UNITED STATES DEPARTMENT OF JUSTICE v. TAX ANALYSTS
No. 88-782
SUPREME COURT OF THE UNITED STATES
Argued April 24, 1989—Decided June 23, 1989
492 U.S. 136
Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Acting Solicitor General Bryson, Acting Assistant Attorney General Knapp, Roy T. Englert, Jr., Jonathan S. Cohen, and Mary Frances Clark.
William A. Dobrovir argued the cause and filed a brief for respondent.*
*Jane E. Kirtley filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae urging affirmance.
The question presented is whether the Freedom of Information Act (FOIA or Act),
I
The Department‘s Tax Division represents the Federal Government in nearly all civil tax cases in the district courts, the courts of appeals, and the Claims Court. Becаuse it represents a party in litigation, the Tax Division receives copies of all opinions and orders issued by these courts in such cases. Copies of these decisions are made for the Tax Division‘s staff attorneys. The original documents are sent to the official files kept by the Department.
If the Government has won a district court case, the Tax Division must prepare a bill of costs and collect any money judgment indicated in the decision. If the Government has lost, the Tax Division must decide whether to file a motion to alter or amend the judgment or whether to recommend filing an appeal. The decision whether to appeal involves not only the Tax Division but also the Internal Revenue Service (IRS) and the Solicitor General. A division of the IRS reviews the district court‘s decision and prepares a recommendation on whether an appeal should be taken. The court decision and the accompanying recommendation are circulated to the Tax Division, which formulates its own recommendation, and then to the Solicitor General, who reviews the district court decision in light of the IRS and Tax Division‘s recommendations. If the Solicitor General ultimately approves an appeal, the Tax Division prepares a record and joint appendix, both of which must contain a copy of the district court decision, for transmittal to the court of appeals. If no appeal is
Respondent Tax Analysts publishes a weekly magazine, Tax Notes, which reports on legislative, judicial, and regulatory developments in the field of federal taxation to a readership largely composed of tax attorneys, accountants, and economists. As one of its regular features, Tax Notes provides summaries of recent federal-court decisions on tax issues. To supplement the magazine, Tax Analysts provides full texts of these decisions in microfiche form. Tax Analysts also publishes Tax Notes Today, a daily electronic data base that includes summaries and full texts of recent federal-court tax decisions.
In late July 1979, Tax Analysts filed a FOIA request in which it asked the Department to make availablе all district court tax opinions and final orders received by the Tax Division earlier that month.1 The Department denied the request on the ground that these decisions were not Tax Division records. Tax Analysts then appealed this denial administratively. While the appeal was pending, Tax Analysts agreed to withdraw its request in return for access to the Tax Division‘s weekly log of tax cases decided by the federal courts. These logs list the name and date of a case, the docket number, the names of counsel, the nature of the case, and its disposition.
Since gaining access to the weekly logs, Tax Analysts’ practice has been to examine the logs and to request copies of the decisions noted therein from the clerks of the 90 or so district courts around the country and from participating attorneys. In most instances, Tax Analysts procures copies reasonably promptly, but this method of acquisition has proven
Frustrated with this process, Tax Analysts initiated a series of new FOIA requests in 1984. Beginning in November 1984, and continuing apрroximately once a week until May 1985, Tax Analysts asked the Department to make available copies of all district court tax opinions and final orders identified in the Tax Division‘s weekly logs. The Department denied these requests and Tax Analysts appealed administratively. When the Department sustained the denial, Tax Analysts filed the instant suit in the United States District Court for the District of Columbia, seeking to compel the Department to provide it with access to district court decisions received by the Tax Division.
The District Court granted the Department‘s motion to dismiss the complaint, holding that
The Court of Appeals for the District of Columbia Circuit reversed. 269 U. S. App. D. C. 315, 845 F. 2d 1060 (1988). It first held that the district court decisions were “improperly withheld.” An agency ordinarily may refuse to make available documents in its control only if it proves that the documents fall within one of the nine disclosure exemptions set forth in
The Court of Appeals next held that the district court decisions sought by Tax Analysts are “agency records” for purposes of the FOIA. The court acknowledged that the district court decisions had originated in a part of the Government not covered by the FOIA, but concluded that the documents nonetheless constituted “agency records” because the Department has the discretion to use the decisions as it sees fit, because the Department routinely uses the decisions in performing its official duties, and becausе the decisions are integrated into the Department‘s official case files. Id., at 323-324, 845 F. 2d, at 1068-1069. The court therefore remanded the case to the District Court with instructions to enter an order directing the Department “to provide some reasonable form of access” to the decisions sought by Tax Analysts. Id., at 317, 845 F. 2d, at 1062.
We granted certiorari, 488 U. S. 1003 (1989), and now affirm.
In enacting the FOIA 23 years ago, Congress sought “‘to open agency action to the light of public scrutiny.‘” Department of Justice v. Reporters Committee for Freedom of Press, 489 U. S. 749, 772 (1989), quoting Department of Air Force v. Rose, 425 U. S. 352, 372 (1976). Congress did so by requiring agencies to adhere to “‘a general philosophy of full agency disclosure.‘” Id., at 360, quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Congress believed that this philosophy, put into practice, would help “ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 242 (1978).
The FOIA confers jurisdiction on the district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.”
In this case, all three jurisdictional terms are at issue. Although these terms are defined neither in the Act nor in its legislative history, we do not write on a clean slate. Nine Terms ago we decided three cases that explicated the meanings of these partially overlapping terms. Kissinger v. Reporters Committee for Freedom of Press, supra; Forsham v.Harris, 445 U. S. 169 (1980); GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U. S. 375 (1980). These decisions form the basis of our analysis of Tax Analysts’ requests.
A
We consider first whether the district court decisions at issue are “agency records,” a term elaborated upon both in Kissinger and in Forsham. Kissinger involved three separate FOIA requests for written summaries of telephone conversations in which Henry Kissinger had participated when he served as Assistant to the President for National Security Affairs from 1969 to 1975, and as Secretary of State from 1973 to 1977. Only one of these requests—for summaries of specific conversations that Kissinger had had during his tenure as National Security Adviser—raised the “agency records” issue. At the time of this request, these summaries were stored in Kissinger‘s office at the State Department in his personal files. We first concluded that the summaries were not “agency records” at the time they were made because the FOIA does not include the Office of the President in its definition of “agency.” 445 U. S., at 156. We further held that these documents did not acquire the status of “agency records” when they were removed from the White House and transported to Kissinger‘s office at the State Department, a FOIA-covered agency:
“We simply decline to hold that the physical location of the notes of telephone conversations renders them ‘agency records.’ The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department‘s files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an ‘agency record’ Kissinger‘s personal books, speeches, and all other memorabilia stored in his office would have
been agency records subject to disclosure under the FOIA.” Id., at 157.
Forsham, in turn, involved a request for raw data that formed the basis of a study conducted by a private medical research organization. Although the study had been funded through federal agency grants, the data never passed into the hands of the agencies that provided the funding, but instead was produced and possessed at all times by the private organization. We recognized that “[r]ecords of a nonagency certainly could become records of an agency as well,” 445 U. S., at 181, but the fact that the study was financially supported by a FOIA-covered agency did not transform the source material into “agency records.” Nor did the agencies’ right of access to the materials under federal regulations change this result. As we explained, “the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.” Id., at 186 (emphasis in original; footnote omitted).
Two requirements emerge from Kissinger and Forsham, each of which must be satisfied for requested materials to qualify as “agency records.” First, an agency must “either create or obtain” the requested materials “as a prerequisite to its becoming an ‘agency record’ within the meaning of the FOIA.” Id., at 182. In performing their official duties, agencies routinely avail themselves of studies, trade journal reports, and other materials produced outside the agencies both by private and governmental organizations. See Chrysler Corp. v. Brown, 441 U. S. 281, 292 (1979). To restrict the term “agency records” to materials generated internally would frustrate Congress’ desire to put within public reach the information available to an agency in its decision-making processes. See id., at 290, n. 10. As we noted in Forsham, “The legislative history of the FOIA abounds with
Second, the agency must be in control of the requested materials at the time the FOIA request is made. By control we mean that the materials have come into the agency‘s possession in the legitimate conduct of its official duties. This requirement accords with Kissinger‘s teaching that the term “agency records” is not so broad as to include personal materials in an employeе‘s possession, even though the materials may be physically located at the agency. See 445 U. S., at 157. This requirement is suggested by Forsham as well, 445 U. S., at 183, where we looked to the definition of agency records in the Records Disposal Act,
Applying these requirements here, we conclude that the requested district cоurt decisions constitute “agency records.” First, it is undisputed that the Department has obtained these documents from the district courts. This is not a case like Forsham, where the materials never in fact had been received by the agency. The Department contends that a district court is not an “agency” under the FOIA, but this truism is beside the point. The relevant issue is whether an agency covered by the FOIA has “create[d] or obtaine[d]” the materials sought, Forsham, 445 U. S., at 182, not whether the organization from which the documents originated is itself covered by the FOIA.7
Second, the Department clearly controls the district court decisions that Tax Analysts seeks. Each of Tax Analysts’ FOIA requests referred to district court decisions in the agency‘s possession at the time the requests werе made.
The Department also urges us to limit “agency records,” at least where materials originating outside the agency are concerned, “to those documents ‘prepared substantially to be relied upon in agency decisionmaking.‘” Brief for Petitioner 21, quoting Berry v. Department of Justice, 733 F. 2d 1343, 1349 (CA9 1984). This limitation disposes of Tax Analysts’ requests, the Department argues, because district court judges do not write their decisions primarily with an eye toward agency decisionmaking. This argument, however, makes the determination of “agency records” turn on the intent of the creator of a document relied upon by an agency. Such a mens rea requirement is nowhere to be found in the Act.8 Moreover, discerning the intent of the drafters of a
B
We turn next to the term “withheld,” which we discussed in Kissinger. Two of the requests in that case—for summaries of all the telephone conversations in which Kissinger had engaged while serving as National Security Adviser and as Secretary of State—implicated that term. These summaries were initially stored in Kissinger‘s personal files at thе State Department. Near the end of his tenure as Secretary of State, Kissinger transferred the summaries first to a private residence and then to the Library of Congress. Significantly, the two requests for these summaries were made only after the summaries had been physically delivered to the Library. We found this fact dispositive, concluding that Congress did not believe that an agency “withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request. In such a case, the agency has neither the custody nor control necessary to enable it to withhold.” 445 U. S., at 150-151.9 We accordingly refused to order the State Department to institute a retrieval action against the Library. As we explained, such a сourse “would have us read the ‘hold’ out of ‘withhold. . . . A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb withhold.” Id., at 151.10
The Department‘s counterargument is that, because the district court decisions sought by Tax Analysts are publicly available as soon as they are issued and thus may be inspected and copied by the public at any time, the Department cannot be said to have “withheld” them. The Department notes that the weekly logs it provides to Tax Analysts contain sufficient information to direct Tax Analysts to the “original source of the requested documents.” Brief for Petitioner 23. It is not clear from the Department‘s brief whether this argument is based on the term “withheld” or the term “improperly.”11 But, to the extent the Department relies on the
C
The Department is left to argue, finally, that the district court decisions were not “improperly” withheld because of their public availability. The term “improperly,” like “agency records” and “withheld,” is not defined by the Act. We explained in GTE Sylvania, however, that Congress’ use of the word “improperly” reflected its dissatisfaction with § 3 of the Administrative Procedure Act,
In enacting the FOIA, Congress intended “to curb this apparently unbridled discretion” by “clos[ing] the ‘loopholes which allow agencies to deny legitimate information to the public.‘” Ibid. (citation omitted); see also EPA v. Mink, 410 U. S. 73, 79 (1973). Toward this end, Congress formulated a system of clearly defined exemptions to the FOIA‘s otherwise mandatory disclosure requirements. An agency must disclose agency records to any person under
The Department does not contend here that any exemption enumerated in
First, the Department contends that the structure of the Act evinces Congress’ desire to avoid redundant disclosures. An understanding of this argument requires a brief survey of the disclosure provisions of
The Department‘s argument proves too much. The disclosure requirements set out in subsections (a)(1) and (a)(2) are carefully limited to situations in which the requested materials have been previously published or made available by the agency itself. It is one thing to say that an agency need not disclose materials that it has previously released; it is quite another to say that an agency need not disclose materials that some other person or group may have previously released. Congress undoubtedly was aware of the redundancies that might exist when requested materials have been previously made available. It chose to deal with that problem by crafting only narrow categories of materials which need not be, in effect, disclosed twice by the agency. If Congress had wished to codify an exemption for аll publicly available ma-
It is not surprising, moreover, that Congress declined to exempt all publicly available materials from the FOIA‘s disclosure requirements. In the first place, such an exemption would engender intractable fights over precisely what constitutes public availability, unless the term were defined with precision. In some sense, nearly all of the information that comes within an agency‘s control can be characterized as publicly available. Although the form in which this material comes to an аgency—i. e., a report or testimony—may not be generally available, the information included in that report or testimony may very well be. Even if there were some agreement over what constitutes publicly available materials, Congress surely did not envision agencies satisfying their disclosure obligations under the FOIA simply by handing requesters a map and sending them on scavenger expeditions throughout the Nation. Without some express indication in the Act‘s text or legislative history that Congress intended such a result, we decline to adopt this reading of the statute.
The Department‘s next argument rests on the fact that the disclosure of district court decisions is partially governed by other statutes, in particular
The Department‘s last argument is derived from GTE Sylvania, where we held that agency records sought from the Consumer Products Safety Commission were not “improperly” withheld even though the records did not fall within one of subsection (b)‘s enumerated exemptions. The Commission had not released the records in question because a district court, in the course of an unrelated lawsuit, had enjoined the Commission from doing so. In these circumstances, we held, “[t]he concerns underlying the Freedom of Information Act [were] inapplicable, for the agency . . . made no effort to avoid disclosure.” 445 U. S., at 386. We therefore approved the Commission‘s compliance with the injunction, noting that when Congress passed the FOIA, it had not “intended to require an agency to commit contempt of court in order to release documents. Indeed, Congress viewed the federal courts as the necessary protectors of the public‘s right to know.” Id., at 387.
The present dispute is clearly akin to those typical FOIA cases. No claim has been made that the Department was powerless to comply with Tax Analysts’ requests. On the contrary, it was the Department‘s decision, and the Department‘s decision alone, not to make the court decisions available. We reject the Department‘s suggestion that GTE Sylvania invites courts in every case to engage in balancing, based on public availability and other factors, to determine whether there has been an unjustified denial of information. The FOIA invests courts neither with the authority nor the tools to make such determinations.
III
For the reasons stated, the Department improperly withheld agency records when it refused Tax Analysts’ requests for copies of the district court tax decisions in its files.15 Accordingly, the judgment of the Court of Appeals is
Affirmed.
JUSTICE WHITE concurs in the judgment.
The Court in this case has examined once again the Freedom of Information Act (FOIA),
I do not join the Court‘s opinion, however, because it seems to me that the language of the statute is not that clear or conclusive on the issue and, more important, because the result the Court reaches cannot be one that was within the intent of Congress when the FOIA was enacted.
Respondent Tax Analysts, although apparently a nonprofit organization for federal income tax purposes, is in business and in that sense is a commercial enterprise. It sells summaries of these opinions and supplies full texts to major electronic data bases. The result of its now-successful effort in this litigation is to impose the cost of obtaining the court orders and opinions upon the Government and thus upon tаxpayers generally. There is no question that this material is available elsewhere. But it is quicker and more convenient, and less “frustrat[ing],” see ante, at 140, for respondent to have the Department do the work and search its files and produce the items than it is to apply to the respective court clerks.
This, I feel, is almost a gross misuse of the FOIA. What respondent demands, and what the Court permits, adds nothing whatsoever to public knowledge of Government operations. That, I had thought, and the majority acknowledges, see ante, at 142, was the real purpose of the FOIA and the
If, as I surmise, the Court‘s decision tоday is outside the intent of Congress in enacting the statute, Congress perhaps will rectify the decision forthwith and will give everyone concerned needed guidelines for the administration and interpretation of this somewhat opaque statute.