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10 FOIA Update 1 (1989)

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U.S. Department of Justice
Office of Legal Policy
Office of Information and PrivacY

Vol. X, No. 1
  Winter 1989


Supreme Court to Decide Tax Analysts

     In a development that could affect Freedom of
Information Act operations at many federal agen-
cies, the United States Supreme Court on January 9
agreed to decide the unprecedented fMIA issues
presented in the Tax Analysts case.
     The case of Tax Analysts, Inc. v. United
States Department of Justice, 845 F.2d 1060 (D.C.
Cir. 1988), reh'g en banc denied, No. 86-5625
(D.C. Cir. July 15, 1988), cert. granted, 109 S.
Ct. 781 (1989), raises the novel question of whe-
ther the MOIA applies to court decisions (some-
times called unpublished or slip opin        t
are obtained by federal agencies. Such   =c   ts
are maintained by nmerous agencies throughout the

Supreme Court Update

federal governmient, especially agenci4 [ftWi11,
engaged in litigation-related activities.
             Controversial FOIA Use
     The controversy in this case arose in 1984
when Tax Analysts, Inc. - - the publisher of a com-
mercial newsletter devoted to legal and regulatory
developments in the field of federal taxation
- - decided to try to use the MDIA as its primary
means of gaining access to the decisions issued by
federal district courts in tax cases around the
     All such judicial opinions can be obtained
 through the clerks' offices at the federal courts,
 which have a legal obligation to make them avail-
 able to the public. Rather than just collecting
 court decisions from the courts directly (as such
 newsletter publications regularly have done), Tax
 Analysts began making periodic FOIA requests for
 access to them at the Tax Division of the Depart-
 ment of Justice, which holds nationwide responsi-
 bility for litigating tax cases on behalf of the
 federal government.
     The Tax Division, which through its litigat-
 ing attorneys receives copies of literally dozens
 of such judicial decisions every week, pointed out
 to Tax Analysts that such court opinions were re-
 ceived and maintained by it on a decentralized
 basis and that the administrative burdens it would

incur if required to satisfy the newsletter's
needs through the MOIA would be enormous. It de-
nied the DIA requests on multiple jurisdictional
     After Tax Analysts filed suit, the Tax Divi-
sion defended its denial of these extraordinary
MOIA requests in court.    At the initial court
level, District Court Judge Stanley S. Harris
ruled in the Tax Division's favor, holding that
MOIA jurisdiction was lacking because, under the
circumstances, the publicly available court docu-
          sue were not improperly withheld.
            , Inc. v. United States Department of
Justice, 643 F. Supp. 740, 745 (D.D.C. 1986).
   npi8 Unprecedented D.C. Circuit Ruling
     On appeal, however, the D.C. Circuit Court of
               d the district court's decision and
     In     alysts' favor. It rejected both of
the jurisdictional arguments made by the Tax Divi-
sion -- that the documents sought were not im-
properly withheld under the FOIA and that they
were not agency records under the Act in the
first place.
     In a decision written by Chief Circuit Court
Judge Patricia M. Wald, the D.C. Circuit refused
to treat as dispositive under the FOIA the fact
that the requested court documents originated out-
side of federal agencies and were fully available
to the public at the courts where they originated.
[I]t would be a novel interpretation of the
FOIA's prohibition on 'withholding,' Judge Wald
declared, [to] permit[] an agency to direct a
[requester] elsewhere   for  the  information he
sought from that agency's files.    845 F.2d at
1066. Judge Wald similarly disposed of the agen-
cy record issue, holding that the Tax Division's
maintenance and use of the documents rendered
them agency records subject to the FOIA.   (See
FOIA Update, Spring 1988, at 7.)
                             Cont'd on next page

     The four center pages of this issue of FOIA
 Updat contain an updated list of the principal
 FOIA legal and administrative contacts at federal

Digitized from Best Copy Available


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