Church of Scientology of California v. Internal Revenue ServiceChurch of Scientology of California v. Internal Revenue Service
Lead Opinion
This is an appeal from the District Court’s grant of summary judgment in favor of the Internal Revenue Service, in a Freedom of Information Act suit brought by the Church of Scientology under
I
The facts of the present case are set forth in the panel opinion issued simultaneously with this opinion. For present purposes, it suffices to recite that the central issue in the appeal is the adequacy of the IRS’s search for requested records; that one of the principal points bearing upon that issue is whether certain files could reasonably be excluded from the search as containing only “return information”; and that the latter point depends to a considerable extent upon whether redaction (specifically, elimination of portions of documents that would disclose the taxpayer’s identity) removes the material from the protected category.
After the case had been briefed and argued before the assigned panel, the . court en banc, on its own motion, requested supplemental briefing and, on December 5, 1985, heard oral argument limited to the following issue:
Briefs amicus curiae were received from the American Civil Liberties Union Foundation of Washington and from Professor John L. Neufeld and the Freedom of Information Clearinghouse.
II
In relevant part,
Returns and return information shall be confidential, and except as authorized by this title—
(1) no officer or employee of the United States,____ shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section____
Willful violation of this provision is a felony.
“Return information” is defined in the statute as follows:
(A) a taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over-assessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense, and
(B) any part of any written determination or any background file document relating to such written determination (as such terms are defined in section 6110(b)) which is not open to public inspection under section 6110,
but such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.
The last clause in the defining paragraph is the Haskell Amendment, so called because it was inserted into the committee-proposed bill through a floor amendment introduced by that Senator. On the basis of that clause, the Ninth Circuit held in 1979 that data that do not identify a particular taxpayer because names, identifying numbers and other similar information have been deleted are not return information. Long v. IRS,
The starting point of analysis, of course, is the text of the provision at issue, which, we agree with the Seventh Circuit, is ill suited to achieve the result pronounced in Long. It would be most peculiar to catalogue in such detail, in subparagraph (A) of the body of the definition, the specific items that constitute “return information” (e.g., “income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over-assessments, or tax payments, ... or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return”) while leaving to an afterthought the major qualification that none of those items counts unless it identifies the taxpayer. Such an intent would more naturally have been expressed not in an exclusion (“but such term does not include ... ”) but in the body of the definition — by stating, for example, that “the term ‘return information’ means the following information that can be associated with or identify a particular taxpayer: ____” If the intended scope of the exclusion is as broad as Long holds, the structure of the provision is akin to defining mankind as “all mammals in the world, but excluding those that are not relatively hairless bipeds with the power of abstract reasoning.” While such a form of definition is conceivable, it would constitute “everyday language” (as the dissent characterizes it, Dissent at 174) only for one of Lewis Carroll’s characters, and it hardly takes “talmudic dissection!]” or “microscopic scrutiny,” id., to reject it as implausible.
The Long interpretation produces a similarly mindless consequence in subparagraph (B) of the definition of return information. That subparagraph includes within the definition of return information IRS-written determinations and related background files that are not open to public inspection under § 6110. The latter section excludes from the public inspection requirement not only identifying data, § 6110(c)(1), but many other matters, such as trade secrets, § 6110(c)(4), information prepared for the use of an agency regulating financial institutions, § 6110(c)(6), and (with respect to most written determinations) material relating to a taxpayer’s change of annual accounting period, § 6110(g)(5)(B)(ii). It would be absurd to incorporate these exclusions so precisely into the body of the definition of return information, and then, in the immediately following clause, to write all of them back out — except the identifying data exclusion (§ 6110(c)(1)), which is not deleted by the Haskell exclusion but merely rendered entirely redundant.
We also agree with the Seventh Circuit that the formulation of the Haskell provision itself suggests something other than merely the absence of identifying information. It would be strange to express the latter thought by excluding “data in a form which cannot be associated with, or otherwise identify ... a particular taxpayer” (emphasis added). The emphasized phrase would be superfluous for that purpose, as reading the provision without it will demonstrate. A more natural formulation for the purposes which Long assigns would be similar to that contained in the provision of FOIA that “an agency may delete identifying details,”
In addition to clear textual indications, rejection of the Long interpretation is suggested by assessment of plausible legislative intent. It is of course true, as two of the amici have asserted, that there is no reason “why Congress would have wanted to forbid the disclosure of information which would not threaten the privacy of individual taxpayers.” Brief of Neufeld and Freedom of Information Clearinghouse at 5. But it is also true that the threat to privacy is not entirely eliminated by agency and (ultimately) judicial assessment that сertain deletions in response to a FOIA request will suffice to conceal the taxpayer’s identity. The protection afforded by such assessment is always problematic, not only because of the risk of human error, but also because the assessment depends to a large extent upon uninformed estimations as to what data the requester possesses. Consider, for example, a FOIA request for the amounts and beneficiaries of all charitable deductions claimed by taxpayers within a particular postal ZIP code area during a particular tax year. That information would normally not identify the charitable gift of any particular taxpayer; but it would do so if the requester had been told by his neighbor that the latter made a charitable gift last year of $2,775.
For most information possessed by the government, Congress has determined that the risk of occasional unknowing disclosure of facts entitled to be withheld under FOIA is outweighed by the benefits of openness. But it has not made that judgment for all information. See, e.g.,
The intent to provide this increased assurance of confidentiality is conveyed by the detailed provisions of
The dissent criticizes our use of standard textual analysis on the ground that, while it may be appropriate where Congress “labored arduously ovеr each choice of word and each comma,” it is improper “when the legislative history shows that a provision was injected into the bill at the tail end of the process.” Dissent at 174. We need not pause to consider the theoretical deficiencies of such an approach to statutory construction, since it is in any case not properly applicable here. The (ill-considered) Haskell Amendment was not adopted separately and distinctly from the other provisions that we seek to reconcile with it. As we noted earlier, it was not an amendment to a preexisting law, but an amendment to the bill as originally presented on the floor. Congress did not pass into law the Haskell amendment by itself, but as part and parcel of an exceedingly detailed and complex legislative scheme, on which it had “labored arduously over each choice of word and each comma.” Since all the provisions were enacted simultaneously, there is no plausible justification for focusing on the hastily considered nature of one of them and ignoring the carefully crafted character of the remainder.
In fact, far from militating in favor of the broad Long interpretation, the last-minute and cursory manner in which the Haskell Amendment was proposed and adopted greatly augments the implausibility of that interpretation. The massive effect of the amendment, if Long is correct, was to change the scope of protection from all “return information,” as carefully and expansively described in
Ill
It is much easier to discern what the Haskell Amendment does not mean (viz., what Long suggests) than what it does. If, as we have concluded, it does not exclude from the definition of return information all nonidentifying data, what particular nonidentifying data does it exclude? Again we think the key is the crucial phrase “in a form.” It is significant that this phrase is not contained in the provisions discussed earlier which seek — in language otherwise almost identical to the Haskell Amendment — to describe all identifying data. See
No person who receives ... return information under this subsection shall disclose such ... return information to any person other than the taxpayer to whom it relates except in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.
The same meaning fits the other instance in which the phrase “in a form” appears as a disclosure limitation in
The United States has argued in this appeal that the only type of reformulation that the Haskell Amendment exempts is that envisioned by the last mentioned section. The consequence of this interpretation, . of course, is that the Haskell Amendment becomes substantively superfluous, amounting to no more than a reminder in the definition section that
[T]he purpose of this amendment is to insure that statistical studies and other compilations of data now prepared by the Internal Revenue Serviсe and disclosed by it to outside parties will continue to be subject to disclosure to the extent allowed under present law. Thus the Internal Revenue Service can continue to release for research purposes statistical studies and compilations of data, such as the tax model, which do not identify individual taxpayers.
The definition of “return information” was intended to neither enhance nor diminish access now obtainable under the Freedom of Information Act to statistical studies and compilations of data by the Internal Revenue Service. Thus, the addition by the Internal Revenue Service of easily deletable identifying information to the type of statistical study or compilation of data which, under its current practice, has been subject to disclosure, will not prevent disclosure of such study or compilation under the newly amendedsection 6103 . In such an instance, the identifying information would be deleted and disclosure of the statistical study or compilation of data be made.
We do not pretend that the interpretation we have given the Haskell Amendment causes it to fit with perfect consistency into the bоdy of Chapter 61 or even, less ambitiously,
* * * * * *
Application of our holding to the facts of the present case, and the other issues presented by the instant appeal, are left to the disposition of the panel, whose opinion is issued simultaneously with this.
So ordered.
Notes
. Judge Wald's dissent expresses concern over "the court’s recent practice of issuing en banc opinions on legal issues, as opposed to concrete factual scenarios, see also Foster v. United States,
The practice of segregating legal issues requiring the attention of the full court from the remainder of the case reflects the fact that appellate review serves a dual purpose: the correction of legal error and the establishment of legal rules for future guidance. Only the latter is ordinarily worthy of the attention of the full court. The dissent’s perception that judges "typically" dispose of all the issues in a case, see Dissent at 172 n. 1, is simply not true at the second appellate level, where the law-clarifying function predominates. The Supreme Court often, if not usually, grants certiorari only on one or more discrete points of law, and issues its opinions (in that sense) on "legal issues, as opposed to concrete factual scenarios.” En banc consideration (or Irons footnote disposition) effectively constitutes such second-level appellate review — at least where, as is the case here, the full court has before it the full text of a proposed panel opinion. It would be especially perverse to abandon our efficient practice of limited en banc disposition just as our caseload
. The dissent refers to all the strange textual consequences of the Long interpretation as “stylistic superfluity,” which it equates in character with textual imperfections that remain under our interpretation of the amendment. Dissent at 176-. The latter, however, consist of nothing more than repetition, in later sections, of the exemption which (under our interpretation) the Haskell Amendment has already provided. This cannot reasonably be compared with the Alice-in-Wonderland definitional structure, see supra at 157, the pointless incorporation in the definition of exceptions that have no application, see supra at 157, and the provisions for open meetings that can never occur, see supra at 157-158, that are the consequences of Long. The dissent’s indiscriminate totaling of textual imperfections also happens to be inaccurate. One of the "superfluities” which it attributes to our interpretation is not that, since the section in question,
. The three sentences preceding this footnote sign did not appear in our original opinion, as issued in slip form. There the corresponding passage read as follows:
The latter is not a statistical tabulation but a sample return, derived from an actual return but reformulated to substitute new figures for certain items — a partly actual, partly fictional return, so to speak.
The revision was made to correct a factual inaccuracy brought to our attention by a post-decision motion of amicus American Civil Liberties Union of Washington, which noted that the description of the tax model presented to us by the government in oral argument and reflected in the foregoing passage was accurate for the period beginning about 1980, but was not accurate as of 1976, when the model was an actual return with identifying details eliminated.
The dissent’s suggestion, Dissent at 176 n. 7, that our decision turned upon this mistaken factual assumption is demonstrably wrong. Our rejection of Long, set forth in Part II of this opinion, was made and continues to be made without any reference to this snippet of legislative history. And the only reason for raising it in this Pаrt III of our opinion is to refute the government’s position, which relies upon it. The factual inaccuracy in the case as originally presented to us shows the wisdom of relying upon the text and structure of the statute rather than this statement by a single senator as a means of ascertaining the Congress’ intent. We have no way of knowing whether Senator Haskell’s understanding of the tax model — much less that of his colleagues, if any of them relied upon his remark — comported with our original understanding or rather with what we now know. The mere term “Tax Model” assuredly does not suggest a redacted actual return.
. The absence of any textual basis in
ute. There is some question, to begin with, whether an interpretive theory put forth only by agency counsel in litigation, which explains agency action that could be explained on different theories, constitutes an "agency position” for purposes of Chevron. Even granting that principle, however, it cannot possibly have application where counsel’s interpretation in fact does not explain agency action but is, to the contrary, incompatible with the agency’s settled course of conduct. That is the situation here, since the IRS has regularly released, and plans to continue to release, the tax model. Nor does it suffice to appeal to Senator Haskell’s explicit reference to the tax model as the agency’s justification for this singular departure from its (supposed)
The concurrence claims that agency counsel did not take the рosition that the Haskell Amendment referred exclusively to
[COUNSEL]: ... [I]t is certainly arguable that the Haskell Amendment is redundant in light of 6108.
QUESTION: ... Your interpretation of the Haskell Amendment is§ 6108 ?
[COUNSEL]: That’s right and that is why Senator Long didn’t think it was all that necessary____
Corrected Tr. of Oral Argument at 28 (Dec. 5, 1985). This concession was not, as the concurrence contends, a matter of government counsel’s ”hav[ing] been momentarily caught off guard by the court’s vigorous questioning.” Concurrence at 171 n. 10. To the contrary, what prompted the concession (and what prompted the questioning) was the carefully
The problem counsel faced at oral argument was reconciling this theory with the embarrassing fact (first brought to the IRS’s attention, evidently, by the Appellant's Supplemental Brief, filed simultaneously with its own) that the tax model is not a statistical study or compilation. We thought, in light of the above-quoted concession at oral argument, that counsel was seeking to mend his hold by adhering to the IRS’s original theory of equivalence between the Haskell Amendment and
. Given the purpose of the reformulation requirement, however — to wit, the increased assurance of anonymity — we can readily opine that it does not include the dissent’s example of copying the same data “onto a fresh piece of paper, perhaps in narrative style." Dissent at 175.
Concurrence Opinion
concurring:
The court confronts in this case a difficult issue of statutory interpretation. The puzzle begins with
I think it must be conceded that
The message of Chevron is emphatic. A court’s duty in matters of statutory construction is to give effect to congressional intent. If that intent is not precisely apparent, however,
the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based oh a permissible construction of the statute.
Id. at 843 (footnote omitted). Beyond this we cannot go.
I believe Chevron’s instruction applies to the issue of statutory construction now before the court.
I
Before proceeding, I must address a question that the majority raises without answering — “whether an interpretive theory put forth only by agency counsel in litigation, which explains agency action that could be explained on different theories, constitutes an ‘agency position’ for purposes of Chevron.” Maj.Op. at 162 n. 4. I think it is much too late to question whether the construction of
The precept that the agency’s rationale must be stated by the agency itself stems from proper respect for the separation of powers among the branches of government. In the seminal case of SEC v. Chenery Corp.,
The doctrine has been applied in a variety of cases. Courts have rejected as inadequate agency counsel’s articulation of a statutory interpretation when that interpretation has been inconsistent with a prior administrative construction, see Securities Indus. Ass’n v. Board of Govеrnors of the Fed. Reserve Sys.,
What is clear from all this is that the King analysis is in no way inconsistent with the basis for the agency’s decision in the administrative appeal. See Appellee’s Panel Br. at 24 n. 11. This is not a case like Investment Co. Inst. v. Camp. In that case, the Comptroller of the Currency, to whom Congress had only recently reassigned regulatory responsibility for national banks’ trust activities, adopted, three decades after enactment of the Glass-Steagall Act, a regulation that departed from a long-settled interpretation of the statute. See
Were the rule to be otherwise — were the courts to withhold deference unless an agency asserted its interpretation of a statute in a formal adjudication or agency rule-making — we would be creating a strong incentive for government agencies and departments to undertake their business strictly through formal procedures. Although judicial review of administrative action has seemed in recent times to push in that direction, I doubt that much good can come of this trend or, more importantly, that it is justified by congressional direction. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,
In any event, if this court rejects King on the unwarranted assumption that King is not the IRS’s “true” interpretation of the Haskell аmendment, the agency presumably could undercut the court’s holding merely by taking some more formal step to adopt King as the Commissioner’s interpretation of the statute. This strikes me as an unseemly institutional pas de deux.
FOIA’s general policy favors disclosure, but the statute also recognizes nine categories of exemptions from the general rule of disclosure. One of the exemptions, found at
(3) specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
Thus, the language of
I have found nothing in the legislative history of FOIA or its subsequent amendments that contradicts this analysis. The House Report accompanying S. 1160, the bill whose provisions were eventually codified as amended at
I have concluded that Chevron does apply in such circumstances. The rule of Chevron is not a rule of judicial administration for courts to apply in reviewing administrative decisionmaking. It is an articulation of the fundamental principle that when Congress intends to delegate authority to an agency, that purpose demands recognition by the courts. I reason as follows.
In entrusting administration of a statute to an agency, Congress typically delegates to the agency concomitant authority to “fill any gap” that Congress has left. Morton v. Ruiz,
In Sims v. CIA,
The Sims court’s observations as to the state of the law on deference to administrative agencies’ determinations in 1980 were, in my view, overbroad and erroneous. It has always been true that statutory interpretation is a question of law but it is equally true that an agency’s construction of its governing statute traditionally has been viewed as entitled to deference in certain contexts. As this court recognized in a case decided after Sims, although the “APA appears to require de novo review of all questions of law ... courts almost always accord some deference to an agency’s statutory construction.”
My view is further reinforced by the Supreme Court’s treatment of the definitional issue when Sims came before that Court.
The plain meaning of the statutory language, as well as the legislative historyof the National Security Act, ... indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals’ narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering — the very reason Congress entrusted this Agency with sweeping power to protect its “intelligence sources and methods.”
Id.,
Ill
Applying the traditional principle of deference, as refined by Chevron, to this case, I conclude that we should defer to the agency’s interpretation of
a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
The majority refuses to defer to the agency’s interpretation because it asserts that the agency’s practice is inconsistent with its interpretation of the statutory text. Specifically the majority focuses on the government’s continued release of the tax model as fatal to its interpretation of the Haskell amendment. However, the majority does not contend that the tax model cannot fit easily within the general phrase “data in a form which cannot be associated
Instead, the majority raises what I view as an artificial textual barrier by ascribing to the government an argument not presented in its brief, and not necessary to its position,
To be sure, there may not be a great deal of difference between the agency’s interpretation of the Haskell amendment, adopted by the Seventh Cirсuit in King, and the majority’s rendition. But the rule of Chevron requires us not to reason our
On the basis of the foregoing, I concur in the majority’s opinion insofar as it overrules Neufeld. But I cannot join the opinion insofar as it rejects the agency’s interpretation of the statute in favor of the majority’s own.
WALD, Circuit Judge, dissenting, with whom SPOTTSWOOD W. ROBINSON, III, Chief Judge, and MIKVA, Circuit Judge, join:
I.
I dissent from the court’s newly adopted interpretation
I find nothing in the statutory text or structure to support the notion that wholly nonidentifying information
The interpretation adopted in Neufeld adequately safeguards the privacy concerns that the majority and I share. The court in Neufeld explicitly held that “mere deletion
I agree that the IRS faces a difficult task in determining just when enough information has been deleted to make the taxpayer unidentifiable. This task is no different, however, from the situation agencies often face under the redaction requirement of the Freedom of Information Act, 5 U.S..C.
In changing course so fundamentally, the court must beware of the effect that its decision will have on others who seek to review tax information in pursuit of varied goals. The plaintiff in Neufeld, for example, was a professor doing research into the practice of members of Congress, White House staff members, and other high government officials interceding on behalf of taxpayers in ongoing IRS proceedings. Neufeld “specifically disclaim[ed] any interest in information that would directly or indirectly identify individual taxpayers.” Neufeld,
II.
The majority’s major premise is that the language of the Haskell Amendment, i.e., “return information ... does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer,”
One can, of course, make talmudic dissections of everyday language to find hidden and profound implications. Unless statutory language is so clear that it compels a specific result, however, our task in statutory construction is to “ascertain the congressional intent and give effect to the legislative will.” Philbrook v. Glodgett,
The Haskell Amendment was introduced on the floor of the Senate in the closing days of deliberation on a major tax reform act. See 122 Cong.Rec. 24,012 (July 27, 1976). The Amendment engendered absolutely no debate.
The majority concludes that Congress would not have used the “in the form” language had it not wanted to create a reformulation requirement. I, on the other hand, believe Congress would have used much clearer language had it wanted to create such an arbitrary and novel reshaping requirement, without a word of explanation on the floor or in the Conference Report. Given its own emphasis on dissecting the statutory language, and avoiding Alice in Wonderland definitional structures, maj. op. at 158 n. 2,1 am startled by the apparent ease with which the majority is able to read the Haskell Amendment as creating two separate definitional elements. Nothing in the structure of the single sentence Amendment supports such a reading, only the majority’s insistence on removing any trace of redundancy. Since nothing in the main body of
I do not accept the majority’s characterization of our choice here as one between construing a statutory phrase as a meaningful requirement or ignoring the same words as meaningless surplusage. Rather, I see the choice as one between attributing weighty legal significance to a common and inherently vague
But even if Congress did intend to create a reformulation requirement, I am at a loss to understand why the majority so conclusorily assumes that deletion of identifying information does not satisfy this requirement. Why is it a “curious usage” to say that a document takes a different form once deletions of key information have been made? In its original, it is in a form that identifies; once the necessary deletions are made, it is in a form that does not identify. In my view, the common understanding of keeping documents in anonymous form is satisfied once deletions of possibly identifying materials are made. Nothing in the statute indicates that Congress intended the word “form” to mean any more than this.
The majority’s efforts to show that the reading adopted by this court in Neufeld v. IRS,
Given the unavoidable stylistic superfluity under either construction, I do not see how the redundancy issue can be used to carry the day for either side of the debate. Once it is recognized that any interpretation of the Haskell Amendment “dislocates” some provisions by making them technically unnecessary, I think it useless to award victory to the interpretation that affects the fewer number. The unavoidable conclusion to be drawn from the superfluity created by either construction is that Congress did not concern itself with the fact that some of the other provisions
III.
Aside from its textual arguments, the majority urges that its reading is consistent with plausible legislative intent since any case-by-case assessment that data will not identify a taxpayer is problematic because it “depends to a large extent upon uninformed estimations as to what data the requester [already] possesses.” Maj. op. at 158.
The problem of identification by an informed requester is not at all unique to the Internal Revenue Service. Exemption 4 of the FOIA, for example, exempts from disclosure material containing confidential, commercial information.
As the panel points out in describing the procedure for evaluating the disclosability of information which does not meet the definition of “return information,” courts can, when appropriate, accept affidavits about classes of documents and information, as opposed to requiring document by document searches and Vaughn Indexes. Panel op. at 160-161. Of course, that approach entails some administrative effort, but administrative inconvenience alone has never been considered a sufficient reason for cutting back on FOIA. See Long,
The majority argues, however, that while Congress was willing to tolerate the “risk of occasional unknowing disclosure” for FOIA disclosures in general, it was not willing to tolerate that risk for certain classes of information. Maj. op. at 158 (citing Central Intelligence Files). The CIA exemption teaches though, that Congress clearly know how to exclude certain classes of information from FOIA altogether when it wanted to. In the Central Intelligence File context it provided that “Operational files of the Central Intelligence Agency may be exempted by the Director of Central Intelligence from the provisions of [FOIA] which require publication оr disclosure, or search or review in connection therewith.”
Indeed, the majority’s conclusion that Congress sought to guard broadly against the “informed requester” phenomenon is undercut by the fact that, with regard to IRS written determinations (rulings, determination letters, or technical advice memoranda) and background files relating to written determinations, Congress explicitly provides for public inspection of the doc
Given my conclusion that items listed in
The court today overreads an everyday casual phrase of no certain content to impose an important new and comprehensive restriction on disclosure of items listed in
I respectfully dissent.
. The agency’s brief did not contend that such statistical information was necessarily limited to the statistical compilations described in
. The notion that deference should not be accorded if the agency’s interpretation appears to be no more than a “current litigation position" suggests a slightly different but related variation on the original doctrine. But the IRS has, as far as I can tell, always sincerely asserted the King interpretation whenever it was appropriate to do so.
. If the agency were formally to adopt the King position, let us say through a regulation or interpretive rule, it would surely be entitled to deference before other circuits that have not as yet faced the need to interpret the Haskell amendment. But I really see no inherent reason why it would not be entitled to deference in this court in a new proceeding as well. That prospect suggests that if the majority is uncertain as to whether the King analysis is actually the IRS’s position, it should order the case remanded to the agency to allow what it regards as an adequate demonstration to that effect.
. We have held that
. My reading of
. In 1974 and 1976 Congress amended FOIA to clarify the meaning of de novo review and to tighten the focus of certain exemption provisions. To do this Congress explicitly overruled judicial precedents that it viewed as obstacles to fulfilling FOIA’s pro-disclosure policy. In the 1974 amendments to FOIA, for example. Congress overruled the Supreme Court’s decision in EPA v. Mink,
The legislative history of the 1974 and 1976 amendments to FOIA does not discuss the term "de novo review” in any directly relevant respect. But the legislative history of the 1974 amendments does discuss the term in connection with new statutory language that narrowed the scope of exemption (b)(1) and clarified that a district court may order, as part of its de novo review of an agency’s withholding determination, in camera review of classified documents. S.Rep. No. 1200, 93d Cong., 2d Sess. 8-9, 11-12 (1974). The Conference Report states that in camera inspection should not be automatically undertaken; that the agency should first receive an opportunity to demonstrate the correctness of its classification decision (the predicate for withholding documents under exemption 1) by means of affidavits. In deference to executive agencies’ expertise in national security and foreign policy matters, the conferees stated their intent that courts should “accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” Id. at 12, U.S.Code Cong. & Admin. News 1974, p. 6290. Thus, Congress recognized that even within the de novo review that it directed courts to conduct under FOIA, there was room for deference to the agency on factual issues relating to the availability of an exemption in a particular case within the agency’s delegated area of responsibility.
. The term de novo review, as it is used in the general judicial review provision of the Administrative Procedure Act,
. The Office of Communications court used the term "de novo” as shorthand for the introductory language in
. The court of appeals' decision reported at
For a discussion of the Sims Court’s "implicit view of a limited role for the judiciary" in reviewing agency claims of FOIA exemption 3, see Comment, CIA v. Sims: Supreme Court Deference to Agency Interpretation of FOIA Exemption 3, 35 Cath.U.L.Rev. 279 (1985).
. The majority opinion reproduces a portion of the colloquy at oral argument which it asserts establishes the IRS’s pоsition to be that
THE COURT: Your reading ofSection 6103 makes 6108 superfluous.
COUNSEL: Not entirely, but it’s certainly arguable that the Haskell amendment is redundant in the light of 6108.
THE COURT: I don’t understand that. Why the two if that is what Congress intended to do? ... As I read it over and over again, it’s exactly the same. Your interpretation of the Haskell Amendment is 6108.
COUNSEL: That is right. And that’s why Senator Long said he didn’t think it was really all that necessary____
Transcript of Oral Argument at 28-29 (Dec. 5, 1985) (conformed to tape recording of oral argument).
Counsel’s apparent concession is not all it seems, however. Government counsel appears to have been momentarily caught off guard by the court’s vigorous questioning, for counsel made it abundantly clear in his immediately subsequent exchanges with the court that the IRS’s position was not confined to its understanding of
THE COURT: There is no congressional intention to support that view anywhere. COUNSEL: ... I’m sorry, I can’t agree with that.
THE COURT: Well, where is it?
COUNSEL: It seems very clear that Haskell was worried that the sweeping language of 6103(b)(2), that maybe legitimate scholarly use, state and local government use of the tax model which had been going on since 1960, would be choked off. "Oh, my God, they've gone too far in defining return information.” Well, 6108 was there, to be sure, but Haskell, perhaps not satisfied that one bite would be enough, thought that maybe he ought to have two, and he suggested that under those circumstances, in order to continue to make available for legitimate scholarly use the tax model and similar studies it would be important to say, that, well, data in a form that ... [the court interrupted].
Id. at 29 (conformed to tape recording of oral argument) (emphasis added).
This elaboration is consistent with IRS counsel’s earlier statement that ”[W]e submit it is very clear that the Haskell amendment was meant to permit the release of the tax model and similar statistical studies that were in an amalgamation form____” Id. at 25 (emphasis added). It is clear that the IRS never strictly limited its interpretation of the Haskell amendment to the terms of
. Since the en banc court has considered only this discrete legal issue, and has left to the panel the application of its “holding to the facts of the present case,” maj. op. at 163, my dissent must similarly focus on the legal issue of
. It is essential to note that the disclosability of actual tax returns and other information filed by the taxpayer is not at issue here. Such items are covered by
. Because it holds that
Of course, my disagreement with the majority goes far beyond the applicability of the segregation requirement of FOIA. Because of its "reformulation” requirement, the majority forbids disclosure of any return information in its original state, even if the information, without the need for any redaction, is absolutely nonidentifying.
. As the majority points out, the only substantive comment made was Senator Haskell’s remark about what effect the amendment would have on tax research. See maj. op. at 161.
. The House passed no like provision, and the Conference Committee report states only that
The Senate amendment provides that returns and return information are confidential and not subject to disclosure except as specifically provided by statute____ Under the amendment, data in a form that cannot be associated with or otherwise identify a particular taxpayer will not constitute return information.
S.Rep. No. 1236, 94th Cong., 2d Sess. at 476-77 (1976).
. Indeed, even the majority is unable to set forth a general test for when information is in a different form. Maj. op. at 160-63. All it is sure of is that deletion is not sufficient and aggregation is not necessary. Yet, somehow, the majority is able to "readily opine” from the purpose of its reformulation test, that mere copying in different language and style is not sufficient. Maj. op. at 163 n.5. The glaring deficiency with the majority’s "reformulation” test is that it never specifies from what original form the reformulation must be done and just what satisfies the reformulation requirement. The majority refers to "some alteration by the government of the form in which the return information was originally recorded.” Id. at 163. Yet the IRS obviously has information in its files in hundreds of different developmental stages. For example, notes of an investigation, abstracts of an investigation, list of investigations done in a week, etc. ... To say that there must be "reformulation” does not at all answer the question of what is an original form to begin with.
. The fact that Senator Haskell specifically intended to allow disclosure of items such as the tax model strongly supports the Neufeld position that redaction is enough to take a document out of the "return information” classification. In reaching its original decision in this case, the majority erroneously assumed that the tax mod
. The majority argues that the score is in fact 9-2. Maj. op. at 158 n. 2. It supports this by counting
. The majority argues that the error of the Long construction is made “particularly clear" when compared with the detailed provisions set out in
. In the course of the 1981 amendments to
Present law restricts the disclosure of tax returns and return information. However, information that cannot identify any particular taxpayer is not protected under the disclosure restrictions.
H.R.Rep. No. 215, 97th Cong., 1st Sess. 264, reprinted in [1981] U.S. Code Cong. & Admin. News 105, 353 (emphasis added). While such subsequent legislative history is, of course, not dispositive, it shows minimally that this reading is not contrary to the intent of Congress.
. Even information disclosable under