UNITED STATES DEPARTMENT OF JUSTICE, PETITIONER V. TAX ANALYSTS No. 88-782 In the Supreme Court of the United States October Term, 1988 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Brief for the Petitioner In our opening brief, we endeavored to show three things: (1) that the purely judicial documents that respondent has requested from an Executive Branch agency do not constitute "agency records" as that term is used in subsection (a)(4)(B) of the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(4)(B); (2) that the Department of Justice, which provides respondent with weekly logs of the opinions of the district courts in tax cases, has not "improperly withheld" anything within the meaning of subsection (a)(4)(B), given that respondent should be able to obtain the opinions from the district courts themselves; and (3) that the terms of FOIA should not be construed so as to make that statute redundant with the much more specific statute, 28 U.S.C. 1914, that governs public access to judicial records. Underlying all three of our arguments is the undisputed and indisputable proposition that the courts have an obligation, independent of any statute governing the Executive Branch, to make their opinions available to the public. See Pet. Br. 14-15, 29-31. /1/ Respondent shows little interest in any of our arguments. As to "agency records," respondent disdains response to our legal arguments and citations and instead offers a litany of facts that respondent thinks suffice to meet "the tests this Court developed in Forsham and Kissinger." Resp. Br. 12; see Forsham v. Harris, 445 U.S. 169 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980). But the Court did not develop any "tests" in those cases. Nor does respondent identify the "tests" it thinks the Court developed in those cases. Nor does respondent defend the "test" that the court of appeals erroneously ascribed (Pet. App. 17a-18a) to Lindsey v. Bureau of Prisons, 736 F.2d 1462 (11th Cir.), vacated, 469 U.S. 1082 (1984). Nor does respondent offer any "test" of its own. Nor does respondent offer (or even acknowledge the need for) any limiting principle to keep "agency records" from becoming a more expansive term than Congress (which did not define the term) can possibly have intended. As to "improperly withheld," respondent merely argues that any withholding not explicitly authorized by a FOIA exemption is improper. But that argument finds no support in the statutory language and it finds no support -- because the phrase "improperly withheld" was not at issue -- in any of the cases that respondent cites. Most important, it is flatly contrary to the one case in which this Court has construed "improperly withheld," in which the Court unquestionably upheld as not "improper" a withholding that did not purport to be justified by any statutory exemption. GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375 (1980). Respondent makes no effort to deal with the Court's reasoning in GTE Sylvania, and instead argues (Resp. Br. 23-24) essentially that the case should be confined to its facts. As to the undesirable redundancy between respondent's position on the one hand and 28 U.S.C. 1914 and the courts' obligation to make their records available on the other, respondent simply blinks: throughout its brief respondent not only ignores this fundamental feature of the case but also asserts that only respondent's implausible construction of FOIA will allow the public to know what the courts are doing and put the public on an "even playing field" (Resp. Br. 9) with the government. But the unprecedented result that respondent seeks in this case is hardly the only, or the most natural, solution to that problem, if it is a problem. If there is any problem with the availability of judicial opinions, respondent should be seeking better performance by the courts of their public functions, not attempting to "shift the task of processing requests for copies of decisions from * * * district court clerks to the Department of Justice." Br. in Opp. 1. Respondent's admitted purpose in this case is to reallocate the burdens and resources of government as between the Judicial and Executive Branches, but that is not what FOIA is about at all. The courts are excluded from FOIA, 5 U.S.C. 551(1)(B), 552(f) (1982 & Supp. V 1987), and the purpose of FOIA "is not fostered by disclosure of information * * * that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." United States Department of Justice v. Reporters Committee for Freedom of the Press, No. 87-1379 (Mar. 22, 1989), slip op. 23 (emphasis added). /2/ 1. In our opening brief, we explained at some length (Pet. Br. 11-12) why we believe the Ninth Circuit was right in two cases /3/ to hold, with respect to court-generated documents, that those documents prepared substantially to be relied on in agency decisionmaking (such as presentence reports) should be deemed "agency records" whereas documents not prepared for such purposes should not. Rather than offer any substantive response to our argument (see Resp. Br. 13 n.10), respondent merely assumes, relying on presentence report cases and cases not involving court records, that the only relevant questions are whether the agency possesses a document and whether the agency relies on the document in any way (id. at 11-15). /4/ In so doing, respondent ignores the Court's express statements in Forsham v. Harris, supra, that the considerations the Court found helpful inthe particular context of that case "are not dispositive" (445 U.S. at 183-184) and that physical possession is not always sufficient to make a document an "agency record" (id. at 185 n.16). In essence, respondent misreads the decisions of this Court in the same way that the court of appeals misread the Eleventh Circuit's decision in Lindsey v. Bureau of Prisons, supra. See Pet. Br. 13 n.3. Respondent equates those conditions that are necessary to make a document an agency record, and whose absence was accordingly dispositive in Forsham and in Kissinger v. Reporters Committee, supra, with conditions sufficient to make a document an agency record. But this Court in Forsham and Kissinger did not purport to set out any "tests" cataloguing all factors that should be deemed sufficient, in cases not then before the Court, to make a document an agency record. What is most striking about respondent's position before this Court is that it acknowledges no limiting principle that would relieve the government of the obligation to produce any and all reference materials -- save those that no one ever consults for any reason -- contained in an agency's library or in any other kind of file that is maintained solely for reference purposes. The logic of respondent's position would argue that every library book whose check-out card shows that any one person in the agency had ever borrowed it, presumably for agency business, is an "agency record," for information found therein could "move" the government to act in some way (see Resp. Br. 13-14). That position pushes the undefined term "agency record" well past the point of absurdity. Although respondent attempts to portray its FOIA request as one that will "open agency action to the light of public scrutiny" (Resp. Br. 14 (quotation marks omitted)), that effort is quite strained. Respondent (and anyone else making an undifferentiated request for all district court opinions and orders in tax cases) is not trying to learn about the agencies' activities in "prepar(ing) and fil(ing) a bill of costs" or collecting judgments or "comput(ing) any refund due" or even deciding whether to appeal (Resp. Br. 5). The purpose of respondent's request is to learn the contents of district court decisions, not what the agency is doing with them. That is an entirely reasonable thing for respondent to want to do, but it is not reasonable for respondent to assert that the fact that the Department of Justice takes a number of routine steps when it receives court decisions suffices to transform those decisions from court records into "agency records." There is no reason to construe that statutory term so as to empower respondent to make the Executive Branch collect and reproduce for it what respondent should obtain from the courts themselves. 2. According to respondent, the government has "improperly withheld" agency records within the meaning of 5 U.S.C. 552(a)(4)(B) whenever it is established that the government has possession of the records, has not produced the records in response to a FOIA request, and cannot point to any express statutory exemption. Respondent refuses to admit that the phrase "improperly withheld" can ever have substantive content. Respondent instead contends that 5 U.S.C. 552(d) (Supp. V 1987), the legislative history of FOIA, and this Court's cases all make it "clear" that the phrase was intended to have no real meaning. Resp. Br. 15-24. Yet respondent relies entirely on the language, legislative history, and judicial interpretations of FOIA provisions other than Section 552(a)(4)(B). In so doing, respondent errs. Respondent's reliance on what it perceives to be the clear language of Section 552(d) is misplaced. According to respondent, "Section 552(d) expressly declares (that) agencies must disclose all their records unless a specific record is exempt under one of FOIA's nine exemptions." Resp. Br. 17. Section 552(d), however, "expressly declares" nothing of the kind. What that subsection actually says is that "(t)his section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." 5 U.S.C. 552(d) (Supp. V 1987) (emphasis added). What respondent takes it to mean is that "(t)his section forbids withholding of information and commands the availability of records to the public (through FOIA-covered agencies), except as specifically stated in this section." There is a world of difference between what the statute says and what respondent takes it to mean. "Does not authorize" is not the same thing as "forbids." Statutes, especially those that seem to deal comprehensively with an area, sometimes are interpreted to permit, affirmatively, whatever they do not forbid, or to forbid whatever they do not authorize. See, e.g., United States v. Fausto, 108 S. Ct. 668 (1988); Brown v. GSA, 425 U.S. 820 (1976). In particular, the original Section 3 of the Administrative Procedure Act, 5 U.S.C. 1002 (1964), was phrased exclusively as an affirmative command to make "matters of official record" available (5 U.S.C. 1002(c) (1964)), yet it "came to be looked upon more as a withholding statute than a disclosure statute." EPA v. Mink, 410 U.S. 73, 79 (1973); see also S. Rep. No. 813, 89th Cong., 1st Sess. 5 (1965) (old Section 3 "is cited as statutory authority for the withholding of virtually any piece of information that an official or an agency does not wish to disclose"). Section 552(d) merely disables courts and agencies from relying on any such interpretive principle in construing FOIA. Congress chose words that expressly preclude that result. Had Congress intended to achieve the quite different result that respondent attributes to it, Congress presumably would have chosen words better suited to that purpose, and would not have used "does not authorize" as a roundabout way to express the concept of prohibition. The words that Congress did choose, however, are "does not authorize." Those words, we submit, have their ordinary meaning. In any event, respondent's interpretation of Section 552(d) is flatly inconsistent with GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375 (1980). If Section 552(d) meant, as respondent contends, that every withholding must be deemed "improper" unless expressly sanctioned by a FOIA exemption, then the Court in GTE Sylvania could not have deemed the withholding there to be anything other than an "improper withholding" under FOIA. Yet the Court expressly held that there had been no "improper withholding." Respondent states without elaboration that "GTE establishes the only lawful excuse for withholding outside the statute" (Resp. Br. 16 n.11), but that simply cannot be so. Either respondent is right in its construction of Section 552(d) -- and there accordingly cannot be any exception to the rule that all withholdings not authorized by an exemption are "improper" -- or there is a category of withholdings that, despite being unauthorized by any exemption, nevertheless are proper. If the latter is the case (as it must be, unless the Court is prepared to overrule GTE Sylvania), then there is simply no basis for insistence that the category consists in its entirety of cases identical to GTE Sylvania. That is so because, as we noted in our opening brief (at 23-24), the Court's reasoning in GTE Sylvania was based on principles extending well beyond the facts of that case. We explained in our opening brief (at 24-28) that the principles underlying GTE Sylvania lead to the conclusion that there has been no improper withholding in this case (as the district court held). Respondent has completely failed to answer that argument, instead insisting that neither the government nor this Court is entitled to take those principles into account. Respondent cannot make its case by relying on the legislative history of, and cases interpreting, FOIA provisions other than Section 552(a)(4)(B). None of the legislative history that respondent cites suggests that GTE Sylvania was wrong to construe "improperly withheld" as a statutory phrase with substantive content, and none of the cases on which respondent relies overrules GTE Sylvania. Rather, the legislative history and case law that respondent cites are concerned almost exclusively with the exemptions contained in subsection (b) of FOIA, 5 U.S.C. 552(b). Completely different values, policies, and statutory texts are at stake in construing subsection (b) than are at issue here. Specifically, this case is about identifying the proper channel -- whether it is through the courts or through the Executive Branch -- for public dissemination of judicial opinions, whereas subsection (b) (exemption) cases are about the more fundamental issue whether particular governmental information should or should not be publicly available. As this Court observed in EPA v. Mink, 410 U.S. 73, 80 (1973): Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As that passage suggests, subsection (b) is about confidentiality, and this Court's and Congress's comments about how to construe subsection (b) are applicable only when the disputed issue is confidentiality. Here, confidentiality is not what is at issue at all (nor, for that matter, is "access to official information long shielded unnecessarily from public view" at issue). What is at issue is how respondent should go about obtaining documents that no one suggests are in any way confidential. The "improper withholding" dispute arises in that context, and comments about the general operation of FOIA in functionally dissimilar contexts are of no aid. Finally, respondent is grasping at straws in urging this Court to conclude, from the inaction of Congress between 1981 and 1986 on certain bills proposed by the Department of Justice, that "Congress intends * * * the FOIA to require agencies to produce to requesters court-issued documents like decisions." Resp. Br. 20. We disagree with respondent's chronology of the proposed legislation, /5/ but respondent's error in seeking to draw inferences from events of the 1980s concerning the meaning of a statute passed in 1966 is a much more fundamental one in any event. Respondent has ignored the axiom of statutory interpretation that "(t)he advocacy of legislation by an administrative agency -- and even the assertion of the need for it to accomplish a desired result -- is an unsure and unreliable, and not a highly desirable, guide to statutory construction. The possibility of its use to prove more than it means may, but should not, deter administrative agencies from seeking helpful clarification of authority or a fresh and specific congressional mandate." American Trucking Associations v. Atchison, T. & S.F. Ry., 387 U.S. 397, 418 (1967). The Court made the same point forcefully in Wong Yang Sung v. McGrath, 339 U.S. 33, 47-48 (1950): "We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency's contentions." See also Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145, 1153-1154 (1988); City of Milwaukee v. Illinois, 451 U.S. 304, 332 n.24 (1981); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 382 n.11 (1969); FTC v. Dean Foods Co., 384 U.S. 597, 608-612 (1966); United States v. Philadelphia National Bank, 374 U.S. 321, 348-349 (1963); United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 590 (1957). In several of these cases, the basis for inferring that "Congress intend(ed)" (Resp. Br. 20) to reject the result for which the government later contended in litigation was vastly stronger than the thin reeds on which respondent's argument rests here, but the Court drew no such inference. /6/ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974), on which respondent relies, is not at all contrary to the long line of cases cited above. The Court in Gulf was construing Section 2(a) of the Robinson-Patman Act, and the Court drew a negative inference about a particular interpretation from the rejection by the very Congress that passed Section 2(a) of language that would have supported that position. Here, respondent does not rely on any "rejection" by the same Congress that passed Section 552(a)(4)(B) of language that would have more clearly supported the government's position in this case. Rather, respondent relies on comments by a single committee of a single house of subsequent Congress supporting proposed but unenacted legislation bearing on the subject now at issue. See note 5, supra. That kind of reliance is the sort that the Court rejected in cases like Wong Yang Sung and Dean Foods and Philadelphia National Bank, not the sort that the Court accepted in Gulf Oil. For all of these reasons, respondent is wrong (as is the court of appeals) in insisting that "improperly withheld" cannot be construed to have substantive content in the context of a case such as this one. Once respondent's absolutist argument is rejected, it should be clear that there has been no "improper() withh(olding)" here. The district court so concluded, and we showed in our opening brief that the district court was correct. Neither respondent nor the court of appeals has offered any reason other than their threshold argument, and respondent's erroneous inference from legislative inaction, for reaching the opposite conclusion. 3. A basic error permeating respondent's brief is its total failure to acknowledge the responsibility of the courts to make their own documents available. Thus, respondent bases much of its case on the proposition that "(p)rompt public access to the documents after petitioner and IRS receive them is practicable only from petitioner and through the FOIA" (Resp. Br. 9), but that simply is not so. There is no reason why the courts cannot "practicabl(y)" make their decisions available to respondent in accordance with 28 U.S.C. 1914. If they are not doing so, the matter should be taken up with the Administrative Conference or otherwise with the courts. Separation-of-powers concerns as well as common sense indicate that allegedly inadequate performance by the courts of their public information function is no reason why those selfsame courts should construe undefined terms in an Act of Congress in such a way as to make the Executive Branch do the work. Respondent exaggerates considerably in suggesting that this case will determine whether there will be "an even playing field" as opposed to a system "where the government often learns about changes in the rules considerably before the taxpayer." Resp. Br. 9. The Federal Supplement publishes all opinions that district courts designate for publication, and there is no reason to believe that the district courts are "chang(ing) * * * the rules" and refraining from using that established channel to communicate such changes to the public, or that they are in any way withholding from the public the as-yet-unpublished versions of significant substantive opinions. Cf. Pet. App. 10a n.10 (observing that unpublished decisions are not precedent). The Tax Division of the Department of Justice certainly has never thought it necessary to create any centralized file of unpublished district court opinions and orders so that "changes in the rules" will be known within the agency. And, if there is in fact a problem along these lines -- if district courts are making significant new law in unpublished and unavailable decisions -- then the sensible solution is better judicial performance, not a construction of FOIA to achieve a result that has nothing to do with the purpose for which it was enacted. Respondent joins the court of appeals in claiming that "(t)his is not * * * a case in which a commercial publisher is seeking to shift its operating costs to federal taxpayers but rather one in which existing governmental machinery is being used to enhance the efficiency of a privately provided public service, ensuring prompt public access to federal court decisions," and that "(s)uch a result is not at odds with the goals of the FOIA." Pet. App. 12a n.13, quoted in Resp. Br. 7. That claim is quite wrong. There is no "existing government machinery" that can be used to provide respondent with the weekly access that it requests, and there is no way for the government to recover from respondent the full cost of creating such machinery. The goal of FOIA -- opening agency decisionmaking to public scrutiny -- may not be "at odds with" the result that the court of appeals reached, but neither is it furthered by that result. A statute should not be construed to require a result -- and to shift a commercial publisher's operating costs to the taxpayers -- just because that result is not antithetical to its purpose. Ultimately, this case involves nothing but respondent's dissatisfaction with the day-to-day operation of the established system for obtaining court records from the courts. Having found that system inconvenient, respondent seeks to bypass that system and obtain more convenient access to publicly available records through the Department of Justice. But Congress has passed only a Freedom of Information Act, not a Freedom from Inconvenience Act. The purpose of the Act is to open up to public scrutiny the operations of "agenc(ies)" as defined in 5 U.S.C. 552(f) (Supp. V 1987) and 5 U.S.C. 551, not the courts, whose operations in this country have never been thought to be shrouded in excessive secrecy. Here, as in this Court's recent Reporters Committee decision, "the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records" (slip op. 23); "the request seeks no 'official information' about a (FOIA-covered) Government agency, but merely records that the Government happens to be storing" (id. at 30). Absolutely nothing that Congress sought to promote through that Act is at stake here, and there is no reason why two statutory terms that Congress did not define -- "agency records" and "improperly withheld" -- need to be or ought to be given an expansive construction in order to achieve the result respondent seeks. For the foregoing reasons and the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General APRIL 1989 /1/ Our opening brief made these arguments of statutory interpretation and did not, as respondent contends, ask this Court to exercise its "general equitable discretion to decline to order disclosure of records that do not fall within one of the nine exemptions but which agencies think it inconvenient to produce." Resp. Br. 24-25. Our reference to equitable discretion in a single footnote of our opening brief (Pet. Br. 25 n.9) was meant to point out the D.C. Circuit's error of statutory interpretation in reasoning that "(t)he statute itself confers on the courts the power and responsibility to 'enjoin the agency from withholding' disclosable records, 5 U.S.C. Section 552(a)(4)(B), indicating that it is the agency's responsibility to make its records available, whatever their source." Pet. App. 11a. As the footnote in our opening brief observed, that statement contains both a false premise and a conclusion that, in any event, does not follow from the premise. The premise is false because FOIA does not give courts the "responsibility," in the sense of making an injunction mandatory, to enjoin all improper withholdings. Repeating the plain language of Section 552(a)(4)(B), this Court recently wrote: "If an agency improperly withholds any documents, the district court has jurisdiction to order their production." United States Department of Justice v. Reporters Committee for Freedom of the Press, No 87-1379 (Mar. 22, 1989), slip op. 5 (emphasis added). "The Court will have authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to order the production of agency records improperly withheld." H.R. Rep. No. 1497, 89th Cong., 2d Sess. 9 (1966) (emphasis added); see also Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 28 (1967). Despite respondent's contention that "(t)his Court has laid this ghost to rest, not once but many times" (Resp. Br. 25), in fact this Court has never had occasion to decide the issue, and it was not discussed in any of the cases that respondent cites. /2/ The Reporters Committee for Freedom of the Press has filed an amicus brief supporting respondent. The amicus brief adds little of substance to respondent's brief, and we confine our discussion of it to this footnote. Amicus seems to think this case is about public access to government compilations of material (Br. 21, 25-26, 29-37), but the case has nothing to do with that. Respondent seeks access to uncompiled district court opinions that are scattered throughout litigation files in the Tax Division of the Department of Justice. See C.A. App. 19-20. If the Department of Justice had chosen to compile all district court opinions in tax cases into one file, this might be a different case, but no such compilation exists. Respondent seeks to make the Department create for respondent's benefit a compilation that the agency has never thought it worthwhile to create for its own benefit. Amicus also construes our argument as one that would require members of the public to exercise "ingenuity" (Br. 21) in order to find publicly available materials, but amicus again has ignored the facts of this case: the Department of Justice has long supplied respondent with the information necessary to obtain district court opinions from the district courts themselves, and no "ingenuity" is required to do so. Amicus finally seems to fear that this Court will announce a general rule that agencies need never give out publicly available information (Br. 30-31), but no such rule is necessary to the disposition of this case. All the Court need do is agree with the D.C. Circuit's earlier position that "special policy considerations militate against a rule compelling disclosure of records originating in (the courts) merely because such documents happen to come into the possession of an agency" (McGehee v. CIA, 697 F.2d 1095, 1107, vacated in part on other grounds, 711 F.2d 1076 (D.C. Cir. 1983)) and hold that the Department of Justice need not give out court records that are publicly available from the courts. /3/ Berry v. Department of Justice, 733 F.2d 1343, 1349 (1984); Warth v. Department of Justice, 595 F.2d 521, 523 (1979). /4/ Respondent also seeks to equate this case with Crooker v. United States Parole Commission, 469 U.S. 926 (1984), but the cases are quite different from one another for the reasons given in our opening brief (at 16-17 n.4). /5/ Discussion of possible legislation to make clear that FOIA does not require agencies to copy and provide to the requester items that are on the public record did not, as respondent suggests (Resp. Br. 20), begin with a proposal from the Department of Justice after respondent began requesting such information in 1979. Rather, the topic was under discussion at least as early as 1978, when a Senate subcommittee proposed that, "(w)here public record items such as newspaper clippings and court records are incorporated in the file, the agency should not be required to xerox these for the requestor, but should, instead, simply be required to identify these items by date and source." Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess., The Erosion of Law Enforcement Intelligence and Its Impact on the Public Security 71 (Comm. Print 1978). In 1981, there were three (not two) bills proposed that, as a relatively minor part of extremely extensive and wideranging FOIA reform, essentially would have implemented that recommendation. S. 587, Section 8, reprinted in 1 Freedom of Information Act: Hearings on S. 587, S. 1235, S. 1247, S. 1730, and S. 1751 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 9-10 (1981) (hereinafter 1981 Hearings); S. 1730, Section 4(7), 1981 Hearings 38; S. 1751, Section 2(c)(7), 1981 Hearings 55. S. 1730 was not, as respondent asserts (Resp. Br. 18 & n.12), introduced at the request of the Department of Justice (nor was S. 587). Senator Hatch introduced S. 587 on February 26, 1981, and S. 1730 on October 7, 1981. Id. at 4, 30; see also id. at 627, 765, 807, 811, 813. The Department of Justice proposed its bill, which became S. 1751, on October 15, 1981. Id. at 637-704; see also id. at 167. In the 1147-page transcript of the 1981 hearings, virtually no attention was paid to the proposed "public records" amendment, and what "Congress" or anyone else (other than the Justice Department and Senator Hatch) thought of the proposal is impossible to discern. (Even the Reporters Committee for Freedom of the Press, which assailed the proposed legislation as an "attack to mutilate the FOI Act," id. at 777, offered no comment on the "public records" amendment.) But see id. at 883 (comments of American Civil Liberties Union and Freedom of Information Clearinghouse). The Senate Judiciary Committee unanimously favored an amended version of S. 1730, but the 97th Congress did not pass any FOIA reform legislation. See S. Rep. No. 690, 97th Cong., 2d Sess. (1982). In the 98th Congress, a bill similar to S. 1730 was passed by the Senate. S. 774, 98th Cong., 1st Sess., 130 Cong. Rec. 3492-3495 (1984). In support of S. 774 -- not in criticism of earlier proposals -- the Senate Judiciary Committee (not, as respondent claims (Resp. Br. 10), "the Congress") made the comments that respondent has quoted. See S. Rep. No. 221, 98th Cong., 1st Sess. 20 (1983), quoted in Resp. Br. 10, 19-20. The 98th Congress, however, did not enact S. 774 or any other general FOIA reform bill into law, any more than the 97th Congress enacted the proposals that were before it. See generally FOIA Reform Effort Stalls in House, Office of Information and Privacy, U.S. Dep't of Justice, FOIA Update, Fall 1984, at 1. In 1986, after a long legislative impasse, the 99th Congress did pass FOIA reform legislation that incorporates some (but by no means all) of the features proposed in earlier bills, but the legislation, hastily incorporated into a much larger bill, was not accompanied by any significant explanatory materials. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Subtit. N, Sections 1801-1804, 100 Stat. 3207-48 to 3207-50; see also FOIA Reform Legislation Enacted, FOIA Update, Fall 1986, at 1 (summarizing chronology of legislation); Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 1 (1987). Congress's thinking in the 1980s on the subject of FOIA-based access to publicly available materials is thus entirely unclear. For respondent to contend from this legislative history that "Congress dealt specifically with the question of disclosure of court records and made it clear that FOIA required agencies to disclose them" (Resp. Br. 18) is totally unwarranted. /6/ For example, in Dean Foods, two different chairmen of the Federal Trade Commission appeared before Congress to urge the need for legislation to allow the FTC to seek preliminary injunctions in court. Moreover, some courts had held that the FTC lacked that power, and some Congressmen commented that there was a need for statutory amendment. 384 U.S. at 608-609. This Court nevertheless held that the FTC had had such power all along under the All Writs Act. In Philadelphia National Bank, both the Department of Justice and Members of Congress had squarely taken the position that bank mergers were beyond the reach of Section 7 of the Clayton Act, and that understanding "may have played some part in the passage of the Bank Merger Act of 1960." 374 U.S. at 348-349. This Court, however, refused to infer from those facts that bank mergers were in fact beyond the reach of Section 7. In du Pont, the FTC before 1950 had expressly said that Section 7 did not apply to vertical acquisitions, and the FTC then sought and obtained legislation amending Section 7 to make clear that it applied to vertical acquisitions (see 353 U.S. at 590), yet this Court, construing the pre-1950 version of Section 7 (see id. at 588 n.4), held that it did apply to vertical acquisitions.