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ANALYSTS v. UNITED STATES DOJ

July 31, 1986

TAX ANALYSTS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: HARRIS

 Stanley S. Harris, Judge.

 This matter is before the Court on the parties' cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56(b). Plaintiff filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982). Upon careful consideration of the pleadings and the entire record herein, the Court concludes that defendant's motion for summary judgment should be granted and plaintiff's motion for summary judgment should be denied.

 Background

 Plaintiff, Tax Analysts, is a non-profit charitable and educational organization which publishes a weekly magazine about legislative, judicial, and regulatory developments in the field of federal taxation. Plaintiff charges an annual fee of $595 to its subscribers and provides copies of documents it summarizes in return for costs. The magazine includes summaries of the most recent judicial opinions on tax issues; plaintiff supplies the full text of all such decisions to subscribers to its weekly microfiche data base. Plaintiff also provides on a daily basis full texts of all available court decisions in tax cases to major electronic data bases. Plaintiff states that it has been able effectively and reliably to obtain all relevant decisions handed down by the U.S. Supreme Court, U.S. Circuit Courts of Appeals, the U.S. Tax Court, and the U.S. Claims Court. However, plaintiff complains that it cannot assure its readers a timely or comprehensive reporting of U.S. District Courts' decisions. Plaintiff states that the process of obtaining these decisions is difficult, unreliable, and time consuming in that the decisions must be requested from either the Department of Justice attorney assigned to the case or from the taxpayer's counsel, if known, or more likely by request to a district court clerk, who, plaintiff complains, may not respond timely or at all. Plaintiff must send advance payment for photocopying and then wait for the decision to arrive by mail.

 Defendant in this action is the Department of Justice (DOJ). The Tax Division of the DOJ is responsible for the prosecution and defense in all courts of civil tax cases other than those instituted in the United States Tax Court, over which it only has appellate responsibilities.

 On July 20, 1979, plaintiff, pursuant to the FOIA, requested that the Tax Division furnish plaintiff with all opinions and orders of the United States District Courts, the United States Courts of Appeals, and the United States Court of Claims received by the defendant earlier that month. On August 2, 1979, the Tax Division denied that request on the grounds that the documents were not agency records. Plaintiff appealed that denial. Thereafter, as a result of practical difficulties in complying with plaintiff's request, defendant asked plaintiff to withdraw the request, which plaintiff did. On December 14, 1979, plaintiff, pursuant to the FOIA, sought and was granted access to defendant's logs of the names of tax cases decided by the aforementioned courts. For the past six years, defendant has provided plaintiff and other commercial tax services with the weekly logs. The logs list the name of the case, the docket number, the district in which it is pending, the names of the attorneys for the taxpayers and the Government, the type of case, and the date and types of judgment or order entered.

 Beginning November 16, 1984, and continuing until May 10, 1985, plaintiff, pursuant to the FOIA, submitted a series of 26 weekly requests to the Tax Division for access to all District Court decisions, opinions, and orders identified in the log released to plaintiff the previous week, a copy of which was attached to each request. On March 21, 1985, defendant asked plaintiff to withdraw its requests, but plaintiff declined. On April 30, 1985, the Tax Division denied plaintiff's request, and that denial was sustained on administrative appeal.

 On June 7, 1985, plaintiff filed this action under the FOIA seeking weekly access from the Tax Division to all United States District Court decisions, opinions, and orders in tax cases as they are received by defendant and a permanent injunction against the continued withholding of such records.

 Defendant moved for summary judgment as a matter of law, pursuant to Fed. R. Civ. P. 56(b), and plaintiff filed a cross-motion for summary judgment.

 Discussion

 In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980), the Supreme Court clarified the conditions under which a federal court may compel an agency to release documents. The Court stated in part:

 
The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.

 Id. at 151; Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 239 U.S. App. D.C. 331, 742 F.2d 1484, 1488 (D.C. Cir. 1984); McGehee v. Central Intelligence Agency, 225 U.S. App. ...


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