No. 03-1389

In The

Supreme Court of the United States

____________

JUDICIAL WATCH, INC.,

Petitioner,

INTERNAL REVENUE SERVICE,

Respondent.

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

____________

REPLY BRIEF FOR PETITIONER

____________

Paul J. Orfanedes*

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 500

Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

*Denotes Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................................. iii

ARGUMENT....................................................................... 1

EXHIBITS

TABLE OF AUTHORITIES

Cases Page

Dep't of Defense v. FLRA, 510 U.S. 487 (1994).......... 4

Dep't of Navy v. FLRA, 975 F.2d 348 (7^th Cir. 1992)... 4

FLRA v. Department of Treasury, 884 F.2d 1446

(D.C. Cir. 1989)............................................................... 4

FLRA v. Department of Veterans Affairs, 958 F.2d 503

(2d Cir. 1992)................................................................... 4

Judicial Watch v. Department of the Army,

Case No. 04-0301 (D.D.C.).......................................... 2

Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122

(7^th Cir. 2003).................................................................. 3

National Archives & Records Admin. v. Favish

425 U.S. 352 (1976)................................................... 5, 6

Perlman v. Department of Justice, 312 F.3d 100

(2d Cir. 2002)................................................................... 5

Sheet Metal Workers Int’l Ass’n v. Air Force,

63 F.3d 994 (10^th Cir. 1995).......................................... 4

Strout v. U.S. Parole Comm’n,

40 F.3d 136 (6^th Cir. 1994)........................................ 3, 4

U.S. Dep't of Justice v. Reporters Comm. For

Freedom of the Press, 489 U.S. 749 (1989)............... 2

U.S. Dep't of State v. Washington Post Co.,

456 U.S. 595 (1982)................................................ 2, 4-6

Statutes, Rules and Regulations

5 U.S.C. § 552(b)(6)............................................... passim

5 U.S.C. § 552(b)(7)(C).................................................... 5

In The

Supreme Court of the United States

____________

No. 03-1389

____________

JUDICIAL WATCH, INC.,

Petitioner,

INTERNAL REVENUE SERVICE,

Respondent.

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

____________

REPLY BRIEF FOR PETITIONER

____________

ARGUMENT

Respondent’s Brief in Opposition (“Opp.”) underscores the need for the Court to issue a writ of certiorari to review the appellate court’s decision in this case. Absent from Respondent’s brief is any serious attempt to explain how the appellate court’s decision can be reconciled with the plain language of the Freedom of Information Act (“FOIA”) or this Court’s precedent. Left unanswered is how a government employee’s name, appearing in an audit file on Petitioner at the Internal Revenue Service (“IRS”), constitutes a personnel or medical or similar file, much less a “detailed Government record[] on an individual which can be identified as applying to that individual.” U.S. Dep’t of State v. Washington Post, 456 U.S. 595, 602 (1982). The only answer is through a wholly improper judicial expansion of FOIA’s Exemption 6. Because of the broad and long-term ramifications of the appellate court’s ruling, the petition should be granted.

Those ramifications extend far beyond this case. Petitioner, as a frequent user of FOIA, increasingly finds itself blocked by the improper application of Exemption 6 in its efforts to investigate “what the government is up to.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). For example, in response to a recent FOIA request relating to government contracts awarded to a subsidiary of Halliburton Co. for work in Iraq, the Department of the Army redacted the names of government employees involved in the awards allegedly pursuant to Exemption 6. See Exhibits 1-3 attached hereto (Judicial Watch, Inc. v. Department of the Army, Case No. 04-0301 (D.D.C.)). These documents did not come from personnel, medical, or any type of remotely similar file. No readily identifiable privacy interests on the part of the employees were at stake. Nevertheless, Exemption 6 was invoked simply because government employees’ names appeared in the documents. This on-going, improper application of Exemption 6 is exactly what is at issue in this case and is typical of Petitioner’s recent experience in attempting to obtain information from the government through FOIA. It also is why review by this Court is necessary.

Even though Petitioner did not assert the existence of a conflict among the circuit courts of appeal, Respondent cites a string of FOIA cases from other circuits ostensibly demonstrating that the appellate court’s ruling is consistent with the rulings of other circuit courts and further demonstrating, allegedly, that the names of government employees are redacted routinely from government records. Opp. at 5-6. However, none of these cases addresses the issue of what constitutes a personnel, medical or similar file under FOIA’s Exemption 6 or this Court’s precedent. For example, in Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122 (7^th Cir. 2003), a FOIA requester sought the release of names of persons who had filed complaints with the Federal Trade Commission. The court applied a balancing test to determine whether the public interest in disclosure outweighed the privacy interest of the persons who had filed the complaints. However, in performing this balancing test the court failed to determine, as an initial matter, whether these names appeared in personnel, medical, or similar files about the persons making the complaints. The Seventh Circuit in Lakin thus made the very same error the appellate court made in this case: it ignored the entire first half of a proper Exemption 6 analysis. In doing so, both courts not only ignored this Court’s precedent, but they also effectively re-wrote Exemption 6. Lakin thus helps to demonstrate why review by this Court is necessary. See also Strout v. U.S. Parole Comm’n, 40 F.3d 136 (6^th Cir. 1994) (applying balancing test to names of people who wrote to Parole Commission opposing granting parole to FOIA requestor/inmate.)

Respondent also cites Sheet Metal Workers Int’l Ass’n v. Air Force, 63 F.3d 994 (10^th Cir. 1995) in support of its argument. At issue in that case was the release of the names and addresses of government employees contained in payroll records. However, the payroll records at issue in Sheet Metal Workers clearly constituted “personnel” files, and, thus, the court had no need to undertake a lengthy analysis of whether the files at issue were the types of files protected by Exemption 6. Respondent cites no fewer than four similar cases involving the release of names of government employees from personnel files. Department of Defense v. FLRA, 510 U.S. 487 (1994); Department of Navy v. FLRA, 975 F.2d 348 (7^th Cir. 1992); FLRA v. Department of Veterans Affairs, 958 F.2d 503 (2^nd Cir. 1992); FLRA v. Department of Treasury, 884 F.2d 1446 (D.C. Cir. 1989). Unlike this case, none of these cases involved a clear challenge to whether the “personnel and medical and similar files” provision of Exemption 6 even applied. As a result, they are unavailing to Respondent.

Respondent discusses only briefly whether the appellate court’s decision is consistent with this Court’s precedent. Respondent tries to reconcile the appellate court’s decision with Washington Post, but only does so by quoting the case out of context. Respondent relies on the Court’s statement in Washington Post that disclosure is not determined by the “label of the file which contains the damaging information.” Opp. at 6-7. In Washington Post, however, the Court plainly recognized that antecedent to any balancing of an individual’s interest in keeping certain types of information private and the public interest in having that same information disclosed is a “threshold test” inquiring into whether the information at issue is contained in a personnel, medical or similar file. Washington Post, 456 U.S. at 602 n.4. The Court’s admonition about the label on the file in which the information is contained should not be taken as justification for applying Exemption 6’s balancing test to any type of information regardless of the type of file in which it is contained. The Court in Washington Post did not give a green light to agencies to disregard the plain language of Exemption 6.^{^[1]}

Respondent’s unrestrained view of the scope of Exemption 6 is well illustrated by its reliance on the Court’s recent ruling in National Archives & Records Admin. v. Favish, 124 S. Ct. 1579 (2004). In Favish, the Court recognized that, in certain circumstances, the privacy interests protected by FOIA Exemption 7(C) extend to the family members of deceased persons. Id. at 1578. Favish says nothing about any conceivable privacy interest that government employees may possess when their names appear in government files about third parties. It certainly does not shed any light on what constitutes a “similar file” under Exemption 6.

Respondent’s reliance on Favish does reveal, however, the government’s apparent inability to resist exploiting FOIA’s privacy exemptions to withhold information from public scrutiny. As demonstrated in the Petition, the use of Exemption 6 has increased dramatically in recent years. Despite the plain language of the statute and this Court’s past rulings, agencies are now using Exemption 6 to routinely withhold the names of government employees, regardless of the subject matter or type of file in which the names are found. Clearly, it is difficult, if not impossible, for the public to investigate and understand “what the government is up to” if the names of government employees are so easily exempt from disclosure. Favish does not justify or excuse such an expansive reading of Exemption 6.

Finally, Respondent makes the curious assertion that Petitioner “has not disputed” that the audit and related records at issue constitute “similar files” within the meaning of Exemption 6 and claims that Petitioner previously “conceded” that an IRS employee’s telephone number was withheld properly. Opp. at 7. Of course, Petitioner has always maintained that the records at issue were detailed government records about Petitioner and can be identified as applying to Petitioner. Washington Post, 456 U.S. at 602. That does not mean, however, that those same records also constitute detailed government records on a government employee and can be identified as applying to that employee. Id. An IRS employee’s name in Petitioner’s audit file does not transform the audit file into a personnel, medical or similar file on that employee. Moreover, the fact that Petitioner elected not to challenge the withholding of a telephone number of an government employee in no way constitutes the “concession” Respondent claims it to be, nor does it alter Petitioner’s entitlement to the names of government employees that appear in Petitioner’s own audit file.

In short, the issue raised in the Petition has broad significance well beyond this case, justifying review by this Court. The appellate court’s decision assumes that the mere name of a government employee in a file about a third party transforms that file into a “medical, personnel or similar files” about that employee. It also effectively removes from FOIA the entire first part of the two-part test set forth in Exemption 6 and ignores the admonition of this Court to interpret the disclosure provisions of FOIA broadly and to interpret its exemption provisions narrowly. More importantly, if the appellate court’s decision is allowed to stand, it will significantly narrow the view through an essential window on government activity that is vital to an open society.

Respectfully submitted,

Paul J. Orfanedes*

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 500

Washington, DC 20024

(202) 646-5172

September 2004 Counsel for Petitioner

*Denotes Counsel of Record

^{^[1]} Respondent also argues that application of Exemption 6 is particularly appropriate where the information at issue concerns “lower-level employees.” Opp. at 5 (citing Perlman v. Department of Justice, 312 F.3d 100 (2d Cir. 2002). However, the court in Perlman only looked at the employee’s status as one factor to consider in balancing the privacy interests at stake against the public interest in disclosure, not in addressing the threshold question of whether the record in question constituted a “similar” file.