Appeal from the United States District Court for the District of Columbia (No. 01cv0735)
Before: Sentelle, Henderson, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Argued September 18, 2003
Dissenting Opinion filed by Circuit Judge HENDERSON.
The Freedom of Information Act does not cover congressional documents. This case involves a FOIA request for a document that the Internal Revenue Service prepared at the direction of a congressional committee. In this circuit, whether the IRS response is subject to FOIA turns on whether Congress manifested a clear intent to control the document. Applying that standard to the circumstances of this case and balancing Congress's authority to maintain the confidentiality of its own materials against the broad mandate of disclosure lying at the heart of FOIA, we conclude that only those portions of the IRS response that would reveal the congressional request are not subject to FOIA.
Intended to "ensure an informed citizenry, vital to the functioning of a democratic society," NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), the Freedom of Information Act requires federal agencies to make agency records available to the public upon reasonable request. 5 U.S.C. § 552(a)(3)(A) (2000 & Supp. II 2002). Because Congress is not an agency, congressional documents are not subject to FOIA's disclosure requirement. See id. §§ 551(1), 552(f) (2000).
This case concerns a document the Internal Revenue Service created in response to a request from the Joint Committee on Taxation. Established by statute, see 26 U.S.C. § 8001 (2000), the Joint Committee consists of ten members, five each from the Senate Finance Committee and the House Ways and Means Committee. See id. § 8002(a) (2000). By letter dated March 1997, the chairman, vice-chairman, and ranking members of the Joint Committee directed committee staff "to investigate whether the IRS's selection of tax-exempt organizations ... for audit has been politically motivated, including an analysis of the selection of such tax-exempt organizations for audit for reasons related to their alleged political or lobbying activities." Paull Decl. ¶ 7. As part of that investigation, the Joint Committee's chief of staff sent the IRS a letter dated April 28, 1997, requesting specified categories of documents and information. The letter concluded: "This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee." Id. ¶ 8.
In response, the IRS prepared and sent to the Joint Committee a seventeen-page letter with three attachments. The IRS retained a copy in its files. The letter provides status reports on case files and summarizes IRS procedures for investigating employees, recusing IRS workers, and processing congressional requests. See Miller Decl. ¶ 4. The three attachments consist of (1) a twelve-page list of certain organizations and the names of IRS employees involved in cases concerning those organizations, (2) a four-page description of cases involving allegations of inappropriate behavior by IRS agents, and (3) a one-page list of certain cases together with an estimate of the volume of documents in each case. See id. ¶ 5.
Some three years later, appellant United We Stand America, Inc., a political organization started by Ross Perot, submitted a FOIA request to the IRS seeking disclosure "of any and all documents ... that refer or relate in any way" to the organization. When the IRS failed to respond, United We Stand America filed suit in the U.S. District Court for the District of Columbia to compel production of the requested documents. Although the IRS eventually produced over five hundred pages of documents, the agency refused to disclose the response sent to the Joint Committee, claiming that it qualified as a congressional document not subject to FOIA. Relying on that argument, the IRS moved for summary judgment. In a supporting declaration, the IRS employee who authored the response described the requested documents and explained that "the IRS had not used these records for any purpose other than ... to respond to the Joint Committee's April 28, 1997 request," and that they were kept in a Joint Committee correspondence file "separate from the office's ordinary files." See id. ¶ ¶ 4-8. In another declaration, the Joint Committee's chief of staff explained the committee's need for confidential communications with the IRS and stated that because the IRS "reiterate[d]" and "responded" to each of the points in the Joint Committee request, "[d]isclosure of [the response] would effectively disclose the substance of [the request] to which it responded." Paull Decl. ¶ 11. In arguing that its response was not subject to FOIA, the IRS advised the district court that "[s]hould the Court determine that the documents in question constitute agency records for purposes of the FOIA ..., the defendant reserves the right, pursuant to the statute, to assert any applicable exemption claim(s), prior to disclosure, and to litigate further any such exemption claims." Def.'s Mem. of P. & A. in Supp. of Its Mot. for Summ. J. at 12 n.22.
The district court granted summary judgment for the IRS, holding that the response qualified as a congressional document because Congress, not the IRS, exercised control over it. United We Stand Am., Inc. v. IRS, 219 F. Supp. 2d 14, 15 (D.D.C. 2002). The court explained: "[w]hile the IRS created the documents, it intended at all times to relinquish control over them, ... is not free to use or dispose of them as it sees fit because the JCT maintains control over them, ... did not use the records for any of its regular agency functions, and ... kept the documents for internal reference purposes only." Id. at 17.
United We Stand America appeals. Our review is de novo. E.g., Computer Prof'ls for Social Responsibility v. U. S. Secret Serv., 72 F.3d 897, 902 (D.C. Cir. 1996).
In United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989), the Supreme Court held that documents qualify as "agency records" subject to FOIA disclosure if they are (1) created or obtained by an agency, and (2) in the agency's control. In this case, it is uncontested that the IRS created the documents and retains a copy of them. Thus, resolution of this dispute turns on whether the IRS has control of the documents. "By control," the Supreme Court explained in Tax Analysts, ...