*1 and, through tions affidavits where neces- seriously impair disclosure “would Federal sary, Vaughn administration,” indices. 6103(c), 26 U.S.C. analogous to exception at issue in Rob- large IRS’s search uncovered a bins, supra, for documents whose disclo- responsive number of documents sure would “interfere with enforcement request relating Church’s specifically proceedings,” 552(b)(7)(A), 5 U.S.C. to the California Church. It claimed ex exemption like that should be sustainable emption for the these doc generically, applied categories to certain concretely the Tax Court case uments — documents, on the basis of affidavits ground documents—on the that disclosure and without Vaughn indices. seriously impair “would Federal tax admin order the District Court is vacated istration,” 6103(c). 26 U.S.C. Selected and this case is remanded to the District portions of a much group smaller of doc Court for proceedings further consistent uments related to the Tax Court case opinion. with this At the conclusion were withheld under exemp various FOIA proceedings, the Church renew they personal tions because contained in its motion an of attorney award fees if party formation third return informa it so desires. tion, they scope because exceeded the request. upheld the Church’s The Court So ordered. exemption

the IRS’s claim of on the basis representa

of in camera examination of a documents, sample

tive without the public

benefit of detailed affidavits or indice camera, inspec

s.3 While in individual

tion of each small number doc public

uments without detailed affidavits Vaughn accept indices sometimes CHURCH OF SCIENTOLOGY OF able, IRS, 530-31, see v. Currie F.2d at CALIFORNIA, Appellant, approach such an applied cannot be large numbers of documents—much less to v. large represent numbers of documents that SERVICE, INTERNAL REVENUE al. et only sampling. places It unrealistic and No. 83-1856. upon unsustainable demands the trial court reviewing appellate panel, and the Appeals, United States Court of replaced supplement therefore must be District Columbia Circuit. adversary testing public ed Argued En Banc Dec. 1985. provide. affidavits and indices seek to See Rosen, Vaughn v. May F.2d 825. With Decided respect documents, therefore, to these As May Amended required District Court should have proving IRS to its sustain burden of it sought documents to withhold were

exempt through appro from disclosure

priate public combination of detailed affida (if indices, necessary) resorting

vits and

in camera examination of documents and proved

affidavits where these inade

quate. We regard note in this exemption

asserted for documents whose the IRS entirely mention that upon 3. The District Court does that the court relied in camera twenty-one Scientology indexed documents located See examination. Church Cali- Office, IRS, opinion suggest F.Supp. National but its seems to 1170-72. fornia *2 D.C., Seefried, Washington, A.

Robert appellant. for Cohen, Dept, of Jus- Atty., U.S. Jonathan tice, Supreme Court of the Bar vice, Conn., pro by special leave hac Jr., Archer, Court, L. Glenn with whom Justice, Gen., Dept, of Atty. U.S. Asst. Mi- diGenova, Atty., U.S. Joseph E. Perkins and Paup, Richard W. chael L. Horwitz, Dept, of Murray Attys., U.S. S. brief, D.C., Justice, Washington, were appellee. E. Stephen Judith Bendich and K. Seattle, Strong, Wash., brief, were on American of Union Civil Liberties Foundation curiae, Washington, urging amicus interpretation adopted by adherence to the panel opinion Neufeld IRS. Morrison, David C. B. taxpayer.” 6103(b)(2) Vladeck and Alan 26 U.S.C. § D.C., Washington, brief, were on Specifically, for John consider we whether to adhere L. Neufeld and panel Freedom of a 1981 Information decision of court Clearinghouse, curiae, urging amici held adher- that that removes from the ence adopted category protected defined panel opinion which, Neufeld v. IRS. all material original either in its *3 form or request, in response as to a FOIA redacted ROBINSON, Before Judge, Chief identity does disclose the of WRIGHT, WALD, MIKVA, EDWARDS, the taxpayer pertains. whom GINSBURG, BORK, SCALIA, STARR and SILBERMAN, Judges. Circuit Opinion of by Court filed Circuit The present facts of the case are set Judge SCALIA. panel opinion forth in the issued simulta- neously opinion. present with this For pur- opinion Concurring by filed Judge Circuit poses, it suffices to recite central SILBERMAN. issue in the appeal the adequacy of the opinion Dissenting by Judge filed Circuit records; requested IRS’s search for WALD, Judge whom Chief ROBIN- principal points one of the bearing upon Judge join. SON and Circuit MIKVA issue is whether certain files could reasonably be excluded from search as SCALIA, Judge: Circuit containing information”; only “return appeal This is from District depends that the point latter ato considera- grant of summary judgment Court’s in fa- upon ble extent whether (specifi- redaction Service, vor of the Internal Revenue in a cally, portions of elimination of documents brought Freedom of Act suit Information that would disclose the taxpayer’s identity) by Scientology of Church under 5 removes protected the material from the 552(a)(4)(B)(1982). only U.S.C. issue category. this en opinion addressed banc is the After the case meaning of the so-called had briefed Haskell Amend- been argued ment, panel, and court en excepts assigned before which from the Internal Rev- banc, motion, requested on its own enue Code’s definition of nondisclosable . supplemental and, briefing 5, “return information” form on December “data in a which 1985, argument with, cannot heard oral limited to be associated or otherwise following

identify, directly particular or issue:1 indirectly, a expresses concern over Judge holding dissent whether the Court should Wald's reconsider issuing FERC, practice en banc Pipe in Panhandle Line v. "the court’s recent Eastern Co. 613 issues, (D.C.Cir.1979)’’). opposed to concrete legal as F.2d 1120 opinions on scenarios, v. United see also Foster factual practice segregating legal requir- issues (en banc).” (D.C.Cir.1986) States, 1082 F.2d ing 783 attention full court from the logically must concern at 172 n. That Dissent ap- remainder of case reflects fact that extend, indeed have should of course —and pellate purpose: review serves a dual the correc- common heightened the court’s application legal tion legal error and the establishment of —to rendering on iso- practice en banc decisions guidance. rules Only for future the latter rehearing, by legal without en banc lated issues ordinarily worthy of the attention full added to “Irons footnote” means a so-called perception judges "typ- court. The dissent’s depar- reflecting panel opinion, the fact case, ically" dispose the issues in a see has been prior law of the circuit 1, ture from simply Dissent at 172 n. true at the See, e.g., Telecom- court. approved level, full appellate law-clarifying second where the FCC, Center v. & Action munications Research predominates. Supreme function ten, Court of- (D.C.Cir.1984); 70, In re: n. 24 75 750 F.2d usually, grants only if not on certiorari one Comm'n, Trading 738 F.2d Commodity points law, Futures or more discrete and issues its Diamond, (D.C.Cir.1984); v. Irons (in sense) issues, n. opinions "legal as Indeed, (D.C.Cir.1981). n. 11 670 F.2d opposed to concrete factual scenarios.” En vener- more logically extend to the even (or must disposi- banc consideration Irons footnote of is- practice en banc reconsideration tion) able effectively constitutes such second-level specific issues —a panel opinions where, limited sued appellate review —at least is the case ago. indulged weeks a few practice here, we the full has before it full text court of a FERC, 780 F.2d Gas Co. v. Natural See Northern 59, proposed panel opinion. especially It would rehearing (order (D.C.Cir.1986) granting perverse practice our abandon efficient deciding purpose of limited en banc "for disposition just limited en our banc caseload thereof) person any under interpre amount adhere to Court Should the tax, interest, any penalty, title for 6103(b)(2) adopted of 26 U.S.C. tation fine, forfeiture, imposition, or other IRS, opinion in v. panel Neufeld offense, and (D.C.Cir.1981), or 646 F.2d (B) part interpretation, any written determi- different adopt a should it any background file doc- nation or announced the Sev relating to such written deter- IRS, ument King 688 F.2d enth Circuit (as terms are defined in mination Cir.1982)? (7th 490-94 6110(b)) open section received Briefs curiae were amicus inspection public under section Founda- Liberties Union the American Civil term does not include data in but such Washington and from Professor which cannot associated form of Infor- L. and the Freedom Neufeld John identify, directly otherwise Clearinghouse. mation *4 indirectly, taxpayer. II added). 6103(b)(2) (emphasis 26 U.S.C. § 6103(a) part, pro- 26 In U.S.C. relevant § defining paragraph clause in the The last vides as follows: Amendment, so be Haskell called information shall and return into the Returns cause it was inserted committee- confidential, except proposed through as authorized a floor amendment bill by that Senator. On the basis title— introduced this clause, Circuit held in of that the Ninth (1) employee or the Unit- no officer identify partic data do not States,____ ed names, taxpayer identifying ular because any return infor- shall return or disclose and other similar information numbers him in manner mation obtained deleted not return have are informa been with his service such connection (9th IRS, F.2d 362 tion. v. Cir. or employee or otherwise officer or an denied, 1979), 100 S.Ct. cert. section____ provisions of this under the (1980). In a 1851, L.Ed.2d 271 later case provision a felo- Willful violation court in had not before this which IRS 7213(a)(1). ny. 26 U.S.C. § question, panel it found briefed is defined in the “Return information” and, reach issue necessary to without statute as follows: own, analysis of its followed what was nature, (A) taxpayer’s identity, the appeals prece court of time income, source, pay- amount of his or IRS, 661, 665 dent. v. 646 F.2d Neufeld deductions, exemp- ments, receipts, (D.C.Cir.1981). doing, panel In ob so credits, assets, liabilities, tions, net IRS wishes to re served “[w]hile withheld, worth, defi- liability, tax tax proper statutory question of the serve the over-assessments, ciencies, pay- or tax information return for another definition of concede, ments, taxpayer’s return whether for this case day, appears or was, being, or will be examined if in only, error harmful occurred] [no investigation pro- employed or the defini subject to fact district court] [the data, by, cessing, any other received return articulated or tion of to, omitted). (footnote by, furnished Subse by, prepared Long.” Id. recorded Secretary reached a con quently, with re- Seventh Circuit collected holding Long, respect different from spect return clusion to a or with existence, “protects disclosure all from pos- statute determination (or non-amalgamated listed subsection existence, liability items sible increased, steeply and as the size of the meal” consideration would have the effect of expanded, magnifying court making has been the num- inordinately prior difficult alter judge-hours ber to each han- panel devoted issue law of the circuit or to correct decisions proposal "piece- dled en to restrict adopt banc. erroneous new rules. (b)(2)(A),and that the Haskell Amendment written determinations and related back- provides only for disclosure of statisti ground files that open public are not cal which are not associated tabulations inspection under 6110. The latter section § identify particular taxpay do with or public inspection excludes require- IRS, (7th King ers.” F.2d data, only identifying ment not 6110(c)(1), Cir.1982). emerged newly circuit con matters, many other such as trade se- posi induced us to reconsider the flict has crets, 6110(c)(4), information prepared panel tion stated in our 1981 decision. for the use of an regulating finan- course, starting point analysis, institutions, 6110(c)(6), (with cial issue, which, is the text spect determinations) to most written mate- Circuit, agree we with the Seventh is ill relating taxpayer’s rial to a change of an- pronounced suited to achieve the result accounting period, 6110(g)(5)(B)(ii). nual It Long. peculiar would be most to cat- incorporate It would be absurd to these detail, (A) alogue subparagraph precisely exclusions so body into the definition, body specific information, definition of return then, items constitute “return information” immediately following clause, in the “income, (e.g., payments, receipts, deduc- except write of them back the iden- out— credits, liabilities, tions, assets, exemptions, tifying (§ 6110(c)(1)), data exclusion worth, withheld, liability, net tax tax defi- is not deleted the Haskell exclusion but ciencies, over-assessments, pay- merely entirely rendered redundant. *5 data, ments, by, or ... other received agree We also with the Seventh Circuit to, by, by, prepared recorded furnished or provi- that the formulation of the Haskell Secretary respect collected with to a suggests something sion itself other than return”) leaving afterthought while to an merely identifying the absence of informa- major qualification that none of those strange express tion. It would be taxpay- items counts unless it identifies the thought by excluding latter in “data a naturally er. Such an intent would more with, which cannot be associated or expressed have been not in an exclusion form identify particular otherwise a taxpay- ... (“but ”) such term not include does ... but added). (emphasis emphasized er” body by stating, in the of the definition — phrase superfluous pur- would be for that example, for term “the ‘return infor- pose, reading as the provision without it following mation’ means the information A will demonstrate. more natural formula- identify that can be associated with or a ____” purposes assigns Long tion for the If particular taxpayer: the intended would be similar to that scope Long is as contained exclusion as broad holds, provision of provision agency may the structure is akin FOIA that “an defining details,” “all identifying mankind as mammals delete 5 U.S.C. world, excluding 552(a)(2) added); but that are (emphasis those not or similar to relatively bipeds power hairless with the formulation used elsewhere reasoning.” such form abstract While a Subchapter same of the Internal Revenue conceivable, definition is it would constitute Code, publication “permit shall (as “everyday language” the dissent char- with, information ... or associated it, 174) only acterizes Dissent for one of identify, directly indirectly, otherwise a characters, hardly Lewis Carroll’s and it 6108(c). particular taxpayer,” 26 U.S.C. § “talmudic or “micro- takes dissection!]” Moreover, usage it is curious to describe an id., scopic scrutiny,” reject implau- it as (a particular item of return information sible. taxpayer’s “payments,” example) tax having public one “form” made when a Long interpretation produces a sim- taxpayer’s includes document ilarly consequence subpara- mindless name, (B) taking a different “form” when graph of the definition of return infor- public very in the subparagraph made same document mation. That includes with- in the of return deleted. definition information IRS- name protection language identity. er’s afforded suggested isWhat always strongly problematic, such assessment is itself is confirmed not error, only because of the risk of human 6103. Subsections provisions of 6103(f)(4)(A) depends also the assessment (2) but because 6103(f)(1) and subsection & large upon a extent uninformed estima- of return information to permit disclosure requester pos- as to data tions what Congress, and sub- certain committees Consider, example, sesses. FOIA re- 6103(f)(4)(B) to the full Senate or section however, quest for amounts and beneficiaries of House; provisions, four under all by taxpay- all charitable deductions claimed writing taxpayer consents unless particular postal ZIP ers within code area pertinent made to the must be during year. That infor- “sitting in exec- committee house closed normally identify mation would when it concerns “return utive session” gift any particular taxpayer; charitable can be associated information which requester do so if the but would had been indirectly, directly or identify, or otherwise neighbor by his that the latter made told Long's interpre- If taxpayer.” a particular $2,775. gift year charitable last Amendment tation provisions exception in adopted, the these possessed by For most information the rule. That is to completely consumes government, Congress has determined Long consists, say, if return unknowing that the risk occasional dis data, then nothing identifying says, of facts entitled closure of to withheld un provi- these provided under whenever it is outweighed by FOIA is der benefits of receiving committee house sions openness. judg But it has made Quite plain- session. sit in executive must See, e.g., information. ment for all in- provisions contemplate return ly, these (West Supp.1985) (exempting C.A. § nonidentifying.2 formation that Intelligence Agency operational Central indications, FOIA). significant files It to clear textual In addition sug- protection has FOIA’s nonidentification rejection *6 adequate for the plausible legisla- of been considered other ma gested assessment true, of category personal as of information that jor is of course two tive intent. It asserted, government is no directs all citizens to amici have there 3 Congress provide: Exemption the same at “why would have wanted Under reason 552(b)(3), here, 5 all census issue U.S.C. to forbid the disclosure of § disclosure, wheth privacy protected of data are would not threaten the which they identify the individual taxpayers.” Brief of Neufeld er not individual Baldridge See Sha pertain. Clearinghouse they whom and Freedom of Information piro, the threat 102 S.Ct. at 5. But it is also true that similarly think is not agen- L.Ed.2d 199 We privacy entirely eliminated heightened protection intended with cy (ultimately) was judicial assessment information, in to en response regard to tax order certain in to a FOIA deletions full, courage voluntary taxpay- self-assessment request will suffice to conceal strange occur, 157-158, ings textual supra to all that can never refers see at dissent “styl- Long interpretation Long. as consequences that are the of consequences of dis- equates totaling imper- in character superfluity,” sent’s of which indiscriminate textual istic remain under imperfections happens fections also be inaccurate. One of textual "superfluities” Dissent interpretation the amendment. which it attributes to of our our however, nothing that, latter, interpretation consist is not since section in 176-. The sections, 6108(c), question, specifically repetition, later is tied § not than more exemption Moreover, (under interpretation) the our term "return information.” both which already provided. imperfections This interpretation of the minor in our Amendment Haskell well, Long compared interpretation with the Alice- reasonably subsist under cannot structure, supra see and the dissent seems have miscounted the definitional in-Wonderland defini- incorporation problems Long in the distinctive we have discussed. pointless 5-3, see simplistic application, as the dissent exceptions that have no "score” tion of asserts, open meet- provisions for but 9-2. and the supra at upon which taxes our internal revenue identifying information in the context of system largely depends. written relying determinations while upon no more than the protections FOIA provide The intent to this increased as- (through Long’s interpretation of the Has- confidentiality conveyed by surance of Amendment) request kell when a for less provisions rigidly the detailed § publicly important return information is re- restricting the use tax information with- ceived. itself, government the severe penalty (up criminal years imprison- to five The dissent criticizes our use of standard ment) for unlawful disclosure. See analysis that, textual ground on the while 7213(a)(1). ap- U.S.C. It is particularly appropriate Congress where “la- parent, incompatibility however—and the arduously bored over each choice of word particularly comma,” each improper it is “when the provisions clear—from the which legislative history shows that procedures public set inspection forth injected into the bill at the tail end of written IRS determinations and related process.” Dissent at 174. We need background governmen- files. Unlike most pause to consider the theoretical defi- tal information obtainable under the Free- ciencies approach an Act, dom of Information one or more construction, since it is in case not public may members of the be interested properly applicable (ill-con- here. The for reasons that amount no more than sidered) Haskell Amendment was not curiosity, special there is reason for mak- adopted separately and distinctly from the ing public, written determinations since provisions that we seek to reconcile requirement agencies without such a could earlier, with it. weAs noted it was not an develop Thus, “secret law.” FOIA re- preexisting law, amendment to a but an quires such merely determinations not amendment to the as originally present- bill be provided upon request, written but to be on ed the floor. did pass into reading made available law Haskell amendment itself, but room, and to be reflected a current index part parcel exceedingly de- publicly distributed. U.S.C. complex legislative scheme, tailed and 552(a)(2). inYet the case of informa- arduously which it “labored had over each tion, provides greater protection choice of each word and comma.” Since all against improper publicly disclosure of this provisions were enacted simultaneous- provides essential information than FOIA ly, plausible there is no justification for against data which there is focusing hastily on the considered nature posit any public reason to need to know. *7 ignoring of one of carefully them and Specifically, subject the written de- crafted character of the remainder. given right prior termination is a to written fact, militating In far from in favor of Secretary’s notice of the intention to dis- Long interpretation, the broad the last-min- close, prevent to remedy administrative cursory and ute manner in which the Has- disclosure, a cause of action the Tax proposed adopted kell Amendment was and unsuccessful, if remedy Court greatly augments implausibility right any seeking to intervene action interpretation. disclosure, massive effect even and a cause of action for amendment, correct, Long if was damages in to improper the Claims Court for change scope of 6110(f), (i). protection from disclosure. 26 U.S.C. In the § information,” carefully “return and judicial proceedings ex- to restrain disclosure pansively 6103(b)(2), require disclosure, or to described further there is no to § requirement merely all such similar to the information which would identify taxpayer. change FOIA that “the is on to agency burden That would withholding. only sustain” the make superficially nonidentifying See U.S.C. 552(a)(4)(B). It pro- would be absurd to information to requesters, § available FOIA guarantees vide against such thereby carefully frustrate the drawn (2); 6103(f)(1) tifying con- data. & against such disclosure See protections §§ 6103(f)(4)(A) (B). it allow it but would also & But is contained tained freely information portions to be circulated such two other Subsection (since defined government use,” permits (j), within entitled “Statistical disclo- is central to (1) “return information” term return to the Secre- sure of governing dis- public provisions those of, both purpose tary of Commerce “for the but inter-agency governing and those closure in, necessary the extent the struc- to dissemination). are asked to believe We turing of censuses and national economic change in the com- this fundamental conducting accounts related statistical of the proposal that the members mittee law”; (2) authorized activities made (presumably) studied was had Senate of the Federal Trade Commis- Chairman minute, at the last proviso by this brief sion, “for the of ... purpose administration sponsor any without statement legally surveys ... of authorized economic except upon anything sta- it had an effect (3) Depart- to corporations”; and data, compilations of see studies and tistical Treasury, purpose “for ment of (it was a floor vote without fore- preparing economic financial ... infra consent), without dissent adopted casts, projections, analyses, and statistical Senate, single member even conducting related activities.” studies any mem- any indeed without comment subsection, paragraph of the enti- The last might have been body who bers form,” “Anonymous tled concludes: except Long’s remark: present Senator person No receives return in- who President, happy to take “Mr. I will dis- formation under this subsection shall might It not be conference. amendment close ... return information might it entirely necessary, but serve taxpayer to whom person than Cong.Rec. 24,012 purpose.” good except relates cannot in a form implausi- Rather than embrace this identify, associated or otherwise more one bility it would make sense—if directly indirectly, taxpay- approach of to favor the dissent’s were er. using supposed inadequacy considera- added). 6103(j)(4) In this con- (emphasis ignore, as a basis rather than seek- text, emphasized phrase meaning reconcile, en- ing textual conflicts—to per- evidently clear: meant to seems It is position urged by govern- dorse the publication and distribution of mit the wit, ment, Con- that all the befuddled studies, surveys forecasts and statistical (never the text gress meant do mind that permitted purpose are the dis- 161-62) to it, not bear will see infra Commerce, the FTC and Trea- closures excep- to the disclosure add the model phrase envisions, sury. The in other tions words, iden- merely the deletion of an symbol on a tifying name or document Ill information, contains return what It much easier discern into of the return information formulation not mean Haskell Amendment does composite some other study a statistical (viz., suggests) than what what *8 theory on the product presumably — If, concluded, not as it does does. we have gives reformulation added assurance of return infor exclude from the definition taxpayer’s identity will in fact not be that a data, partic nonidentifying what mation all disclosed. data does it exclude? nonidentifying ular meaning fits the instance The same key crucial Again think the is the we phrase appears “in a form” in which significant “in a It is phrase form.” 6103. Subsec- a disclosure limitation provi phrase contained in the this not (i)(7)(A)provides that informa- return lan tion which seek—in sions discussed earlier by, or inspection open “shall to the guage otherwise almost identical to, employees and officers all iden- disclosure Haskell Amendment—to describe Accounting pur- port General Office” for suggested limitation, govern- pose conducting legally required audits. ment resorts to what the Seventh Circuit in employees prohibited, Such officers and are legislative called the King “scant history” however, disclosing to others “return Amendment, the Haskell 688 F.2d at information ... a form which can be 492, consisting principally of following identify, or associated otherwise di- by statement Senator Haskell the Sen- rectly indirectly, particular or taxpayer.” ate floor: designed This seems to assure that purpose of this amendment is to [T]he reformulations of raw return information insure that statistical studies and other reports by prepared the audit offi- GAO compilations of data prepared by now employees, they cers and if are to be made Internal Revenue Service disclosed public, carefully devised to avoid the by it to parties outside will continue to be of identifying again disclosure data. Once subject to disclosure to the extent al- phrase is associated a reformula- present under lowed law. Thus the In- Signifi- tion of the return information. ternal Revenue can Service continue to cantly, phrase is not used where the release purposes for research statistical subject “return in- data, compilations studies and such as formation” but material that has already model, the tax identify which do not indi- been concluding provi- reformulated. The taxpayers. vidual prescribes sion of publica- that no tion or disclosure the statistical studies The definition of “return information” compilations by authorized that section was intended to neither enhance di- nor any statistics, permit “shall manner access minish now obtainable under the study, any or information so published, fur- Freedom of Information Act to statistical nished, or otherwise disclosed to be associ- compilations by studies and of data with, or identify, directly ated otherwise or Thus, Internal Revenue Service. the ad- indirectly, a particular taxpayer.” dition the Internal Revenue Service of 6108(c). U.S.C. § easily identifying deletable argued The United States has type compi- study to the statistical appeal only type that the of reformula which, lation of data under its current tion that exempts the Haskell Amendment disclosure, practice, subject has been is that envisioned the last mentioned prevent study of such will disclosure consequence interpre section. The of this compilation newly under the amended tation, course, of. is that instance, section 6103. In such substantively super Amendment becomes identifying information would be deleted fluous, amounting no more than re study and disclosure of the statistical minder the definition section that compilation of data be made. permits statistical data. That Cong. (quoting 688 F.2d Rec. since, alone not be fatal as far we 24,012 (1976)). noted, this state- King As discern, question response was made in ment amendment, including adopt, the one we disclosing sta- whether the IRS could avoid redundancy. insuperable creates some simply by adding identifying tistical studies problem, however, is that there absolute information, necessarily thus was ly limiting phrase no textual basis expression of comprehensive as a intended precise “in types a form” to the of refor (though it purpose of the amendment mulation set forth in It is not support textually assuredly adds likely surgically that such a exact result implausible interpretation). Even term, vague would be described limitation, however, the simple precise disregarding rather than state *9 support the simply does ment that return data “does not statement include re- pre government’s construction. It compilations statistical studies and narrow pared only but authority sup- under of To fers not to “statistical studies” 6108.” § 6108(b) permits data, which the of such as the “compilations § of also to preparation “special of sta- and disclosure The latter is not a statistical tax model.” compilations” inter- tistical studies and time Haskell At the the tabulation. adjective in such fashion that the. preted appears it to adopted, Amendment was modify “compila- “statistical” does not identifying have been an actual return with strained), (which later, tions” seems to us the tax years details eliminated. Several Secretary prepared the had model —which recognition the 1976 perhaps out of that public years for Has- and made before the permitted legislation longer no such redact- pre- kell Amendment and has continued to it al- public, to made ed material return, pare public pos- and make since —could not to a reformulated tered consist of sibly provision, come within that since it is figures of new for certain with substitution by imagination “special” a factual, stretch partly partly fictional re- items —a compilation “upon prepared written turn, way speak.3 so There is no 6108(b) any quest by party parties,” as brought the § tax model can be within requires.4 if exemptions of 6108. publication Even § begin question, ute. preceding There is some this footnote The three sentences 3. theory only by original interpretive put opinion, whether an forth sign appear in as our did agency litigation, explains corresponding slip counsel which There the issued in form. explained agency action that could be on differ- as passage read follows: theories, "agency position” ent an for constitutes a is not a statistical tabulation but The latter sample purposes granting prin- of Chevron. Even return, actual derived from an return however, ciple, possibly applica- it cannot have figures for to substitute new but reformulated interpretation tion where counsel’s in fact does actual, partly partly fictional certain items—a return, is, agency contrary, explain action but to the speak. toso incompatible with settled course to correct a factual inac- The revision was made here, conduct. That is situation since the by post-deci- curacy brought our attention released, regularly plans IRS contin- American Civil Liberties sion motion amicus release, ue to tax does the model. Nor it suffice Washington, de- which noted Union of appeal explicit to Senator Haskell’s reference presented to us scription model of the tax agency’sjustification to the tax model as for argument government reflected in oral singular departure (supposed) this from its peri- foregoing passage for the was accurate theory. Legislative history is § 6108 used 1980, beginning but was not accurate od about text, meaning clarify the of a not to create 1976, was an actual return the model when extra-statutory If law. it ever the basis identifying details eliminated. text, plainly assuredly departing it suggestion, Dissent at 176 n. The dissent’s interpretation cannot be so when that honors upon this mistaken our decision turned history both text available. assumption demonstrably wrong. factual rejection Long, II The concurrence claims that forth in Part of this counsel Our set position take opinion, to be made did not was made and continues legisla- exclusively any snippet § Amendment referred without reference to phrase raising history. “data in a reason for rather maintained that tive And exclusively opinion to the sta- III our is to refute the form” in 6103 referred in this Part upon position, and to government’s relies it. tistical studies covered argu- inaccuracy originally model. Concurrence at The oral The factual case following exchange: relying presented ment contained the shows the wisdom us certainly arguable upon structure of the statute [COUNSEL]: [I]t the text and rather single is redundant senator as Haskell Amendment than this statement light Congress’ ascertaining intent. We means of way knowing Has- whether Senator have no understanding QUESTION: ... Your of the tax model—much kell’s colleagues, any Haskell Amendment is 6108? of his if of them relied less that upon right why comported original That’s and that is [COUNSEL]: with our his remark — understanding now Senator didn’t think was all that nec- rather with what we assuredly essary____ “Tax know. The mere term Model” suggest return. a redacted actual does not Corrected Tr. Argument of Oral (Dec. at 28 1985). 4. The absence of not, This textual basis in concession was as the concur- contends, rence publication government model seems to us the tax a matter of coun- concurring opinion’s ”hav[ing] sel’s response complete been momentarily caught off U.S.A., guard Chevron, v. Natural vigorous Inc. contention court’s questioning.” Council, Concurrence at 171 Resources n. contrary, 10. To the Defense (1984), prompted what requires (and us to S.Ct. 81 L.Ed.2d 694 the concession what prompted agency’s interpretation questioning) stat- defer to the carefully was the we have find no identifying data is for included.5 would ment cation that deletion only the fact of ticular wise more which the er manners that (as in cally consist some other F.2d § ly lations data so as which We do not mayWe 6103(b)(2) recorded. That reformulation purposes identify particular disguises the for the by the identify, at 493 entirely “the broadly the tax requirement. cannot be associated Seventh render support taxpayer” of the given return information add It form of combination with other Haskell Amendment nonidentification —some altera- to pretend of the (emphasis government suffices duplicative of the model). are not than directly that, the reformulation produce in text reformulation Circuit’s taxpayer’s statistical phrase origin requires present King, for associated with or or We need similar enough, added). statement say taxpayers.” legislative “data indirectly, statistical —in tabulation of the form that unitary product name its appeal, all oth- interpretation was that Amendment *10 reasons, components nonidentifi- addition to since that We the mere will or other- provides original- require- used history define, other tabu- King or of form hold, typi- par- we do presented dislocations produced portable by mainder of the to the have suaded, tation tailed as policy limits its “statistical” amendment; drawn ty produced by construed the Haskell the ates no more fluity tation in tistics referred to in tiously, causes it to fit with above, § Application So issued 61030(4) disposition body present ^[*] assigned ordered. absurdities only to be text, § simultaneously with this. of nothing 6103. by the instant this by the ^[*] any case, because the latter are not Chapter and most superfluous. indeed, case, —and is the disruption plausible legislation, our It causes scheme ^[*] § produced compatible beside the dread perfect 6103(i)(7)(A), and government’s holding greater. meaning exceeds the with a scheme remarkable that § panel, restriction Amendment, 6108. As we ^[*] or appeal, than is legislative of the the genre even, consistency But that and most to the facts of whose most other provisions ^[*] with the re- We are meaning textual inexplicably are left to commonly less superflui- discussed carefully that interpre- interpre- faithful opinion intent. issues it cre- as de- ^[*] super- ambi- floor have sup- per- into sta- and we repeated frequently and considered assertion in expansion of what the word "statistics” includes. the IRS’s brief to the full court that Haskell interpret The concurrence chooses the discus- only Amendment covered amalgamated "information utterly abandoning sion as position data,” Supp.Brief into statistical (§ only 6108) "data in a form” means statistics 4, 6, Appellees “likely and embracing and instead the view that it means anonymous by amalgamation rendered into plus (exclusively) statistics the tax model. This statistics,” 9; general purpose id. at and that merely substitutes for the vice of nontextual permit of the Amendment was "to the Internal amendment vice of nontextual Revenue Service to continue its collection and way amendment to since in no can the statistics,” general release of "to id. at and categorically crucial words “data in a form" be permit historically provided studies, release of model, statis- limited to statistical the tax information,” compiled (Nor tical data from return nothing any apparent else. is there reason expressions subject id. 20. These are why that, should assume of all con- than Haskell amalgamations, ceivable only nonstatistical Amendment excludes from the definition of "re- sufficiently helpful tax model would be turn information" the statistical studies sufficiently anonymity would publication.) justify secure compilations already covered position Whatever counsel was problem argument counsel faced at oral taking, thing impossible one is clear: it is reconciling theory was ing with the embarrass- find here sort clear consistent attention, (first brought fact (even the IRS’s expressed counsel) purportedly view evidently, Appellant's Supplemental given that must be deference. Brief, own) simultaneously filed purpose 5. Given the of the reformulation re study compi- is not model a statistical wit, quirement, however—to the increased as light thought, above-quoted lation. We anonymity surance readily opine —we argument, at oral counsel concession does not example include the dissent’s seeking by adhering to mend his hold copying the piece same data “onto a fresh original theory equivalence IRS’s between the paper, perhaps style." in narrative Dissent at explaining Haskell Amendment and legislative-history-prescribed the tax model as a *11 facially nonidentifying “correlate data with SILBERMAN, Judge, concurring: Circuit specific taxpayers.” Appellees’ Supp.Br. case in this a diffi- court confronts The Church, at 13. argues hand, The on the other interpretation. The statutory issue of cult puzzle that document in the IRS files (1982), U.S.C. 6103 begins with 26 that contains return information must be for nondisclosure generally provides which provided identifying disclosed that informa- interest information” “return tion is first redacted. Through majori- agree All confidentiality. sides taxpayer ty opinion, rejects this excessively court controversy is the this the heart of that proper agency’s narrow the construction of the Haskell amend- interpretation of the statute yet and offers another construction. agency ment, authorizes It concludes that the Haskell amendment otherwise could be material that lease released because it exempts general from the rule of nondisclo- (but be for the would nonidentifying sure return information amendment) “return information.” Haskell undergone has also “agency reformula- words, phrase does the “data other what In in a form tion ... into a statistical study or some associated with which cannot be composite product____” Maj.Op. at directly indirectly, identify, or otherwise or a lieve 160 (emphasis original). Each of these I mean? But be- particular taxpayer” interpretations is, my view, a reasonable presented question there is another statute, of a construction difficult I importance: Did intend equal disagree with the majority’s decision what con- the IRS’s treat its own construction as authoritative. given in a form ...” be such “data stitutes deference I majority's approach believe the oversteps judiciary? on the proper limitations court’s role as defined in Chevron U.S.A. Inc. v. Natural conceded Section it must I think Council, Inc., Resources Defense least, ambiguous as to is, very at S.Ct. L.Ed.2d 694 Nothing in the court. now before the issue yields itself A message emphatic. statute language Chevron is Neu- understanding duty statutory as to whether court’s in matters of con- decisive rendering congressional give is more faithful struction is to effect to King feld legislative his- ap- intent is purpose. precisely intent. parent, If that the statute’s however, on the Neu- sparse and inconclusive tory is backdrop Against the question. feld/King simply impose its own court does parties argue for ambiguity the of divergent The ment statute, on the as would be construction provision. interpretations of this necessary in the adminis- absence of an argues the Haskell amend- agency Rather, interpretation. if the trative amalgamat- must be means that data ambiguous with re- statute silent (Appel- form in a different or combined ed issue, spect specific question 4) specifically Supp.Br. 5 n. at lee’s agency’s the court whether anonymous by to data “rendered points a permissible answer is oh con- based general statistics” amalgamation into struction of the statute. 9).1 (Id. at satisfying test (footnote omitted). Id. at 843 Beyond this adoption of this inter- heavily on the relies pretation go. we cannot King Circuit by the Seventh applies to defini- argues that broader instruction further believe Chevron’s majori- adopted by statutory now be- as that construction the issue of fore the court. tion—such 6103(b)(2), anomalies set out creating certain Section ty apart— in the page opinion inconsistencies and scheme, in full in the enumerating administra- presents troublesome defines return told, information, Secretary, we categories are problems. The tive has several different but words of determining abil- difficulty in enumeration with grave qualifying the “but such requests information amendment one who ity of agency’s did not contend that such 1. The brief amendment, tion of the Haskell King as the necessarily limited statistical information court had King concluded in 1982. treated the compilations Sec described in to the statistical tax model as a statistical tabulation. 688 F.2d argument nor at oral do I. And light King 493. In discussion I fail to model agency counsel reiterated majority’s ‘'surprise" understand the theory. construc Maj.Op. would included within n. 4. at 162 does not include data a form which term interpretation, sel’s noting “Congress be associated or otherwise delegated cannot to the administrative official identify, directly indirectly, appellate and not to responsibil counsel the *12 6103(b)(2) (1982). taxpayer.” 26 U.S.C. ity for elaborating commands.” Id. at In these “to substitute enforcing statutory words the Haskell amendment seem 628, The to of 91 S.Ct. at 1097. application me of cry cases, out for the Supreme Court declined expounded in Chev- doctrine deference or counsel’s discre [its own] one, seem, is No it would better ron. that [agency]” tion for because to do qualified Secretary than the to decide “incompatible so would be orderly with the whether certain classes functioning process judicial re compliance released in with the Haskell be amendment. deprecate, view. This is not to but to vindi cate process, administrative for purpose of the is to ‘propel[ling] rule avoid the court into the domain I has aside exclusively set for the adminis ” I proceeding, Before must address a agency.’ Burlington trative Truck question raises without Lines, States, 156, Inc. v. 371 United U.S. answering interpretive an theo- —“whether 169, 239, 246, (1962) 83 S.Ct. 9 L.Ed.2d 207 put agency ry forth counsel in (quoting Chenery Corp., SEC v. 332 U.S. explains agency litigation, which action 194, 1575, 196, 1577, 67 S.Ct. 91 L.Ed. 1995 explained could be theo- that ries, different (1947) (citation omitted) II)). (Chenery In ‘agency position’ constitutes an words, developed the doctrine aas Maj.Op. purposes at of Chevron.” 162 n. judicial manifestation of courts restraint. If question is much too late to I think it accept agency were to counsel’s construction of Section whether position significantly differed from the 6103(b)(2) urged by agency counsel agency’s position, they would in effect sub position. really represents the case IRS’s judicial a interpretation stitute for the advancing know that IRS has been We its agency’s. interpretation throughout in courts applied The doctrine been a varie- 1982, country per- at least since when it ty rejected of cases. Courts have as inade- King suaded Seventh Circuit quate agency counsel’s articulation of a adopt position, perhaps even before statutory interpretation interpre- when that suggest To in these then. that the position” mavericks, circumstances tation has been prior inconsistent with a analysis “agency King not an construction, administrative see Securities imply is to that IRS are counsel Indus. Ass’n v. Board Governors agency from disembodied 137, Sys., Fed. 468 Reserve U.S. 104 S.Ct. they represent. reject supposi- 2979, 2983-84, (1984); 82 L.Ed.2d 107 Pit- Oil, FTC, tion. See Ashland Inc. 548 v. OPM, 1476, (10th zak v. 710 F.2d 1479 n. 2 977, (D.C.Cir.1976) (Mac- F.2d 984-85 Cir.1983); when the record evidence before Kinnon, J., dissenting). the court link demonstrates no between agency’s rationale precept that the interpretation counsel’s and administrative agency stems itself be stated proper must practice, OPM, 1460, Alaniz v. 728 F.2d separation of respect (Fed.Cir.1984); 1465 agency when coun- govern among the branches powers interpretation sel’s is revealed as no more v. Chen case SEC In the seminal ment. ery than litigating position.” a “current Ames 80, 454, 87 63 S.Ct. Corp., 318 U.S. Lynch, Pierce, Smith, v. Merrill Fenner & (1943), explained 626 Court L.Ed. Inc., (2d Cir.1977); F.2d 567 1177 n. 3 to do be made judgment cannot judicial “a Peterson, see McMillan & “The Permissible judgment.” administrative for an service Scope Discovery, Hearings, and Addi- Similarly, in at 63 S.Ct. at Id. Factfinding During tional Judicial Review Camp, U.S. Inst. v. Co. Investment Agency Action,” of Informal 1982 Duke (1971), L.Ed.2d 367 617, S.Ct. L.J. 363 n. 163.2 And in Investment coun agency declined to defer the Court Camp, Co. the Supreme Inst. Court de- 2. The notion that original has, deference on the should not be ac- doctrine. But the IRS far tell, corded if interpretation appears always sincerely as I King asserted the no be suggests litigation more than a position" interpretation appropriate “current whenever it was slightly a different but do related so. variation statutory interpretation long-settled counsel’s statute. dined credit support 621-22, of an S.Ct. 1094-95. interpretation, offered at See 401 U.S. The Comptroller plainly neglected to fur- agency regulation, Comptroller where posi- articulated “adopted expressly appropriate rationale for his actions had nish an proceedings level as to the where there stage at the administrative in the tion meaning at relevant link impact” statu- to articulate a compelling need provisions. statutory provisions S.Ct. tory between provide are not Those circumstances time regulation. at 1097. new case, underpins con- however. present struction of the in this away newly sweeps Haskell amendment was promulgated rule interpretations in this case in its the statute is ob- not even a central issue earlier agency. viously rulemaking. In phase before the time administrative *13 agency adjudicative pro- There no need then for the was informal administrative ceedings gation, by on issue. position forth that It was evolve into federal court liti- set its that contrast, the case came before district the issues well be not until the sharpened throughout pro- in shaped the issue arose form. court that argued light enough in that I think it is that ceedings. agency, through There Church counsel, during decided its had been its set forth Neufeld, which litigation, the IRS could at the first interpretation the district court of the statute need not rele- tenably appropriate maintain that it known to contain even it was moment when vant to do so. return infor- search files course, IRS, bound, by mation. The of the construction Haskell court’s Were the rule to be otherwise—were Neufeld amendment, argued to the district court courts to withhold deference unless an request Church’s identified that since the the leased agency its interpretation asserted of a stat- could be re- taxpayer, “no information adjudication in agency ute a formal rule- by anony- the Service that would making creating strong would be —we in mous.” Defendants’ Memorandum Re- government agencies incentive and de- ply to Plaintiff’s Statement Points and partments to undertake their business Opposition in to Defendants’ Authorities strictly through procedures. formal Al- Summary Judgment at Motion for appeal On though judicial ac- review administrative panel, the D.C. Circuit before push tion has seemed recent times to acknowledged by it bound direction, IRS that I much good doubt that to reconsider Neufeld, urged or, but court come this trend importantly, more Thus, light of at the King. justified congressional it is di- Neufeld it ap- in the case when was first moment rection. See Vermont Yankee Nuclear relevant for the IRS artic- propriate and Corp. Power v. Natural Resources De- statute, Inc., of the it did Council, ulate so. En ensued. construction 98 S.Ct. fense consideration issue banc 55 L.Ed.2d We should developed take that a care doctrine to re- judiciary strain the not be transformed to is that the this is from all clear What justification serve judi- as a for excessive way inconsistent in no is analysis King cial intervention. decision the basis event, In any rejects if this Appellee’s King court appeal. See the administrative assumption on the is not King not a case In unwarranted is n. 11. This Br. Panel Camp. the IRS’s “true” Co. Inst. Investment like that amendment, agency Currency, presum- Haskell case, Comptroller of the ably recently holding could undercut the court’s reas- had to whom merely by taking adopt step some more for nation- formal responsibility signed regulatory as the King interpre- Commissioner’s activities, adopted, three banks’ trust al decades tation of the statute. This strikes me as the Glass-Stea- after enactment unseemly pas institutional de departed from a deux.3 Act, regulation gall pros- adopt King proceeding well. new as That formally court in a agency were If suggests through regulation pect that if the uncertain say inter- position, us let actually analysis King rule, surely defer- to whether be entitled pretive it would yet position, it should order the case remand- not as IRS’s have circuits that ence before other regards as an what interpret amend- ed to the allow Haskell the need to faced why adequate that effect. really reason demonstration see inherent ment. But deference in entitled to would requires tion of FOIA courts to examine

II withheld documents to determine whether disclosure, general policy favors FOIA’s they are in an exemption covered recognizes catego- the statute also nine fact statute. possibly But cannot mean exemptions general ries of from the rule of applied proceedings law in those exemptions, disclosure. One found other than exemption that embodied 552(b)(3),provides at Section say, 3 statute. That the definition or (b) apply This section does not to mat- scope “matters” exemp- covered ters that are tion statute must exemp- derive from the (3) specifically exempted from disclo- statute. It come could from no- (other sure statute than section else.5 where title) provided 552b of this that such (A) requires statute that the matters I have found nothing legislative in the public be withheld from the history subsequent of FOIA or its amend- manner as to leave no discretion ments that analysis. contradicts this issue, (B) establishes cri- Report accompanying House S. par- withholding teria for or refers to provisions bill whose eventually were codi- withheld; types ticular of matters to be fied amended at 5 U.S.C. ex- *14 plained proceedings 552(b)(3)(1982). are to be de “[t]he 5 U.S.C. § novo so that court consider Thus, language ex- of Section 552 withholding propriety of the instead be- empts as 61034 from statutes such Section ing judicial sanctioning restricted section,” which I to mean the take “[t]his agency H.R.Rep. 1497, discretion.” No. any entire Section 552 the absence of Cong., (1966), 2d 89th Sess. 9 U.S.Code plausible But 552 other reference. Section Cong. 1966, p. & Admin.News The 2418. only not require- contains disclosure Report Senate stated: “That proceed- ments; provision it also de contains for ing must be do novo is essential in order judicial novo review. it is While obvious proprie- ultimate decision as to the by exemption that materials covered are3 ty agency’s action made exempted requirement from the disclosure prevent 552, becoming court it from mere request- Section assertion that [sic] meaningless judicial sanctioning agency an exemption ed documents are covered 813, S.Rep. Cong., 3 statute will not serve to immunize items discretion.” No. 89th (1965).6 The novo from disclosure. de review sec- 1st Sess. 8 4. We have exemp held that Section 6103 is an ignore together provi- without the need either statute; is, 3 tion it meets the criteria set sion. (b)(3). IRS, Moody out in subsection v. 654 795, (D.C.Cir.1981); F.2d 797 & n. 4 see Cham Congress In 1974 and 1976 amended FOIA to Kurtz, (5th Cir.), v. berlain denied, 589 F.2d 827 cert. clarify meaning of de novo review 842, 82, 100 S.Ct. 62 L.Ed.2d 54 tighten exemption provi the focus of certain (1979); IRS, (6th Corp. v. 566 F.2d 574 Fruehauf Congress explicitly sions. To do this overruled Cir.1977); IRS, Corp. see also Zale v. 481 precedents judicial that it viewed obstacles to 486, F.Supp. (D.D.C.1979). n. 13 490 fulfilling pro-disclosure policy. FOIA’s In the FOIA, example. amendments to 1974 Con My reading of Section 6103 and FOIA never- gress Supreme overruled the Court’s decision in reasoning theless differs Corp. of Zale Mink, 73, 827, v. 410 EPA U.S. 93 S.Ct. 35 IRS, F.Supp. (D.D.C.1979), v. 481 486 relied (1973). Congress L.Ed.2d 119 viewed upon by King. Zale The court held that Section interpreted holding having exemption Court’s subject 6103 a self-contained (b)(1), relating security foreign to national judicial at all to review under FOIA. Id. at matters, policy broadly. Congress too clarified 489-90. The court held that Section con- 6103 in the 1974 amendments district court governing tained own standard judges inspection could conduct in camera nondisclosure of tax return classified documents and need not defer to the that decisions subject disclose were agency’s decision to label a document classified. review under the Administrative Procedure S.Rep. Cong., See No. 93d 2d Sess. 12 view, analysis my goes Id. In Act. this far. too (1974), Cong. p. U.S.Code & Admin.News easily Section 6103 and FOIA are construed thority pur- mean than fulfillment of statute’s de novo review more But does examination of facts independent appropriately an pose. Courts defer to an law;7 applicable is it inconsistent light of agency’s of a reasonable reasonable with deference to administers, then, agency statute that it administers? a statute construction of agen- recognition simply out of words, give way must Chevron In primarily respect cy’s expertise, but out of charged with de novo whenever a court congressional intent. review? CIA, (D.C.Cir. v. F.2d 562 Sims In I have concluded that Chevron does ap- 1980), approach contrary court took an ply rule in such circumstances. my analysis and treated the issue of Chevron judicial rule of adminis- not a exemption of an construction reviewing apply for courts tration question as a of law “reserved ulti- statute decisionmaking. It is an ar- administrative Id. at 568. mately to our determination.” principle that fundamental ticulation case, In that the CIA declined to disclose delegate authori- intends to when that revealed names indi- documents ty purpose demands agency, to an partici- viduals and institutions had fol- courts. reason as recognition program. pated a controversial research lows. argued agency documents entrusting a statute In administration “specifically exempted by statute” were delegates agency, Congress typically to an meaning of Sec- from disclosure within “fill authority to concomitant 552(b)(3). exemption statute Congress has left. Morton gap” that upon which the CIA relied was 50 U.S.C. Ruiz, 199, 231, S.Ct. U.S. 403(d)(3) (1982), which authorizes the Di- Part of the 39 L.Ed.2d 270 “intelligence protect sources and rector legislative respect partic- to a purpose with *15 methods disclosure.” statute, unauthorized then, Congress’ intent ular delegated Appellants argued that the institutions and will exercise its au- agency Mink). (stating “accord substantial Similar intent that courts should 6267 intent to overrule 1976, agency’s concerning weight ly, Congress an FAA Robert affidavit overruled v. 2140, 255, disputed son, status details of the classified of U.S. 45 L.Ed.2d 164 422 95 S.Ct. 12, Cong. , (b)(3) (1975) interpreted exemption record.” Id. at U.S.Code & Admin. which had Thus, 1974, Congress recognized (and p. News by implication a class to embrace statute statutes) within the de novo review that that even had not intended of FOIA, directed courts conduct under there excusing among See disclosure. include those agency to the on factual 1441, was room for deference Cong., H.R.Rep. 2d Sess. 25 No. 94th availability relating exemp- of an issues , (1976) p. Cong. & Admin.News U.S.Code agency’s tion in a case within the Robertson). (stating intent overrule 2183 delegated responsibility. area legislative history of the 1974 and 1976 The term FOIA does not discuss the amendments to review, de novo as it is used in the 7. The term any directly novo review” in relevant "de judicial general provision of the Admin- review legislative history spect. 1974 But the Act, 706(2)(F), U.S.C. istrative Procedure 5 connec- amendments does discuss the term in independent review the limited to an relevant statutory language that with new narrowed requires reviewing 706 facts. court Section (b)(1) exemption scope of and clarified action, agency to "hold unlawful and set aside order, may part of de novo a district court (F) findings, and conclusions found to be— ... withholding agency’s of an determina- review by the facts to extent that the unwarranted tion, in camera review of classified documents. subject by are de novo the review- facts trial 8-9, S.Rep. Cong., 11-12 No. 93d 2d Sess. ing Overton court.” See Preserve Citizens (1974). Report states that Conference 402, 415, Park, Volpe, 401 U.S. 91 S.Ct. Inc. automatically inspection should not be camera 814, 823, (1971) (Section 136 28 L.Ed.2d undertaken; agency should first receive 706(2)(F) novo review in two cir- authorizes de opportunity to the correctness an demonstrate (1) adjudicatory agency only: cumstances action, (the predicate for decision of its classification factfinding procedures inade- if 1) exemption withholding under documents (2) proceedings quate; enforcement action, In to executive of affidavits. deference means nonadjudicatory agency court un- expertise security agencies’ and for- factfinding in national independent as to issues not dertake matters, eign policy their agency). conferees stated raised before “intelligence did not appears require individuals constitute “APA de novo review of meaning sources” questions within statute. of law courts almost al Thus, case, the issue in the as in Sims this ways accord some deference to an case, turned on construction term statutory construction.”8 Com Office of exemption appeal, 3 statute. On this munication the United Church court devised a definition of the term “in- FCC, Christ v. 707 F.2d 1422-23 n. reviewing telligence after sources” (D.C.Cir.1983); see Red Lion Broadcast legislative history. statute and its FCC, ing 367, 381, Co. v. 395 U.S. 89 S.Ct. judi- court stated that FOIA authorized the 1794, 1801-02, (1969); 23 L.Ed.2d 371 Un ciary “to undertake de novo review” employment Comp. Aragon, Comm’n v. “agency partic- determinations that 143, 153-54, 329 U.S. 250-51, 67 S.Ct. exemption ular fall within records classifi- (1946); 91 L.Ed. 136 Fleischer, McLaren v. cations,” “agency but also constructions 477, 480-81, 256 U.S. 577, 577-78, 41 S.Ct. applicable statutes.” 642 F.2d at 566 (1921); 65 L.Ed. 1052 Luther, Webster v. (citation omitted). and footnote The court 331, 342, 963, 967, 16 S.Ct. acknowledged “[bjecause the term ‘in- L.Ed. 179 put Chevron has a new telligence appears in ... sources’ the text gloss on these old truisms. Chevron tells Act, Security appropri- of the National it is congressional us that if respecting intent begin analysis ate for us to our with the statutory provision clear, is not we must CIA, agen- proposed by construction not treat statutory the issue of construc cy charged chartered statute tion as we would treat garden major responsibility for its administra- variety question of law. We must defer to (citations omitted). tion.” 642 F.2d another institution’s determination —that of continued, The court “But we must not agency charged to administer the law— responsibility shrink from the vested us provided, course, that the agency’s de Congress. question presented sense, termination reasonable. In this ultimately one of law reserved our deter- supersedes believe that Chevron the Sims mination.” Id. analysis. court’s overbroad The Sims court’s observations as to the My view is further reinforced state the law on deference to administra Supreme Court’s treatment of the defini- agencies’ were, tive determinations in 1980 tional issue when Sims came before that view, my overbroad and erroneous. It Sims, Court.9 CIA v. U.S. always been true inter *16 (1985). S.Ct. L.Ed.2d 173 Dismiss- pretation of question law it is but ing appeals’ the of court definition “in- of equally agency’s true that an construction telligence narrow, sources” as too the governing of its statute traditionally has Court stated: been viewed as entitled to deference in recognized plain meaning certain contexts. As this court of the statutory lan- Sims, in a case decided after although guage, the legislative as well as the history remand, 8. The again Communications court used the the case came before the court of of Office CIA, term "de novo” as shorthand for the introducto- appeals. (D.C.Cir. Sims v. 709 F.2d 95 ry language in 1983) Section that instructs courts (Sims II). This court determined that the reviewing agency action to "decide all relevant properly applied district court had not the defi- questions (1982). of law.” 5 U.S.C. But nition set forth I and in Sims reversed and quotation plain, as the in text makes office of the remanded case. Id. at 100-01. The Su- purport Communications did to hold that preme parties’ Court heard the case the on “de such novo” determinations to were be made cross-petitions for certiorari. agency’s statutory to without deference the in- "implicit For a discussion of the Sims Court’s terpretation. judiciary" view of a limited role the appeals' reported reviewing agency 9. The court of exemption decision claims of FOIA (1980) (Sims I) Comment, F.2d 562 set out a definition of Supreme see CIA v. Sims: Court Def- "intelligence the term sources” and remanded Agency Interpretation Exemp- erence to FOIA of apply the case for the district court to 35 Cath.U.L.Rev. 279 definition. After the district court’s decision Act, quite delegated Security gress understandably indi- to of National the Di- in the Congress Secretary responsibility cates that vested some fur- Intelligence very of Central broad meaning rector refining ther of “data in a authority protect intelli- to all sources of form which cannot associated gence from information disclosure. identify, directly indirectly, otherwise Appeals’ narrowing au- of this Court particular taxpayer.” thority express contravenes the Congress, intention but also overlooks Ill necessities of modern intelli- practical Applying principle of def- the traditional very Con- gence gathering reason —the erence, Chevron, case, to this refined Agency sweep- gress entrusted I conclude that we should defer to the ing “intelligence power protect to its agency’s interpretation of Section 6103. sources and methods.” above, interpretation agency’s As noted Id., This approach at 1887-88. 105 S.Ct. an Section 6103 is not inevitable one insofar as it first consistent with Chevron is not test. The Chevron Court inquiry clarity as to an undertakes indicated, rather, congressional that when Having legislative found clear intent. intent is not clear in the congressional intent indications court not substitute its own con- legislative language of the statute and its struction of a for a to history, Court had no need to move reasonable made analysis step the next that Chevron an agency. administrator of determining whether the adminis- directs— trative (footnote 467 U.S. at 104 S.Ct. at 2782 agency a reasonable had advanced omitted). implicit delegation Congress’ interpretation of statute to which authority to refine defini- judiciary should But the Court’s defer. tion of “return information” buttressed recognition “practical necessities upon by the broad discretion conferred intelligence gathering” com- modern Secretary portion in another statute delegate pelled the CIA if he to disclose return information deter- power” protect “intelligence “sweeping mines that disclosures would not seri- methods” indicates that sources and ously impair sys- the tax administration of legislative purpose Court’s conclusion as to 6103(e)(7)(1982) (re- See 26 U.S.C. tem. understanding was buttressed persons lease of return information to hav- delegated authority practiced interest). ing This material instance expertise. Congress has Similarly, here disclose, statutorily-conferred discretion delegated Secretary Treasury, requesters, to a limited class of even albeit authority to income administer federal enough catego- information sensitive to be integral And laws. Section suggests rized as return information part of the mosaic of those tax laws be- prior determination what constitutes Secretary protect cause it directs the ought return nondisclosable Con- return information disclosure. *17 agency’s expertise. informed the be confidentiality of gress realized the majority refuses defer to to the information, taxpayers usual- return which agency’s interpretation it asserts because ly provide voluntarily, is crucial to efficient agency’s practice the is inconsistent S.Rep. tax laws. No. administration the interpretation its the text. with (1976), Cong., 316-19 94th 2d Sess. focuses on Specifically majority the Cong. p. & Admin.News U.S.Code government’s release of the tax continued Naturally, Secretary, like 2897. interpretation to its of the Sims, model fatal Intelligence in of Central Director However, majori- Haskell amendment. deter- the courts to better situated than ty does the tax model is like- not contend mine disclosure of information when phrase general fit easily cannot within the ly to of that informa- inhibit collection reason, in a For that Con- “data form which cannot be associated tion in the future. identify, directly provides otherwise indi- text no authority to release the rectly, taxpayer.” 26 U.S.C. tax agency, model. The however, as I un- 6103(b). would, argument That in any position, derstand its maintains that event, light explicit be tenuous in Haskell amendment was intended to autho- statement Senator Haskell made from rize disclosure of compilations statistical floor. He said that the amendment was such as those referred in Section 6108 permit intended to “the Internal Revenue and disclosure of the tax model, which Service continue to release for research apparently disclosure is [to] not otherwise au- purposes compila- statistical studies and thorized legislative statute. data, model, tions of such as history which of the Haskell amendment amply identify do taxpayers.” individual supports government’s position that it 24,012 (1976) Cong.Rec. (remarks designed of Sen. was to authorize the continued Haskell). release of government data the had re- prior leased passage. to its

Instead, majority raises what I view as an artificial by ascribing sure, textual barrier To be may there a great be deal government argument to the of difference between the agency’s inter- presented brief, in its and not necessary pretation amendment, position,10 its that the adopted by Haskell amendment the Seventh Circuit in King, scope is identical its of disclosure author- majority’s and the rendition. But the rule ity to Section 6108 and that Section 6108’s' of Chevron requires us not to reason our 10. use, opinion reproduces portion government state and local use of the tax colloquy argument at oral asserts going model which had been on since position "Oh, God, establishes IRS’s to be that my Section be would gone choked off. they've permits release of the statistical stud- defining too far in return information.” Well, ies there, sure, referred in Section Haskell, do not believe 6108 was context, colloquy, establishes the perhaps not satisfied that one bite would be position IRS’s as such. enough, thought maybe ought he to have two, suggested and he that under those cir- reading THE COURT: Your of Section 6103 cumstances, in order to continue make superfluous. makes legitimate scholarly available for entirely, use the tax certainly COUNSEL: Not but it’s ar- model and guable impor- similar studies it would be that the Haskell amendment is redun- that, well, say, tant to light data in dant in the a form that of 6108. interrupted]. [the court Why THE COURT: I don’t understand that. (conformed tape recording Id. the two if that what oral intended to argument) added). (emphasis again, do? ... As I read it over and over it’s exactly interpretation This elaboration the same. is consistent with IRS Your coun- sel’s earlier very Haskell Amendment statement that is 6108. submit it ”[W]e right. why COUNSEL: clear that That And that’s Haskell amendment was permit really Senator meant to said he didn’t think it was the release of the tax model necessary____ all and similar statistical studies that were in an form____” Transcript (Dec. Argument amalgamation (emphasis Oral at 28-29 Id. at 25 1985) (conformed added). tape recording strictly oral ar- It is clear that the IRS never gument). limited its of the Haskell amend- apparent Counsel’s concession is not ment terms of Section It viewed seems, appears however. permitting Government counsel the Haskell amendment as momentarily caught guard by to have been off tax model and "similar statistical studies.” vigorous questioning, clearly open court’s possibility for counsel This leaves abundantly studies, immediately made it in his clear creation other statistical outside the subsequent exchanges scope court that the of Section whose release would position permitted IRS’s was not confined to under- under the Haskell amendment. I do standing otherwise, contrary of Section 6108. majori- not contend Maj. Op. congressional suggestion. See ty’s THE COURT: There is no in- n.4. There support anywhere. may tention to that view not be statistical studies *18 sorry, agree COUNSEL: I’m contemplated by I can’t with existence the IRS that are 6108; know, that. outside of Section I do not nor did Well, course, (in Congress which, why THE COURT: it? where is of addition — very COUNSEL: It seems clear that Haskell its authorization of the the release of tax model) sweeping language was worried that the of the Haskell amendment is not redun- 6103(b)(2), maybe legitimate scholarly that dant. Amendment, interpretation, if it text of the way own to an even Haskell inferences might the find con- relationship were one that it draws from the between that Rather, sistent its own. Chevron with Code, Amendment and other of sections the agency interpreta- quires to defer to us understanding plausible its legisla- and of tions, here, at issue such as one very tive intent. I believe that these same I my merit reinforced in deference. am reaffirmance, support factors than rather appropriate is the conviction that deference rejection, interpretation of of majority’s case unwill- course in this 6103(b)(2) adopted previously by this ingness specify outer of boundaries IRS, (D.C. court in F.2d v. Neufeld Op. thus Maj. at interpretation, its own Cir.1981). heightened court with this presenting nothing I find in the text or litigation focused on further prospect of support wholly structure to the notion that exploration of those boundaries. may nonidentifying information2 not be put disclosed it has in unless been a differ- foregoing, in On I concur the basis an extreme and curious “form.” Such ent opinion insofar it majority’s over- requirement is at odds the majority’s with join opin- rules But I cannot Neufeld. recognition that own “there is reason rejects ion insofar as it inter- ‘why would have wanted to for- pretation of the in favor of the statute bid information which majority’s own. privacy would not threaten the of individu- ” Maj. op. (quoting taxpayers.’ at al WALD, Judge, dissenting, Circuit with Brief of Neufeld Freedom of Informa- ROBINSON, III, whom SPOTTSWOODW. 5). Clearinghouse ap- tion MIKVA, Judge, Judge, Chief Circuit Neufeld view, proach, my comports best join: Congress’ balancing strong interest taxpayer privacy equally strong and the I. interest disclosure under the Freedom of adopted I from the newly dissent court’s taxpayers’ pri- Act Information whenever 6103(b)(2) interpretation1 of 26 U.S.C. § rights implicated. vacy are not saying the IRS never disclose interpretation adopted ad if data in the section even there is no listed Neufeld safeguards identification, equately privacy concerns risk unless has been and I share. court The court reaches “reformulated.” reading held “mere explicitly based on its deletion Neufeld has considered 6103(b)(2). banc court en 1. Since the tion of Yet the contours of the issue, panel legal left and has practically prevent this discrete en issue was heard banc “holding application facts Supreme alternative. Unlike Court re- case,” my view, must maj. op. dissent present justices where the review the entire record legal issue, issue similarly deciding focus specific before whether to hear a meaning. con- 6103(b)(2)'s general I am practice legal our isolates the issue from its cerned, however, practice recent that, that the court’s moorings altogether. hope factual future, in the issues, legal issuing opinions on en banc adopting will be court cautious in scenarios, see also opposed piecemeal concrete factual approach kind this hearings. to en banc (D.C.Cir. Foster, F.2d 1082 legal United States "The establishment of rules typi- Judges 1986) banc), (en poses problems. n.l, guidance," maj. op. future at 155 best opinions advisory on abstract cally emerges fullfledged, not issue do out of fact-based adversari- controversy legal rulemaking. the case proceedings, judicial because of issues al practice While our requirement III. of Article not, course, implicate technically here does disclosability It is to note essential that the does, my opinion, raise provisions, those information filed actual returns controversy dangers case that the some requirement protects taxpayer is not at here. Such items issue example, isit against. For 6103(b)(1), subject are not are covered court banc majority of en that a conceivable Amendment, wholly are thus controversy dis- could might think exemp- FOIA’s immune from disclosure under narrower, ground factual posed on some repudiation old defini- of our than wholesale *19 and addresses” of names does not pursuit automat review information in of varied ically open goals. the door for disclosure of plaintiff items Neufeld, in for exam- (b)(2). Neufeld, in 6103 ple, listed 646 F.2d at professor doing awas § research into the Rather, the court remanded the practice case Congress, members of White determination the District Court members, House staff other high and information, than “what name and government interceding officials on behalf address, poses identifying a risk of a tax taxpayers ongoing in proceedings. IRS id., payer,” understanding with the “specifically Neufeld any inter- disclaim[ed] the nature certain documents ren est in information that would directly or entirely der them nondisclosable. Id. at indirectly identify individual taxpayers.” IRS, Moody also 666. See v. 654 F.2d 795 Neufeld, 646 F.2d at 662. See also Tax (D.C.Cir.1981); IRS, Long v. 596 F.2d 362 Group IRS, Research Reform (9th Cir.1979), denied, 917, cert. 446 U.S. (D.D.C.1976) F.Supp. 415 (public interest 1851, 100 S.Ct. 64 L.Ed.2d 271 group researching Nixon Administration’s pressuring respect per- actions with IRS I agree that the IRS faces a difficult task perceived sons as either “friends” or “ene- determining in just enough when informa- mies”). Yet, majority’s under holding tion has taxpayer been deleted make the today, the IRS forbidden disclosing different, This unidentifiable. task 6103(b)(2) present data its § form for however, agencies from the situation often purposes Neufeld, research the Tax Re- requirement face under the redaction form Group, Research and countless other Act, Freedom Information 5 U.S..C. legitimate groups scholars, even if the 552(b), requirement a applies even § wholly Service is confident that there is no regard “specifi- with to matters otherwise risk of disclosure whatsoever. Since the cally exempted from disclosure statute” carry has failed to its burden exemption under FOIA’s 3. 5 U.S.C. demonstrating intended to 552(b)(3). grant While would consider- § distinct, statutory requirement establish a able deference to the expertise in reformulation, I dissent. determining when even seemingly anony- might mous tax data lead the informed II. requester to identify taxpayer, a I believe major premise majority’s is that the that this determination is for the Service to language Amendment, i.e., of the Haskell carry case-by-case or, times, on out a “return information ... does include basis, class-by-class document in the same data cannot be associated panel opinion fashion that the form accompany- identify, directly or otherwise or indi- ing the en banc requires decision the IRS to rectly, taxpayer,” 26 U.S.C. proceed respect to documents not list- 6103(b)(2)(emphasis added), means Con- ed in 6103. See Church Scientology gress established a “reformulation” re- (hereinafter v. Internal Revenue Service quirement. 6103(b)(2) data No listed op.”), 146, “Panel 792 F.2d 152-153 physically ever be released unless it is (D.C.Cir. 1986).

put into different document from changing In fundamentally, course so which the presently appears information court must beware of the effect that IRS files. Deletion decision will have others who seek to identifying enough.3 material will never be 6103(b)(2) (1975); Justice, requires Dep’t 3. Because it holds that § Krohn v. (D.C.Cir.1980). 628 F.2d reformulation, anonymity My approach, by both effect of 197-98 con- trast, holding 6103(b)(2) majority’s require any precluding is not reads dis- long so pursuant FOIA, closure data the disclosed data redaction since that statute require identify taxpayer. held been not to create cannot Deletion of iden- can, Renegotiation tifying approach, new See under documents. Board v. Engineering Corp., Grumman take certain data out of the "return informa- Aircraft definition, tion” S.Ct. L.Ed.2d 57 is thus mandated *20 174 “in urges, term Otherwise, pointed majority Judge Posner has out that overem reading “as superfluous, phasis construing on all statutes so as is made a form” surplusage it will demonstrate.” avoid “rests on the without unrealistic provision view, however, the my premise [they] In at are com op. drafted with Maj. easily more under- plete economy language____ is far “in a form” There is term types substantive surplusage’ saying that the ‘useless in as in contracts stat stood of information 6103(b)(2)are not utes, Penney J. C. Co. v. listed in Commissioner of Revenue, they dis- can be Internal 65, (2d if 312 F.2d 72 Cir. information” “return identify a 1962), cannot in manner a and neither context a should court closed taxpayer. say Thus, no Roughton, to it.” White v. Congress give meant effect 689 460 den., 118, in- (7th Cir.1982), does cert. information F.2d U.S. 120 than return more 1070, or in con- that, by 1524, even itself 103 75 data S.Ct. L.Ed.2d 947 clude information, cannot be (1983). point There comes junction with a when a court taxpayer. deciding identify a must be realistic drafter whether the used using was everyday expressions do, the manner that we was instead course, talmudic dissec can, make One technical, creating statutory requirement. to find hidden language everyday

tions of Relay League American Radio Cf Unless statu implications. profound and FCC, 875, (D.C.Cir.1980) 617 F.2d 879 compels a that it so clear language is tory (“courts give independent will meaning however, our task statu result, specific apparent to a word ‘where is from the the con is “ascertain tory construction surplus- context age’ ”) the act is word give effect and gressional intent (quoting 2A Statutory Sutherland Glodgett, Philbrook v. legislative will.” 47.37, (4th Construction at 167 ed. C. 1898, 1893, 713, 95 S.Ct. 421 U.S. 1973)); generally see 2A Sands Sutherland (“ ‘In id. generally See (1975). L.Ed.2d 47.37, (4th Statutory Construction at 258 statute, guid must not be we expounding a 1984) ed. C. Sands (discussing rule that of a or member single sentence ed sentence, disregarded if words text indicates that as statute con of the provisions look to the they were not intended ”) object policy.’ law, to its whole adding meaning). Bois v. Heirs States (quoting United 113, 122, How.) 12 L.Ed. The Haskell Amendment dore, 49 U.S. (8 was introduced floor v. American closing Senate States United (1849)); Inc., 534, days Associations, major deliberation on a tax reform Trucking 24,012 84 L.Ed. 1345 act. See Cong.Rec. (July 27, S.Ct. 1976). engendered inter Amendment abso- (1940)(cardinal principle of lutely lack history,5 intent no debate.4 Given give “to effect pretation is thereof, agree history of statute’s cannot that the three Congress”). If “in a Congress indeed la little words form” evince a clear enactment reveals intent that data otherwise disc- choice word arduously over each bored under comma, proper losable the Haskell Amendment be- it is then likewise and each nonidentifying, cause it is cannot comma be dis- word and analyze each for us is legislative closed unless it somehow “reformulat- But when precision. injected ed.” The fact most information that a was history shows governed by process, Haskell Amendment the tail end into the bill at already likely from that effort to be in a form apparent no different Congress made and that originally the new amend submitted to Ser- every phrase to remove superfluous, vice since the actual return the we submitted may have rendered ment taxpayer disclosure, holding exempt Congress’ goals by frustrate only regard See su- microscopic scrutiny. identifiability. without up to its words the amendment would what effect segregation Neufeld, about requirement mark See of FOIA. maj. op. at 161. See on tax research. have 646 F.2d 665-66. course, disagreement my majority Of provision, with the passed House like 5. The goes beyond segrega- applicability far report states Committee Conference requirement FOIA. Because of "re- provides that returns Senate amendment requirement, majority formulation” forbids are confidential information and return any origi- disclosure of return in its subject except specifically to disclosure state, information, statute____ nal even if the without the provided by Under the amend- redaction, absolutely need for nonidenti- ment, data in a form that cannot be associat- fying. identify particular ed with otherwise tax- payer will not constitute return information. out, only substan- points S.Rep. Cong., 4. As No. 2d 94th Sess. at 476-77 Haskell’s Senator made tive comment pra note 2. Conceding as it does that quirement.” Amici Curiae Pro- Brief aggregation is not essential to fulfill the John L. and The Freedom fessor Neufeld reformulation requirement, the majority Clearinghouse Information *21 adopted a wooden test that turns on doI not accept the majority’s character- physical form, doing and in so has attrib- ization of our choice here as one between uted an absurd to Congress. intent Under construing statutory phrase a aas mean- majority’s test, the the may only IRS dis- ingful requirement or ignoring the same close nonidentifying information copies if it meaningless words as surplusage. Rather, it a piece onto fresh of paper, perhaps in I see choice as one between attributing style. Yet, narrative there certainly is no weighty legal significance to a common and evidence that such recopying accomplishes inherently vague6 term just that could be anything that redaction would not. meaningfully as as a viewed in simply context Congress majority concludes linguistic aide to the Amendment’s form” the “in the have used not would requirement main anonymity, recog- a wanted to create had it not language nizing is, it for what it a transitional tech- I, on the requirement. reformulation hand, nique of drafting. Under reading, either have used Congress would believe sense, and, words make literal function- had it wanted language much clearer ally, reading adopted in Neufeld reshap- arbitrary and novel create such is Thus, far less eccentric. unless expla- word ing requirement, without other indicia compel result, the lan- in the Conference on the floor or nation not, guage view, itself in my does support on dis- emphasis Given its own Report. imposition of a distinct statutory re- avoid- language, and secting the quirement of reformulation. struc- in definitional ing Alice Wonderland But even if did intend create 2,1 am tures, maj. op. n. startled at 158 requirement, I at a reformulation am loss majority which the ease apparent with why majority to understand so conclu- Amendment as Haskell to read the is able creating sorily information identifying assumes that deletion of ele- definitional separate two satisfy does this require- of the Nothing in the structure ments. single Why usage” say ment. that a document takes a once deletions of is it a “curious such supports Amendment sentence form different reading, majority’s insistence only the key information have Since redundancy. removing any trace of original, made? In in 6103(b)(2) been its it is a form body of in the main nothing identifies; necessary once the dele- that the information “form” discusses made, are it a form does tions identify. is Haskell in, how the cannot understand is I view, In my the common under- term “form” use of Amendment’s standing keeping anony- documents allowing disclosure as understood be form is mous satisfied once deletions of is in a the information where different possibly identifying materials are made. originally in. As an form from what was Nothing in the statute indicates that Con- hardly out, “Congress could points Amicus gress intended word “form” mean if oblique route on a more embarked have any more than this.7 separate such a was to create goal its Indeed, obviously majority has information in even the 163. Yet the IRS unable set general developmental of different forth a test for when its files hundreds is in op. investigation, Maj. stages. example, form. For notes of an different 160-63. All it is investigation, investiga- of an list of sure of that deletion is abstracts not sufficient and week, Yet, aggregation somehow, say that necessary. done in a etc. ... To there is not tions majority "readily does not at answer opine” must "reformulation” able to from the test, question original purpose is an form to of its of what reformulation that mere copying begin language with. style different Maj. op. glaring sufficient. at 163 n.5. The deficiency majority’s 7. The fact that specifically Senator "reformulation” Haskell in- specifies original test is that never tended allow from what items such strongly supports just position form the tax model reformulation must be done and Neufeld enough satisfies requirement. what that redaction is reformulation take a document out majority of the "return refers to "some information” alteration classification. In case, government reaching original the form in decision which the return in this majority originally erroneously information was assumed recorded.” Id. at that the tax mod- heavily on minor redundancies the Has argues also that it “would kell Amendment in neighboring pro effects peculiar catalogue most such de- visions that mention “return information” tail, (A) subparagraph body is demonstrated the fact that definition, even the specific items that constitute reading majority’s makes three provi leaving ‘return information’ while to an superfluous. sions (“re 6103(j)(4) See afterthought major qualification turn information” not to be released “ex none of items counts unless it those identi- cept in a form which cannot be associated Maj. op. taxpayer.” fies the at 157. Were ...); identify otherwise time, entire one the might But, statute drafted at there 6103(i)(7)(A)(same); 6108(c)(no disclo argument. be some merit in this sure shall be such as can be “associated already pointed out as the *22 ”). with these Recognizing the redundancy of concedes, majority the Haskell Amendment provisions, majority the afterthought. finds it “re indeed It is certainly was not unusual that a floor amendment makes a nal markable that the dislocations are not greater,” maj. op. 163, and at concludes major change meaning origi- in the of an that the superfluity inquiry provision. demonstrates majority’s The on insistence the propriety approach of its stylistic ignores reality because the congruity the of the superfluity it causes is much Moreover, less than that legislative process. panel the produced by interpretation the Long. opinion provides justification itself the for Quantitatively, Id. majority the is correct. specific the list kinds material to be Its approach wins 5-3. But information,” qualitatively, described as “return since it superfluity by created both readings that appear holds list are to any items that do not in the the Haskell Amendment are alike.8 Nei differently treated no be than ther any substantive, affects practical mat requested other item under FOIA. ter. Given majority’s stylistic efforts to show unavoidable superflui- ty reading construction, under either adopted by this court in I v. do not see Neufeld IRS, (D.C.Cir.1981), how carry redundancy 646 F.2d 661 by and issue can be used to IRS, day the Ninth Circuit 596 F.2d either side of the debate. (9th Cir.1979), recognized Once it denied, 362 917, is cert. 446 interpreta- U.S. (1980), 64 S.Ct. L.Ed.2d 271 Haskell Amendment “dislo- pockets provisions cates” superfluity creates unpersuasive. tually that the some similarly by is making them technically to affects unnecessary, tension described is think ac it useless victory by majority’s award created insistence the fewer Haskell Amendment cannot in number. The unavoid- able terpreted making large dant, conclusion to provisions few of a drawn from the su- perfluity complex internally by created either statute redun construction is although Congress did functionally meaningful still not concern itself with the fact that futility and consistent. The some of relying provisions so the other return," actual, partly "partly fictional awas el model has on its own standard of reformulation. require- its novel "reformulation description thus met The correct of the tax model at the amendment). (prior Maj. op. at definitively passage ment.” Through time of demonstrates that by post-decision motion filed helpful interpretations by both the government advanced of Wash- Liberties Union Civil majority wrong, the American and the are that, light at the time ington, it now come all that framers of Amendment Amendment, the tax model thought necessary the Haskell under 6103 was effective identifying with actual return "an in fact redaction. (as Maj. op., amend- at 162 eliminated.” details ed). majority argues 8. The that the score is in fact to Amend Amicus Curiae See Motion Maj. op. supports 9-2. at 2. It 158 n. 10, 1986). (filed Given this June Opinion times, counting separate four count- factual as- acknowledgement of its mistaken twice, ing by discounting § 6103 the relevance majority con- that the sumption, I amazed am 6108(c), by arguing phrase that the "in insufficient that redaction to claim tinues against a form” is a flaw be counted having After Amendment. under construction, against circuit’s former but not opinion the tax model original in the relied Leaving accounting own construction. these is- aggre- suggestion that government’s refute aside, sues tabulation, the fact remains under either stubbornly majority gation required, the snugly neither fits construction newly effect now to examine fuses rest of scheme. existing tax then definition discovered being stylistically inelegant. were made piece intelligence information, individual reached, Once that conclusion is minor dif- like piece much in of jigsaw puzzle, may aid many provisions ferences how each con- piecing together other bits informa struction affects become irrelevant. tion even piece when individual is not of importance itself”) (quoted obvious ap provingly S.Rep. No. Cong., 98th 1st III. (1983)); Sess. 27-28 Schonberger v. Na arguments, Aside its textual Transportation tional Safety Board, 508 urges reading that its is consist- F.Supp. (D.D.C.1981)(“the materi plausible legislative ent with intent since al cannot be redacted a manner that any case-by-case not data assessment that will protect would the identity of the individual identify taxpayer problematic be- privacy stake”). whose interest large “depends upon cause it to a extent panel points theAs in describing out uninformed estimations data as what procedure evaluating disclosability requester possesses.” Maj. [already] op. at of information which does not meet the information,” definition of “return can, courts an in problem appropriate, of identification when accept affidavits requester unique is not formed about classes of documents and informa- Exemption tion, opposed Internal Revenue Service. requiring document *23 FOIA, example, exempts from dis for document Vaughn searches and Indexes. confidential, containing op. course, closure material Panel at 160-161. Of ap- that proach 5 commercial information. U.S.C. effort, entails some administrative “person 552(b)(4). Exemption exempts 6 but administrative inconvenience § alone has files similar files the nel and medical never been considered a sufficient reason cutting of which would constitute disclosure clearly back on FOIA. Long, See 596 personal (discussing unwarranted invasion F.2d at 367 amounts that some 552(b)(6). Exemption privacy.” 5 U.S.C. FOIA searches have but pointing § cost out investigatory Congress 7 recognized deals with law-enforcement that an that statute was one). it would expensive information to the extent that per an unwarranted invasion “constitute majority argues, however, that while 552(b)(7)(c). All privacy.” sonal of these 5 U.S.C. § Congress willing was to tolerate the “risk clearly implicate exemptions unknowing of occasional disclosure” for requester” problem, but the Act “informed FOIA in general, disclosures it was not provides “[a]ny reason nonetheless that willing to tolerate that risk for certain segregable portion of a record shall able Maj. op. classes information. at 158 person requesting such provided record after deletion are any (citing Files). Intelligence Central The CIA portions which though, exemption teaches Congress that exempt this subsection.” 5 under clearly how to know exclude certain classes 552(b). developed have U.S.C. Courts § of information from altogether FOIA when procedures deal with standards In Intelligence wanted to. the Central agency assertions disclosure provided File “Operational context it might lead to the substantive harm de files of the Intelligence Agency Central by FOIA, into taking scribed account exempted by be Intelligence the Director of Cen- requester Dept. informed issue. See provisions tral from the 352, 380, Rose, Air Force require which publication or disclo- [FOIA] 1592, 1608, (1976) L.Ed.2d S.Ct. (“what sure, or search review in connection identifying information constitutes therewith.” 50 U.S.C. 431. § regarding weighed must subject cadet Indeed, majority’s conclusion viewpoint public, from the guard broadly Congress sought against vantage of those also from the who but would have been requester” phenomenon the “informed familiar, as cadets fellow that, regard to undercut the fact Staff, aspects Academy with other of his (rulings, IRS written determinations deter- Halperin v. Academy”); career Cen letters, or technical mination advice memo- 144,150 Intelligence Agency, F.2d tral randa) background relating files (D.C.Cir.1980) (concluding that CIA determinations, Congress explicitly written disclosing information since justified provides public inspection of the doc- each must take into account ... “[w]e Halperin v. uments after empted area. See specific cy’s expertise deletion ex- Agency, data F.2d that is not to Intelligence be disclosed. 26 Central (D.C.Cir.1980). U.S.C. 6110 operates 6110. Section inde- 148 pendently tions and FOIA, sets out exemp- its own procedures, many inis today everyday The court overreads an spects Congress Yet stricter. mandated phrase casual of no certain content to im- disclosure after deletion of the nondisclosa- important pose an and comprehensive new ble material. Written determinations such restriction items listed private rulings letter describe 6103(b)(2), requirement noth- that does underlying facts of a case surely carry ing in itself to taxpay- advance cause of with them the same risk of taxpayer identi- privacy. majority adopts er a “refor- fication, yet Congress was satisfied with test mulation” in- never is, deletion.9 There so far tell, Ias can tended, and which itself is nothing to indicate that Congress wanted doing, unable to define. In so the court requester problem informed treated dif- misread the thrust of has Amendment and ferently when comes to return informa- effectively emasculated tion.10 has, application. The court in the most sense, classic stance. elevated “form” sub- over listed my items conclusion Given in a man- 6103(b)(2) be disclosed identify taxpayer are does not ner that respectfully dissent. information,” and are therefore “return not not disclosure,111 FOIA immune wholly subject items would provides procedures panel as the the same for items not listed specifically deter- If the Service op. Panel See made with- cannot be that disclosure mines out risk identification, as- that factual *24 sessment, course, deserves considerable agen- deference, on the dependent as 9. construction compared documents reformulated, nonidentifying out would ever, applies to at tory fines § stronger § mulated, § extra satisfied The 6103. 148-150. scheme safeguards majority applies equally Congress unlike Why, FOIA, interest. with nonidentifying, and information)? disclosure is made safeguards of under argues § the detailed listed showing have FOIA-type presence of a does its construction “particularly clear" of written §in operates permitted does not then majority’s point, how- We all public provisions § 6110 redaction own error assumedly refor- provide within separate statu- disclosure See Panel (which itself analysis of the agree that §of set out an even help the the con- under when with- Long op. 11. Even information 10. In the course of the is not H.R.Rep. No. is, under one tions. reprinted in dispositive, it subsequent News Conference § formation taxpayer returns restrictions. 6103, scope of Present course, contrary one Congress U.S.C. adopted legislative history Report law restricts ^[1981] still shows not return more to the intent (emphasis protected cannot 552(b). subject evinced stated U.S. 97th minimally information. disclosable under Code identify any particular Amendment, Cong., that: the disclosure of tax 1981 amendments to added). under possible exemption nine FOIA is, understanding Cong. Congress. 1st Sess. Neufeld. However, While course, & Admin. identical reading exemp- in-