United States Department of Justice v. Tax Analysts

PETITIONER: United States Department of Justice
RESPONDENT: Tax Analysts
LOCATION: Pasco County Sheriff’s Office

DOCKET NO.: 88-782
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 492 US 136 (1989)
ARGUED: Apr 24, 1989
DECIDED: Jun 23, 1989

Lawrence G. Wallace - on behalf of the Petitioner
William A. Dobrovir - on behalf of the Respondent

Facts of the case


Media for United States Department of Justice v. Tax Analysts

Audio Transcription for Oral Argument - April 24, 1989 in United States Department of Justice v. Tax Analysts

William H. Rehnquist:

We'll hear argument first this morning in No. 88-782, United States Department of Justice v. Tax Analysts.

Mr. Wallace?

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court.

This Freedom of Information Act case reflects the not unique circumstance that the Federal Government is a party to all federal tax litigation, as it is to a number of other categories of litigation, such as Federal Tort Claims Act cases, government contracts, mall fraud prosecutions, FOIA cases, and others that might occur.

Since 1972, the Respondent has published a weekly report of developments in federal taxation for which it charges its subscribers an annual fee of $595.

And since 1979, the Tax Division of the Department of Justice, pursuant to FOIA, has provided to Respondent and other commercial tax services weekly logs of court decisions of which the Department has been informed in federal tax cases.

This controversy arises out of 26 weekly requests that Respondent made beginning in November of 1984 for the United States district court opinions, orders and decisions in tax cases identified in the log released during the previous week.

It apparently occurred to Respondent that the Department of Justice, which receives these orders and decisions as a litigator, might be a either more reliable, or at least more convenient, source of these decisions than the courts issuing them and perhaps part of the convenience would be a less expensive source, since the rather elaborate fee provisions under FOIA are designed in large part to keep the costs down in order to facilitate access to information about what the government is doing.

This type of request, whatever its convenience to the requester, is quite inconvenient and burdensome to the government as a litigator.

These opinions and orders are not collected in any one place for the government's convenience.

They come in in a mass of paper flow and by various routes, and the managerial problem is to get them routed with reasonable promptness to the lawyer assigned or the lawyer now assigned to the case, since there is considerable turnover in the government, so that the government can perform its responsibilities as a litigator in the cases, decide whether to take an appeal if the case has been lost, proceed to enforce the judgment, what have you.

These are not used by the Department as a research tool.

They are used for purposes of conducting the litigation.


Antonin Scalia:

Mr. Wallace, as far as the inconvenience is concerned, though, the Respondents suggest that maybe that's the way you do it now, but it would be no great inconvenience to simply instruct each attorney in the field that when the court opinion is issued and he forwards a copy to wherever he now forwards it, another copy also be sent to some central repository where you would have all of them.

Would that be... that seems plausible to me.

Is there any reason that couldn't be done?

Lawrence G. Wallace:

--By and large, these are received by clerical personnel... and they come in in the mall in the Department... whose job it is to identify the proper unit, the proper litigating unit, in the Tax Division, to whom to send the opinions.

The attorneys receive them in two or three days time typically.

It takes a while to distribute them.

If there were routine duplication, which does not occur now, at the clerical level, further delay would be added inevitably.

There are backups for these machines.

They break down, et cetera.

The lawyers are not always present.

They do not routinely reproduce these items.

There is no repository where they're kept.

They're not used, for example, by the bulk of lawyers in the Tax Division itself as a research source.

Unless the lawyer happens to be the lawyer on the case or a close colleague who knows of it, they are much more apt to use the loose-leaf services in the library--

Antonin Scalia:


Lawrence G. Wallace:

--like any other lawyer to find out about recent developments.