The opinion of the court was delivered by: Hogan, District Judge.
Pending before the Court are Plaintiffs and Defendant's
Cross-Motions for Summary Judgment. The issue before the Court is
whether the plaintiff, Tax Analysts ("TA"), is entitled to enjoin
the Internal Revenue Service ("IRS" or "Defendant") from
withholding documents requested under the Freedom of Information
Act (FOIA). Upon consideration of the parties' pleadings and
statements at oral argument, the Court will grant Defendant's
Motion for Summary Judgment and deny Plaintiffs Motion for
TA is a nonprofit corporation organized under the laws of the
District of Columbia. TA's primary activities include publishing
a variety of tax publications and disseminating tax information
to the general public.*fn1 In pursuing these objectives, TA
argues for the public availability of documents and materials
relating to the administration of the tax laws by all United
States agencies. On November 10, 1993, pursuant to FOIA, TA
requested from the IRS copies of all "closing agreements" *fn2
relating to organizations exempt from federal income tax executed
on or after December 31, 1992.
After the IRS failed to respond to TA's initial request, TA
filed an administrative appeal based upon the constructive denial
of its claim. The IRS denied TA's appeal, claiming that
disclosure of the closing agreements was prohibited by 26 U.S.C. § 6103
(a). TA then brought this FOIA claim before this
Court, seeking an injunction to compel the IRS to produce for
inspection and copying all of the previously requested closing
agreements. Both TA and the IRS have moved for summary judgment
pursuant to Fed.R.Civ.P. 56(c).
Summary judgment is appropriate only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). In considering a motion for summary judgment, the
"evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). There is a genuine issue of material fact
only if there is such evidence that a reasonable jury could
return a verdict for the nonmoving
party; a fact is material only if it might affect the outcome of
the suit under applicable law. See id. at 248, 106 S.Ct. 2505.
Tax returns and return information are generally not subject
to public disclosure. See I.R.C. § 6103(a). In the case of
tax-exempt organizations, however, Congress has provided a limited
exception to § 6103's confidentiality rule. See I.R.C. §
6104(a)(1)(A). Section 6104(a)(1)(A) provides:
If an organization described in section
501(c) or (d) is exempt from taxation
under section 501(a) for any taxable
year, the application filed by the organization
with respect to which the Secretary made his
determination that such organization was entitled to exemption
under section 501(a), together with any
paper submitted in support of such application,
and any other letter or document issued by the IRS with
respect to such application shall be open to public
Id. (emphasis added). The Treasury regulation interpreting §
6104(a)(1)(A) takes the words "any papers submitted in support
of such application" to mean "any statement or document . . .
that is submitted by an organization in support of its
application." See 26 C.F.R. § 301.6104 (a)-1(e). Thus, as
the D.C. Circuit noted in Lehrfeld v. Richardson, papers
submitted by "anyone other than the applicant itself in support
of its application for tax-exempt status need not be disclosed."
132 F.3d 1463, 1464 (D.C.Cir. 1998).
Plaintiffs claim arises under the FOIA, 5 U.S.C. § 552,
which provides a rule of general disclosure by government
agencies upon request. Mandatory disclosure enables the public
to gain access to government information so that it can review
the government's performance of its statutory duties, thereby
promoting government honesty. See EPA v. Mink, 410 U.S. 73, 79-80,
93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Accordingly, district
courts have the authority to enjoin an agency from withholding
agency records and to order the production of agency records
where the agency improperly withholds them*fn3 See United States
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 141, 109 S.Ct.
2841, 106 L.Ed.2d 112 (1989). However, an agency may withhold
agency records which fall under one of the nine enumerated
exemptions to the FOIA. See 5 U.S.C. § 552 (b). The
government has the burden to justify its withholding of documents
pursuant to one or more of these exemptions. See Katz v. National
Archives & Records Admin., 862 F. Supp. 476, 478 (D.D.C. 1994).
In this case, Defendant, a government agency, invoked the FOIA
exception set forth in 5 U.S.C. § 552 (b)(3). Section
552(b)(3) states that an agency need not disclose records
specifically exempted from disclosure by statute, provided that
such statute (1) requires withholding information from the public
in "such a manner as to leave no discretion on the issue," or (2)
establishes particular criteria for withholding or refers to
particular types of matters to be withheld. See 5 U.S.C. § 552
(b)(3). Defendant asserts that I.R.C. § 6103(a), which
governs confidentiality and disclosure of returns and return
information, bars Plaintiffs FOIA claim. Thus, two matters are
before the Court. First, whether the closing agreements contain
return information under § 6103. If they contain return
information, then § 6103 generally bars their disclosure.*fn4 Second,
whether the closing agreements requested by Plaintiff ...