United We Stand America, Inc. v. Internal Revenue Service

Notice: This opinion is subject to formal revision before publication in the

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before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2003 Decided March 5, 2004

No. 02-5266

UNITED WE STAND AMERICA, INC., ET AL.,

APPELLANTS

v.

INTERNAL REVENUE SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv0735)

Larry E. Klayman argued the cause and filed the briefs

for appellants.

Michael J. Haungs, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Roscoe C. Howard Jr., U.S. Attorney, and Jonathan S.

Cohen, Attorney, U.S. Department of Justice.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: SENTELLE, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting Opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge: 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 commit-

tee. 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 circum-

stances 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.

I.

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 Con-

gress 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 Ser-

vice created in response to a request from the Joint Commit-

tee 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 TTT for audit has been politically moti-

3

vated, 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 speci-

fied 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 approv-

al 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 pro-

cessing 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 descrip-

tion 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 Amer-

ica, Inc., a political organization started by Ross Perot, sub-

mitted a FOIA request to the IRS seeking disclosure ‘‘of any

and all documents TTT 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 docu-

ments and explained that ‘‘the IRS had not used these

records for any purpose other than TTT to respond to the

4

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 dis-

close 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 TTT, 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 docu-

ment 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, TTT is not free to use or dispose of them as it sees

fit because the JCT maintains control over them, TTT did not

use the records for any of its regular agency functions, and

TTT 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).

II.

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 dis-

closure if they are (1) created or obtained by an agency, and

(2) in the agency’s control. In this case, it is uncontested that

5

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, ‘‘we mean that the materials have

come into the agency’s possession in the legitimate conduct of

its official duties.’’ Id. at 145.

Relying on Tax Analysts, United We Stand America ar-

gues that the requested documents are agency records be-

cause the IRS created them using agency resources in the

course of its official conduct. Although we have no doubt that

IRS communications with the Joint Committee constitute

legitimate conduct of the IRS’s official duties, see, e.g., 26

U.S.C. § 8023(b) (2000), this case is not so simple. For one

thing, the connection between Congress and the requested

records implicates considerations not at issue in Tax Ana-

lysts, where a non-profit organization sought disclosure of

judicial opinions possessed by the Department of Justice. As

the IRS points out, moreover, this circuit has employed a

four-factor analysis to determine whether an agency exercises

sufficient control over requested documents to render them

agency records:

(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.

Burka v. United States Dep’t of Health & Human Servs., 87

F.3d 508, 515 (D.C. Cir. 1996) (quoting Tax Analysts v. Dep’t

of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff’d on other

grounds, 492 U.S. 136 (1989)) (internal quotation marks omit-

ted).

Until now we have had no occasion to consider the applica-

bility of the four-factor analysis in the congressional context.

Prior to adopting the four-factor analysis, however, we issued

three decisions that considered where to draw the line be-

tween congressional documents and agency records. In the

6

first of these cases, Goland v. CIA, 607 F.2d 339 (D.C. Cir.

1978), vacated in part on other grounds, 607 F.2d 367 (D.C.

Cir. 1979) (per curiam), the FOIA requester sought disclosure

of the CIA’s copy of a congressional hearing transcript

marked ‘‘secret.’’ The FOIA requester argued that the tran-

script was an agency record subject to FOIA disclosure

because the CIA had possession of it. Rejecting that argu-

ment, we relied on policy considerations unique to the con-

gressional context. In addition to emphasizing Congress’s

right to keep its own materials confidential, we explained that

‘‘Congress exercises oversight authority over the various fed-

eral agencies, and thus has an undoubted interest in exchang-

ing documents with those agencies to facilitate their proper

functioning in accordance with Congress’ originating intent.’’

Id. at 346. Holding otherwise, we reasoned, would force

Congress ‘‘either to surrender its constitutional prerogative of

maintaining secrecy, or to suffer an impairment of its over-

sight role.’’ Id. Because ‘‘on all of the facts of the case

Congress’ intent to retain control of the document [wa]s

clear,’’ we ruled that the transcript was a congressional

document rather than an agency record. Id. at 348.

To be sure, the record at issue here, unlike the transcript

in Goland, was created by the agency, not by Congress. In

Goland, however, we referred to the ‘‘exchang[e]’’ of docu-

ments—precisely what happened here—and in a later case,

Holy Spirit Ass’n for the Unification of World Christianity

v. CIA, 636 F.2d 838, 842–43 (D.C. Cir. 1980), vacated in part

on other grounds, 455 U.S. 997 (1982), we recognized the

possibility that agency-created documents could in fact be-

come congressional records. In Holy Spirit, the FOIA re-

quester sought disclosure of documents that had been created

by the CIA, sent to Congress, and then returned to the CIA

with no indication that the agency should keep them confiden-

tial. Finding the documents to be agency records, we ex-

plained that ‘‘even if these [requested] CIA-created records

were once congressional documents because [they were] gen-

erated in response to congressional inquiries and transferred

to Congress, they subsequently lost their exemption as con-

gressional records when Congress failed to retain control

7

over them.’’ Id. at 843. Thus, although we rested our

decision on the absence of evidence of congressional intent to

‘‘retain control’’ over agency-generated documents, by focus-

ing only on Congress’s return of the records to the agency we

found it unnecessary ‘‘to decide whether Goland, which in-

volved communications from Congress to an agency, applies

to transfers in the other direction.’’ Id.

We took the next step in Paisley v. CIA, 712 F.2d 686, 695–

96 (D.C. Cir. 1983), vacated in part on other grounds, 724

F.2d 201 (D.C. Cir. 1984) (per curiam), applying the legal

standard set out in Goland to records created by an agency in

connection with a congressional investigation. In that case,

the FOIA requester sought a number of documents, including

‘‘requests for information made by the [congressional investi-

gatory committee] and the CIA’s responses to those re-

quests.’’ Id. at 690. The CIA argued that none of the

agency-created documents qualified as agency records ‘‘be-

cause they were generated in direct response to the’’ congres-

sional investigation. Id. at 695. In considering that argu-

ment, we sought to ‘‘safeguard Congress’ long recognized

prerogative to maintain the confidentiality of its own records

as well as its vital function as overseer of the Executive

Branch.’’ Id. at 693 n.30. To accomplish this, we focused our

inquiry on ‘‘Congress’ intent to control (and not on the

agency’s),’’ id., and concluded that Congress had failed to

manifest an intent to control the requested records. Id. at

695–96. Although careful ‘‘not to imply that agency-created

documents can never become congressional, whether by even-

tual transfer to Congress or by some other means,’’ id. at 695

n.41, we held that ‘‘in the absence of some stronger indicia of

congressional intent,’’ the mere fact that the agency-created

records were related to a confidential congressional investiga-

tion was ‘‘far too insubstantial and commonplace to establish

congressional control within the meaning of Goland,’’ id. at

696.

Although Goland, Holy Spirit, and Paisley all predate our

four-factor analysis, their focus on congressional control—

particularly Paisley’s, which, like this case, dealt with agency-

created documents—reflects the considerations that underlie

8

the second factor: the agency’s ability to use or dispose of the

record as it sees fit. Emphasizing that Congress’s intent to

control and the agency’s ability to control ‘‘fit together in

standing for the general proposition that the agency to whom

the FOIA request is directed must have exclusive control of

the disputed documents,’’ Paisley explained that ‘‘[i]f, under

the Goland standard, Congress has manifested its own intent

to retain control, then the agency—by definition—cannot

lawfully ‘control’ the documents.’’ Id. at 693 (footnote omit-

ted). That principle, however, applies differently here than it

did in Paisley. In Paisley we found insufficient ‘‘indicia of

congressional intent’’ to control the agency-created docu-

ments. Id. at 696. Here, under all of the circumstances

surrounding the IRS’s creation and possession of the docu-

ments, we find sufficient indicia of congressional intent to

control, but only with respect to the Joint Committee’s April

28 request and those portions of the IRS response that would

reveal that request.

We begin with the limited scope of the confidentiality

directive contained in the Joint Committee’s April 28 letter.

The letter states: ‘‘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.’’ Paull Decl. ¶ 8. Although

the letter twice refers to ‘‘this document’’ and although it

never refers to the IRS response, the IRS insists that when

the Joint Committee used the word ‘‘this’’ it meant to include

not just the request itself, but the response as well. In

support, the IRS calls our attention to the statement in the

Joint Committee declaration that the April 28 letter’s confi-

dentiality language ‘‘is used by the JCT to reflect its intent

that the document in question remain under the control of the

JCT and not be subject to the ‘free disposition’ of the IRS.’’

Id. ¶ 8 (citing Goland, 607 F.2d at 346–47). But for essential-

ly the same reason that courts do not allow unambiguous

statutory language to be revised through legislative history,

see Burlington N. R.R. Co. v. Okla. Tax Comm’n, 481 U.S.

454, 461 (1987), we cannot accept such a revisionist reading of

the April 28 letter. Referring to ‘‘this document,’’ the letter

9

could not be clearer. If the Joint Committee intended to

keep confidential not just ‘‘this document’’ but also the IRS

response, it could have done so by referring to ‘‘this document

and all IRS documents created in response to it.’’

The IRS nevertheless argues that its response cannot be

disclosed because doing so would reveal the Joint Committee

request, thus breaching the committee’s directive that ‘‘[t]his

document may not be disclosed without prior approval of the

Joint Committee.’’ In support, the IRS relies on the declara-

tion’s statement that ‘‘[d]isclosure of the [response] would

effectively disclose the substance of [the request] to which it

responded.’’ Paull Decl. ¶ 11. Perhaps so, but the declara-

tion nowhere states that the IRS would be unable to preserve

the confidentiality of the Joint Committee request by releas-

ing a redacted version of the response. Cf. Bureau of Nat’l

Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d 1484,

1496 (D.C. Cir. 1984) (stating that the inclusion of personal

information in requested documents does not remove them

from the definition of agency records where the ‘‘personal

information can be redacted from the copies of the documents

disclosed to a FOIA requestor’’). In other words, the Joint

Committee’s April 28 request and the declaration justify

withholding as congressional materials solely those portions

of the seventeen-page letter and the three separate attach-

ments that would disclose the request.

The IRS insists that other evidence reveals the Joint

Committee’s intent to control the entire IRS response. First,

it argues that the Joint Committee relied on provisions of the

Internal Revenue Manual that recognize the confidentiality of

Joint Committee communications with the IRS. See Internal

Revenue Manual, Disclosure of Official Information Hand-

book, Joint Committee on Taxation Records of Contact, sec.

1.3.13.5.3 (1998) (Manual), reprinted in Appellee’s Br. at

Appx. 9a–10a. In her declaration, however, the Joint Com-

mittee’s chief of staff made quite clear that she understood

the IRS Manual to protect the confidentiality of only the

Joint Committee request: ‘‘The IRS Manual recognizes that

documents generated in response to JCT requests must not

be disclosed to the extent that they reveal the existence or

10

substance of a JCT request.’’ Paull Decl. ¶ 12 (emphasis

added). The chief of staff’s understanding finds support in

the Manual excerpts attached to the IRS’s brief. See Manual

sec. 1.3.13.5.3 (prohibiting disclosure of Joint Committee re-

quests but directing IRS personnel to determine whether

documents furnished to the committee may be released or

withheld on their own merit without identifying the Joint

Committee request).

Second, the IRS argues that the Joint Committee, relying

on its consistent course of dealing with the IRS, expected that

communications between it and the agency would remain

confidential. We agree with United We Stand America,

however, that such an understanding is far too general to

remove the IRS response from FOIA’s disclosure require-

ment. Skeptical of such pre-existing agreements, we have

required a more specific showing of congressional intent to

control documents sought by FOIA requesters. See Paisley,

712 F.2d at 695 (rejecting letters offered to prove such an

agreement as ‘‘too general and sweeping to provide TTT the

requisite express indication of a congressional intent to main-

tain exclusive control over [the] particular records [at issue]’’).

Although we understand that the Joint Committee believes

that confidentiality is critical to its work, and although we

have no doubt that the committee has a practice of retaining

control over its communications with the IRS, nothing in the

record here ties that general understanding and practice to

those portions of the IRS response that would not reveal the

Joint Committee request.

Finally, the IRS argues that the Joint Committee’s contin-

ued objection to disclosure demonstrates its intent to control.

In Holy Spirit, however, we held that a congressional letter

objecting to the release of requested records was insufficient

to evince congressional intent to control because it was writ-

ten not only long after the requested record’s creation, but

also in response to the FOIA litigation. See 636 F.2d at 842.

In Paisley, we similarly discounted correspondence written

long after the original creation and transfer of the requested

documents as insufficient to evidence congressional intent to

control, emphasizing the absence of ‘‘contemporaneous and

11

specific instructions from [Congress] to the agencies limiting

either the use or disclosure of the documents.’’ 712 F.2d at

694. As in those cases, the Joint Committee’s post-hoc

objections to disclosure cannot manifest the clear assertion of

congressional control that our case law requires.

For all of these reasons, we conclude that the Joint Com-

mittee’s directive and expectation of confidentiality extend

only to its April 28 request and to those portions of the IRS

response that would effectively disclose that request. Put in

terms of Burka’s second factor, the IRS retains the ‘‘ability to

use and dispose of’’ any portions of its response that would

not reveal the Joint Committee’s request.

Citing the remaining factors, the IRS insists that whatever

Congress may have intended, it (the IRS) has no control over

the response because it created the document only to respond

to Congress, used it for no other purpose, and keeps it in a

separate file. See also Dissent at 2–4. In the circumstances

of this case, however, where the IRS created and maintains

the document in the course of its official duties, i.e., respond-

ing to a congressional request for information, such consider-

ations cannot be applied to remove the entire IRS response

from the definition of agency records, for doing so would

conflict with the Supreme Court’s Tax Analysts definition of

agency control: ‘‘[b]y control we mean that the materials

have come into the agency’s possession in the legitimate

conduct of its official duties.’’ 492 U.S. at 145. Indeed, cases

decided both before and after Tax Analysts that employed

the four-factor analysis to determine agency control did not

involve documents that were created and possessed by the

agency ‘‘in the legitimate conduct of its official duties.’’ Tax

Analysts itself involved documents that were not created by

the agency. 845 F.2d at 1069 (court opinions held by agency).

Burka involved documents that were not in the agency’s

possession. 87 F.3d at 515 (data tapes held by private

contractor). Kissinger v. Reporters Committee for Freedom

of the Press involved telephone notes that Secretary Kissing-

er had generated while he was National Security Adviser and

that were kept in a personal file in his State Department

office. 445 U.S. 136, 157 (1980). And like Kissinger, Gallant

12

v. NLRB, cited by the dissent, involved personal documents

located within an agency, not official agency documents. 26

F.3d 168, 172 (D.C. Cir. 1994) (personal letters written by a

Board member attempting to secure reappointment). In

contrast to these cases, the IRS created and retains the

response in the course of its official obligation to communicate

with the Joint Committee.

Under these circumstances, absent ‘‘clear’’ (Goland’s word)

expression of congressional intent to control the entire re-

sponse, neither the IRS’s own expectations nor its handling of

the document can turn the entire agency-created record into

a congressional document. Otherwise, documents that agen-

cies create in response to congressional requests could be-

come congressional documents even if Congress expressed no

intent to keep them secret, for it can be said of most such

materials that they would not have been created but for the

congressional request, that the agency relies on them for no

other purpose, and that they are kept in separate files, i.e., in

the agency’s office of congressional affairs. Such a result

would ‘‘exempt from FOIA’s purview a broad array of materi-

als otherwise clearly categorizable as agency records, thereby

undermining the spirit of broad disclosure that animates the

Act.’’ Paisley, 712 F.2d at 696 (footnote omitted).

We conclude with a few reactions to the dissent. First, we

have not, as the dissent implies, changed the focus from

agency control to congressional intent. Paisley accomplished

that task: ‘‘[i]f, under the Goland standard, Congress has

manifested its own intent to retain control, then the agency—

by definition—cannot lawfully ‘control’ the documents.’’ 712

F.2d at 693. Applying Paisley, we have concluded that only

those portions of the response that would reveal the Joint

Committee request are congressional documents not subject

to FOIA. As to the remaining Burka factors, we have not

‘‘reject[ed]’’ them but rather explained that they have no

applicability where, as here, the agency creates and possesses

the document in the legitimate conduct of its official duties.

See supra at 11–12.

13

Second, the dissent argues that we have created a tenth

exemption to FOIA. See Dissent at 5–6. Congressional

documents, however, are not subject to FOIA at all and, for

the same reason, neither are the portions of the response that

would reveal the Joint Committee request. Whether one of

the nine exemptions applies to those portions of the response

that might not reveal the Joint Committee request is a

question for the district court to resolve on remand.

Third, the dissent argues that documents cannot be ‘‘part-

congressional records and part-agency records’’ because (1)

redaction is only permissible pursuant to one of FOIA’s nine

exemptions, and (2) Goland, Holy Spirit, and Paisley did not

subdivide the documents at issue in those cases. See Dissent

at 4–6. As to the first point, although it is true that docu-

ments meeting the definition of agency records can only be

withheld under FOIA if they fall within one of the nine

exemptions, nothing in the Supreme Court’s Tax Analysts

decision, on which the dissent relies, precludes redaction of

congressionally controlled information from documents that

would otherwise meet the definition of agency records. Tax

Analysts does explain that the nine exemptions are exclusive,

but the Court did not address that issue until after deciding

that the documents in that case were in fact agency records.

It is that threshold question—whether the IRS response

qualifies as an agency record—that this case presents.

Moreover, the dissent’s position conflicts with Bureau of

National Affairs, which held that the inclusion of personal

information in requested documents does not remove them

from the definition of agency records where ‘‘personal infor-

mation can be redacted from the copies of documents dis-

closed to a FOIA requestor.’’ 742 F.2d at 1496. Here, too,

the inclusion of material that Congress directed be kept

confidential does not remove the entire IRS response from

the definition of agency records where the congressional

material ‘‘can be redacted from the copies of documents

disclosed to the FOIA requestor.’’ Contrary to the dissent,

see Dissent at 5 n.4, Bureau of National Affairs did not

invoke FOIA exemption six. Nothing in the opinion refers to

exemption six, and the court’s discussion focused exclusively

14

on whether the requested materials met the definition of

agency records under FOIA. The court stated that the issue

before it was ‘‘whether a document created by an agency

employee is an ‘agency record’ within the meaning of FOIA,’’

742 F.2d at 1493 (emphasis omitted), and after analyzing the

materials at issue, it ‘‘h[e]ld that, with the exception of the

daily agendas that were distributed within the Antitrust

Division, the appointment materials requested TTT [were] not

‘agency records’ within the meaning of FOIA,’’ id. at 1496.

As to the dissent’s second point, Goland, Holy Spirit, and

Paisley did not subdivide the documents for a very good

reason: the issue was not presented. In all three cases, the

only question was whether the documents were agency rec-

ords in their entirety. Here, by contrast, because Congress

manifested its intent with respect to at most only part of the

IRS response, neither Congress nor the agency has exclusive

control over the document. By directing the district court to

consider whether those portions of the IRS response that

would reveal the Joint Committee request can be redacted,

we recognize that the principle set forth in Paisley—that an

agency-created document can become a congressional rec-

ord—applies as well to portions of an agency-created docu-

ment. We thus remain true to a definition of agency records

that excludes congressional material, see Goland, 607 F.2d at

346, but includes materials created and possessed by an

agency ‘‘in the legitimate conduct of its official duties,’’ Tax

Analysts, 492 U.S. at 145. Any other result could create a

huge hole in FOIA. For example, suppose on remand the

district court discovers that the seventeen-page letter con-

tains only a few references to the Joint Committee request,

that those references can be easily redacted, and that the

three attachments can be disclosed in their entirety. To

withhold such material from disclosure just because the letter

contains a few redactable references to the Joint Committee

would, contrary to the principles underlying FOIA, deny the

public access to potentially valuable information about

‘‘whether the IRS’s selection of tax-exempt organizations TTT

for audit has been politically motivated,’’ Paull Decl. ¶ 7.

15

Finally, the dissent maintains that under our approach

United We Stand America will still not receive the informa-

tion it seeks. See Dissent at 6–7. But United We Stand

America does not seek disclosure of materials that would

reveal the Joint Committee request. It seeks ‘‘any and all

documents TTT that refer or relate in any way to the organi-

zation.’’ If the district court determines that references to

the Joint Committee request can be redacted (and assuming

that none of FOIA’s exemptions applies) then United We

Stand America will get much or even all of the information it

seeks.

III.

In finding sufficient ‘‘indicia of congressional intent,’’ Pais-

ley, 712 F.2d at 696, to control the April 28 request and the

portions of the response that would reveal that request, we

emphasize that (1) the confidentiality directive appears in a

letter written by the Joint Committee’s chief of staff as part

of an investigation authorized by the chairman, vice-chairman,

and ranking members of the Joint Committee, and (2) the

IRS Manual, relied on by the Joint Committee, expressly

recognizes the confidentiality of Joint Committee requests.

We express no view about the sufficiency of congressional

manifestations of intent to control documents that are created

under other circumstances.

The judgment of the district court is affirmed as to those

portions of the IRS response that would reveal the Joint

Committee request. The case is remanded with instructions

to determine whether the IRS response can be redacted to

protect the confidentiality of the Joint Committee’s April 28

request and, if so, to order the IRS to release any segregable

portions that are not otherwise protected by one of FOIA’s

nine exemptions, see 5 U.S.C. § 552(b).

So ordered.

1

HENDERSON, Circuit Judge, dissenting:

I believe the district court correctly analyzed the four

factors set forth in Tax Analysts to conclude that the IRS

does not have sufficient ‘‘control’’ of its copy of its response to

the Joint Committee on Taxation (JCT)’s request to make the

document1 disclosable as an ‘‘agency record’’ under FOIA.

Tax Analysts v. United States Dep’t of Justice, 845 F.2d 1060,

1069 (D.C. Cir. 1988), aff’d on other grounds, 492 U.S. 136

(1989). To reach a different conclusion, the majority rejects

our four-factor test for agency control, applies, but reinter-

prets, one of those factors and disturbs our long-settled FOIA

analysis. I therefore respectfully dissent.

Relying on our decisions in Goland v. CIA, 607 F.2d 339

(D.C. Cir. 1978), Holy Spirit Ass’n for the Unification of

World Christianity v. CIA, 636 F.2d 838 (D.C. Cir. 1981), and

Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), the majority

concludes that, if the document sought under FOIA is created

by the agency in response to a congressional request, whether

it is an agency record depends solely on whether ‘‘Congress

has manifested a clear intent to control the document.’’ Maj.

Op. at 2 (emphasis added). But we have established a four-

factor test for determining ‘‘whether an agency exercises

sufficient control over a document to render it an ‘agency

record’,’’ Burka v. United States Dep’t of Health & Human

Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (emphasis added),

which test is not superseded by, or rendered inapplicable to,

documents that respond to a congressional request. The

majority nonetheless contends that its approach is consistent

1 The document in its entirety consists of a seventeen-page letter

from the IRS Director, Exempt Organizations, to the JCT chief of

staff, that includes ‘‘a status report on case files and other informa-

tion requested by the [JCT],’’ along with three attachments, de-

scribed in part as a ‘‘list of organizations and the names of IRS

employees who were involved in cases concerning those organiza-

tions’’ (Exhibit 1), a ‘‘narrative listing of cases containing allegations

of inappropriate behavior by IRS employees involving tax-exempt

organizations’’ (Exhibit 2), and a ‘‘list of National Office cases in

which the volume of documents in each case is estimated’’ (Exhibit

3). Joint Appendix (JA) 27–28.

2

with Tax Analysts’s second factor (‘‘the ability of the agency

to use and dispose of the record as it sees fit,’’ 845 F.2d at

1069) and other circuit precedent. See Maj. Op. at 7–8, 11–

12. As we explained in Paisley, however, ‘‘the agency to

whom the FOIA request is directed must have exclusive

control over the disputed document[ ]’’ in order for it to be an

‘‘agency record’’ subject to FOIA. 712 F.2d at 693 (emphasis

added); see also Goland, 607 F.2d at 347 (deciding whether

Congress-generated document had ‘‘become property subject

to the free disposition of the agency with which the document

resides’’ (emphasis added)). Even the majority acknowledges

that the agency lacks such ‘‘exclusive’’ control over the docu-

ment and that the entire document is not subject to the IRS’s

‘‘free disposition’’ inasmuch as it sanctions the nondisclosure

of any portion that reveals the JCT’s request. For me, the

JCT’s request for confidentiality by itself tilts the second Tax

Analysts factor in the IRS’s favor although there is additional

record evidence – e.g., the IRS’s FOIA Manual, its course of

dealing with the JCT and the JCT chief of staff’s declara-

tion – that the IRS lacks sufficient control (and, without a

doubt, exclusive control) over its copy of the response to

render it an agency record.

Furthermore, we have previously required that ‘‘all four

factors be present’’ before we conclude that ‘‘an agency has

sufficient ‘control’ over a document to make it an ‘agency

record.’ ’’ Tax Analysts, 845 F.2d at 1069 (emphasis added).

The majority, relying on one sentence from United States

Department of Justice v. Tax Analysts, 492 U.S. 136, 145

(1989) – a case which has nothing to do with an agency’s copy

of a document created solely in response to a confidential

request by a congressional committee, the original of which

the agency delivered to the committee, which original the

committee retains, has not publicly disclosed and to whose

disclosure the committee has objected, and continues to ob-

ject, because disclosure will reveal the substance of the JCT’s

confidential request – concludes that the other three factors

for determining agency control are superfluous if ‘‘the agency

creates and possesses the document in the legitimate conduct

of its official duties.’’ Maj. Op. at 12. But the other three

factors lead ineluctably to the conclusion that the document in

its entirety is not an ‘‘agency record.’’ With regard to the

3

‘‘intent of the document’s creator to retain or relinquish

control over the records’’ (not surprisingly, the first factor),

Tax Analysts, 845 F.2d at 1069, it is undisputed that the IRS

created the document for the sole purpose of responding to

the JCT’s confidential request (which it did by forwarding the

original to the JCT) and maintains only a copy. Cf. Holy

Spirit, 636 F.2d at 843 (agency-created documents could

become ‘‘congressional documents because generated in re-

sponse to congressional inquiries and transferred to Con-

gress’’ but not if the Congress ‘‘failed to retain control over

them’’).2 The third factor considers the ‘‘extent to which

agency personnel have read or relied upon the document.’’

Tax Analysts, 845 F.2d at 1069. The IRS has not used its

copy of the response for any agency purpose, let alone a

policy-making one. See Burka v. United States Dep’t of

Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)

(data tapes agency records because inter alia agency ‘‘read

and relied significantly on the information in writing articles

and developing agency policies’’); see also Kissinger v. Re-

porters Comm. for Freedom of the Press, 445 U.S. 136, 157

(1980) (Kissinger’s notes not agency records because inter

alia ‘‘they were not used by the [State] Department for any

purpose’’); Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir.

1994) (‘‘ ‘[I]n cases where documents are created by an agen-

cy employee and located within the agency, use of the docu-

ment becomes more important in determining the status of

the document under FOIA.’ ’’ (quoting Bureau of Nat’l Af-

2 The majority’s discussion of Goland, Holy Spirit and Paisley

glosses over the portions of those decisions that emphasize the

importance of ‘‘the circumstances surrounding the creation of the

documents.’’ Paisley, 712 F.2d at 694; see Holy Spirit, 636 F.2d

842–43 (‘‘[T]here is no evidence surrounding the generation of these

CIA-created records indicating that Congress intended that they

remain secret.’’ (emphasis added)); Goland, 607 F.2d at 347 (con-

cluding document was not ‘‘agency record’’ based ‘‘both on the

circumstances attending the document’s generation and the condi-

tions attached to its possession’’). Here, those circumstances – the

IRS created the document in response to the JCT’s confidential

request and not for any independent agency purpose – plainly

indicate that the IRS’s copy of its response is not an agency record.

4

fairs, Inc. v. United States Dep’t of Justice, 742 F.2d 1484,

1490 (D.C. Cir. 1984))) (internal ellipsis omitted; emphasis in

original). The fourth factor looks to the ‘‘degree to which the

document was integrated into the agency’s record system or

files.’’ Tax Analysts, 845 F.2d at 1069. The IRS keeps its

copy in a segregated file devoted solely to IRS correspon-

dence with the JCT. See Kissinger, 445 U.S. at 157 (Kissing-

er’s notes not agency records because inter alia ‘‘[t]hey never

entered the State Department’s files’’). The record before us

does not reflect why the IRS retains a copy of the response,

but the fact that it has not used that copy and keeps it

segregated reinforces the conclusion that the document was

not created for the agency’s use. FOIA does not require

disclosure simply because the IRS practices what it preach-

es – i.e., it keeps a copy. See Kissinger, 445 U.S. at 157 (‘‘We

simply decline to hold that the physical location of the notes

TTT renders them ‘agency records.’ ’’).3

The most serious problem with my colleagues’ holding is

that it rewrites FOIA law. The question presented in Go-

land, Holy Spirit and Paisley was whether the documents at

issue were ‘‘congressional’’ or ‘‘agency’’ records. Goland, 607

F.2d at 344–45; Holy Spirit, 636 F.2d at 840; Paisley, 712

F.2d at 692; see 5 U.S.C. § 551(1)(A) (‘‘agency’’ does not

include Congress); see generally Wolfe v. Dep’t of Health &

Human Servs., 711 F.2d 1077, 1079 (D.C. Cir. 1983) (‘‘A

threshold inquiry in any FOIA case is whether the documents

requested are in fact ‘agency records.’ ’’) In answering that

question we did not subdivide any document into part-

congressional record and part-agency record. Yet this is

precisely what the majority tells the district court to do. See

Maj. Op. at 12 (concluding ‘‘that only those portions of the

response that would reveal the Joint Committee request are

3 The majority worries that application of our traditional four-

factor test for agency control would keep secret all documents that

‘‘would not have been created but for [a] congressional request, that

the agency relies on TTT for no other purpose, and that TTT are kept

in separate files.’’ Maj. Op. at 12. It omits mention of the attribute

that even it requires in order to keep a document (or at least parts

thereof) secret, namely congressional intent to do so.

5

congressional documents not subject to FOIA’’). There is

only one way to ‘‘subdivide’’ under FOIA, however, and that

is by first determining that the entire document is an ‘‘agency

record’’ and then analyzing whether any portion of that

agency record is nonetheless protected from disclosure by

one of the nine statutory exemptions listed in 5 U.S.C.

§ 552(b). See id. (‘‘Any reasonably segregable portion of a[n

agency] record shall be provided to any person requesting

such record after deletion of the portions which are exempt

under this subsection [listing exemptions].’’); United States

Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150–51 (1989)

(‘‘An agency must disclose agency records to any person

under [5 U.S.C.] § 552(a), ‘unless they may be withheld

pursuant to one of the nine enumerated exemptions listed in

[5 U.S.C.] § 552(b).’ ’’ (quoting United States Dep’t of Justice

v. Julian, 486 U.S. 1, 8 (1988))). The process of redaction,

however, does not change the redacted portion into a non-

agency record; it simply makes that portion of the agency

record not subject to disclosure. Id.; see Bureau of Nat’l

Affairs, 742 F.2d at 1496 (‘‘The inclusion of personal informa-

tion does not, by itself, take material outside the ambit of

FOIA, for personal information can be redacted from the

copies of documents disclosed to a FOIA requester.’’)4 What

4 The majority cites Bureau of National Affairs, 742 F.2d at

1496, to support ‘‘releasing a redacted version of the response’’ and

‘‘justify withholding as congressional materials solely those portions

of the [response] that would disclose the [JCT] request.’’ Maj. Op.

at 9. Let’s be clear: the court in BNA nowhere endorses the

notion – as the majority does here – that portions of a document

can be cut out to allow the court to conclude that the remainder is

an ‘‘agency record’’ and therefore subject to FOIA and its exemp-

tions. (Indeed, BNA tells us to ‘‘focus on the totality of the

circumstances surrounding the creation, maintenance, and use of

the document to determine whether the document is [or is not] in

fact an ‘agency record.’ ’’ 742 F.2d at 1492–93.) Nor does BNA

support the notion – as the majority does here – that portions can

be redacted from an ‘‘agency record’’ by some means other than by

one of FOIA’s nine exemptions.

6

the majority does, in effect, is to carve out a tenth exemption,

i.e., ‘‘justify withholding TTT those portions of the [IRS re-

sponse] that would disclose the [JCT’s] request.’’ Maj. Op. at

9. It does so, I believe, by confusing redaction based on a

FOIA exemption, 5 U.S.C. § 552(b), with nondisclosure due to

FOIA’s inapplicability (i.e., a non-agency record). See 5

U.S.C. § 551(1)(A); Maj. Op. at 2 (‘‘The Freedom of Informa-

tion Act does not cover congressional documents.’’). To my

knowledge, we have never said that the same document can

be part agency record and part non-agency record. See

Bureau of Nat’l Affairs, 742 F.2d at 1494 (‘‘The term ‘agency

records’ should not be manipulated to avoid the basic struc-

ture of TTT FOIA: records are presumptively disclosable

unless the government can show that one of the enumerated

exemptions applies.’’). And for good reason – to do so the

court would have to redefine ‘‘agency record’’ or, perhaps, the

Congress add a tenth exemption to 5 U.S.C. § 552(b).

Of course, by allowing the IRS to keep the substance of the

JCT request confidential – and there being nothing in the

record to suggest that the IRS response goes beyond the

scope of the JCT’s request5 – the majority necessarily con-

cludes that the IRS must disclose only non-responsive infor-

That the majority looks to BNA and BNA alone to support

redacting the document at issue speaks volumes because BNA’s

redaction language is fully consistent with our traditional FOIA

analysis. In BNA, the court considered whether certain appoint-

ment materials were agency records under FOIA. The court

rejected the idea that the inclusion of personal information in the

appointment materials was dispositive because ‘‘personal informa-

tion can be redacted from the copies of documents disclosed to a

FOIA requester.’’ Id. at 1496 (emphasis added). To be sure, the

court did not explain why ‘‘personal information can be redacted’’

but the reason is obvious: FOIA expressly provides for the redac-

tion of personal information from agency records. 5 U.S.C.

§ 552(b)(6) (authorizing redaction of information that ‘‘would consti-

tute a clearly unwarranted invasion of personal privacy’’ from

agency record ); see, e.g., United States Dep’t of State v. Washing-

ton Post Co., 456 U.S. 595, 599–602 (1982).

5 See supra n.1.

7

mation. United We Stand America will therefore receive

only that information neither the JCT nor it ever requested.