Today’s Opinion: Court Upholds SSA’s Nondisclosure of Top Employers of Undocumented Workers

In a three-page opinion, Judge Kavanaugh followed the district court in upholding the Social Security Administration’s refusal to comply with a Freedom of Information Act request from an anti-corruption organization.  Judicial Watch sought a list of the 100 businesses employing the most workers using social security numbers that do not match the SSA’s database.  The court held that the requested disclosure was forbidden by the Tax Code provision protecting the confidentiality of “return information.”

Although Judicial Watch sought no information that would have identified the taxpayer who filed any given return, the court held inapplicable the disclosure bar’s exception for “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.”  The employer’s name alone, even though not associated with its own return, is “data . . . identify[ing] . . . a particular taxpayer.”

This case goes a step beyond the Supreme Court’s 1987 decision in Church of Scientology of California v. IRS, which held that redacting identifying information from the returns of individual taxpayers does not lift the prohibition on disclosure of such forms.  Consistent with the Fourth Circuit, today’s decision holds that taxpayer names furnished to the IRS may not be disclosed, even where they appear on returns other than their own.

Judicial Watch, Inc. v. SSA, No. 11-5246 (Dec. 11, 2012) (Kavanaugh, J., joined by Garland, J., & Williams, S.J.)

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