A.F.T.R.2d 90-370, 90-2 USTC P 50,339,

17 Media L. Rep. 1283

James CALDER, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, and Lawrence B. Gibbs, Commissioner of Internal Revenue, Defendants-Appellees.

No. 89-5508.

United States Court of Appeals, Fifth Circuit.

Dec. 21, 1989.

David H. Donaldson, Graves, Dougherty, Hearon & Moody, Austin, Tex., for plaintiff-appellant.

Mary Frances Clark, Gary R. Allen, Chief Appellate Section, Karen L. Elias, U.S. Dist. Judge, Tax Div., David I. Pincus, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

While researching the development of federal crime control policies, University of Texas at San Antonio Professor James Calder requested certain documents from the Internal Revenue Service (hereinafter IRS) pertaining to tax investigations of Al Capone. The IRS, determining that the request sought nondisclosable "return information," denied Calder's request. 26 U.S.C. Sec. 6103. ¹

Calder, after exhausting his administrative remedies, brought suit under the Freedom of Information Act (FOIA) and the first and fifth amendments to the Constitution. Calder later dropped the FOIA claim and proceeded solely on the constitutional issues. Specifically, Calder argued that the IRS's denial of access to the materials violated his asserted constitutional right of access to government information as well as his fifth amendment right to equal protection under the laws. The equal protection claim was based on the pre-1977 access to the files granted several individuals.

The district court granted the IRS's motion for summary judgment on the ground that Calder has no constitutional or statutory right of access to Capone's IRS records. Calder has timely appealed the judgment to this Court. We affirm.

DISCUSSION

In his brief to this Court, Calder argues that the first amendment creates a right of access to records in the hands of an administrative agency which have historically been available for public perusal. ² Calder argues that section 6103 is unconstitutional as applied to him because it limits this alleged right of access to information held by an administrative agency, specifically, the records of Al Capone. Calder bases this argument on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and its progeny. ³

Calder acknowledges that the cases in the Richmond line establish and define the scope of the first amendment right of access to criminal trials and certain criminal proceedings. See, e.g., Gannett Co., Inc. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (pretrial suppression hearing); Richmond, supra (criminal trial); Globe, supra (criminal trial involving sex offenses and minors); Press-Enterprise I and Press Enterprise II, supra (transcripts of preliminary hearings). Calder acknowledges that the Supreme Court has not specifically addressed the question of a right of access to records which are in the hands of an administrative agency. Calder urges this Court to conclude that the reasoning behind the Richmond line mandates the conclusion that the right of access is not limited to criminal proceedings, but extends to other governmentally held information. We decline to do so, and hold that Calder has not established the existence of a constitutional right of access to the IRS records of Al Capone. The district court did not err in granting summary judgment in favor of the IRS.

In Richmond, the Supreme Court held that in the context of criminal trials, the first amendment prohibits the government from summarily closing the courthouse doors which stood open to the public prior to the adoption of the amendment. Chief Justice Burger traced the public character of criminal trials back to the time of the Norman conquest. He pointed out that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Richmond at 573, 100 S.Ct. at 2825. In Globe, the Supreme Court articulated the features of criminal proceedings which implicate the first amendment right of access. Specifically, the Court pointed to the history of openness in criminal proceedings as well as to the significant role that access plays in the functioning of the judicial process. The Court also noted that openness in the context of criminal proceedings acts as a check on the judicial process while providing an appearance of fairness and providing therapeutic value to the community. It is questionable whether these reasons apply in other contexts.

Although the dicta in Richmond does indicate that the first amendment "prohibit[s] government from limiting the stock of information from which members of the public may draw.", id. at 576, 100 S.Ct. at 2827, Justice O'Connor has indicated that she "interpret[s] neither Richmond Newspapers nor the Court's decision [in Globe ] to carry any implications outside the context of criminal trials." Globe at 611, 102 S.Ct. at 2622 (O'Connor, J., concurring). In fact, no Supreme Court case has applied the two-tier analysis which looks for an history of openness and examines the significant role access plays in the judicial process to areas other than criminal proceedings.

In Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir.1986), a newspaper challenged, on first amendment grounds, its denial of access to records of a state agency. The Third Circuit, citing There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy ... The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.

Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), stated that such access was a matter for legislative determination and noted the complete absence of guidelines for the judiciary. Justice Stewart, quoted by the Court in Houchins, has noted that

Id. at 14, 98 S.Ct. at 2596 (quoting Justice Stewart, "Or of the Press," 26 Hastings L.J. 631, 636 (1975)). Quite simply, the right to speak and publish does not carry with it an unrestricted license to gather information. See Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965).

Section 6103 creates the type of comprehensive legislative scheme discussed by the courts in Houchins and Capital Media. The determination of who should have access to particular government held information and what constitutes a legitimate use of such information is "clearly a legislative task which the Constitution has left to the political processes." Houchins at 12, 98 S.Ct. at...