Opposition Brief — Berger v. Internal Revenue Service (No. 08-884)

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OFFICE OF THE CLERK

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No. 08-884

In the Supreme Court of the Anited States

LAWRENCES. BERGER, ET AL., PETITIONERS

Vv.

INTERNAL REVENUE SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

JOHN DICICCO

Acting Assistant Attorney

General

JONATHAN S. COHEN

GRETCHEN M. WOLFINGER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a court of appeals must review de novo

a district court’s grant of summary judgment on a claim

arising under the Freedom of [Information Act (FOIA),

5 U.S.C. 552.

2. Whether the court of appeals correctly deter-

mined that the employee time sheets of an Internal Rev-

enue Service (IRS) revenue officer are exempt from dis-

closure under FOIA Exemption 6, 5 U.S.C. 552(b)(6).

3. Whether the court of appeals correctly deter-

mined that the employee time sheets of an IRS revenue

officer are Privacy Act records pertaining to the revenue

officer, rather than the subjects of her investigatory

work, which may not be disclosed without the consent of

the revenue officer.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abdelfattah v. Department of Homeland Sec.,

TS Fee Fe ee CE ov hoo oe oho ss Che dee ee 5

Department of Defense v. FL.RA, 510 U.S. 487

¢. Per err rere, reer ener eT es

Department of Justice v. Reporters Comm. for Free-

dom of the Press, 489 U.S. 749 (1989) ............. 8, 10

Department of State v. Washington Post Co., 456 U.S.

et 5. So RE ek ee a 8

Department of the Air Force v. Rose, 425 U.S. 352

6 Re ere re eee rere or 8

Lame v. Department of Justice, 767 F.2d 66 (8d Cir.

eusthacd win de an ae ee Ce ee 5, 6

Missouri ex rel. Garstang v. Department of the Inte-

rior, 297 F.3d 745 (8th Cir. 2002) ............ cee eee 5

National Archives & Records Admin. v. Favish,

SOP Ci Sr ee bee a se ie ee ees eee as 8,9

Sheet Metal Workers [nt’l Ass'n v. Department of

Veterans Affairs, 135 F.3d 891 (3d Cir. 1998) ....... 3,6

Voelker v. IRS, 646 F.2d 332 (8th Cir. 1981) ........ 12, 13

(11)

IV

Statutes: Page

Freedom of Information Act, 5 U.S.C. 552............... 1

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Jn the Supreme Court of the Guited States

No. 08-884

LAWRENCE S. BERGER, ET AL., PETITIONERS

Vv.

INTERNAL REVENUE SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of th> court of appeals (Pet. App. la-10a)

is not published in the Federal Reporter but is reprinted

in 288 Fed. Appx. 829. The opinion of the district court

(Pet. App. 11a-52a) is reported at 487 F. Supp. 2d 482.

JURISDICTION

The judgment of the court of appeals was entered on

August 11, 2008. A petition for rehearing was denied on

October 14, 2008 (Pet. App. 53a). The petition for certio-

rari was filed on January 9, 2009. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This Freedom of Information Act (FOIA), 5

U.S.C. 552, and Privacy Act, 5 U.S.C. 552a, lawsuit aris-

es from a civil tax investigation conducted by the Inter-

(1)

2

nal Revenue Service (IRS). IRS Revenue Officer Mary

Williams was assigned to that investigation, which fo-

cused on whether petitioners had appropriately withheld

federal taxes from employees’ paychecks. Cf. 26 U.S.C.

6672. No action was taken against petitioners as a result

of the investigation. Pet. App. 2a, 12a & n.1, 48a n.1.

In December 2003, petitioners submitted a FOIA and

Privacy Act request to the IRS, seeking documents asso-

ciated with the investigation, including Officer Williams’

employee time records. The IRS released numerous

documents in response to petitioners’ request, but it

withheld the time records and certain other responsive

documents no longer at issue in this case. Pet. App. 2a-

3a, 12a-15a.

2. In August 2005, petitioners filed the present suit

in district court seeking the disclosure of documents

withheld by the IRS. Respondents moved for summary

judgment, arguing, as is relevant here, that Williams’

employee time records were exempt from disclosure

under FOIA Exemptions 3 and 6, 5 U.S.C. 552(b)(3) and

(6), and that petitioners were not entitled to receive Wil-

liams’ time records under the Privacy Act.

On May 22, 2007, the district court granted summary

judgment to respondents. Pet. App. lla-52a. The court

held, exter alia, that Williams’ time records were prop-

erly withheld in full under Exemption 6. /d. at 43a-45a;

ef. id. at 47a n.10, 52a n.10 (finding it unnecessary to

address Exemption 3). The court explained that disclo-

sure “would constitute a clearly unwarranted invasion of

personal privacy,” 5 U.S.C. 552(b)(6), because Williams’

“privacy interest outweighs the relatively minimal public

interest in the manner in which Williams spent her time

during the investigation.” Pet. App. 48a, 45a. The court

noted that “disclosure would primarily serve {petition-

3

ers’] particular private interests” and would not mean-

ingfully advance the public’s understanding of the gov-

ernment’s operations or activities. /d. at 44a. The court

further held that the time sheets could not “be disclosed

under the Privacy Act without Williams’[] consent” be-

cause they reflected time Williams spent on “all of [her]

job functions,” were created as part of her “conditions of

employment with the IRS,” and “do not constitute ‘re-

cords about [petitioners].’” /d. at 45a.

3. The court of appeals affirmed in an unpublished,

non-precedential opinion. Pet. App. la-10a. The court

of appeals held that, based on its “balance |of] the public

interest in disclosure against the privacy interest” at

stake, FOIA Exemption 6 exempted Williams’ employee

time records from mandatory disclosure. /d. at 5a-7a.

The court reasoned that “Williams has a privacy interest

in her records as a whole because they are a personal

recording of how she spent her time at work.” /d. at 6a.

On the other side of the balance, the court concluded

that public disclosure of the time sheets “would not ‘con-

tribute significantly’ to the public understanding of the

operations of the IRS or ‘appreciably further the citi-

zens|’| right to be informed about what their govern-

ment is up to.’” /d. at 7a (quoting Sheet Metal Workers

Int'l Ass'n v. Department of Veterans Affairs, 135 F.3d

891, 900 (3d Cir. 1998), and Department of Defense v.

FLRA, 510 U.S. 487, 497 (1994) (DoD)). “Indeed, disclo-

sure of her records would only serve [petitioners’| nar-

row interest in knowing how she investigated their par-

ticular case.” /bid. The court accordingly held that,

even if “Williams’[] privacy interest” in her time sheets

were “slight,” that interest “outweighs thle] weak public

:

j n terest in Ps er

disclosure.” /bid.

4

The court of appeals further held that disclosure was

inappropriate under the Privacy Act. Pet. App. 7a-8a.

The court explained that the Privacy Act permits an

individual to request access to his records or “any infor-

mation pertaining to him” contained in a system of re-

cords in which such information is retrieved by the indi-

vidual’s name or other identifier, and that the Privacy

Act normally prohibits disclosure of such records “ex-

cept pursuant to a written request by, or with the prior

written consent of, the individual to whom the record

pertains.” /d. at 8a (quoting 5 U.S.C. 552a(b) and

(d)(1)). Those provisions, the court concluded, prohib-

ited disclosure of Officer Williams’ time sheets to peti-

tioner Lawrence Berger.’ It explained that the “records

were created pursuant to the conditions of | Williams’ |

employment, not * * * ‘in connection with’ her investi-

gation of [petitioners]”; they document “the time Wil-

liams spent performing her job duties,” which extend far

beyond her investigation of petitioners; and they include

such matters as Williams’ “vacation time and sick leave.”

Ibid. The court accordingly held that “the time records

pertain to Williams, not Berger, and cannot, absent the

consent of Williams, be released under the Privacy Act.”

Ibid.

ARGUMENT

The unpublished, non-precedential decision of the

court of appeals is correct and does not conflict with the

decisions of this Court or any other court of appeals.

Because the Privacy Act permits an “individual” to have access to

his own records, 5 U.S.C. 552a(a)(2) and (d)(1), the Privacy Act claim for

Williams’ time sheets is pressed only on behalf of petitioner Berger and

not petitioner Realty Research Corporation. Pet. 31 n.9; cf. Pet. App.

8a n.4, 10a n.4:

5

Although the court’s decision articulates a standard of

appellate review for factual determinations in FOIA

cases that is the subject of a division of authority among

the courts of appeals, that language did not influence the

court’s own evaluation of the balance of interests under

FOIA Exemption 6. The court’s resolution of that legal

question, like its resolution of petitioner’s Privacy Act

claim, is correct and raises no issue meriting certiorari.

Further review is therefore unwarranted.

1. Petitioners contend (Pet. 5-18) that this Court

should grant review to resolve a conflict among the

courts of appeals regarding the proper standard of ap-

pellate review for FOIA cases decided at summary judg-

ment. The court of appeals described the prevailing

standard in the Third Circuit for reviewing factual de-

terminations in the FOIA context, namely, that a district

court’s factual finding is reviewed to ensure that it has

an “adequate factual basis” and is not “clearly errone-

ous.” Pet. App. 4a-5a (citing Abdelfattah v. Department

of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (per

curiam), and Lame v. Department of Justice, 767 F.2d

66, 70 (3d Cir. 1985)). While other courts apply more

traditional de novo review to all questions at summary

judgment in FOIA cases, see, ¢.g., Missouri ex rel.

Garstang v. Department of the Interior, 297 F.3d 745,

749 & n.2 (8th Cir. 2002), the appropriate standard was

irrelevant to the court of appeals’ decision, which turned

on its own Exemption 6 balancing of the public interest

in disclosure against the privacy interest at stake. Fur

ther review is unwarranted because resolution of the

proper appellate standard of review of factual issues

would have no impact on this Court’s disposition of this

CASe.

6

Petitioners correctly concede that a court’s Exemp-

tion 6 balancing is a question of law, Pet. 13-14, and that

the Third Circuit itself conducts de novo review of such

legal questions under FOIA. Pet. 11 (citing Sheet Metal

Workers Int'l Ass'n v. Department of Veterans Affairs,

135 F.3d 891, 896 (3d Cir. 1998)). Nothing indicates that

the court of appeals’ unpublished, non-precedential deci-

sion in this case disregarded its own binding precedent

in this regard. The court’s standard-of-review discus-

sion cites its prior decision in Lame, which makes clear

that such legal questions are reviewed de novo and that

the Third Circuit’s standard for reviewing factual deter-

minations applies when a district court makes factual

findings based on an in camera review of the underlying

documents. See Lame, 767 F.2d at 69-70. The court of

appeals’ Exemption 6 balancing likewise relies heavily

on, and repeatedly cites, its earlier decision in Sheet

Metal Workers, see Pet. App. 6a, which (as petitioners

note) confirms that the Third Circuit conducts such bal-

ancing de novo on appeal. Skeet Metal Workers, 135

F.3d at 896-897, 902-905. Both parties also advised the

court that non-factual determinations are reviewed de

novo, Pet. C.A. Br. 3; Gov’t C.A. Br. 15, and the court’s

decision reflects that it conducted its own Exemption 6

balancing afresh. See Pet. 6a-7a.

Moreover, the division of authority upon which peti-

tioners rely concerns an issue that is not frequently dis-

positive in FOIA litigation. Most summary judgments

under FOLIA do not rest on a district court’s factual find-

ings resolving a genuine issue of material fact in favor of

one litigant based on an in camera review of the under-

lying documents. This case is no different. The district

court here concluded that the “general summary judg-

ment standards appllied]” to its decision, that it would

7

be “inappropriate for [the] district court to resolve fac-

tual disputes,” and that “[s}lummary judgment may be

granted only if” there is “no genuine issue of material

fact” in dispute. Pet. App. 18a-20a (emphasis added;

citation omitted). The district court accordingly did not

base its Exemption 6 analysis on findings concerning

disputed facts. /d. at 43a-45a. Indeed, it would not have

done so on the summary judgment record, which in-

cluded declarations from [RS employees regarding the

records at issue and a Vaughn index, see, e.g., C.A. App.

208-319, 378-890, but did not contain the underlying re-

cords for the court’s in camera review. See Pet. App.

22a-24a. Not only have petitioners failed to challenge in

their petition—and have therefore abandoned—the dis-

trict court’s discretionary decision not to conduct an 2n

camera review, cf. id. at 8a-Ya, they also fail to identify

any record evidence giving rise to a genuine issue of

material fact concerning the Exemption 6 analysis con-

ducted by the courts below. In short, the proper stan-

dard of appellate review for factual findings in FOLA

cases had no bearing on the proper disposition of this

case. That issue therefore does not merit further review

in this case, especially since the decision below is unpub-

lished and recited the standard of appellate review of

factual issues only in passing.

2. Petitioners contend (Pet. 18-31) that the court of

appeals erred in its FOIA analysis by according too

much weight to Officer Williams’ privacy interest in her

daily time sheets under FOIA Exemption 6 and in con-

cluding that her privacy interest outweighed the public

interest in disclosure. Those contentions are without

merit.

a. The court of appeals correctly concluded that Wil-

liams has a cognizable privacy interest in her time re-

8

cords. Although petitioners argue (Pet. 19-22) that

“purely work-related information” cannot implicate per-

sonal privacy, that contention is inconsistent with

the text of Exemption 6 and the decisions of this Court.

This Court has repeatedly emphasized taat FOIA’s

“concept of personal privacy” does not reflect a “limi-

ted or ‘cramped notion’ of that idea.” See National Ar-

chives & Records Admin. v. Favish, 541 U.S. 157, 165

(2004) (quoting Department of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 768

(1989) (Reporters Comm.)). Indeed, FOIA affords broad

protection to a wide range of privacy interests that pro-

mote “the individual’s control of information concerning

his or her person,” Keporters Comm., 489 U.S. at

763-764, and that extend well beyond merely “intimate”

or “highly personal” details, Department of State v.

Washington Post Co., 456 U.S. 595, 600 (1982) (citation

omitted).

kixemption 6 by its terms applies to “personnel and

medical files and similar files” the disclosure of which

would constitute a “clearly unwarranted invasion of per-

sonal privacy.” 5 U.S.C. 552(b)(6) (emphasis added).

This Court has thus recognized that “[{iJnformation such

as * * * employment history[] and comparable data”

may be exempt from disclosure under Exemption 6 even

though such information “is not normally regarded as

highly personal.” Washington Post Co., 456 U.S. at 600.

The Court has likewise held that Exemption 6 contem-

plates redaction of purely work-related information in

the form of case summaries of honor ecde violations by

Air Force Academy cadets to protect the personal pri-

vacy of those government employees. Department of the

Air Force v. Rose, 425 U.S. 352, 376-377, 380-381 (1976).

9

Those decisions reflect the understanding that the

privacy interest at stake must be analyzed in light of the

fact that a FOIA release requires disclosure to the pub-

lic generally, which “must have the same access under

FOIA” as any particular requester. Department of De-

fense v. FLRA, 510 U.S. 487, 501 (1994); see zd. at 496;

Favish, 541 U.S. at 174. The public disclosure of an em-

ployee’s time sheets detailing the specifics of her daily

activities certainly implicates a non-trivial privacy inter-

est. At the very least, an individual like Officer Williams

has an interest in avoiding the potential harassment

from disgruntled subjects of IRS investigations pursu-

ing her employment records. And, while the court of

appeals expressed the view that that privacy interest

might be “slight,” it nevertheless outweighs the relevant

public interest in disclosing such records. Pet. App. 7a.

b. Petitioners argue (Pet. 23-28) that a “slight” pri-

vacy interest cannot justify withholding under Exemp-

tion 6 and that only a “significant” interest can be suffi-

cient to establish a “clearly unwarranted invasion of per-

sonal privacy,” 5 U.S.C. 552(b)(6)._ That contention is

meritless. The court of appeals not only applied Exemp-

tion 6’s “clearly unwarranted” standard, Pet. App. 5a

(quoting 5 U.S.C. 552(b)(6)); this Court itself has made

clear that “a very slight privacy interest would suffice”

under Exemption 6 when the public interest in disclo-

sure is sufficiently small. DoD, 510 U.S. at 500 (empha-

sis added).

c. Petitioners thus ultimately challenge the Exemp-

tion 6 balance struck by the court of appeals by assert-

ing that there is a “strong” public interest in disclosure

of Williams’ time sheets. Pet. 28-31. The court of ap-

peals, however, correctly concluded that “disclosure of

| Williams’} records would only serve [petitioners’] nar-

10

row interest in knowing how she investigated their par-

ticular case.” Pet. App. 7a (emphasis added).

It is well settled that “the only relevant public inter-

est in the FOIA balancing analysis” is “the extent to

which disclosure of the information sought would ‘she[d]

light on an agency’s performance of its statutory duties’

or otherwise let citizens know ‘what their government

is up to.” DoD, 510 U.S. at 497 (quoting Reporters

Comm., 489 U.S. at 773) (brackets in original). A FOIA

requester’s own private interest in disclosure—like

that at issue here—has “no bearing” in the relevant

analysis. /d. at 496 (“identity of the requesting party”

and the “purposes for which the request for information

is made” are irrelevant) (quoting Reporters Comm., 489

U.S. at 771). Instead, the disclosure must “appreciably

further” public knowledge of the government’s opera-

tions or otherwise open up agency action to the light of

public scrutiny in a “meaningful way.” /d. at 497-478

(citation omitted).

Disclosure of Williams’ time sheets would serve no

such public interest. Petitioners seek only those time

entries relating to the petitioners’ own tax investigation,

Pet. 19, yet they claim that such a disclosure would

“shed light on the manner in which the [RS conducts

civil tax investigations,” reveal whether [RS employees

are “carry[ing] out their duties in an efficient and law-

abiding manner,” and show whether the “investigation

[of petitioners] was comprehensive” and cost-effective.

Pet. 29-30 (citations omitted). Employee time sheets de-

tailing the “total hours [Williams] spent on the investi-

gation”—even assuming those records generally reflect

the “tasks she performed,” Pet. 30—would not reveal

anything meaningful to the public about the IRS gener-

ally or the investigation of petitioners specifically. To

1]

make a meaningful assessment of that investigation, the

public would need to have a more detailed understand-

ing of what was investigated than might be reflected in

daily time records. At the very least, the public would

also need access to petitioners’ relevant tax and other

records at issue in the investigation in order to evaluate

meaningfully Williams’ performance and reasonably

assess whether the investigation was comprehensive

or cost-effective. Such taxpayer-specific materials, of

course, are specifically protected from public disclosure

by statute. See, e.g., 26 U.S.C. 6108.

In the end, petitioners request this Court to review

the court of appeals’ Exemption 6 holding without iden-

tifying any decision of this Court or any other court of

appeals with which that holding is in conflict. No fur-

ther review of that holding is warranted.

3. Petitioners’ Privacy Act contentions (Pet. 31-36)

are equally unavailing. The court of appeals concluded

that the Privacy Act did not permit petitioner Berger to

obtain access to Williams’ employee time records be-

cause those records pertained to Williams, not Berger.

Pet. App. 7a-8a. That fact-bound determination pres-

ents no issue justifying this Court’s review.

The Privacy Act generally provides that “[eJach

agency that maintains a system of records shall,” upon

“request by any individual to gain access to his record or

to any information pertaining to him which is contained

in the system, permit [the individual} * * * to review

the record.” 5 U.S.C. 552a(d)(1). However, the Act fur-

ther requires that, subject to exceptions not relevant

here, “[n]Jo agency shall disclose any record which is con-

tained in a system of records” without the written con-

sent of “the individual to whom the record pertains.” 5

U.S.C. 552a(b).

12

Petitioners do not contest that Williams’ employee

time records pertain to Williams. They instead suggest

that the time sheets also pertain to Berger. Pet. 32-33,

34-35; see Pet. 31 n.9. The evidentiary record, however,

does not support that contention. The time sheets them-

selves are not in the record, cf. Pet. App. 23a (declining

to conduct 72n camera review), and the declaration that

describes them states that the documents are Williams’

“personal recording of the time [she] expended)as [an

IRS] employee over a particular period of time,” includ-

ing the time that she spent “examining various taxpay-

ers” and the time she “reported as sick leave, vacation

time, training, and for other administrative purposes.”

C.A. App. 388. Those records, the declaration adds,

“were created as a result of and in accordance with her

term of employment” and “are not records about [peti-

tioner Berger].” Jd. at 389. The court of appeals re-

viewed the summary judgment record de novo and, like

the district court, concluded that the evidence showed

that Williams’ time records did not pertain to Berger.

Pet. App. 8a, 45a.*

Relying on Voelker v. IRS, 646 F.2d 332 (8th Cir.

1981), petitioners argue that, “if a record concerns two

people, the record may be retrieved [under the Privacy

Act] by either person without the consent of the other.”

Pet. 35. The summary judgment record, however, does

not show that Williams’ time sheets actually pertain to

petitioner Berger, and that factual shortcoming alone

makes this case a poor vehicle to review petitioners’

fact-bound contentions.

- The court of appeals based its ruling on a de novo review of the

Privacy Act claim, applying the same summary judgment standard as

the district court. Pet. App. 7a.

13

Moreover, even if Williams’ time sheets included ref-

erences to Berger, this Court’s review would not be war-

ranted because the court of appeals’ decision does not

conflict with Voelker. In Voelker, the IRS completed an

investigation of Voelker and Voelker sought access to

his investigatory record under the Privacy Act. 646

F.2d at 333. The IRS redacted those portions of the rec-

ord that involved “personal information pertaining to a

third party” because it reasoned that such information

did not “pertain” to Voelker. /bid. The court concluded

that such redaction was improper because Section

552a(d)(1) “clearly states that an individual is entitled to

his record” and, therefore, does not require that the

individual “meet some separate ‘pertaining to’ standard”

when seeking to access information in his own file. /d.

at 334. Voelker thus holds that “information contained

in a requesting individual’s record” cannot be withheld

“on the ground that the [particular] information does not

pertain to that individual.” /bid. The records at issue

here, in contrast, are Williams’ time records, which doc-

ument the time spent by Williams on various job-related

matters. Even if a portion of those records refers to

Berger, Voelker merely supports the proposition that

Williams (not Berger) would be entitled to have access

to all of her time records, even if portions mention other

individuals. Voelker does not speak to the distinct ques-

tion whether an individual referred in Williams’ time

records would also be entitled to access to those re-

cords.”

’ Petitioners make two additional arguments, neither of which sug-

gests that certiorari is warranted. First, petitioners contend (Pet. 33-

34) that Williams’ daily time sheets may be retrieved by Berger’s name

from an IRS “system of records” based on an assertion that the records

are actually part of the “ENT!TY Case Management System.” Second,

14

The court of appeals’ conclusion that Williams’ time

records do not pertain to petitioner is fact-bound, and

petitioners identify no conflict of authority that would

justify review of the court of appeals’ unpublished, non-

precedential decision. No further review is warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

JOHN DICICCO

Acting Assistant Attorney

General

JONATHAN S. COHEN

GRETCHEN M. WOLFINGER

Attorneys

MAY 2009

they argue (Pet. 35-36) that Williams’ time sheets are not exempt from

diselusure under Section 552a(k)(2). The government disputed those

contentions, Gov't C.A. Br. 17-19, which petitioners raised for the first

time on appeal, and the court of appeals found it unnecessary to resolve

either question in light of its determination that the tirne sheets did not

pertain to Berger. See Pet. App. 8a & n.5, 10a n.5.