USCA1 Opinion

July 10, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 91-2256
ROBERT A. ARONSON,
Plaintiff, Appellant,
v.
INTERNAL REVENUE SERVICE, ET AL.,
Defendants, Appellees.
__________
No. 91-2257
ROBERT A. ARONSON,
Plaintiff, Appellee,
v.
INTERNAL REVENUE SERVICE, ET AL.,
Defendants, Appellants.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Cyr, Circuit Judge,
_____________
Boyle,* District Judge.
______________
____________________

Channing S. MacDonald with whom Richard W. Lubart was on br

______________________
__________________
for Robert A. Aronson.
Frank P. Cihlar, with whom James A. Bruton, Acting Assist
________________
_________________
Attorney General, with whom Gary R. Allen, and Jonathan S. Coh
______________
________________
Attorneys, Tax Division, Department of Justice, and Wayne A. Bu
____________
United States Attorney, were on brief for the Internal Revenue Serv
et al.
____________________
-1-

____________________
_____________________
*Of the District of Rhode Island, sitting by designation.

BREYER, Chief Judge.

____________
district

court

judgment

The

requiring

government appeals
the

Internal

Revenue

Service ("IRS")

to provide Robert Aronson, a private tracer

of lost

taxpayers, with the last known

persons

to whom

years

the government

1981-87.

Information

owes tax

refunds for

the

The district court held that the Freedom of

Act ("FOIA"),

disclosure.

street addresses of

In our

U.S.C.

view, however, a

552, requires

that

different statute, a

special tax statute that limits the disclosure of tax return

information,

permits

the

IRS

not

to

disclose

information to private persons such as Aronson.

6103(a),
that

(m)(1).

this tax

26 U.S.C.

And, an exemption in the FOIA makes clear

statute, not

provision, governs this

reverse

this

the FOIA's

case.

general disclosure

5 U.S.C.

552(b)(3).

We

the district court's determination to the contrary.

For similar reasons, we

decision denying

affirm the district court's related

Aronson access to some

different taxpayer

information, namely taxpayer identification numbers.

I
Background
__________
Robert

Aronson is

lawyer who

specializes

in

finding persons to whom the government owes money and, for a

fee,

helping

them obtain

the
-33

money

that is

their

due.

Insofar

as

otherwise

he

finds

have found,

people

whom the

agency

Aronson performs

would

not

public service.

Insofar as he finds and charges people whom the agency would

have

located on

its own, his

service is

less beneficial.

See Aronson v. Dep't of Hous. and Urban Dev., 822 F.2d

___ _______
_____________________________
183, 188 (1st Cir.
locating"

182,

1987) (Department's "poor performance in

those owed

money is

a "public

interest" factor

favoring disclosure), later proceeding, 866 F.2d 1 (1st Cir.

________________
1989).
In May 1989, Aronson, invoking the FOIA, asked the
IRS for "the entire file of undistributed income tax refunds
for the tax years 1981 through and including 1987."
wanted

the name

known

street

identification

of each
or

taxpayer due

mailing

number, and

The IRS had previously

address,
the amount

the last

the

taxpayer's

of the

refund due.

released names and partial addresses

(cities, states, and zipcodes)

to the press as part

own efforts to find

those taxpayers.

same

Aronson

information.

a refund,

Aronson

It gave

then brought

of its

Aronson this

this lawsuit

compel the IRS to give him the rest of the information.

to

The
material

district

factual

court,

finding

disputes, entered

judgment, compelling the IRS to

an

no

genuine

order, on

and

summary

give Aronson the last known

-44

street addresses
________________
already

supplied.

along with the names,

It denied the rest of Aronson's request.

The IRS now appeals the

to

provide

cities and zipcodes

district court's order requiring it

street addresses.

Aronson

appeals only

the

district court's decision not to require the IRS to give him

___
each
the

taxpayer's identification number.

IRS's appeal first, turning

We

shall consider

to Aronson's appeal in the

final section of this opinion.

II
The Relevant Statutes
_____________________
Two statutes

set forth the law

that governs this

case.

of Information Act.

The

second is a specific provision of the Internal Revenue

Code

that

The first is

governs

the

the Freedom

confidentiality

of

taxpayer

identity

information.
1.
requires

The Freedom of Information Act.

________________________________

government

available" to

agencies

of nine listed exemptions.

listed

"make

any person, upon request,

the agency possesses unless

third

to

exemption

The FOIA
.

whatever "records"

those "records" fall within any

5

in

U.S.C.
the

552(a)(3), (b).

statute

This

disclosure

The

("Exemption 3"),

relevant here, provides:

(b)

promptly

section

[i.e.,
the FOIA
____
requirement and procedures]
-55

does not apply to matters that are . . .

______________
(3)
specifically
exempted
from
disclosure by statute . . . , provided

________
that such statute (A) requires that the
matters be withheld from the public in
such a manner as to leave no discretion
______________
on
the
issue, or
(B) establishes
__
particular criteria for withholding or
____________________
__
refers to particular types of matters to
___________________________
be withheld.
5 U.S.C.

552(b)(3) (emphasis added).

FOIA does not

another

require an agency to

statute

information, as
agency

no

criteria

requires
long as

discretion

the

disclose information if

agency

that other
to

That is to say, the

to

withhold

statute (1)

disclose,

or

(2)

the

gives the
establishes

for withholding, or (3) specifies particular types

of information to be withheld.
2.

The Tax Statute.

_______________

Congress, as part of the Tax

Reform Act of 1976, enacted a detailed statute governing the

"[c]onfidentiality

and

disclosure

information."

26 U.S.C.

of confidentiality.

basic rule

6103.

of

returns

and return

This tax statute lays down

It

forbids the

IRS to

"disclose" any tax "return" or tax "return information."

26

U.S.C.

as

6103(a).

including

"a

6103(b)(2)(A).

It defines
taxpayer's

"return

identity."

information"
26

U.S.C.

And, it defines "taxpayer identity" as

the name of a
whom a return

person with respect to

is filed, his mailing
___________
-66

address,
his
taxpayer
identifying
_______
_____________________________
number, . . . or a combination thereof.
______
26 U.S.C.

6103(b)(6) (emphasis added); see also Church of

________ _________

Scientology v. IRS, 484 U.S. 9,

___________
___

10-11 (1987).

It then sets

forth several

narrowly drawn exceptions,

circumstances

in which the IRS may, or must, reveal some of

this

information.

26 U.S.C.

defining specific

6103(c)-(o).

One of these

exceptions, relevant here, states:

The

may disclose taxpayer

_______________________
identity information to the press and
________________________________________
other media for purposes of notifying
____________
persons entitled to tax refunds when the
Secretary, after reasonable effort and
lapse of time, has been unable to locate
such persons.
26 U.S.C.

Secretary

6103(m)(1) (emphasis added).

III
The Relevant Legal Questions

____________________________
The

Supreme Court

has

held that

a court,

when

examining a claim that FOIA Exemption 3 permits an agency to

withhold particular requested data, must ask two
First, does the
U.S.C.

special statute (here, the

questions.

tax statute, 26

6103(a), (m)(1)) "constitute a statutory exemption

to

disclosure within the meaning

is

the

requested

data

statute's "protection"?

of Exemption 3"?

"included
CIA
___

within"

v. Sims,
____

471

this

Second,
special

U.S. 159,

167

-77

(1985); see also Baldrige

________ ________
(1982).

v. Shapiro, 455 U.S.

_______

345, 352-53

These are the two questions before us.

A
The First Question
__________________
The first

question is whether or

not the special

tax statute is an "exempting statute."

The

tax statute

falls

Exceptions aside,

squarely within

the tax

statute

information "be withheld . . .

no discretion on the
also
____

De Salvo
________

1988)

v. IRS, 861
___

FOIA Exemption

"requires that"

3.

return

in such a manner as to leave

issue."

(26 U.S.C.

The answer is clear.

5 U.S.C.

552(b)(3)(A); see
___

F.2d 1217, 1221

6103 is

an

n.4 (10th Cir.

Exemption 3(A)

statute);

Linsteadt v. IRS, 729 F.2d 998, 1000 (5th Cir. 1984) (same);
_________
___
Fruehauf Corp.
______________

v. IRS,
___

1977) (same).

The

566 F.2d 574,

578 & n.6

relevant exception, read

(6th Cir.

together with

the rest of the statute, both "refers to particular types of

____
matters

to

information")

be

withheld"

and
___

(namely,

"establishes

"taxpayer

particular

identity

criteria

for

withholding" (namely, that the IRS may consider release only

where

it would help

notify taxpayers of

even then, only to the media).

also De Salvo,
____ ________

861 F.2d at

including exceptions,

5 U.S.C.

1221 & n.4

refunds due, and,

552(b)(3)(B); see
___
(26 U.S.C.

6103,

is an Exemption 3(B) statute); Grasso

______
-88

v. IRS, 785 F.2d

___
v.

Kurtz, 589
_____

denied,
______

70, 77 (3d Cir. 1986)

F.2d 827,

444 U.S.

838-39

842 (1979).

(same); Chamberlain
___________

(5th Cir.)
Thus,

(same), cert.
_____

we answer

the first

question affirmatively.
B
The Second Question
___________________
The

second question

street addresses
tax statute.

whether

the

fall within the protection

the tax

other media" to help

He points to

statute that permits

_______

"taxpayer identity

information to

taxpayers'

of the special

Aronson argues that they do not.

the exception in
disclose

is

the IRS

the press

find taxpayers owed refunds.

to
and

And, he

says that this "exception" requires the IRS to disclose that

________
information

here.

To

win this

argument,

Aronson

must

convince us both (1) that he falls within the statute's term

"press and other media"
only

to them),

and

(for the statute permits disclosure

(2) that

the

IRS acted

outside

its

permitted power in not

_________

granting disclosure.

We do

not see

how Aronson can make either of those showings.

1.
merits
question

of

The Standard of Review.

______________________
Aronson's

argument,

of administrative

we

Before turning to the

consider

law, the

a conceptual

answer to

which will

sometimes affect the outcome in a FOIA Exemption 3 case:

To

-99

what extent
not to

should a court (reviewing

disclose)

agency's (here,

defer, or
the IRS's)

questions mentioned
question of
discretion?
to

the

special weight,

answers to

the kinds

in the preceding paragraph,

statutory interpretation

as

interpretation
the words

of the

"press and

to

the

of legal
namely the

and that of

Ordinarily, a court would

agency's

statute (such

give

an agency's decision

abuse of

give special weight

language

of

the

other media")

the

agency

administers, where

the interpretative

question (as

here) involves a minor, interstitial matter, closely related

to the

daily administration of a

Chevron USA, Inc. v.

___________________
Inc., 467
____

complex statutory scheme.

Natural Resources Defense Council,

____________________________________

U.S. 837, 843-45 (1984); Mayburg

_______

Health and Human Serv.,

______________________
Constance
_________

v. Secretary of
____________

740 F.2d 100, 106 (1st

Cir. 1984);

v. Secretary of Health and Human Serv., 672 F.2d

____________________________________

990,

995-96 (1st Cir. 1982).

give

an

administrative

whether

or

statute

grants.

"arbitrary,

not

to

A court

agency broad

exercise the
5

U.S.C.

capricious, an abuse

normally would also

leeway

permissive
__________
706(2)(A)

in

deciding

authority
(reversal

a
if

of discretion"); Citizens
________

to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)

_________________________
_____
("clear error of judgment" as standard under

-1010

706(2)(A) and

provides

only

"narrow"

review);

Administrative Law Treatise

statute is

at

asked

in light of

to order

determine

an

the

552(a)(4)(B).

de

release information,

"shall

novo.

."

U.S.C.

The district court in this case believed this

giving

leeway

agency

the

provides) whether

and applied the tax statute.

thought

ask

court,

to decide de novo
_______

ordinarily

one might

that a

FOIA language required it

the

Davis,

this ordinary administrative

FOIA's statement

agency to

matter

C.

interpretation of a FOIA

issue, however,

whether a court should abandon

law framework

Kenneth

29:6 (2d ed. 1984).

Where the application or

Exemption 3

the same.

E.g.,
____

that

(i.e., without
____

administrative

the IRS

law

properly interpreted

And, several other courts have

De Salvo,
________

Church of Scientology v. IRS,

______________________
___

861 F.2d

792 F.2d

at 1218-21;

146, 148-50

(D.C.

Cir. 1986), aff'd 484 U.S. 9 (1987); Grasso, 785 F.2d at 73_____
______
75; Long v. United States IRS, 742 F.2d 1173, 1177-79 & n.12
____
_________________
(9th Cir. 1984); Linsteadt, 729 F.2d at 1003; Currie v. IRS,
_________
______
___
704 F.2d 523, 527-28 (11th Cir. 1983).
In

our

view,

however,

ordinary,

deferential

principles of administrative law, not the FOIA's special, de

__

novo principles, govern

____
of

review of the

IRS's interpretation

this Exemption 3 statute and its application to the data

-1111

at

issue.

For one

thing, the

language of

the FOIA,

in

saying that the FOIA "does not apply to matters that are . .
______________
.

specifically exempted from disclosure by statute . . . ,"

U.S.C.

552(b)(3),

suggests

that how

an

Exemption 3

statute applies to data that arguably fall within its reach,

and

whether specific

further
governed

the statute's
by

that

circumstances
aim,

counsel disclosure

are legal

Exemption

questions

3 statute,

not

by

to

normally
the FOIA

itself.
For
courts

were to

another

thing,

use principles

decide how to interpret

and

more

of FOIA

importantly,
de novo
_______

or to apply the exceptions

if

review to
in this

special

tax statute, they

very different aims in

would risk distorting Congress's

enacting the two different statutes.

See Cheek v. IRS, 703 F.2d 271,

___ _____
___
curiam);

King v. IRS, 688 F.2d 488, 495-96 (7th Cir. 1982);

____
___

Zale Corp. v. IRS,

__________
___
Baldrige,
________
900 (6th

481 F. Supp. 486, 489 (D.D.C. 1979); cf.

___

455 U.S. at 352-55;

Cir. 1983).

favors disclosure.
action

271-72 (7th Cir. 1983) (per

White v. IRS,
_____
___

On the one
Its

707 F.2d 897,

hand, the FOIA

very purpose is

to the light of public scrutiny.'"

"'to open

Dep't of Air Force v.

___________________

agency

Dep't of Justice
________________

v. Reporters Comm. for Freedom of the Press, 489

_________________________________________
772 (1989) (quoting

strongly

U.S. 749,

Rose, 425
____

U.S.

-1212

352, 372 (1976)); see also Dep't of Justice v. Tax Analysts,

________ ________________
492 U.S. 136, 142 (1989).
well,

or badly,

makes public.

Rep.

See,
___

No. 813,

is

privacy")

89th

5 U.S.C.

Rose,
____

it

Sess.

drawn, in favor
552(b)(6)

"clearly unwarranted
____________________

(emphasis

425 U.S. at

Cong., 1st

are narrowly

e.g.,
____

disclosure

personal

the information

agency disclosure.'"

Its exemptions

disclosure.
where

to obtain

It requires agencies to adhere to "'a general

(quoting S.

(1965)).

It permits every citizen, whether

motivated,

philosophy of full
360

____________

added).

3
of

(exemption
invasion

Its

of

procedural

provisions, such as de novo court review of agency decisions

_______
not

to disclose,

purposes.

And,

U.S.C.

courts

552(a)(4)(B), further

have

provisions generously, in order

aim: sunlight.

E.g.,
____

interpreted the

these

disclosure

to achieve the FOIA's basic

Dep't of Justice v. Julian,

________________
______

486 U.S.

1, 8 (1988); FBI v. Abramson, 456 U.S. 615, 630 (1982); NLRB

___
________
____
v. Robbins Tire and Rubber Co., 437 U.S. 214, 220-21 (1978);
___________________________
Rose, 425 U.S. at 361.
____
In the tax statute, however,
that, with
sunlight, is

respect

the proper

personal information
have

to tax

broadcast.

returns,

aim.

Congress has decided

confidentiality,

Tax returns

contain highly

that many taxpayers might

Moreover,

without

not

wish not to

clear

taxpayer

-1313

understanding

that

the

government

takes

the

strongest

precautions to keep tax information confidential, taxpayers'

confidence

in

the federal

harmful consequences

might erode,

with

that depends heavily

Church of Scientology v. IRS, 792

______________________
___

153, 158-59 (D.C. Cir. 1986) (en banc), aff'd 484 U.S.
_____

9 (1987).
the

system

for a tax system

on voluntary compliance.
F.2d

tax

tax

Thus,

the Senate Finance Committee, recommending

statute

here

at

issue,

"citizen's right to privacy"

the disclosure upon the
country's

tax

Sess.,

pt. 1,

3439, 3747.

both

to

and to the "related impact

the
of

continuation of compliance with our

system"

restricting disclosure.

pointed

as

reasons

S.

318 (1976),

Rep. No.

for

938, 94th

reprinted in
____________

It concluded that

more

tightly
Cong., 2d

1976 U.S.C.C.A.N.

returns and return information should

generally be treated as confidential and
not subject to disclosure except in
those limited situations delineated [in
the exceptions].
Id.; see also H.R. Conf. Rep. No. 1515, 94th Cong., 2d Sess.
___ ________
475, reprinted in 1976 U.S.C.C.A.N. 4118, 4180.
____________
If courts
exercise of

review

the propriety

discretion authorized by

of

an

agency's

a tax confidentiality
_______________

statute, using the full array of presumptions and procedural

mechanisms embodied in the FOIA disclosure statute, they are
__________
-1414

unlikely properly to
protecting

purpose.

decisions

and

carry out Congress's

Applied

interpretations

statutes, the disclosure

to

the
under

confidentialityagency's

specific

"confidentiality"

statute's language,

presumptions,

and procedures favoring openness will threaten, in practice,

to

undermine

objectives

the privacy-protecting,
that

led

confidence-promoting

Congress

to

enact

special

confidentiality statutes, such as the tax statute before us.

See
___

26 U.S.C.

6110 (procedures,

FOIA, for public inspection

more restrictive

than

of IRS written determinations);

Church of Scientology, 792 F.2d at 159.

_____________________
Thus, in
the

our view,

once a court

determines that

statute in question is an Exemption 3 statute, and that

the information requested at least arguably falls within the

statute,

FOIA de novo review normally ends.

_______

See White, 707

___ _____

F.2d at 900-01; King, 688 F.2d at 494-95; Zale Corp., 481 F.

____
__________
Supp. at 489; see also Sims, 471 U.S. at
_________ ____
455 U.S. at 358-59;

Ass'n of Retired R.R. Workers, Inc. v.

____________________________________

U.S. R.R. Retirement Bd., 830 F.2d

_________________________
1987);
F.2d

167-69; Baldrige,
________

331, 335-37 (D.C.

Cir.

Ryan v. Bureau of Alcohol, Tobacco and Firearms, 715

____
_______________________________________
644, 645-47 (D.C. Cir.

1983); Irons & Sears v. Dann,

______________
____

606 F.2d 1215, 1220-22 (D.C. Cir. 1979).

-1515

Any further review

must take place

under more deferential,

administrative law

standards.
2.

Applying the Standard.

_____________________

special, FOIA)

Applying ordinary (not

administrative law principles of

review, we

must hold that Aronson does not have a legal right to

disclosure of

taxpayers' street addresses.

the relevant

statutory provision

disclose "taxpayer

identity

force

For one thing,

-- permitting the

information" for

IRS to

purposes

of

finding taxpayers owed refunds -- authorizes disclosure only

"to the press

and other

media."

26

U.S.C.

6103(m)(1).

Aronson concedes, as he must, that he is not a member of the

press.

Normally,

media," unless
television,
wishes

one would

think that

the words

used in some special sense,

and the

like,

not to

to write letters to taxpayers.

"other

refer to radio,

private citizen

who

See, e.g., National

___ ____ ________

Sec. Archive v. Dep't of Defense, 880 F.2d 1381, 1386, 1387

_____________
________________
(D.C. Cir. 1989) ("representative of the news media" refers,
in

FOIA, to

those,

including

newspapers, television

and

radio,

who

"gather[]

information"

distinct work, and distribute[]

cert. denied, 494
_____________

U.S. 1029

Dep't of Justice, 1992

________________
Cir. June

2, 1992)

and turn

it

"into

that work to an audience"),

(1990); cf.
___

Tax Analysts
____________

U.S. App. LEXIS 12143, at

(publisher of

weekly tax

v.

*11 (D.C.

magazine and

-1616

creator of electronic database on tax

media,"

"broadly" defined)

880 F.2d

at 1387).

stretching
activity, we

Even

the meaning
could not

law within FOIA "news

(citing National Sec. Archive,

______________________
were there

of those

some

words to

so interpret

lawful way

of

cover Aronson's

them here,

where the

agency charged with administering the tax statute interprets

them as

Aronson, for that

interpretation is

not "manifestly contrary to the statute."

Chevron, 467 U.S.

_______

at 844.

not including

For another
the "media,"
require
_______

the

--

statute simply

the

information."

thing, even were Aronson

IRS

Of

to

permits
_______

disclose

course, the IRS,

a member of

-- it

does

"taxpayer

not

identity

in deciding whether

or

not to disclose, may not act in a manner that is "arbitrary,

capricious, [or]
706(2)(A).

an

abuse

of

discretion."

U.S.C.

But, the decision to disclose or to withhold the

street addresses obviously involves competing considerations

-- the usefulness
taxpayer who
lead to

of an

old street address

has moved, the potential

disturbing

whoever now

lives

in locating

that disclosure will

at the

old

street

address, aggravation of ordinary taxpayers' worry that other

private
from the

citizens may obtain personal information about them

IRS.

Cf. Chevron,
___ _______

467 U.S. at 844

-1717

(deference to

administrative interpretation of statute

that "reconcil[es]

conflicting policies") (quoting United States v. Shimer, 367

_____________
______
U.S.

374, 382 (1961)).

the IRS

has balanced

Nothing in the record suggests that

those considerations in

an arbitrary

way.
We

conclude that the

the street addresses

IRS's decision

was lawful.

to withhold

We reverse the

district

court's order requiring their release.

IV
Aronson's Appeal
________________
Aronson
district
him a

appeals

different

court, a decision not

___

different

item of

decision

to require the

"taxpayer identity

of

the

IRS to give
information,"

namely, taxpayer identification numbers (usually the same as

a taxpayer's social security number).

The legal

the

Indeed, the

same as

greater,
street

those just

protection
addresses.

discussed.

attaches

to this

issues are

information

same, or
as

to

See Int'l Bhd. of Elec. Workers Local

___ ___________________________________

Union No. 5 v. Dep't of Hous. and Urban Dev., 852 F.2d 87,
____________
______________________________
89 (3d

Cir. 1988) (citizens have

in social security numbers,

Thus, the same conclusion

"strong privacy interest"

more than in "home addresses").

-- that the IRS need

the information -- follows.

-18-

not release

18

The

decision

to

compel

release

of

taxpayers'

street addresses is
Reversed.
________
The

decision not

identification numbers is
Affirmed.
________

to compel

release of

taxpayer

-1919