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

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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.