DEPARTMENT OF JUSTICE v. TAX ANALYSTS
Legal provision: Freedom of Information, Sunshine, or Privacy Act
ORAL ARGUMENT OF LAWRENCE G. WALLACE ON BEHALF OF THE PETITIONER
Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 88-782, United States Department of Justice v. Tax Analysts.
Mr. Wallace: Mr. Chief Justice, and may it please the Court.
This Freedom of Information Act case reflects the not unique circumstance that the Federal Government is a party to all federal tax litigation, as it is to a number of other categories of litigation, such as Federal Tort Claims Act cases, government contracts, mall fraud prosecutions, FOIA cases, and others that might occur.
Since 1972, the Respondent has published a weekly report of developments in federal taxation for which it charges its subscribers an annual fee of $595.
And since 1979, the Tax Division of the Department of Justice, pursuant to FOIA, has provided to Respondent and other commercial tax services weekly logs of court decisions of which the Department has been informed in federal tax cases.
This controversy arises out of 26 weekly requests that Respondent made beginning in November of 1984 for the United States district court opinions, orders and decisions in tax cases identified in the log released during the previous week.
It apparently occurred to Respondent that the Department of Justice, which receives these orders and decisions as a litigator, might be a either more reliable, or at least more convenient, source of these decisions than the courts issuing them and perhaps part of the convenience would be a less expensive source, since the rather elaborate fee provisions under FOIA are designed in large part to keep the costs down in order to facilitate access to information about what the government is doing.
This type of request, whatever its convenience to the requester, is quite inconvenient and burdensome to the government as a litigator.
These opinions and orders are not collected in any one place for the government's convenience.
They come in in a mass of paper flow and by various routes, and the managerial problem is to get them routed with reasonable promptness to the lawyer assigned or the lawyer now assigned to the case, since there is considerable turnover in the government, so that the government can perform its responsibilities as a litigator in the cases, decide whether to take an appeal if the case has been lost, proceed to enforce the judgment, what have you.
These are not used by the Department as a research tool.
They are used for purposes of conducting the litigation.
Unidentified Justice: Mr. Wallace, as far as the inconvenience is concerned, though, the Respondents suggest that maybe that's the way you do it now, but it would be no great inconvenience to simply instruct each attorney in the field that when the court opinion is issued and he forwards a copy to wherever he now forwards it, another copy also be sent to some central repository where you would have all of them.
Would that be... that seems plausible to me.
Is there any reason that couldn't be done?
Mr. Wallace: --By and large, these are received by clerical personnel... and they come in in the mall in the Department... whose job it is to identify the proper unit, the proper litigating unit, in the Tax Division, to whom to send the opinions.
The attorneys receive them in two or three days time typically.
It takes a while to distribute them.
If there were routine duplication, which does not occur now, at the clerical level, further delay would be added inevitably.
There are backups for these machines.
They break down, et cetera.
The lawyers are not always present.
They do not routinely reproduce these items.
There is no repository where they're kept.
They're not used, for example, by the bulk of lawyers in the Tax Division itself as a research source.
Unless the lawyer happens to be the lawyer on the case or a close colleague who knows of it, they are much more apt to use the loose-leaf services in the library--
Unidentified Justice: Well--
Mr. Wallace: --like any other lawyer to find out about recent developments.
Unidentified Justice: --Maybe you win under the statute, Mr. Wallace, but I don't think you're going to persuade me that it's a whole lot of trouble to... to set up some system that would have all these things in one place that they could be turned over without... without much difficultly.
Mr. Wallace: It--
Unidentified Justice: Is that true or not?
I mean, is it beyond the invention of the Department to... to have each lawyer who gets one of these forward it to a central place, or when it comes in--
Mr. Wallace: --The Department [inaudible]--
Unidentified Justice: --or the lawyer who sends it--
Mr. Wallace: --the lawyers are spread out over several buildings.
There would be delays.
It could... it could be done.
Obviously, if Congress ordained it or the Court determined that Congress has ordained it, the Department would comply.
But there are cumulative costs to having to comply with requests of this sort.
Unidentified Justice: --Is the point of all this that they are not agency records?
Mr. Wallace: Well, that is one of our two contentions.
That is correct.
Unidentified Justice: Well, but I mean is... is that the point you're leading up to, or is this just background recitation?
What does it have to do with the statute?
Mr. Wallace: Well, it is the... the factual background of the case, and it has to do with contentions that are being made about why the statute should be interpreted so as to put requesters on an even playing field and that sort of thing, which we think are contentions that are overdrawn.
But I'll proceed to the statutory issues in just a moment, if I may just finish this thought--
Unidentified Justice: But, Mr. Wallace--
Mr. Wallace: --about the deeper costs that are involved by the cumulative burden of devoting personnel in... of course, in piecemeal fashion, and devoting reproducing facilities to tasks of this kind.
It becomes a cumulative distraction from the conduct of other public business.
Unidentified Justice: --Mr. Wallace, how... how many, on the average, opinions are... of the district courts are we talking about per year?
Mr. Wallace: The record shows that there are 20,000 tax cases per year, but it does not break that down into district court and other cases, nor does it show how many district court cases might result in numerous orders being issued.
The request is for individual orders as well as decisions.
But we're... we're talking about a considerable number of tax decisions.
Unidentified Justice: Interim order, discovery orders?
What kind of orders?
Mr. Wallace: Well, any order that's issued is part of the log, and the request is for anything that appeared on the previous week's log.
So, any... any order that reached--
Unidentified Justice: Mr. Wallace, is that the only place where all of these opinions can be found?
Mr. Wallace: --[inaudible].
Unidentified Justice: Doesn't the Library of Congress have the same thing?
Mr. Wallace: The Library of Congress, the issuing courts, of course.
Unidentified Justice: I mean, but where all of them are in the same place.
Mr. Wallace: The published ones all wind up being published in the Federal Supplement, and the loose-leaf services publish them in advance.
There are several loose-leaf services that publish federal tax decisions.
Unpublished decisions, which cannot be cited as precedent, usually are not included in these publications.
But they all are available in the clerk's office of the various district courts.
Unidentified Justice: That's the only place they're available as soon as they are available in the Justice Department.
Mr. Wallace: Well, sooner really because--
Unidentified Justice: Sooner.
Mr. Wallace: --there is transmittal time.
Unidentified Justice: But you have to go around to each one of the courts.
But the only single place where they're all present that soon is the Justice Department.
Mr. Wallace: That would be correct in... in the categories of litigation where the government is always a party.
But, of course, it's not correct in many categories of litigation where the government is not a party in all of the cases.
Unidentified Justice: Mr. Wallace, may I just ask you one other question about your burden argument?
Isn't there always some burden on the government in complying with an FOIA request?
And if... if there is, how does this burden... what... what is our rule for deciding when a burden is significant enough to be taken into consideration?
Mr. Wallace: Well, of course, there is always some burden, but part of the burden of reading the Freedom of Information Act more expansively than Congress intended is that FOIA requests themselves that Congress intended to be honored will be delayed because the limited number of personnel dealing with FOIA requests will be distracted--
Unidentified Justice: Yes, but if the request is... is broader than Congress intended, we'd deny it even if there was no burden involved.
Mr. Wallace: --Well, that is correct.
Unidentified Justice: I'm just wondering if there really is any legal merit to your burden argument.
Mr. Wallace: We do not rest on it as a separate legal point.
I... I do want to just amend my answer to Justice Scalia and Justice Marshall by pointing out that the Department of Justice is not really a repository where all opinions are received in one place either because in many instances the opinions and orders go to the United States attorneys' offices rather than to the Department in Washington.
In tax cases, this is broken down in a way that's reflected in the record.
Unidentified Justice: But does the... do the Respondents seek production or access to the ones that simply go to the U.S. attorneys' offices?
Mr. Wallace: Not in this case, Mr. Chief Justice, because the logs do not reflect that.
Unidentified Justice: Mr. Wallace, what do you say an agency record is under FOIA as you understand it?
Mr. Wallace: Well, let me, as a preface to answering the question, say we do not think that this case requires the Court to adopt an all-encompassing definition that will cover every kind of case.
We start off with the notion that agency records include records generated by the agency which reflect the public business or compiled by the agency in a way that is revealing about how the agency is conducting its public business.
But it does not include, for example, library materials that are held by the agency even though those are used in conducting the public business and purchase pursuant to appropriations of funds.
We do not think that reproducing those materials, becoming a library referral service, is within the purpose of FOIA.
And we do not think that records issued by the courts' decisions or orders or materials issued by the Congress are part of agency records, as we would urge the Court to interpret it under FOIA.
FOIA does not define agency records.
It does define the agencies that are covered by FOIA, and that definition excludes the courts and Congress which traditionally have controlled the issuance and dissemination of their own opinions and orders.
Unidentified Justice: Well, how does it include probation reports that aren't generated or compiled by the agency, but nonetheless relied on in some sense?
I guess we've said they're agency records.
Mr. Wallace: --Well, we--
Unidentified Justice: Or pre-sentence reports.
Mr. Wallace: --Pre-sentence reports were the ones given particular attention.
And the question was uncontested.
The Court noted that there was no controversy--
Unidentified Justice: Well, we indicated they appeared to be agency records.
Mr. Wallace: --Yes.
Unidentified Justice: They were neither compiled by nor generated by the agency itself.
Mr. Wallace: No.
That's why I... I... I do think we have to be cautious about an all-encompassing definition.
The... the particular reason why we concluded that pre-sentence reports should be treated as agency records is that they were compiled, as the Ninth Circuit said, substantially for use by the Department of Justice.
They were furnished to the Bureau of Prisons where, under Department of Justice regulations, they are used in the conduct of public business in making work assignments for the prisoners, counseling them, treating them, in making decisions about security that's needed for particular prisoners, and they are used in making parole decisions.
Unidentified Justice: Don't you think that description applies pretty well to a court order directed to the... or court judgment directed to the Department of Justice?
Isn't that prepared for the use and direction of the Department of Justice?
Isn't it used by the Department of Justice to direct its actions thereafter, much more so than a pre-sentence report it seems to me?
Mr. Wallace: There is an analogy there, but it is... it is used only as a... the way any litigator would use the opinion or the way any lawyer would, to the extent it's used as a statement of what the law is for guidance in other cases, the same as a reported case in the Department of Justice's law library.
Obviously, the orders are issued for compliance by the parties to the case.
But that is a... a routine litigation use that in no way is different for the Department as a litigator than for any other litigator.
It's not part of the conduct of public business in the same way that administering the prisons would be.
There's an analogy there, but there's also an analogy to the other reported decisions in the library.
The... the case falls in between.
What seems to us important is that... and we developed historical materials on this on pages two and three of our reply memorandum at the petition stage... traditionally the courts have controlled the dissemination of their own opinions and orders.
Clerks' offices exist for the very purpose of receiving filings and disseminating court opinions and orders.
And the court exercises control over that.
And that is not the function of the Department of Justice.
If there is a problem with the dissemination of opinions and orders by the clerks of the courts, FOIA was not intended to solve that, and doesn't... it isn't designed to solve that.
The fit is not good.
There are too many cases in which the Department of Justice or the Federal Government is not a party at all.
It... it can't really solve that problem to turn from the clerks' offices to the Department of Justice in the cases where the government happens to be a party.
And there's no reason to think that FOIA was designed to transfer that burden or that function from the clerks' offices to one of the litigators that happens to be the government.
Unidentified Justice: Mr. Wallace, what if... what if the Tax Division relied... in some sense it at least reviewed and studied and considered a privately produced research report, let's say, by some private research organization that... from which the public could buy a copy of the report, but a member of the public wants to see the agency's copy.
Could that be an agency record?
Mr. Wallace: It could be.
It might be subject to a work product or other privilege.
There might be an exemption.
Unlike the typical FOIA case, which involves a question of what will be disclosed to the general public and what will be held confidential to some degree, this case involves publicly available documents that are available at their issuing source.
Unidentified Justice: But you wouldn't respond, I gather, that it's enough that the member of the public could go buy it for $500 at the research institute that produced it.
Mr. Wallace: Well, that is a consideration.
If... if what is involved is a copyright problem, they might have to at least get a license from the copyright holder and pay a proper fee.
Unidentified Justice: Well, is that... is that the meaning of the statute in which it says that unless the materials are promptly published and copies offered for sale?
Does that have to be by the agency?
Mr. Wallace: --Well, we've never faced the question whether that has to be by the agency.
Unidentified Justice: Do you have a position on that?
Mr. Wallace: I can't say that I've consulted on that, that... that the face of the statute answers that particular problem.
There was a Ninth Circuit decision called Warth against the Department of Justice, which we have mentioned, involving trial transcripts which court reporters do sell for a fee.
And the court held that these were not agency records.
They're court records.
Obviously the fee could be evaded if people could get them from the Department of... of Justice.
Those are... are available for a fee, but not published.
And we do think that these provisions on the face of the Act, excluding the obligation to produce in response to a FOIA request if the Department at least has published the materials or made them available in a reading room, have significance for this case because if it's not improper to withhold materials in that circumstance, why should it be improper to withhold court-generated materials that are similarly available at their issuing source?
Unidentified Justice: Because the statute says the one and it doesn't say the other.
Isn't that a good enough reason?
Mr. Wallace: --But it... well, there... it doesn't specifically say the other, but it does say that... that the Department can be ordered to produce only if it is improperly withheld materials.
Unidentified Justice: Oh, and you think improperly means a general charge to look into it on the part of the courts to say what's improper and what isn't.
Mr. Wallace: Well, the Court--
Unidentified Justice: Beyond the exemptions that are specifically set forth.
Mr. Wallace: --The Court held in GTE Sylvania, where no exemption was applicable, that it was not an improper withholding.
There there was an injunction against the dissemination of the material in a separate proceeding.
But the Court did rely on that term of the statute in upholding the refusal to comply with the FOIA requests in the face of the injunction.
So, it seems to me the Court has crossed that bridge, and it is not necessary to adopt a very expansive view of improper withholding here.
We are talking about court-issued opinions and orders available to the public in the normal way from the issuing source which is itself exempted from FOIA.
We have directed the requester to where the materials are publicly available from their normal source by furnishing copies of the logs.
So, in a sense there... there isn't withholding at all, let alone an improper withholding.
Unidentified Justice: Is it fairly comparable that... to compare a case where you have a conflict between what the statute says and a... and a proper court order, the court saying one thing--
Mr. Wallace: --Well--
Unidentified Justice: --the statute the other?
Mr. Wallace: --It's not fully comparable, but there is an analogy which is strongly supported by the fact that even records generated by the Department themselves, if they're available in a reading room or promptly published or published in the Federal Register, are not subject to disclosure.
There is an analogy on the face of the statute in addition to this term.
I'd like to reserve the balance of my time for rebuttal, if I may.
Unidentified Justice: Very well, Mr. Wallace.
ORAL ARGUMENT OF WILLIAM A. DOBROVIR ON BEHALF OF THE RESPONDENT
Mr. Dobrovir: Mr. Chief Justice, and may it please the Court.
May I first answer the Chief Justice's question as to how many orders and decisions are at issue here?
First of all, of course, we are only seeking final orders and decisions which conclude the case in the district court.
We have not asked for interim orders like discovery orders.
As reported by the Judicial Conference of the United States, over the last five fiscal years, the average number of orders and decisions terminating tax cases in the federal district courts is 1,862.
And those figures are recited at page three, footnote four of our brief.
That works out to about 36 cases a week.
Unidentified Justice: We're talking roughly 1,000 a year.
Mr. Dobrovir: Eighteen hundred.
Unidentified Justice: Eighteen hundred a year.
Mr. Dobrovir: I'd like to put this case in context.
Let's suppose that Emily Taxpayer who lives in Montana has had a deficiency assessed against her, has paid it, and decides to file suit in the federal U.S. District Court for the District of Montana.
Her attorney prepares and files a complaint in the court, obtains a summons from the court, and those, the complaint and summons, are then served on the Attorney General of the United States, and eventually wend their way down to the office of a... of an attorney in the Tax Division.
We... let's call him Bill Barrister.
Now, Mr. Barrister immediately takes those documents and opens an official Department of Justice file with them.
It's called the DJ file.
He reads the complaint, of course, sends a copy to his counterpart in the Chief Counsel's Office of the Internal Revenue Service, and after consultation prepares an answer, which he sends to Montana.
It is filed in the court, and his copy of the answer is placed in the DJ file.
Let us suppose that both parties then file cross motions for summary judgment.
Ms. Taxpayer's attorney serves his on the... on Mr. Barrister and files it in court.
Mr. Barrister does the same thing.
And then finally, the judge issues his decision which is filed in the court and sent to both Taxpayer's attorney and to Barrister, again placed in the DJ file.
I discern no distinction, either theoretical or practical, among those documents.
All are filed in court, all theoretically available from the clerk, and all are agency records of the Department of Justice by all of the tests which this Court has... has--
Unidentified Justice: Why do you say theoretically available?
Are they not actually available?
Mr. Dobrovir: --Our experience has been that at least 25 percent of these orders are never obtained by any of the publishers.
And there are maybe half a dozen that are interested in tax materials.
They're never obtained by any of the publishers, and therefore are never... never available in the public domain.
Unidentified Justice: Well, maybe they're just a little lazy about it.
It's much easier to go to the Department of Justice.
Mr. Dobrovir: Laziness is not the issue, Mr. Justice Blackmun.
Unidentified Justice: Well, this is a commercial enterprise, and--
Mr. Dobrovir: We... we happen to be a nonprofit enterprise, but others are commercial enterprises.
And just the... the... the difficulties of getting these decisions have resulted in approximately 25 percent never being--
Unidentified Justice: --I'd be--
Mr. Dobrovir: --[inaudible] to the public.
Unidentified Justice: --interested in knowing really what the difficulties are.
Mr. Dobrovir: Take, for example, the list is obtained by my client.
Courts are telephoned.
The clerk says we have the decision or he says, well, I'll have to find the decision.
Sometimes a second telephone call has to be made.
The clerk tells you how many pages the... has to find the decision, tell you how many pages it has so you can write the check at 50 cents a page.
You write the check.
You mail it to the clerk with a letter asking for a copy of the decision.
Sometimes the letter is delayed in the mail.
Sometimes the clerk gets the letter and sticks it in his file because he's busy with other things.
Sometimes the checks don't get cashed, and sometimes the decisions simply don't arrive.
In any event, it usually takes a minimum of three to four weeks before any publisher has obtained the decision which the Department of Justice has virtually immediately.
Unidentified Justice: It's much easier to put the expense on the United States Government.
Mr. Dobrovir: We are prepared... and I am authorized to say this.
We are prepared to pay to the Department of Justice the same 50 cents a page charge that the courts charge if... if... because that... that may well be appropriate under Section 1914 and the Judicial Conference order.
Unidentified Justice: Of course, that's not the entire expense the Department undergoes in complying with your request.
Mr. Dobrovir: Well, Your... Your Honor--
Unidentified Justice: Is it?
Mr. Dobrovir: --It is not.
But to clarify something that... that my brother Wallace said, in the record here in the Department of Justice's answers to interrogatories, the... this sentence appears.
"It is normally the function of the trial attorney to see to it that copies of decisions are sent to the appropriate district or regional office of the Internal Revenue Service. "
That is the point at which, without any particular extra work or without spending more than I suppose the extra three or four seconds to run the xerox machine one more time, the extra copy could be made and could be then sent in the normal interoffice mail of the Department of Justice to the Department of Justice's press room where all publishers have access, or to the Freedom of Information Act reference room which is maintained by the Department of Justice which the public can have access to.
There... the... I submit that on that scenario, the expense would be minimal.
Unidentified Justice: Well, there's always the expense of assembling and providing space and filing and all of that.
It's more than just copying.
Mr. Dobrovir: Well, there are two answers to that.
First the practical answer.
Every publisher has it's own tray in the Department of Justice press room.
Dropping a decision into the tray of McGraw-Hill or the tray of Tax Analysts or the tray of Commerce Clearing House in... where it would sit with all the press... the many press releases and other things that the Department of Justice issues which it wishes the press to take and publish, would I submit involve virtually no additional expense.
The other answer is found in the legislative history.
In 1981 the Department of Justice began an effort to relieve... the executive branch represented by the Department of Justice began an effort to relieve itself of many of the costs which it argued were making administration of the Freedom of Information Act prohibitive.
A number of provisions were proposed in... in bills that were... some were... one was introduced by Senator Hatch on his own.
Another was introduced by Senator Hatch at the request of the Department of Justice, and that was S. 1751 in the 97th Congress.
That bill expressly referred to court records as among the records, public records, that the agencies did not wish any... any longer to be required to produce under the Freedom of Information Act.
Congress considered that.
The 98th Congress held hearings before the Senate Judiciary Committee, and the Senate Judiciary Committee issued a report in which it stated that the bill it was reporting did not include the specific relief requested by the executive branch, that is, a complete absolution from having to produce public documents, including expressly, explicitly court records because, the Senate Judiciary Committee said, court records and other things such as press clippings are not easily accessible except through the government agencies.
Unidentified Justice: What is the statutory point that this bears on this?
Suppose the fact were that these documents were readily available from courts all over the country.
Would your position be any different?
Mr. Dobrovir: No.
Unidentified Justice: So, why are we talking about it?
Mr. Dobrovir: --Our position would not be different because Congress has said that for the reason that they discerned, which was that documents are not readily accessible, they refused to give the Department of Justice the specific relief it asked... asked for meaning, it seems to me, that the Freedom of Information Act, as understood by the Congress and at that time as understood by the Department of Justice--
Unidentified Justice: More properly understood by the Senate Judiciary Committee.
Mr. Dobrovir: --Senate... right, as understood by the Senate Judiciary Committee.
But I would add that the... the bill that the Senate Judiciary... one of the bills the Senate Judiciary Committee reported out which did not include the relief the government... the executive branch had asked for was passed by the Senate.
It died in the House, but passed by the Senate.
Unidentified Justice: But even if the fact were that you could get these from district courts all over the country within, say, a five-day turnaround time, your position here would still be the same--
Mr. Dobrovir: Our position would be the same.
Unidentified Justice: --that you're entitled to them from the Department of Justice.
Mr. Dobrovir: Our position would be the same, but we probably wouldn't be here at all.
The reason... the practical reason we are here is because they are not accessible.
Unidentified Justice: Mr. Dobrovir, suppose that all of the orders in tax cases were also sent to, let's say, the U.S. Tax Court here in Washington and were available there, and by interagency understanding, the Department of Justice and the Tax Court agree that any public requests would go to the Tax Court.
Is that enough?
Mr. Dobrovir: I--
Unidentified Justice: Or you're still entitled to get it from the department that you want to get it from, no matter what.
Mr. Dobrovir: --As a practical matter, that would be enough.
Whether under the statute--
Unidentified Justice: Well, does it meet the statutory requirement in your view?
Mr. Dobrovir: --I would say no.
I would... I... unless... well, I would say this, that it might satisfy the provision that... that Justice Kennedy mentioned earlier, that a document is publicly available and offered for sale.
The DOMB in administering the... in issuing regulations on the 1986 amendments to the Act which dealt with the question of cost, has indicated that it encourages departments to contract with commercial services to make available documents that it is required to make under the... make available under the Freedom of Information Act.
And if it had done so in this case and they were promptly available for publication, I think we probably would not be here either.
Let me turn to the agency record--
Unidentified Justice: May I ask you one other practical... is your problem... I mean, I understand you represent a tax service, but wouldn't... wouldn't the same issue be presented in all sorts of other specialized areas of the law, such as Social Security or antitrust or criminal law, that... that the services could more conveniently get them from a centralized place and expedite their work?
Mr. Dobrovir: --Yes.
Unidentified Justice: Maybe that's good.
Mr. Dobrovir: Yes.
Unidentified Justice: --But there's really nothing special about the fact this is a tax case.
Mr. Dobrovir: Nothing special about the fact that this is a tax case.
There are other bodies of law which are Federal Government law in which the government is always a party.
And I think the principle we are contending for here would apply to every one of those bodies of law.
Unidentified Justice: And presumably there's the same difficulty in getting all the opinions as promptly as you wanted them.
Mr. Dobrovir: --I would have to assume so.
Unidentified Justice: Yes.
Mr. Dobrovir: I will say this that tax law is something that touches every American, and I think is of more general importance and interest to all Americans than most other areas of law which have... which are somewhat more specialized.
But I don't rely on that either.
Unidentified Justice: I think specialists in other areas of the law might disagree.
Mr. Dobrovir: I don't rely on that, Mr. Justice Stevens.
Unidentified Justice: Yes, yes.
Mr. Dobrovir: Let me turn to the agency records issue.
This Court has had to deal with that question with respect to three kinds of documents: pre-sentence reports in the case of U.S. v. Crooker and U.S. v. Julian; consultants' records that the agency never got, as in Forsham; and White House records that were stored at the agency, but which were never controlled or used by the agency in pertinent part here, and that was the Kissinger case.
The Court has looked to five characteristics in those cases to determine what... whether the documents were agency records.
First of all, does the agency possess them?
Secondly, does the agency freely control them, or does some other entity exert control over the papers that the agency has?
Third, does the agency use the papers in the course of its public business?
Fourth, does the agency incorporate the papers in its own files?
And fifth, do the papers include information about the agency's operations?
And I suggest that if any... all five of those questions are asked with respect to court records here, the answer is yes.
Obviously, the Department of Justice Tax Division possesses them.
Obviously, it controls its copies.
It sends copies to the Internal Revenue Service.
It sends copies all around the Department of Justice.
When an... if an appeal is to be... is to be considered, copies go up to the Solicitor General's Office in the Department of Justice.
Unidentified Justice: Now, why do you say that these are materials which are not promptly published and copies offered for sale under the services of various commercial publishers?
Mr. Dobrovir: We are one of those publishers.
Unidentified Justice: Uh-hum.
Mr. Dobrovir: And our experience based on our--
Unidentified Justice: But you do have a statutory provision that says if materials are promptly published and copies offered for sale, it just doesn't apply.
Mr. Dobrovir: --The point is they are not promptly published or completely published and offered for sale.
As I said, 25 percent of them are missed by everybody, and a lot of them are obtained only after considerable delay.
So, I would suggest that under those standards... under... under those tests, these documents are not promptly published and offered for sale.
If the Department of Justice were to pick a chosen instrument, for example, and say, okay, we are going to give you, publisher X, a copy of every one of these decisions and you can promptly offer them and publish them for sale... publish them and offer them for sale, and then we're off the hook, that would satisfy that provision of the statute.
The Department has not done so.
Unidentified Justice: Or if they dropped a copy in the reading room--
Mr. Dobrovir: Which is what we asked them to do.
Unidentified Justice: --one way or the other, which is what you asked.
Mr. Dobrovir: If they dropped a copy in the reading room, that would take care of it.
Unidentified Justice: Going back through my list of five questions, if I may, both the Department of Justice and the Internal Revenue Service use these documents in their business.
As the agent... as the... as the... as the Petitioner's brief admits,
"It tells the agency how they may act. "
Nothing could be more involved than the agency's business than an order from the court that tells it how it may act.
Fourth, the Department of Justice incorporates the decisions into its permanent files, the DJ file, which is then in turn subject to elaborate record keeping, retrieval and, disposal regulations; a regulation that's in the record covers some 160 pages.
And finally, it provides information for the public about agency operations.
Every one of these decisions will at least reflect what the agency... what... what the decision is.
It will reflect what the agency has done.
Well, you don't... that isn't why... really why you want the records... the opinions, though.
You don't... you don't want to learn anything about the agency.
You want to get the opinions to find out what the courts did.
Mr. Dobrovir: Insofar as we are an--
Unidentified Justice: Isn't that... isn't that right?
Mr. Dobrovir: --Insofar as we are an agent for the public, it is important for the public to know what, for example, the Internal Revenue Service does with respect to taxpayers.
Unidentified Justice: Well, I know, but that isn't why you want them.
Mr. Dobrovir: Well, we want them only... we are really a surrogate for the public.
We take them... we don't want them for our own purposes.
Unidentified Justice: Well, for $500--
Mr. Dobrovir: We publish them.
Unidentified Justice: --For $500 a crack you want it for the public.
Mr. Dobrovir: Which covers our costs.
We're a nonprofit organization--
Unidentified Justice: Well, you just don't--
Mr. Dobrovir: --Justice White.
Unidentified Justice: --You just don't publish them for nothing.
Mr. Dobrovir: That's quite right.
We have to cover our costs--
Unidentified Justice: Well, supposing the President sends over a directive to the Department of Justice to do something.
Now, that certainly meets the test of telling the agency what to do.
But yet, that doesn't become a Department of Justice record, does it?
Mr. Dobrovir: --I think it would.
I think it would.
Once that document is released by the President, the... unless the White House insists on exercising some kind of control over it and... and restricting its dissemination.
If it did that then, of course, there would be another question.
Unidentified Justice: Well, then... then you're saying it just includes a great deal of what you might call secondary records that don't originate with the agency at all, but just happen to come to rest in the agency.
Mr. Dobrovir: Well, the test that this Court adopted in the Forsham case, looking to the Federal Records Act, was documents that the agency receives in the conduct of its public business.
Those are agency records.
That's one... one test for them.
Unidentified Justice: Well, does every agency have to become a... a library for the public?
Does it have to turn over its library collection in this same fashion?
Mr. Dobrovir: Not as such.
No, by no means.
Unidentified Justice: Why not?
Under your definition, it would certainly fit.
Mr. Dobrovir: --Well, each--
Unidentified Justice: The agency assembles some books for use by its attorneys.
Now, why... why aren't you entitled to go in there and make use of them under your definition?
Mr. Dobrovir: --There's no bright line test.
I think you have to look at each one... each kind of document on its... on its own facts.
Mere library books... well, for example, I guess the... the easiest example for something that isn't an agency record is if the agency library has a copy of "War and Peace", which agency lawyers may read in their leisure time.
That would not be, I don't think, an agency record.
Other library materials which... which... which... which are used--
Unidentified Justice: Don't give away too much here now.
Mr. Dobrovir: --Thank you, sir.
Unidentified Justice: You have a close case, I mean, one that--
--How about the Department... the Department has a data base called Lexis, doesn't it?
Mr. Dobrovir: Juris.
Unidentified Justice: Juris, yes, Juris.
Well, how about that?
Mr. Dobrovir: I'm not familiar enough with it except to know that it has a name.
I would give... the... an example that I think is more apt.
The card catalog for the Department of Justice library probably would be an agency record.
Among other things, it's created by the agency.
That kind of makes it easier.
Unidentified Justice: Let me go back to the contents of the library a minute.
I agree that "War and Peace" probably isn't if it's for leisure reading.
But what about library materials that are accumulated to help the agency conduct its regular business: law reviews, opinions of state courts, tax materials and all that sort of stuff?
Mr. Dobrovir: Well, to--
Unidentified Justice: That would be just like this, wouldn't it?
Mr. Dobrovir: --I suppose a distinction can be made that they have no unique relationship to the agency.
Unidentified Justice: Yes, but using your five factor formula and... and in trying to get a workable definition, can you give us a definition that would exclude those and include what you want?
Mr. Dobrovir: Well, they don't... in their... in their... unless, for example, there's... they've been marked up and written over by Department of Justice attorneys--
Unidentified Justice: Doing their regular... they may have a privacy exemption or something like that, but assume there's no exemption applicable.
Mr. Dobrovir: --Assuming there's nothing like that, they're not... they're not marked up and therefore contain no particular input from the Department of Justice--
Unidentified Justice: Well, I think they would be even better if they were marked up.
Then it would be a stronger case.
Mr. Dobrovir: --Well, if they are, then I think that's... they're more closely agency records, yes.
Unidentified Justice: Yes.
Mr. Dobrovir: But if they're not marked--
Unidentified Justice: Oh, I see.
I'm with you.
Mr. Dobrovir: --I would, yes, they are more... they would be agency records because they reflect the operations of the agency.
If they aren't marked up, then in their pristine, unmarked-up form, they would not... they would not have any... they would not reflect the operations or functions of the agency, the test that Mr. Justice Brennan mentioned in his dissent in Forsham and which was adopted in another context in the Reporters Committee case that was decided a little while ago.
Unidentified Justice: And they also are published and available for sale presumably--
Mr. Dobrovir: That's right.
Unidentified Justice: --by a publisher.
Mr. Dobrovir: --They're also published and available.
And also, there... there may well be copyright problems.
The Copyright Act might conceivably be an exemption 3 statute.
Unidentified Justice: You could say with respect to Fed. Supplement that in it, it contains court decisions directing the Department of Justice how to conduct itself.
Mr. Dobrovir: Yes, it does.
Yes, it does, but in the form in which they are published by the West... by the West Publishing Company, they... they are not in any way unique to the Justice Department.
And... and that's the toughest case.
I have to admit.
That's... that... that... that is one where, depending on how they are used by the Department of Justice attorneys, they may very well... those portions of those documents could conceivably be agency records.
Unidentified Justice: The books are available for sale to--
Mr. Dobrovir: They are available for sale and therefore probably wouldn't be... wouldn't... wouldn't be covered by the Freedom of Information Act.
Unidentified Justice: --Well, let me make sure I understand your position on available for sale.
Do you read that as applying to available for sale by anyone or available for sale by the agency that you're making the demand on?
Mr. Dobrovir: Well, the way I read the Act, it's available for sale by the agency.
Unidentified Justice: Yes.
Well, then these others... that's no answer to all these other examples then--
Mr. Dobrovir: That's... that's right.
Unidentified Justice: --because these opinions are available for sale just as the Fed. Supplement is available for sale.
Mr. Dobrovir: These opinions are available for sale in another format and in a way that does not relate them to the business of the Justice Department in any particular manner.
Unidentified Justice: You mean... you mean the agency couldn't hire... couldn't... couldn't automatically, the way courts do, say we're going to have an official reporter of our opinions and let that person as a private matter commercially publish them and offer them for sale?
Mr. Dobrovir: I would... I would say... as I said--
Unidentified Justice: Gee, I thought that's precisely what that exemption was meant for?
Mr. Dobrovir: --As I said before, I think that's what... that would comply and OMB has... has suggested that.
I think that would comply because they're acting as--
Unidentified Justice: So, why doesn't that cover F. Supp.--
Mr. Dobrovir: --Because they're acting as the... as the... as the agency's agent.
The agency designates, as I said, a chosen instrument.
It says you're going to do this for us, and the publisher says, okay, I'll do this for you.
Unidentified Justice: --So, that would cover F. Supp. I would presume.
Mr. Dobrovir: No.
F. Supp.... F. Supp. isn't getting the decisions from the Department of Justice at all.
It gets them I gather from the... from the judges, and it acts as nobody's agent.
It is a publisher acting on its own behalf selling... selling... selling books to the public at large.
And as I said, there might well be copyright problems in terms of exemption three.
Unidentified Justice: But other than copyright, if I buy your case, you're telling me I have to... I have to buy Freedom of Information requests for F. Supp. and I suppose a compendia of tax opinions, indeed, your own publication.
We... we could... the Justice Department would presumably have to respond to FOIA requests for your own publication.
Mr. Dobrovir: I don't think so because our publication isn't anything that within its four corners is a document that reflects the operations and functions of the agency.
Unidentified Justice: It has all these opinions that... that govern the... the operation of the agency.
Mr. Dobrovir: And a lot of other... and a lot of other material as well.
Unidentified Justice: But I... I thought that's the whole reason why you wanted it.
The only reason you want this is because it shows the operations of the Department.
Now, you can't say that once it's published, it doesn't reflect the operation of the Department.
Mr. Dobrovir: Well, of course, it does.
Unidentified Justice: That just eats up your case.
Mr. Dobrovir: Of course, it does.
And as I said, there's no bright line test here.
Right now, of course, I would... I would... I would... I would retreat to the... to the... to the lawyer's last refuge which is that isn't this case.
This case we're dealing with documents that are, in fact, incorporated in the Department of Justice's files, and I think that would be another... another distinction between the books on the library shelves and the documents we're dealing with here.
The books on the library shelves are not incorporated in the Department of Justice's files.
They are not punched and stamped and placed in a DJ file and passed around the Department for... for use in the particular... in the particular situation in which they are... in which the Department of Justice is using them.
Unidentified Justice: Once... once again, all of those are on file in the Library of Congress, are they not?
Mr. Dobrovir: Not to my knowledge, Justice Marshall.
Unidentified Justice: You don't know whether or not.
Mr. Dobrovir: I do not believe that the Department... that the Library of Congress obtains from anywhere the initial edition of the issuance of the... the copy of the opinion as issued by the Court.
Unidentified Justice: They have Fed. Supp.--
Mr. Dobrovir: It gets Fed. Supp. like everyone else.
Unidentified Justice: --Well, why... why do you say they don't have anything else?
Mr. Dobrovir: Well, they have Fed. Supp., and presumably they'll have CCH--
Unidentified Justice: Your answer is you just don't know.
Mr. Dobrovir: --and Prentice Hall, but they won't get the opinions in the format in which we are asking for them.
Unidentified Justice: You just don't know.
That's your answer.
Mr. Dobrovir: That's right.
I don't know.
Unidentified Justice: Oh, I suppose the lawyers in the Department of Justice... the tax lawyers... are using Prentice-Hall all the time, aren't they?
Mr. Dobrovir: I'm sure they are.
Unidentified Justice: It's much easier to use Prentice-Hall than to... than to go look around a lot of files.
Mr. Dobrovir: Not--
Unidentified Justice: Now, I suppose Prentice-Hall would be subject to--
Mr. Dobrovir: --They're not using Prentice-Hall in the same way that they're using the decisions when they get them and before they appear in Prentice-Hall some two or three months down the road.
Unidentified Justice: --Well, I don't know.
His tax lawyer... his tax lawyer is trying to figure out what he should do.
So, he looks at Prentice-Hall and reads a lot of cases.
Mr. Dobrovir: He also looks at the decision that his friend, Mr. Barrister, down the hall just handed him a copy of saying--
Unidentified Justice: That may be.
Mr. Dobrovir: --look what the district court is doing here.
Unidentified Justice: That may be.
That may be.
Mr. Dobrovir: That's the decision we want--
Unidentified Justice: Well, I know, I know.
Mr. Dobrovir: --not the Prentice-Hall decision.
Unidentified Justice: I know, but what if you did?
Mr. Dobrovir: What if we did want Prentice-Hall?
Unidentified Justice: I would suppose that the Department would have to give it to you under your definition.
Mr. Dobrovir: Well, there... there is sort of a practical reason why.
I mean, the law... the law doesn't deal with trifles, but it also should not deal with absurdities.
I think it's unlikely in the extreme that any--
Unidentified Justice: You mean it's like the Federal Supplement.
It's unlikely you'd ever want to get it.
Mr. Dobrovir: --It's unlikely that anyone would go to the Justice Department under the Freedom of Information Act to try to get a copy of something out of the Federal Supplement, wait 10 days and pay 10 cents a page.
Unidentified Justice: But if you did... but if you did, you'd be entitled to it, I take it, under your--
Mr. Dobrovir: I'm not saying we would, and I'm not saying we wouldn't.
It would depend on a lot of facts that... that aren't involved in this case here.
Unidentified Justice: --I wish you would say you would or wouldn't because I... I find it very difficult to adopt a principle that's going to allow people to request F. Supp.--
Why can't you say that whether it's an agency... whether a general... whether a reference work is an agency record or not can hinge upon whether the agency is the only one that has that reference work?
Mr. Dobrovir: I think that--
Unidentified Justice: If it's Black's Law Dictionary, it's not an agency record.
There's nothing distinctively agency about it.
But if it's a reference work compiled by the agency, that only the agency has and nobody else does, it is.
Mr. Dobrovir: --I would agree with that.
I would agree with that.
Unidentified Justice: Well, what would be the basis in the statute for accepting that distinction?
Mr. Dobrovir: There isn't any basis in the statute because the statute doesn't define agency record.
This Court has to define agency record.
And I think it can define it in the way that Justice Scalia... Justice Scalia mentioned.
Let me quickly talk about the GTE v. Sylvania case and improperly withheld.
Our position is that except with... with the very narrow exception of documents that the agency cannot produce either because there is a court order or, for example, because it has been destroyed, improperly withheld means any withholding that is not countenanced by one of the nine exemptions.
GTE Sylvania talks about the fact that the agency has no discretion... had no discretion in the matter.
It was not the agency's decision to withhold.
In effect, the... the... the question of withholding or not had been taken out of the agency's hands entirely by the federal district court in Delaware.
That is, therefore... and as this Court said, the concerns... the concerns Congress had in passing the Freedom of Information Act, to wit, to... to curb unbridled agency discretion, were not present in GTE Sylvania because the agency had no discretion to exercise at all.
A similar case would be if, unfortunately, documents that were agency records happened to have been burned up in a fire.
There is no discretion.
The agency can't withhold or not withhold.
It's physically impossible.
Unidentified Justice: Isn't it... isn't it true that when the... the Justice Department gets all these opinions, they don't keep those opinions in one file.
They pass them out to their own.
The only thing... record that's really made is what they give you.
They give you a list of them all.
Mr. Dobrovir: --They--
Unidentified Justice: That's the only agency record that--
Mr. Dobrovir: --Well, we say, of course, that the decision itself is an agency record because of the way it is received and the way it is used.
Unidentified Justice: --No, but it isn't made there.
Mr. Dobrovir: No, but as Forsham... Forsham and Kissinger indicate be... simply being created by the agency is not the only test.
My time has expired.
Unidentified Justice: Thank you, Mr. Dobrovir.
Mr. Wallace, do you have rebuttal?
REBUTTAL ARGUMENT OF LAWRENCE G. WALLACE
Mr. Wallace: Yes.
Thank you, Mr. Chief Justice.
We have to be concerned here not merely with publishers' requests, but with requests of law firms, academic researchers.
Some of the law firms may be Tax Analysts subscribers.
And, of course, if we receive Tax Analysts publication, the lawyers in the Department use the analysis that Tax Analysts has furnished.
I think that this Court's decision 33 days ago in describing the purposes of FOIA and the limitations on those purposes goes far toward providing the answer in this case, the decision in the Reporters Committee case involving rap sheets.
The basic policy of FOIA, the Court said, was focused on the citizen's right to be informed about what the agency is doing, what the government is up to, not to receive information that may be accumulated in the agency's files or other resources that reflects what somebody else has done, in that case information about a private citizen.
And quite tellingly, the Court quoted with approval, among various commentators about the act a... a comment in the Harvard Civil Rights and Civil Liberties Law Review after saying that the Act was designed to expose official conduct to public scrutiny, and the two sentences quoted, with apparent approval by the Court from this comment, was that no statement was made in Congress that the Act was designed for a broader purpose, such as making the government's collection of data available to anyone who has any socially useful purpose for it.
For example, it was never suggested that the FOIA would be a boon to academic researchers by eliminating their need to assemble on their own data which the government has already collected.
Unidentified Justice: Is it your position that responding to the request would not shed any light on the conduct of the government agency?
Mr. Wallace: It... it does in the sense that any decision of the courts reflects whether the position of the litigants are adopted or rejected, just as if the court's decision said we believe we have to reject the government's position on the authority of our precedent in Perkins v. Parker.
Perkins v. Parker would shed light on what the government did in this case and why did it litigate this case in the face of Perkins v. Parker.
But it's... it's basically a court document reflecting what the court has done in the case, and it's being requested for that--
Unidentified Justice: It's also... if you added them all up, it would show how many cases the government won and how many they lose, how good the lawyers they've got.
Mr. Wallace: --That is correct.
There are research purposes for which it can be used, but it is not being requested for any purposes peculiar to the government's use of it.
Unidentified Justice: That's irrelevant, Mr. Wallace.
We've never held... no court has ever held, as far as I know, that the purpose of the... in fact, that's what we made clear in Julian, as a matter of fact, once again.
Mr. Wallace: But there's no... there's nothing in the way the government--
Unidentified Justice: And--
Mr. Wallace: --is compiling or keeping them that sheds any light on government business.
Unidentified Justice: --That... that quote that you read that says there's nothing in the history of the Act that indicates that one of its purposes was to be a boon to academic researchers, that may well not have been one of its explicit purposes, but you don't deny that that has been one of its major effects.
Mr. Wallace: Where properly applied.
Unidentified Justice: Where properly applied.
Mr. Wallace: Where properly applied, but it's not to get information that the government has assembled that doesn't show what the government is doing.
Chief Justice William H. Rehnquist: Thank you, Mr. Wallace.
The case is submitted.