Judicial Watch , Inc. v. Social Security Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2012 Decided December 11, 2012
No. 11-5246
J UDICIAL WATCH , I NC.,
APPELLANT
v.
SOCIAL SECURITY ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-02034)
Julie Axelrod argued the cause for appellant. With her on
the briefs was Paul J. Orfanedes.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Fred E. Haynes, Assistant U.S. Attorney, entered
an appearance.
Before: GARLAND and KAVANAUGH , Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .

-- 1 of 3 --

2
KAVANAUGH , Circuit Judge: Under U.S. law,
employers are required to file a Form W-2 for every paid
employee. The Form W-2 lists the identities of the employer
and the employee, the amount that an employee has been
paid, and the taxes that have been withheld by the employer.
The Social Security Administration processes Forms W-2 for
the IRS. On occasion, the employee’s name and Social
Security number as listed on a Form W-2 do not match the
SSA’s database. When that happens to a sufficient number of
employees, the SSA sends the employer a “no-match” letter.
In 2006, Judicial Watch filed a Freedom of Information
Act request with the SSA. Judicial Watch sought the names
of the 100 U.S. employers that generated the most no-matches
from 2001 through 2006. The agency declined to produce
such records, concluding that they were exempt under FOIA
Exemption 3. The District Court agreed with the agency.
We likewise conclude that the records requested by
Judicial Watch are exempt from disclosure. FOIA Exemption
3 exempts records that are protected from disclosure by
another statute. See 5 U.S.C. § 552(b)(3). Here, the Tax
Code protects the confidentiality of “return information.” 26
U.S.C. § 6103(a). Return information is defined to include
any “data” that is “furnished to” the IRS “with respect to a
return or with respect to the determination” of tax liability “of
any person.” Id. § 6103(b)(2). An employer’s identity is
“data” furnished to the IRS on the Form W-2 with respect to
the determination of its employees’ taxes. See Landmark
Legal Foundation v. IRS, 267 F.3d 1132, 1136-37 (D.C. Cir.
2001). Therefore, the records sought by Judicial Watch
would disclose “return information” and are protected from
disclosure by the Tax Code. The records are in turn exempt
under FOIA.

-- 2 of 3 --

3
Judicial Watch contends, however, that the records fall
within an exception known as the Haskell Amendment. The
Haskell Amendment provides that return information “does
not include data in a form which cannot be associated with, or
otherwise identify, directly or indirectly, a particular
taxpayer.” 26 U.S.C. § 6103(b). But the Haskell Amendment
does not apply here because Judicial Watch seeks data – the
name of the employer – that can be associated with a
particular taxpayer, the employer. There is no basis for
reading the Haskell Amendment to apply only to the
employees’ identities. The Amendment speaks of “a
particular taxpayer,” which includes the employer. The
records sought by Judicial Watch therefore do not fall within
the exception set forth in the Haskell Amendment.
* * *
We have considered all of Judicial Watch’s arguments.
We affirm the judgment of the District Court.
So ordered.

-- 3 of 3 --