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 Brief for the Petitioner TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument The Freedom of Information Act cannot be used to compel the Tax Division of the Department of Justice to produce copies of all United States district court opinions and orders in tax cases A. Copies of district court opinions and orders in the hands of the Department of Justice are not "agency records" within the meaning of FOIA B. The Tax Division's refusal to produce copies of all United States district court opinions and orders was not an "improper withholding" under FOIA because the documents are made available to the public by the courts Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 845 F.2d 1060. The opinion of the district court (Pet. App. 20a-30a) is reported at 643 F.Supp. 740. JURISDICTION The judgment of the court of appeals (Pet. App. 31a-32a) was entered on April 29, 1988. A petition for rehearing was denied on July 15, 1988 (Pet. App. 33a-35a). On October 5, 1988, Chief Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including November 12, 1988. The petition was filed on November 9, 1988, and was granted on January 9, 1989. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Freedom of Information Act, 5 U.S.C. 552 (1982 & Supp. IV 1986), provides in pertinent part: (a) Each agency shall make available to the public information as follows: * * * * * (2) Each agency, in accordance with published rules, shall make available for public inspection and copying -- l0 (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale. * * *. (3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (4) * * * (B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. * * * * * * * * (d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. * * *. * * * * * (f) For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. 551 provides in pertinent part: For the purpose of this subchapter -- (1) "agency" means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -- (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; * * * * * QUESTION PRESENTED Whether the Tax Division of the Department of Justice, in denying Freedom of Information Act requests by the publisher of a weekly tax magazine for copies of all United States district court opinions and orders in tax cases, "improperly withheld" documents that constitute "agency records" within the meaning of the Act. STATEMENT 1. This Freedom of Information Act (FOIA) case arose out of a series of 26 weekly requests submitted to the Tax Division of the Department of Justice by respondent Tax Analysts, seeking copies of all United States district court orders and opinions in tax cases that the Tax Division had received during the previous week. The Tax Division denied the requests. Respondent then brought this action in the United States District Court for the District of Columbia to compel the Department of Justice to provide weekly access to United States district court decisions, opinions, and orders in tax cases as they are received by the Tax Division, and to enjoin permanently the continued withholding of such documents. Pet. App. 22a. The Tax Division is responsible for the prosecution and defense of all civil federal tax cases in the district courts and the Claims Court and in state courts. More than 20,000 civil tax cases are filed each fiscal year. /1/ Because it represents a party in litigation, the Tax Division receives copies of all opinions and orders rendered in the cases it handles or supervises. Pet. App. 4a. The opinions and orders it receives in those cases are not assembled or collected into a single file. Instead, as each opinion or order is received, it is logged in to the appropriate trial section it is then routed to the trial attorney primarily responsible for the case, and it is eventually sent to the litigation file for the case to which it relates. C.A. App. 19-20. Respondent publishes a weekly magazine reporting legislative, judicial, and regulatory developments in the field of federal taxation, for which it charges its subscribers an annual fee of $595. The magazine includes summaries of the most recent judicial opinions on tax issues. Respondent provides copies of documents it summarizes in return for costs. Respondent also compiles and sells subscriptions to a weekly microfiche database that supplies the full text of all judicial opinions that respondent summarizes, and respondent supplies full texts of all available court decisions in tax cases to major electronic databases on a daily basis. Pet. App. 20a-21a. Since 1979, the Tax Division, pursuant to FOIA, has provided respondent and other commercial tax services with weekly logs identifying the tax cases decided by the United States district courts, the United States courts of appeals, and the United States Claims Court. /2/ Beginning in November 1984, respondent submitted a series of 26 weekly request to the Tax Division, seeking access to all district court decisions, opinions, and final orders identified in the log that had been released to it the previous week. Those requests were denied, and the denial was sustained on administrative appeal. Respondent then filed this action under FOIA. Pet. App. 22a. Although it is undisputed that the opinions are available to the public from the district courts, respondent has contended that the documents are not as a practical matter publicly available because of the difficulties respondent has encountered in obtaining the documents. Pet. App. 25a. Respondent alleges that it must request the opinions either from the Department of Justice attorney assigned to the case or from the taxpayer's counsel. Alternatively, it must obtain the opinions through a request directed to a district court clerk, who, respondent claims, may not respond in a timely fashion or at all. Respondent must send advance payment for photocopying, and then must wait for the opinion to arrive by mail (id. at 21a). Respondent claims that it has been unable to obtain approximately 25 percent of such opinions and orders. As the court of appeals recognized, however, such opinions and orders are "practically unavailable" only in the sense that respondent is not "willing to expend" the resources necessary to secure them by means other than a FOIA request (id. at 2a n.2). 2. Following the denial of its FOIA requests and its administrative appeal from that denial, respondent filed this action, seeking to compel the Department of Justice to provide it with weekly access to all United States district court decisions, opinions, and orders in tax cases as they are received by the Tax Division, and to obtain a permanent injunction against the continued withholding of such documents. Pet. App. 22a. The district court granted the government's motion to dismiss the complaint, holding that 5 U.S.C. 552(a)(4)(B), which confers jurisdiction on the district court only when "agency records" have been "improperly withheld," does not apply here. The court ruled that, because the documents sought by respondent "already are available from their primary sources, the District Courts," and because the documents are "publicly available for inspection and copying almost immediately upon issuance," they cannot be deemed "improperly withheld." Pet. App. 25a. The court did not address the question whether the orders and opinions are "agency records." Id. at 23a. The court of appeals reversed. It first rejected the district court's determination that these public documents had not been "improperly withheld" under FOIA. The court recognized that judicial opinions and orders are available to the public through the courts (Pet. App. 2a), but it nevertheless held that FOIA requires that an agency make a requested document available, even when the document is available from other sources (id. at 11a, 14a). The court of appeals then held that, under considerations set forth in Lindsey v. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir.), vacated, 469 U.S. 1082 (1984), the district court opinions and orders must be considered "agency records" under FOIA. Id. at 17a-18a. Although the court said that it was "trouble(d)" (id. at 11a) by the administrative burdens that its decision would impose, and essentially acknowledged (ibid.) that FOIA was not intended to bring about the result reached here, the court "f(ou)nd in the words of the statute (no) exemption to cover such a situation" (id. at 12a). The court therefore held that the Tax Division could not refuse to provide respondent with copies of the court opinions and orders, and it remanded the case to the district court with instructions to enter an order requiring the Department of Justice "to provide some reasonable form of access to its copies of the district court opinions and orders." Id. at 3a. The court of appeals, with two dissenting votes, subsequently denied rehearing en banc (id. at 34a-35a). SUMMARY OF ARGUMENT The issue in this case is whether respondent can obtain copies of United States district court opinions and orders in tax cases from an Executive Branch agency, rather than from the courts, by requiring production of those court records under FOIA. Only if those documents are "agency records" that have been "improperly withheld" can respondent prevail. District court orders and opinions are not "agency records." The term "agency records" is not defined in FOIA, but the legislative history of the statute shows that Congress was concerned with the unjustified suppression of information by agency officials, and that the kinds of records intended to be made accessible to the public by FOIA were those dealing with the structure, operation, and decisionmaking procedures of agencies. The opinions and orders of federal district courts are not the kinds of "agency records" at which FOIA's disclosure provisions are directed. They do not reveal anything about the operations and decisions of an "agency." They are court documents, created by the courts to reflect their dispositions of claims in cases before them, and the courts are expressly excluded from FOIA's coverage. 5 U.S.C. 552(f), 551(1)(B) (1982 & Supp. IV 1986). The fact that copies of their opinions and orders are sent to the Department of Justice, and are then associated with the litigation files of the Tax Division, does not transform them into "agency records." The Tax Division's ability to use and disseminate its copies of the court opinions and orders is irrelevant to their status as "agency records" vel non. It is the courts that retain control over judicial opinions, including the power and duty to disseminate them to the public. Judicial opinions and orders are not prepared substantially to be relied on in agency decisionmaking; a court opinion is hardly "in effect a record which exists to serve the regulatory process." Forsham v. Harris, 445 U.S. 169, 190 (1980) (Brennan, J., dissenting). Those factors, and not the considerations derived from Lindsey v. Bureau of Prisons, supra, are decisive of the "agency records" issue in this case. Even if we assume, arguendo, that the court opinions and orders constitute agency records, they have not been "improperly withheld." The requested documents already are available to respondent, and to other members of the public, from the courts. Therefore, as the district court held, the Tax Division cannot be said to have "improperly withheld" them from respondent. The exemptions from disclosure enumerated in the statute do not describe the only withholdings that will be deemed not "improper()." See GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375 (1980). As this Court indicated in GTE Sylvania, Congress was concerned with agency efforts to hide mistakes and irregularities and with needless denials of information. Neither concern is implicated in a case in which the precise documents that respondent seeks can be obtained from their primary sources, the courts, with the help of identifying information supplied by the Department of Justice. There simply is no basis for the statement of the court below that "it is the agency's responsibility to make its records available, whatever their source" (Pet. App. 11a). Other, more general considerations support the proposition that Congress did not intend FOIA to be used to obtain publicly available court-issued materials that can be obtained from the courts. First, the disclosure provisions of FOIA itself are designed to avoid redundant disclosure of publicly available materials. See 5 U.S.C. 552(a)(2), (3). Second, the disclosure of opinions (and other court records) by the courts is itself undertaken on terms set by Congress and the Judicial Conference. Under this Court's precedents, general remedies (such as those contained in FOIA) are not construed to parallel, and to allow a claimant to bypass, procedures more specifically designed to deal with a particular situation (such as the disclosure of court records). To require the Tax Division to act as a clearinghouse for judicial documents at the behest of requesters such as respondent would extend the Act well beyond both its statutory language and the intent of Congress. ARGUMENT THE FREEDOM OF INFORMATION ACT CANNOT BE USED TO COMPEL THE TAX DIVISION OF THE DEPARTMENT OF JUSTICE TO PRODUCE COPIES OF ALL UNITED STATES DISTRICT COURT OPINIONS AND ORDERS IN TAX CASES FOIA gives the district courts jurisdiction "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. 552(a)(4)(B). This Court has held that jurisdiction under FOIA "is dependent upon a showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.'" Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980). Thus, "(j)udicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by Section 552, if the agency has contravened all three components of this obligation." Ibid. The Act does not define any of those terms, and their meaning has been left to judicial decisions interpreting the statute in particular cases. See Kissinger, 445 U.S. at 151; Forsham v. Harris, 445 U.S. 169, 178 (1980); GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375, 384 (1980). Here, the court of appeals, treating as irrelevant the public availability of the documents, construed "improper() withh(olding)" to mean virtually any refusal to produce documents that is not explicitly authorized by one of FOIA's enumerated exemptions. Pet. App. 6a-14a. Although FOIA explicitly does not apply to the courts, see 5 U.S.C. 552(f), 551(1)(B) (1982 & Supp. IV 1986), the court of appeals further held that opinions and orders of United States district courts are "agency records" under FOIA, and ruled that they must be produced on demand by an agency that has received copies of such opinions and orders. Pet. App. 14a-18a. The conclusion that the court of appeals reached in this case thus has the redundant effect of compelling the release to the public of documents that are already publicly available from their originators, the courts themselves. The decision serves no purpose of FOIA, but instead forces the Department of Justice into an involuntary partnership with respondent to further respondent's enterprise of selling summaries and copies of judicial opinions. Even the court of appeals acknowledged that that result is "certainly not the commonly perceived purpose of the FOIA," Pet. App. 11a, yet the court of appeals felt constrained to reach it anyway. The court's conclusion, however, misconstrues both the statutory terms "agency records" and "improperly withheld." A. Copies of District Court Opinions and Orders in the Hands of the Department of Justice Are Not "Agency Records" Within the Meaning of FOIA Unless documents sought pursuant to FOIA constitute "agency records," courts have no authority to order their release under the Act. 5 U.S.C. 552(a)(4)(B); Kissinger v. Reporters Committee, 445 U.S. at 155; Forsham, 445 U.S. at 177. As an initial matter, the records sought under FOIA must constitute the records of an "agency," as that term is defined in the statute. Among the "authorit(ies) of the United States" that are not "agenc(ies)" subject to FOIA are the Congress and the courts of the United States. 5 U.S.C. 551(1)(A) and (B), 552(f) (1982 & Supp. IV 1986). It has accordingly been recognized that the records prepared by an for the Congress and the courts generally are not covered by FOIA. Warth v. Department of Justice, 595 F.2d 521, 523 (9th Cir. 1979); McGehee v. CIA, 697 F.2d 1095, 1107, vacated in part on other grounds, 711 F.2d 1076 (D.C. Cir. 1983); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). That principle stems not only from the statue's provision excluding both the courts and the Congress from its scope, but also from the policy reflected in the statute that those coequal branches of government are the keepers of their own records. Warth v. Department of Justice, supra (trial transcript is not an agency record); Goland v. CIA, 607 F.2d 339, 345-347 (D.C. Cir. 1978) (congressional hearing transcript is not an agency record), cert. denied, 445 U.S. 927 (1980). The opinions and orders of United States district courts clearly are court records. In and of itself, the fact may not be conclusive of the "agency records" issue, for "(r)ecords of a nonagency certainly could become records of an agency as well." Forsham, 445 U.S. at 181. At least one narrow category of records, presentence reports, clearly does qualify as records of both the courts and Executive Branch agencies. See United States Department of Justice v. Julian, 108 S. Ct. 1606, 1610 & n.6 (1988); Berry v. Department of Justice, 733 F.2d 1343 (9th Cir. 1984). But that hardly means that all court records that come into the possession of Executive Branch agencies must or should be deemed "agency records" subject to FOIA. Warth, for example, holds that, as a matter of law, a judicial document -- a trial transcript -- in the possession of the Department of Justice does not become an agency record for FOIA purposes. See also Valenti v. Department of Justice, 503 F.Supp. 230, 233 (E.D. La. 1980) (grand jury transcript is a court record, not an agency record). The court below did not follow Warth. Rather, it adopted as a four-part test certain factors mentioned by the Eleventh Circuit in the context of presentence reports to determine whether the opinions and orders in issue here are agency records. See Lindsey v. Bureau of Prisons, 736 F.2d 1462 (11th Cir.), vacated, 469 U.S. 1082 (1984). The court of appeals stated (Pet. App. 17a) that the four relevant considerations for deciding whether an agency has sufficient "control" over a document to make it an agency record are (1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files. That test, whatever its merit might be in resolving the status of the somewhat unusual documents involved in Lindsey, is of no help in the context of court opinions and orders. /3/ The latter are quintessentially judicial documents whose content is under the exclusive control of the courts. If they are public, the Justice Department has no power to restrict their use or their dissemination by the courts. If they are sealed, the Department has no power to release them to others. Opinions and orders are prepared and issued to dispose of matters in litigation. They have no arcane significance; their existence does not indicate a hidden agency agenda or a body of secret law. And their meaning is not changed in any way by virtue of their association with the Justice Department's litigation files. There is not the slightest reason to believe that they were ever meant to be covered by FOIA. The legislative history of FOIA shows that Congress was not concerned about convenient access to public judicial opinions and orders. It was concerned with the unjustified suppression of information by agency officials. As a result, the records that Congress intended FOIA to make available to the public are those reflecting the structure, operation, and decisionmaking procedures of agencies. See S. Rep. No. 813, 89th Cong., 1st Sess. 2-3, 8, 10 (1965); H.R. Rep. No. 1497, 89th Cong., 2d Sess. 6 (1966). The documents in question here reveal nothing about agency structure or any "secret law" followed by an agency. Respondent's FOIA request is no more than a straightforward demand for the production of court records. We therefore submit that the nature of the records sought by respondent demonstrates that they are not agency records. The courts themselves have inherent supervisory power over their own records, see Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978), and have their own responsibility and provisions for making their records available to the public. See, e.g., id. at 597-598; Garfield v. Palmieri, 193 F. Supp. 137, 143 (S.D.N.Y. 1961) (An opinion once filed with the clerk "was freely available to any member of the public who chose to copy it or to obtain a copy from the clerk upon payment of the requisite fee. West (Publishing Company) could have obtained the opinion from the clerk's office at any time had it chosen to do so."), aff'd, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962); see also Banks v. Manchester, 128 U.S. 244, 253-254 (1888); In re Mosher, 248 F.2d 956 (C.C.P.A. 1957); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886). As we indicated in our reply memorandum filed at the petition stage in this case, Congress and the Judicial Conference have long worked together to ensure that district court clerks will provide copies of judicial opinions to the public for appropriate compensation. Given the plenary judicial control over the courts' opinions and the well-established system for court dissemination of opinions, there is simply no good reason why an undefined term in a statute governing agency dissemination of records should be expansively construed so as to bring opinions within its ambit. See Warth v. Department of Justice, supra. Indeed, the D.C. Circuit itself has previously acknowledged that "special policy considerations miltate against a rule compelling disclosure of records originating in (the Congress, the courts, or the personal staff of the President) merely because such documents happen to come into the possession of an agency." McGehee v. CIA, 697 F.2d at 1107. And, as this Court cautioned in Forsham, 445 U.S. at 181-182, it would do violence to the scheme of FOIA to circumvent an express limitation of the statute by providing access to otherwise excluded documents through an agency that is subject to FOIA. In Forsham, this Court stopped short of setting forth a rigid test to determine under what circumstances records generated by a nonagency (there a private party doing medical research pursuant to federal grants) would be converted into "agency records" for purposes of FOIA. The Court merely noted that as a prerequisite to such records' becoming agency records, "an agency must first either create or obtain a record" (id. at 182). Nevertheless, the Court declined (id. at 185 n.16) to "indicate * * * that physical possession * * * is by itself always sufficient" to transform nonagency documents into agency records. The lower courts, following Forsham, on occasion have adopted a "control" test, under which evidence surrounding the creation and transmittal of nonagency documents is considered, to determine whether the creator of the documents intended to retain "control," or whether the agency has assumed "control" of documents. See, e.g., Berry v. Department of Justice, 733 F.2d at 1349; Carson v. Department of Justice, 631 F.2d 1008, 1011-1013 (D.C. Cir. 1980). /4/ But both those cases (like Lindsey v. Bureau of Prisons, supra, on which the court of appeals relied) involved presentence reports, whose status as "agency records" is no longer a matter of controversy (see United States Department of Justice v. Julian, 108 S. Ct. 1606, 1610 & n.6 (1988)). The documents in question here are unlike presentence reports. The federal district court opinions and orders were prepared in furtherance of the courts' function of resolving the claims of parties in litigation. Although the Department of Justice may represent one of the parties in litigation, it cannot be said that the district courts have prepared their opinions and orders "substantially to be relied upon in agency decisionmaking," as is the case with presentence reports, which are used by parole authorities in making parole decisions (see note 4, supra). Department attorneys "rely on" judicial opinions only in the way that any litigator "relies on" the opinions and orders of courts: to learn of the disposition of certain cases and to obtain guidance on the probable disposition of other, similar cases in the future. That is not the kind of reliance that suggests that the record in question is an "agency record" of the Department of Justice. The court of appeals rejected the government's argument that it is significant that the courts retain authority over their opinions and orders on the ground that "this argument * * * confuses control over document content with control over disposition and dissemination of the document itself." Pet. App. 16a. The court of appeals reasoned that court orders and opinions "may be used, duplicated and distributed by other agencies for their own purposes without detracting from the court's basic authority to amend or vacate them." Ibid. But in following that line of reasoning, the court essentially was using a test of simple possession to transform a nonagency document into an agency record, subject only to the limitation that a record that an agency possesses but is not free to disseminate might not be deemed an "agency record." That is not the law under this Court's holdings in Forsham and Kissinger. /5/ Nor is there any indication that the Tax Division has assumed "control" over the opinions and orders. It is no more in control of them than is any other legal representative of a litigant, or indeed any stranger to the litigation who happens to obtain a copy of the opinion or order. The opinions of the courts tell the agency how it may act; they do not embody agency action. To hold that district court opinions and orders are agency records would not further the purpose of FOIA. The principal purpose of FOIA is to enable the public to know what agencies of the Executive Branch are doing and to avoid secret agency law. See SDC Development Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976) (Kennedy, J.). These documents, however, show what the courts are doing, in public proceedings, and as such they simply do not fall within the contemplation of FOIA. The court of appeals lost sight of the central purpose of the Act, and the test is constructed requires the Tax Division to provide respondent with compilations of court documents that are widely scattered throughout the agency. /6/ Moreover, respondent seeks nothing specific to the Tax Division files. It wants nothing more than the same court opinions that are on file in the district courts. That such opinions and orders ultimately are or will be associated with individual litigation files in the Department of Justice, and that the Tax Division may make use of the documents in those or other cases, are factors entirely irrelevant to respondent's requests. /7/ Respondent's interest in obtaining the documents from the Department of Justice rather than from the courts relates solely to its own convenience and commercial motivation. Respondent in fact admits that this case is nothing more than an 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; see also Pet. App. 25a. The court of appeals thought all of these considerations irrelevant to the task of determining whether judicial opinions are agency records, but it was error to disregard them. The dissenting opinion in Forsham proposed a more expansive interpretation of the term "agency records" than the majority's, but it expressly recognized -- as the court of appeals here did not -- that factors similar to the ones we have discussed provide important limitations on that term. Thus, it is of singular importance in determining whether something is an "agency record" to examine whether "the importance of the information to public understanding of the decisions or the operation of the agency is great." Forsham, 445 U.S. at 188-189 (Brennan, J., dissenting). Here, the importance of the information to public understanding of the decisions or operations of the FOIA-covered agency, the Department of Justice, is minuscule if not wholly nonexistent. /8/ Because "the significance of the record is limited to understanding the workings of the nonagency (the court), the public has no FOIA-protected interest in access." Id. at 189. Likewise, the views of those Members of this Court who would have construed "agency records" most expansively in Forsham were significantly less expansive than the holding of the court of appeals here that any level of agency reliance on a document, coupled with the other three (relatively inconsequential) Lindsey factors, makes that document an "agency record." The court of appeals found it conclusive that "(t)he Justice Department admits use and reliance on the requested court decisions, reporting that the 'opinions and orders may be read and used by some Tax Division employees and attorneys * * *.'" Pet. App. 17a. Yet "FOIA does not give the public any unrestricted right to examine all data relied on by an agency." Forsham, 445 U.S. at 189 (Brennan, J., dissenting). There must also be a "link * * * such that the agency has treated the record as if it were part of the regulatory process, as if it were in effect a record which exists to serve the regulatory process." Id. at 189-190; see also id. at 191 ("I doubt that the information could be held to be an 'agency record' had the Government not been so deeply involved in its creation."). For that reason, the Ninth Circuit in Warth and Berry was quite right to limit the term "agency records" to those documents "prepared substantially to be relied upon in agency decisionmaking," Berry, 733 F.2d at 1349, and the D.C. Circuit here was wrong to treat the mere fact that judicial opinions may be read by Justice Department employees as a sufficient basis for deeming them "agency records." Indeed, the reasoning of the court of appeals acknowledges virtually no bounds on the extent to which all federal agencies, not just the Tax Division of the Department of Justice, can be compelled to become taxpayer-subsidized lending libraries for general materials that agencies keep on hand simply for reference. The elaborate, and often quite forgiving, fee structure under FOIA, see generally 5 U.S.C. 552(a)(4)(A) (Supp. IV 1986), ensures that this will not be the only case in which a requester would find it economically preferable to make a FOIA-covered agency do the work, and bear most of the expense, of compiling documents that the requester could and should have obtained more naturally from some other public source. That is not, we submit, what Congress intended at all in making "agency records" available under FOIA. Had the court of appeals construed the term "agency records" in accordance with the policies that animate the statute containing that phrase, it would not have reached the admittedly "trouble(some)" (Pet. App. 11a) result that it did reach. This case involves court records, not agency records, and the contrary determination of the court of appeals should be reversed. B. The Tax Division's Refusal to Produce Copies of All United States District Court Opinions and Orders Was Not an "Improper Withholding" Under FOIA Because the Documents Are Made Available to the Public by the Courts FOIA does not authorize an injunction unless the agency has "improperly withheld" agency records. 5 U.S.C. 552(a)(4)(B). The documents respondent seeks to obtain under FOIA are created by the courts, are a matter of public record as soon as they are issued, and may be inspected and copied by the public at that time. In these circumstances, it cannot realistically be said that the Tax Division "improperly withheld" the documents. The district court was therefore correct in ruling that the Department of Justice did not improperly withhold anything by directing respondent to the original source of the requested documents, rather than by providing them itself. Pet. App. 27a. The court of appeals, by contrast, construed the phrase to include virtually any refusal to produce documents that is not explicitly authorized by one of FOIA's enumerated exemptions, without regard to the documents' public availability. Id. at 6a-8a. Finding that "(n)o exemption applies to the district court opinions" (id. at 8a), it held that there had been "improper() withh(olding)" by the Tax Division. The term "improper withholding" should not be construed so mechanically. This Court, in Kissinger v. Reporters Committee, 445 U.S. at 150, expressly declined to "decide the full contours of a prohibited withholding." And in GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375 (1980), the Court determined -- in contrast to the court of appeals here -- that documents had not been "improperly withheld" by an agency in circumstances that were not covered by any of FOIA's exemptions. At issue in GTE Sylvania was a FOIA request for various accident reports submitted by television manufacturers to the Consumer Product Safety Commission. In separate litigation, the Commission had been enjoined from disclosing those reports. This Court examined the legislative history of the Act to determine whether the documents had been "improperly withheld." 445 U.S. at 384-386. That history showed that "Congress was largely concerned with the unjustified suppression of information by agency officials." Id. at 385. The Court observed that "(t)he attention of Congress was primarily focused on the efforts of officials to prevent release of information in order to hide mistakes or irregularities committed by the agency * * * and on needless denials of information." Ibid. The court of appeals read GTE Sylvania exceedingly narrowly, and treated the situation presented there as the only conceivable situation in which a court might refrain, on the ground that records were not "improperly withheld," from ordering the production of records that are not within a 5 U.S.C. 552(b) exemption (Pet. App. 7a n.7). It wholly disregarded the underlying concerns of Congress that provided the basis for this Court's decision in that case. After GTE Sylvania, it simply is not permissible to maintain that courts must order every disclosure that is not within a statutory exemption and may not ask, in addition to whether a statutory exemption applies, whether there is an "improper() withh(olding)." Rather, a court considering an improper-withholding issue must engage in the more substantive task of determining whether there has been, at a minimum, some "needless denial of information." Here, the Tax Division has furnished respondent all of the information it should need to obtain the records it seeks from the governmental unit primarily responsible for disseminating those records. That action by the agency is not a denial of information at all, nor is it in any way unreasonable, let alone "needless." Cf. Kissinger v. Reporters Committee, 445 U.S. at 166 (Stevens, J., concurring in part and dissenting in part) ("(i)f the explanation is reasonable, then the withholding is not improper"). The proposition that "it is the agency's responsibility to make its records available, whatever their source" (Pet. App. 11a), lacks all relationship to Congress's desire to prevent the hiding of irregularities and needless denials of information. /9/ And that congressional policy is particularly free from jeopardy when the entity that is the source of the records does have legal responsibility for their public dissemination, according to centuries of legal tradition and practice that Congress has regularly recognized and approved (see pp. 14-15, supra; p. 30, infra). /10/ Here, as in GTE Sylvania, the concerns underlying FOIA are inapplicable. There is no effort to hide mistakes or irregularities committed by an agency, and there is not the slightest suggestion that agency information is being withheld from the public. As the district court in this case correctly noted, "(t)he danger of 'secret agency law' is not a consideration here." Pet. App. 27a. There is no indication that Congress was in any way concerned with providing access to public court documents through FOIA, and documents that are from a known, public source do not implicate the purposes of FOIA. Given the "enlightening" fact that "the Senate Report uses the terms 'improperly' and 'wrongfully' interchangeably," GTE Sylvania, 445 U.S. at 386 (quoting S. Rep. No. 813, supra, at 3, 5, 8), it is exceedingly difficult to see what is improper or wrongful about referring a requester to the principal, public source of records generated by another branch instead of providing those records directly. /11/ Two courts of appeals have agreed with the proposition that FOIA does not require agencies to disclose that which is available from a known public source. In SDC Development Corp. v. Mathews, 542 F.2d at 1120, the court held that FOIA did not require an agency to produce a computer database of medical information, the substance of which was freely available in various publications, since the computer tapes already were made available to the public on payment of a fee. In Lead Industries Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979) (Friendly, J.), the court determined that, in response to a FOIA request, an agency did not have to provide material that already had appeared in an agency's published report, because "it is already on the public record and need not be disclosed." See also City of West Chicago v. NRC, 547 F. Supp. 740, 749 (N.D. Ill. 1982) ("Material already on the public record need not be disclosed."). The court of appeals here acknowledged the principle that an agency need not respond to a FOIA request if the information already is available (Pet. App. 8a-9a), but it limited that rule to situations in which the agency itself provides access to the information, stating that "it is the agency's responsibility to make its records available, whatever their source" (id. at 11a). That limitation may serve to distinguish the SDC and Lead Industries cases on their facts (although neither the Second nor the Ninth Circuit gave such a narrow scope to its holding), but as we observed above there is nothing in the statute that compels adoption of such a narrow view of the availability of requested materials. /12/ When one branch of government (here, the courts) generates the documents at issue, and would ordinarily be assumed by everyone to have the responsibility for their public dissemination, there is no persuasive basis for shifting that responsibility to an agency within another branch. To insist that a federal agency, and no one else, must take full responsibility for the dissemination of public documents, "whatever their source," is neither a realistic reading of what Congress could have intended nor a sensible rule of decision. Furthermore, there is neither legal nor logical support for the court of appeals' holding that the public availability provided by the courts is not public availability insofar as the agency is concerned. Public availability of documents means that the documents have been disclosed and are available to respondent and to any other member of the public. /13/ Other provisions of FOIA buttress the conclusion that Congress did not intend the statute to create a redundant means of access to documents that a requester can already obtain from a public, governmental source. Section 552(a)(2) requires an agency, in specified circumstances, to make available for public inspection and copying final opinions made in the adjudication of cases, certain statements of policy and interpretation, and certain administrative staff manuals and instructions. But the obligation to make those materials available for public inspection and copying does not apply if "the materials are promptly published and copies offered for sale." Section 552(a)(1) specifies certain matters that must be published in the Federal Register. But Section 552(a)(3), the general provision regarding the disclosure of agency records, excludes from its scope those documents that already have been made available under Sections 552(a)(1) and 552(a)(2). In short, agency records that have already been published, or have been made available for inspection and copying, need not be made available in response to a specific FOIA request. A fortiori, a judicial record that is a public document should not be subject to a FOIA request. Congress has shown no inclination to make FOIA a taxpayer-subsidized source of records that a requester can obtain elsewhere pursuant to a fee schedule set by federal law. Indeed, in 5 U.S.C. 552(a)(4)(A)(vi) (Supp. IV 1986), Congress has provided 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." By statute, Congress has delegated to the Judicial Conference of the United States the authority to prescribe fees for services such as copying court documents. 28 U.S.C. 1914(b). The courts charge 50 cents per page for copies of judicial opinions, whereas the Justice Department's copying charge is only 10 cents per page. See Report of the Proceedings of the Judicial Conference of the United States, March 17, 1987, at 13; 28 C.F.R. 16.10(b)(2). Even at that, the Justice Department is often precluded from charging the full 10 cents. See, e.g., 5 U.S.C. 552(a)(4)(A)(iv)(II) (Supp. IV 1986) (no charge to noncommercial requesters for first 100 pages of duplication). We submit that the foregoing provides a sufficient basis to conclude that the court of appeals erred as a simple matter of statutory construction, but there is yet another reason why the judgment should be reversed. Even if FOIA were, "by its terms, literally applicable" to this case, it would not follow that the courts should allow its use in the face of another statute more precisely drawn to govern the provision of court records to the general public. See Brown v. GSA, 425 U.S. 820, 834-835 (1976) (and cases there cited); see also Smith v. Robinson, 468 U.S. 992, 1012 (1984). In holding that it must reach a result not in keeping with "the commonly perceived purpose of the FOIA," just because it could not "find in the words of the statute any exemption to cover such a situation" (Pet. App. 11a-12a), the court of appeals forgot Chief Justice Marshall's admonition that, "(w)here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived." United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805), quoted in Brown v. GSA, 425 U.S. at 825. Here, as in Brown, the question is whether Congress intended that two parallel statutory schemes, one designed to deal with the precise situation at hand and one designed primarily to deal with other matters, were meant to provide two very different ways of achieving the same result. /14/ And here, as in Brown, it "would require the suspension of disbelief" (425 U.S. at 833) to credit the proposition that Congress intended in 28 U.S.C. 1914 and FOIA to provide two ways to get publicly available court opinions, and to do so by "imposing an enormous and costly administrative burden on the Justice Department" (Pet. App. 11a) when courts can perform the same task with minimal burden for appropriate compensation. The purpose of Congress in enacting FOIA, as this Court has observed (GTE Sylvania, 445 U.S. at 385), was to prevent "the unjustified suppression of information by agency officials." That concern is not implicated here. The policies of FOIA are not advanced by the court of appeals' construction of the statute, which would obligate the Tax Division to become a clearinghouse for documents that are publicly available from the coordinate branches of government that are their sources. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General JAMES I.K. KNAPP Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROY T. ENGLERT, JR. Assistant to the Solicitor General JONATHAN S. COHEN MARY FRANCES CLARK Attorneys FEBRUARY 1989 /1/ Although the court of appeals cited this as the number of cases filed in the United States district courts (Pet. App. 4a), that total includes a substantial number of tax cases that are filed in either the Claims Court or the state courts. As we also noted in responses to interrogatories in this case, certain types of cases are referred directly to the office of the appropriate United States Attorney, after which the Tax Division closes its file and normally receives no further correspondence in the case (C.A. App. 16). /2/ The logs list the name of each case, the docket number, the court in which the case is pending, the names of the attorneys for the taxpayer and the government, the type of case, and the date and type of judgment or order entered. Pet. App. 22a. /3/ In fact, Lindsey does not even support the use of a four-part test to determine whether documents are agency records. Far from advocating such a four-part litmus test, the court in Lindsey preceded its mention of the four quoted factors by saying that "no uniform control test has developed for determining whether a document is an agency record" and that "some relevant considerations include" the fourt factors the court proceeded to discuss. 736 F.2d at 1465 (emphasis added). Because the court there concluded (incorrectly) that presentence reports should not be deemed agency records, it had no occasion to consider whether a document might meet all four of the listed criteria and yet not qualify as an agency record. In the present case, however, the D.C. Circuit thought that nothing else merited discussion once it was established that "all four parts of the (Lindsey) test" were met. Pet. App. 17a. In any event, we seriously doubt that the Lindsey court, which thought that even presentence reports were not agency records, would have applied its "test" in such a way as to reach the opposite conclusion with respect to judicial opinions. /4/ The court in Carson concluded that presentence reports had become agency records, because control of those documents had been transferred from the court to the agency by virtue of the enactment of specific provisions, i.e., Fed. R. Crim. P. 32 and the Parole Commission and Reorganization Act, 18 U.S.C. 4201 et seq., which not only required the courts to disclose the contents of the reports to criminal defendants, but also required the Parole Commission to consider the reports and provide a requesting prisoner reasonable access to the reports. As noted in Carson, 631 F.2d at 1011, "(t)hese changes have both reduced the control over the report vested in the originating body and increased the control in the agency in whose possession the document resides." In a similar vein, the Ninth Circuit also ruled in Berry that presentence reports are agency records. The basis for its conclusion (accommodating its prior holding in Warth and this Court's decision in Forsham v. Harris) was that, in order to establish agency "control" of a court document in its possession, the document must have been "prepared substantially to be relied upon in agency decisionmaking." 733 F.2d at 1349. In expressing in this Court our own view that the decisions in Carson and Berry with respect to the "agency records" issue were correct, we too emphasized that "(t)he background of (the 1983) amendment to Rule 32(a)(1) * * * conforms to the policy of the Parole Act, which contemplates that presentence reports will play a crucial role in parole determinations and in effect deems the presentence report to be prepared for the eventual use of the Parole Commission as well as the more immediate use of the sentencing court." Brief for the Respondent in Opposition at 14, Crooker v. United States Parole Commission, 469 U.S. 926 (1984). Notwithstanding our concession that presentence reports, with their unique dual function, are "agency records," we cautioned that "documents generated by the courts and Congress that come into the possession of an agency subject to the FOIA (should not be) too readily deemed to be 'agency records.'" Id. at 12. /5/ Nor, before this case, was it the law in the District of Columbia Circuit. See McGehee v. CIA, 697 F.2d at 1107. /6/ The court of appeals opined (Pet. App. 17a-18a) that its four-part test precludes arguing that under its holding FOIA "necessarily covers all public reference documents that may be found in agency libraries or offices." The court believed that such documents often would not meet the third and fourth criteria of its test, i.e., the extent to which agency personnel have read or relied on the document, and the degree to which the document was integrated into the agency's record system or files. Arguably, however, a file of legislative documents that agency personnel have read, for example, may satisfy the test for disclosure constructed by the court of appeals. And, indeed, the court was unwilling to foreclose the possibility that even library reference materials would qualify as agency records subject to FOIA disclosure. Id. at 18a n.20. /7/ That is why this case differs from most if not all instances in which a requester may seek newspaper clippings from an agency (see Pet. App. 11a). The fact that an agency has shown enough interest in particular newspaper clippings to integrate them into its files may shed light on the workings of the agency, whereas giving respondent every opinion that the Tax Division receives, when respondent already has the information necessary to secure those opinions from their primary sources, would tell respondent nothing about how the Tax Division works. See note 12, infra. Moreover, the repeated reliance by the court of appeals on hypothetical examples involving newspapers underemphasizes a distinction that surely bears heavily on any rational analysis of the issues in this case: newspapers are not, like the documents at issue here, the key records of a coequal branch of government. Nothing in the undefined statutory terms "agency records" and "improper withholding" requires a court to ignore that distinction, yet the court of appeals has done precisely that. /8/ Because some district court opinions may describe agency actions that led to the litigation, it perhaps cannot be said that they will never shed any light on the working of a FOIA-covered agency. Yet we doubt that, for example, the Justice Department library's copy of former Attorney General Francis Biddle's autobiography, In Brief Authority (1962), is any more an agency record than the same library's copy of former Justice William O. Douglas's autobiography, The Court Years (1980), just because the former more than the latter sheds light on the workings of the Justice Department. It would be equally absurd to construe the term "agency record" to cover either of those library books so as to make them subject to mandatory disclosure in response to FOIA requests. /9/ The court of appeals sought to justify that proposition by stating 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)." Pet. App. 11a (emphasis added). That statement, however, does not justify the court's conclusion, for at least two reasons. First, Section 552(a)(4)(B) merely confers jurisdiction to enter an injunction; it says nothing about the responsibility to do so. As this Court has observed on this precise point in the context of other statutes, "(t)he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law." Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982); Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). Professor Kenneth Culp Davis had made the same point with respect to FOIA itself: "The Information Act contains no mandatory provision for its judicial enforcement. * * * The court has jurisdiction to enforce; it is not commanded to enforce." Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 767 (1967); see also Renegotiation Board v. Bannercraft Corp., 415 U.S. 1, 18-20 & n.18 (1974) (noting that Section 552(a)(4)(B) confers "jurisdiction" and "power" and that district court's powers under FOIA are those of an equity court). Second, even if one accepts the court's premise that an injunction is mandatory once it is established that an agency has improperly withheld agency records, it is a complete non sequitur to conclude that an agency has the "responsibility to make its records available, whatever their source" (Pet. App. 11a). Whether an agency has that responsibility depends on how one construes the statutory phrase "improperly withheld"; the mere observation that the court may or must enter an injunction once an improper withholding has been identified says nothing about how to distinguish improper withholdings from permissible agency behavior. /10/ To paraphrase Nixon v. Warner Communications, 435 U.S. at 605-606, "(b)ecause of th(e) congressionally prescribed avenue of public access we need not weigh the parties' competing arguments as though the (Justice Department) were the only potential source of information regarding these * * * materials. The presence of an alternative means of public access tips the scales in favor of denying release." /11/ The court of appeals (Pet. App. 10a) interpreted this Court's opinion in United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602-603 n.5 (1982), and its own decision in Reporters Committee for Freedom of the Press v. United States Dep't of Justice, 816 F.2d 730, modified, 831 F.2d 1124 (1987), cert. granted, 108 S. Ct. 1467 (argued Dec. 7, 1988), to indicate that public availability is not a sufficient basis on which to justify withholding. Those cases, however, concerned Exemptions 6 and 7(C) of the Act, 5 U.S.C. 552(b)(6) and (7)(C) (1982 & Supp. IV 1986), and did not involve an interpretation of the term "improperly withheld." The agency did not provide the requesters with the data necessary to locate the obscure records requested in those cases because the agency wanted (on invasion-of-privacy grounds) to keep the sought-after records from the requesters. By contrast, in the present case, the Department of Justice has no desire to keep respondent from obtaining the records it seeks, and is willing to provide respondent with information that should suffice to allow respondent to obtain those records from the courts. See Pet. App. 27a-28a. /12/ The court of appeals (Pet. App. 11a) noted the "common knowledge that agency records often contain publicly available information, i.e., newspaper clippings, other government publications," but it said that agencies are not permitted to deny access to such documents in response to a FOIA request. That reasoning confuses the nature of the disclosure required of an agency by FOIA. The withholding of a newspaper clipping placed in an agency file does not conceal its content, for that is public; rather, it fails to disclose information about what the agency is doing with that public information. Here, the Tax Division's refusal to supply respondent with copies of district court opinions does not conceal anything about the Tax Division's "structure, operation, and decision-making procedures" (see Pet. App. 26a). The information in the opinions reflects no more than the district courts' adjudications in litigation, and the documents themselves are publicly available. /13/ Respondent's claim under FOIA is not based on the unavailability of the documents, but on an availability that does not satisfy its convenience. In the language of the court of appeals (Pet. App. 2a n.2), "(o)n this record, 'practical unavailability' means inaccessibility with the resources that (respondent) has been willing to expend." But while the court based its ruling on such perceived inaccessibility, it noted (id. at 13a) that "(t)he Department is not required * * * even to provide a requester-convenient location for access. See Mandel Grunfield and Herrick v. U.S. Customs Service, 709 F.2d 41 (11th Cir. 1983) * * *." See also Nolen v. Rumsfeld, 535 F.2d 890, 892 (5th Cir. 1976) ("The Act requires only availability, not delivery."), cert. denied, 429 U.S. 1104 (1977). /14/ The Court in Brown considered whether one claiming discrimination in federal employment could sue under general statutes that permit civil rights claims or was instead limited to the remedies provided by Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16. The Court concluded that the latter provision is exclusive.