# United States Department of Justice v. Tax Analysts

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## Dissenting Opinion

    Blackmun
United States Supreme Court
492 U.S. 136
United States Department of Justice v. Tax Analysts
No. 88-782 Argued: April 24, 1989. --- Decided: June 23, 1989
Syllabus
The Tax Division of the Department of Justice (Department) represents the Federal Government in nearly all civil tax cases in the district courts, the courts of appeals, and the Claims Court, and receives copies of all opinions and orders issued by those courts in such cases. Respondent publishes a weekly magazine containing summaries of recent federal court tax decisions, supplemented by full texts of those decisions in microfiche form. Respondent also publishes a daily electronic data base that includes summaries and full texts of recent federal-court tax decisions. After the Department denied its request under the Freedom of Information Act (FOIA) to make available all district court tax opinions and final orders received by the Tax Division in a certain period, respondent appealed administratively. While the appeal was pending, respondent agreed to withdraw its request in return for access to the Tax Division's weekly log of federal-court tax cases. Eventually, however, respondent became frustrated with the process of obtaining copies of decisions from district court clerks and initiated a series of new FOIA requests for copies of all district court opinions and final orders identified in the Tax Division's weekly logs. The Department denied these requests and, on administrative appeal, sustained the denial. Respondent then filed suit in District Court seeking to compel the Department to provide it with access to district court decisions received by the Tax Division. The District Court granted the Department's motion to dismiss the complaint, holding that 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction in district courts when "agency records" have been "improperly withheld," had not been satisfied. The court reasoned that the decisions sought had not been "improperly withheld" because they were already available from their primary source, the district courts. The Court of Appeals reversed, holding that the decisions were "improperly withheld" and were "agency records" for purposes of the FOIA.
Held: The FOIA requires the Department to make available copies of district court decisions it receives in the course of litigating tax cases. Pp. 142-155.
(a) The requested district court decisions are "agency records." The Department obtained those documents from the district courts and was in control of the documents when the requests were made. Pp. 143-148.
(b) When the Department refused to comply with respondent's requests, it "withheld" the district court decisions for purposes of § 552(a)(4)(B), notwithstanding that the decisions were publicly available from the original source as soon as they were issued. Pp. 148-150.
(c) The district court decisions were "improperly" withheld despite their public availability at the original source, since they did not fall within any of the enumerated exemptions to the FOIA's disclosure requirements. While under § 552(a)(3) an agency need not make available materials that have already been disclosed under §§ 552(a)(1) and (a)(2), these latter subsections are limited to situations in which the requested materials have been previously published or made available by the agency itself. That disclosure of district court decisions may be partially governed by other statutes, in particular 28 U.S.C. § 1914, and by rules of the Judicial Conference of the United States, does not entitle the Department to claim that the requested district court decisions were not "improperly" withheld, since Congress has enacted no provision authorizing an agency to refuse to disclose materials whose disclosure is mandated by another statute. Moreover, the decision in GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 100 S.Ct. 1194, 63 L.Ed.2d 467, that agency records enjoined from disclosure by a district court were not "improperly" withheld even tho gh they did not fall within any of the enumerated exemptions, was not meant to be an invitation to courts in every case to engage in balancing, based on public availability and other factors, to determine whether there has been an unjustified denial of information. The FOIA invests courts with neither the authority nor the tools to make such determinations. Pp. 150-155.
269 U.S.App.D.C. 315, 845 F.2d 1060, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. WHITE, J., concurred in the judgment. BLACKMUN, J., filed a dissenting opinion, post, p. 156.
Lawrence G. Wallace, Washington, D.C., for petitioner.
William A. Dobrovir, Washington, D.C., for respondent.
Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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