UNITED STATES DEPARTMENT OF JUSTICE, PETITIONER V. TAX ANALYSTS

   No. 88-782

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Reply Memorandum For The Petitioner

   There is no doubt that the public should have access to the
opinions of federal district courts, and this case is not about
whether the public will have such access.  Rather, it is an attempt by
respondent to "shift the task of processing requests for copies of
decisions from * * * district court clerks to the Department of
Justice" (Br. in Opp. 1).  As respondent takes some pains to
emphasize, it is the law, and not anyone's notion of convenience, that
should determine whether such a shift should take place.  Yet
respondent fails to meet our legal arguments, and it relies instead on
a distorted picture of the operations of the courts and the Department
of Justice.  It is respondent, not petitioner, that has "addressed to
the wrong Branch" (id. at 10) a plea for a massive shift of burdens
from the courts (and from respondent) to the Executive Branch.

   1. According to respondent, district court clerks are
"overburdened," and they should not have to produce their own records
because the "far better equipped (and budgeted)" Department of Justice
is available to perform that task (Br. in Opp. 1).  To substantiate
those claims, respondent repeats (without attempting to cite support,
in the record or otherwise) that the clerks' offices are too "swamped"
and "overburdened" to handle requests for their records, particularly
because of "Gramm-Rudman" (id. at 9 & n.5).  Respondent similarly
expresses empathy for the supposed inability of clerks' offices to
recover the expenses of providing opinions through "minimal per-copy
fees" (id. at 9 n.5) -- a situation that the Court is apparently
supposed to contrast with that of the Department of Justice, which
respondent must imagine is exempt from budgetary constraints and can
charge lucrative fees.

   Respondent has it backwards.  Clerks' offices exist for the very
purpose of receiving from and disseminating to the public the
materials used in conducting the business of the courts;  the
Department of Justice exists for other purposes.  Pursuant to Acts of
Congress, clerks' offices have been supplying copies of judicial
opinions, at appropriate fees designed to cover their direct and
indirect expenses, since th eighteenth century, whereas before this
case no one has ever suggested that the Department of Justice is the
appropriate source for the regular flow of judicial opinions.  The
"shift" of that task to the Department of Justice (and other Executive
Branch agencies) that respondent wants cannot be what Congress
intended.

   In 1799, Congress passed a statute to provide compensation for
clerks of the courts of the United States, including a general
provision for "reasonable compensation" for duties not otherwise
covered by local rules (Act of Feb. 28, 1799, ch. 19, Section 3, 1
Stat. 625).  Congress later provided by statute for a specific fee for
the clerk's service of providing copies of judicial records:  "for a
copy of any such entry or record, or of any paper on file, not
exceeding one folio, ten cents;  and for each additional folio, ten
cents" (Act of Feb. 26, 1853, ch. 80, Section 1, 10 Stat. 163).  In
1925, Congress increased that fee, permiting district court clerks to
charge "(f)or a copy of any record, entry, or other paper, and the
comparison thereof, 15 cents for each folio of one hundred words" (Act
of Feb. 11, 1925, ch. 204, Section 8(6), 43 Stat. 858).  Subsequently,
Congress determined to delegate to the Judicial Conference of the
United States the authority to prescribe fees for services such as
this (Act of Sept. 27, 1944, ch. 414, Section 5, 58 Stat. 744 (now
codified at 28 U.S.C. 1914(b))).  The Judicial Conference initially
prescribed a fee of 25 cents a page for "photographic reproduction of
any record or paper." The Judicial Conference increased that fee to 50
cents a page in 1959.  Starting in 1973, the Judicial Conference
experimented with charging only 25 cents a page for district court
opinions while retaining the 50-cent-a-page charge for other
documents, but that experiment was abandoned and the 50-cent charge
was reinstated in 1979.  The duplication fee charged by the district
courts remains 50 cents a page today.  /1/

   That the fees charged by district courts are intended to compensate
for the clerks' direct and indirect expenses of processing requests
such as respondent's is easily seen by comparing those fees with the
copying fees that the Department of Justice charges for filling
requests under the Freedom of Information Act (FOIA), 5 U.S.C. (&
Supp. IV) 552.  /2/ By statute (5 U.S.C. (Supp. IV) 552(a)(4)(A)(iv)),
the duplication fees that agencies can charge under FOIA are limited
to their "direct costs," and the Department of Justice by regulation
(28 C.F.R. 16.10(b)(2)) has set its duplication charge at ten cents
per page -- far less than what the courts charge.  Significantly,
Congress has provided in FOIA that "(n)othing in this subparagraph
shall supersede fees chargeable under a statute specifically providing
for setting the level of fees for particular types of records" (5
U.S.C. (Supp. IV) 552(a)(4)(A)(vi)).  Thus, although it is in
respondent's economic interest to make the Department of Justice into
a low-cost provider of the judicial opinions that respondent has
heretofore sought from the courts, Congress has shown no inclination
to make FOIA a taxpayer-subsidized source of records that respondent
can obtain elsewhere pursuant to a fee schedule set by federal law.

   We of course do not (and never did), as respondent suggests (Br. in
Opp. 10), ask this Court to determine the fees that respondent should
pay if it succeeds in its effort to "shift the task of processing
requests for copies of decisions from * * * district court clerks to
the Department of Justice" (id. at 1).  Rather, we merely suggest that
FOIA was never intended to accomplish that shift at any price.  The
contrast between the existing system by which the courts may recover
their costs for producing their records, and respondent's imaginative
attempt to force on the Executive Branch a system by which it will
produce the courts' records at low cost, highlights the incorrectness
of the decision below and the appropriateness of review by this Court.

   2. Respondent argues (Br. in Opp. 3) that, because the Department
of Justice possesses copies of the court orders and opinions, but has
not produced them in accordance with respondent's demands, it has
"improperly withheld" the documents.  As explained in our petition
(Pet. 8-14), however, that simplistic allegation does not address the
issue, much less resolve it.  The Department of Justice has not
prevented disclosure of any documents or information.  The issue here
is whether FOIA requires the Department of Justice to produce copies
of the records of federal courts (which are exempt from FOIA, see 5
U.S.C. 552(f), 551(1)(B)), when respondent could obtain the copies
from the courts themselves.

   Respondent also chooses to caricature rather than address our
position -- with which the district court agreed -- that the records
in this case were not "improperly withheld" within the meaning of 5
U.S.C. 552(a)(4)(B).  We did not "define 'improperly withheld' to
include only the withholding of records to hide wrongdoing" (Br. in
Opp. 3).  Rather, in keeping with GTE Sylvania, Inc. v. Consumers
Union of the United States, Inc., 445 U.S. 375 (1980), we focused
specifically on whether there was any "needless denials of
information" (id. at 385).  We showed that there was neither a denial
of information -- respondent is welcome to obtain the information it
seeks from its original source, the courts, with the help of
identifying information that we are happy to supply -- nor needless
behavior on the part of the Executive Branch -- the costs of
compliance with the decision of the court of appeals cannot by any
stretch of the imagination be compared with a refusal to give out
government telephone books or the names of postal employees (see Br.
in Opp. 4).  Respondent's bald assertion that "(p)etitioner's refusal
to grant easy public access to its files of court decisions is of the
same ilk" (ibid.) both ignores the facts -- the Department of Justice
has no "files of court decisions" that correspond to respondent's
request /3/ -- and draws a plainly inapt comparison.  /4/ The simple
fact, as even the court of appeals virtually conceded (Pet. App. 11a),
is that Executive Branch disclosure of judicial opinions is something
that Congress never intended to require by passing FOIA.

   3. Respondent seeks to divert attention from the "agency records"
issue raised in our petition by adverting to the now-uncontroversial
proposition that presentence reports are agency records (see United
States Dep't of Justice v. Julian, No. 86-1357 (May 16, 1988), slip
op. 5 & n.6) and then claiming that we have "dredge(d) up the
presentence report controversy laid to rest" by earlier litigation
(Br. in Opp. 6).  To the contrary, we fully accept the proposition
that presentence reports, which are prepared for use by prison and
parole authorities within the Executive Branch as well as by the
courts, are "agency records." But, like the Ninth Circuit in Warth v.
Department of Justice, 595 F.2d 521 (1979), and Berry v. Department of
Justice, 733 F.2d 1343 (1984), we urge a test that would treat
presentence reports as agency records without also sweeping within
that term court records that were not "prepared substantially to be
relied upon in agency decisionmaking" (Berry, 733 F.2d at 1349).

   The fact that the Ninth Circuit once applied that test in a case
that concerned presentence reports does not, as respondent suggests
(Br. in Opp. 7 n.3), make the test "moot" or rob it of any continuing
usefulness.  To the contrary, it shows that the test, which reaches
the correct result when applied to presentence reports, is a useful
and proper way to define the outer boundaries of "agency records"
without reaching absurd results like the one reached by the court of
appeals here.

   Respondent finds fault with us for supposedly asking this Court to
"disapprove Lindsey (v. United States Bureau of Prisons, 736 F.2d 1462
(11th Cir.), vacated, 469 U.S. 1082 (1984)) * * * (and) to follow
Warth" (Br. in Opp. 7).  Respondent's complaint is a curious one.  In
the first place, resolving differences between the courts of appeals
on important issues is a major part of this Court's role.  In the
second place, Lindsey reached an incorrect result with respect to
presentence reports (holding that they are not "agency records") and
was accordingly vacated by this Court.  Warth, as later interpreted by
Berry, has proved flexible enough to reach the correct result with
respect to presentence reports (i.e., that they are "agency records")
while also deeming documents such as trial transcripts (and, by
obvious extension, court opinions) not "agency records," a result that
we submit also is correct.  Lindsey's result has already been
disapproved, and its reasoning, whatever utility it might have in some
other context, is not a useful way to analyze FOIA requests for public
court documents.  Thus, it is entirely appropriate that this Court
should examine the difference between the Lindsey approach, which the
court below adopted, and the approach that the Ninth Circuit follows,
which would have led readily to a result opposite the one reached
below.  /5/

   4. Respondent misconstrues our argument concerning the
administrative burden imposed by the decision of the court of appeals.
 /6/ Contrary to respondent's assertion (Br. in Opp. 8), we do not
proffer the administrative burden and the cost of compliance as an
"excuse for withholding records otherwise covered by the FOIA," or to
voice disagreement with Congress's allocation of compliance costs.  We
maintain that the court opinions and orders sought by respondent are
not within the purview of FOIA at all.  Our description of the
administrative burden of complying with the court of appeals'
erroneous decision demonstrates why the case is important to the
government and deserving of this Court's review.

   Respondent also takes issue with our description of that
administrative burden.  Respondent suggests (Br. in Opp. 2), as did
the court of appeals (Pet. App. 12a), that the Department of Justice
could implement the court's decision by sending copies to its public
reference room.  The Department's public reference room is an
unstaffed room that is accessible to requesters by appointment with
the Department's Librarian.  A security clearance or escort generally
is required.  Furthermore, the public reference room was never
intended and has never been used as a repository for large numbers of
documents culled on a weekly basis from the Department's incoming mail
and litigation files.  Although the facility is suited for the
occasional use that is currently made of it, it is wholly inadequate
for the massive use respondent proposes.

   Ultimately, the case before the Court simply is not the one that
respondent addresses.  It is, instead, an inappropriate effort to
"shift the task of processing requests for copies of decisions from *
* * district court clerks to the Department of Justice" (Br. in Opp.
1).  The court of appeals was wrong to allow respondent to succeed in
that effort, and this Court's correction is necessary.

   For the foregoing reasons and those given in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /1/ Report of the Judicial Conference, September Session, 1945, at
24;  Report of the Proceedings of a Special Session of the Judicial
Conference of the United States, March 16, 17, 1959, at 294;  Report
of the Proceedings of the Judicial Conference of the United States,
September 13-14, 1973, at 45;  Report of the Proceedings of the
Judicial Conference of the United States, March 7-9, 1979, at 11;
Report of the Proceedings of the Judicial Conference of the United
States, March 17, 1987, at 13.

   /2/ According to respondent (Br. in Opp. 10), the Department of
Justice would be permitted to charge respondent only duplication fees,
and not search and review fees, in filling the request that the court
of appeals has ordered the Department to fill here.

   /3/ The opinions at issue here are contained in individual
litigation files, not in any compilation of opinions.

   /4/ In any event, FOIA does not mandate "easy" access to requesters
(see Mandell Grunfeld & Herrick v. United States Customs Service, 709
F.2d 41 (11th Cir. 1983)).

   /5/ Respondent describes Warth as "dubious authority even in the
Ninth Circuit" (Br. in Opp. 7).  There is no basis for that
description.  As we have observed (Pet. 16 n.10), the members of the
Berry panel suggested that they might have approached Warth
differently as an initial matter (733 F.2d at 1350 n.11), but they
deemed themselves bound by its reasoning (id. at 1349).

   /6/ Respondent also exaggerates its own burden in securing copies
of district court opinions (Br. in Opp. 2).  All that the court of
appeals meant by calling the opinions at issue "practically
unavailable" was that respondent has not obtained them with the effort
it is willing to expend (Pet. App. 2a n.2).  In any event, if clerks'
offices are not adequately doing their job in making opinions publicly
available, that is no reason to make the Department of Justice bear
the burden of doing what the courts should do but (according to
respondent) are not doing.