Solers, Inc. v. Internal Revenue Service , 827 F.3d 323 ( 2016 )


Menu:
  •                              PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-1608
    SOLERS, INC.,
    Plaintiff - Appellant,
    v.
    INTERNAL REVENUE SERVICE,
    Defendant - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.     Leonie M. Brinkema,
    District Judge. (1:14-cv-01548-LMB-JFA)
    Argued:   March 24, 2016                  Decided:   June 30, 2016
    Before WILKINSON and NIEMEYER, Circuit Judges, and David C.
    NORTON, United States District Judge for the District of South
    Carolina, sitting by designation.
    Affirmed by published opinion.        Judge Niemeyer wrote     the
    opinion, in which Judge Wilkinson and Judge Norton joined.
    ARGUED:   Mariam Wagih Tadros, REES BROOME, PC, Tysons Corner,
    Virginia, for Appellant.   Gretchen M. Wolfinger, UNITED STATES
    DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.        ON
    BRIEF:    Robert J. Cunningham, Jr., REES BROOME, PC, Tysons
    Corner, Virginia, for Appellant.     Caroline D. Ciraolo, Acting
    Assistant Attorney General, Jonathan S. Cohen, Tax Division,
    UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana
    Boente, United States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Alexandria, Virginia, for Appellee.
    NIEMEYER, Circuit Judge:
    In     this    action,    Solers,    Inc.,       a   Virginia     corporation,
    challenges the IRS’ response to its request for documents under
    the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.                         The
    IRS identified 261 pages that were responsive to Solers’ request
    and ultimately produced unredacted copies of all but 12 pages.
    Solers challenged the IRS’ reasons for withholding 6 of those
    pages and for producing 4 other pages with redactions.
    After reviewing the documents in camera, the district court
    sustained     the    IRS’     position    and        granted    the    IRS   summary
    judgment.     For the reasons that follow, we affirm.
    I
    Solers, an information technology company, was audited by
    the IRS for its 2010 tax year, and, pursuant to the audit, the
    IRS proposed adjustments to Solers’ tax liability and potential
    penalties.         Not long after the IRS closed the audit, Solers
    submitted a FOIA request to the IRS for all documents in the
    IRS’ administrative file pertaining to its tax liabilities and
    potential     penalties       for   the       2010    tax      year,   specifically
    requesting “[d]ocuments, notes, and internal IRS correspondence”
    related to (1) the IRS’ audit; (2) the IRS’ notice of proposed
    tax adjustment; (3) Solers’ response to the notice; (4) Solers’
    protest of the proposed adjustment; (5) the quality control that
    2
    was   performed       on   the   notice       of    proposed    adjustment;    and    (6)
    guidance      received      by   two    IRS        agents   regarding    “intentional
    disregard penalties.”            Solers also requested all correspondence
    between specified individuals that related to it.
    The IRS located 261 pages that were responsive to Solers’
    request and initially provided Solers with most of these pages,
    withholding 26 pages and producing 32 pages with redactions.
    Solers commenced this action, alleging that the IRS was
    unlawfully withholding records and seeking an order requiring it
    to disclose “any redacted materials to the extent that those
    materials are not subject to a proper exemption under 5 U.S.C.
    § 552.”       After Solers filed its complaint, the IRS determined
    that 17 of the 26 pages previously withheld could be released in
    full;    that    3    additional       pages       previously     withheld    could    be
    released with redactions; and that 29 of the 32 redacted pages
    could be released in full.                Solers eventually agreed that the
    IRS had properly redacted 2 pages, leaving only 10 pages at
    issue in this case -- 6 pages that the IRS withheld and 4 pages
    that it produced with redactions.
    At the outset of the proceedings, Solers filed a motion to
    obtain    a     Vaughn     index   --     a    list     describing      the   documents
    withheld        and      information      redacted          and    giving     detailed
    information sufficient to enable a court to rule on whether the
    withholdings fall within a FOIA exemption.                         See Rein v. U.S.
    3
    Patent    &   Trademark     Office,    
    553 F.3d 353
    ,   357   n.6   (4th   Cir.
    2009); Vaughn v. Rosen, 
    484 F.2d 820
    (D.C. Cir. 1973).                         The
    district court granted the motion in part, directing the IRS “to
    provide all information required in a Vaughn index” for each
    document withheld or produced with redactions.
    Thereafter,      the    parties    filed   cross-motions      for   summary
    judgment, and, in support of its motion, the IRS attached two
    affidavits from one of its attorneys that provided the following
    information about the 10 pages withheld or redacted:
    1.       Handwritten Notes: Four of the six withheld pages
    are handwritten notes made by Revenue Agent Arun
    Sharma, the agent primarily responsible for
    conducting    Solers’     examination,     during    a
    conversation he had with Solers’ accountant on
    April 25, 2013.    According to the IRS attorney,
    the   notes    “consist[]    of    [Agent   Sharma’s]
    thoughts,    impressions,     and    [indicate    the]
    possible direction of the examination.”       The IRS
    attorney also stated that “[n]o decision was made
    at that time with regard to the issues discussed
    by Revenue Agent Sharma and the CPA, and the
    examination was not closed until almost a year
    later on March 4, 2014.” The IRS withheld the 4
    pages of notes pursuant to the deliberative
    process privilege that is incorporated into 5
    U.S.C. § 552(b)(5) (“Exemption 5”).          The IRS
    attorney also stated that he had “determined that
    [the   notes]   do   not   contain    any  segregable
    information.”
    2.       Summary Report: The IRS also withheld a one-page
    summary report prepared by Agent Sharma on
    October 16, 2013.      The report discusses Agent
    Sharma’s “review of returns of certain individual
    third-party taxpayers, whose tax returns were
    considered    in    conjunction    with   [Solers’]
    examination.”     The IRS withheld the summary
    report   pursuant    to    5   U.S.C.   § 552(b)(3)
    4
    (“Exemption 3”), in conjunction with 26 U.S.C.
    § 6103(a), as well as Exemption 5’s deliberative
    process   privilege;  it   also   maintained   that
    portions    of   the  report    were   subject   to
    withholding    under   § 552(b)(6)    and    (7)(C)
    (“Exemptions 6 and 7(C)”).
    3.   Graph: The IRS also withheld a one-page graph
    prepared by Agent Sharma on July 30, 2012. Agent
    Sharma generated the graph “from the [IRS’] yk-1
    database, which stores information about which
    individuals and entities are related to each
    taxpayer. The graph shows the identity of third-
    party individuals and entities whose tax returns
    were considered in conjunction with [Solers’]
    examination.” The IRS withheld the graph in full
    pursuant to Exemption 3, in conjunction with 26
    U.S.C. § 6103(a), and Exemption 5’s deliberative
    process   privilege;  it   also  maintained  that
    portions of the graph were subject to withholding
    under Exemptions 6 and 7(C).
    4.   Checksheet: The IRS produced most of a “Closed
    Case Review Checksheet,” which was completed by
    Agent Sharma’s manager on March 13, 2014, making
    a   redaction  only   on  a  line    of  the   form
    identifying “related returns.”    The IRS attorney
    stated that the agency had redacted only the
    portion of the checklist “that reflects the
    identity    of  a   third   party    whose   return
    information was considered in conjunction with
    [Solers’] examination.”   The IRS maintained that
    the redaction of this third-party information was
    justified under Exemption 3, in conjunction with
    26 U.S.C. § 6103(a), as well as Exemptions 6 and
    7(C).
    5.   Activity Record: The IRS also redacted a single
    entry from one page of Agent Sharma’s activity
    record. The IRS attorney stated that the deleted
    entry, from July 9, 2013, reflects that Agent
    Sharma “communicated with the IRS Office of Chief
    Counsel with respect to a specific issue in the
    examination,” explaining that “disclosure of [the
    redacted entry] would reveal an area of the exam
    for which the revenue agent sought legal advice.”
    The IRS invoked Exemption 5’s incorporation of
    5
    the attorney-client       privilege     to     justify    the
    redaction.
    6.    Two Emails: Finally, the IRS also redacted from
    two emails “the names and contact information of
    [IRS] personnel consulted in connection with
    [Solers’] examination.”    Both emails were sent
    from the IRS Specialist Referral System to
    Revenue Agent Dennis Cohen, an agent “who worked
    on [Solers’] exam prior to Revenue Agent Sharma.”
    The first email, dated July 12, 2012, indicates
    that Agent Cohen had requested a consultation
    with a Computer Audit Specialist and a Tax
    Computation Specialist; from this email, the IRS
    redacted the names and contact information of the
    managers to whom the requests were referred. The
    second email, dated July 16, 2012, informed Agent
    Cohen that his request for a Computer Audit
    Specialist had been assigned; from this email,
    the IRS redacted the name and contact information
    of the Computer Audit Specialist who had been
    assigned to consult on the case, as well as the
    name of the manager who had made the assignment.
    The IRS maintained that its redactions of these
    emails were justified under Exemptions 6 and
    7(C).
    Before   the   hearing   on     the   parties’     cross-motions      for
    summary judgment, the district court directed the IRS to submit
    unredacted copies of the 10 pages at issue for in camera review.
    And at the hearing, the court ruled, based on the record and its
    in camera review, that the IRS’ withholdings were justified.                As
    a   preliminary   matter,   the     court   ruled   that    because    it   had
    “thoroughly reviewed” the records “directly,” Solers’ challenge
    to the sufficiency of the IRS’ Vaughn index was no longer an
    issue.     And as to the 10 withheld or redacted pages, the court
    concluded:     (1) that the IRS had properly withheld four pages
    6
    consisting of the agent’s handwritten notes, based on Exemption
    5, 5 U.S.C. § 552(b)(5), because the notes “reflect the mental
    processes    of   the    revenue      agent      and    [his]      thoughts   on     [the]
    possible direction of the investigation”; (2) that the IRS had
    properly    withheld      the       graph    and   summary         report,    based    on
    Exemption 3, 
    id. § 552(b)(3),
    and 26 U.S.C. § 6103(a), because
    “[t]hose two documents . . . contain identifying information for
    third    parties”;      and   (3)    that    the   IRS       had   properly    redacted
    “identifying      information         of      other      individuals”         from    the
    checksheet and the two emails, based on Exemptions 6 and 7(C), 5
    U.S.C.    § 552(b)(6),        (7)(C).        The       court    accordingly     entered
    judgment for the IRS.
    From the court’s judgment dated May 15, 2015, Solers filed
    this appeal.
    II
    As a general, preliminary matter, Solers contends that the
    IRS “produced generic and inadequate affidavits that provide[d]
    no justification for the withholding of any document,” thereby
    “disregard[ing]” the district court’s order that the IRS provide
    all information required in a Vaughn index.                           It argues that
    because    the    IRS    failed      to     provide      a     sufficiently    detailed
    justification for withholding the documents, it “was thwarted”
    in its efforts to challenge those withholdings and that this
    7
    failure remained meaningful even after the district court’s in
    camera     review   because      “the    district      court’s    ruling       from   the
    bench . . . did not provide Solers with a detailed analysis and
    rationale regarding its decision to sustain the [IRS’] claimed
    exemption[s].”       In essence, Solers challenges the sufficiency of
    the IRS’ Vaughn index.
    Solers’ argument, however, fails to appreciate the role of
    a Vaughn index.          A Vaughn index is “designed to enable the
    district court to rule on a privilege without having to review
    the document itself” and thus functions as “a surrogate for the
    production of documents for in camera review.”                         Ethyl Corp. v.
    U.S. EPA, 
    25 F.3d 1241
    , 1249 (4th Cir. 1994) (emphasis added);
    see also 
    Rein, 553 F.3d at 366
    (describing a proper Vaughn index
    as a “substitute for in camera review”).
    In    this    case,   because       the    district      court    reviewed       the
    documents     in    camera,      it     correctly      concluded       that    its    own
    “thorough[]     review[]”        had    “completely      eradicated”         “any    issue
    about an inadequate Vaughn Index.”                Stated otherwise, the issue
    of whether the IRS provided a Vaughn index sufficient to enable
    the   district      court   to    evaluate       the    IRS’   claimed        exemptions
    became     irrelevant    and     moot    after    the    IRS    complied       with    the
    district    court’s     order     to    produce   the    records       for    in    camera
    review and the court completed its own review of the records.
    8
    III
    Turning next to the merits of Solers’ challenge to the IRS’
    withholdings, FOIA requires generally that federal agencies make
    their internal records available to the public upon request.
    See 5 U.S.C. § 552(a)(3)(A).            The Act, however, exempts certain
    categories of records from disclosure.                See 
    id. § 552(b)(1)-(9)
    (listing what are referred to as Exemptions 1 through 9).                       If an
    exemption applies only to a portion of a document, FOIA requires
    that “[a]ny reasonably segregable portion of a record shall be
    provided . . . after deletion of the portions which are exempt.”
    
    Id. § 552(b).
    In this case, the IRS relied on Exemptions 3, 5, 6, and
    7(C) to withhold or redact the 10 pages at issue.                       We address
    the IRS’ claimed exemptions in the following four categories:
    (1)   the    agent’s    handwritten     notes;    (2)       the    summary    report,
    graph, and checksheet; (3) the activity record; and (4) the two
    emails.
    A.    The Agent’s Handwritten Notes
    The first category consists of four pages of handwritten
    notes made by Revenue Agent Arun Sharma during a conversation he
    had   with   Solers’    accountant      on    April   25,    2013.      To    justify
    withholding     the     notes,   the     IRS     relied       on    Exemption     5’s
    incorporation of the deliberative process privilege, 5 U.S.C.
    § 552(b)(5),    maintaining      that    the    notes   “consist[]       of    [Agent
    9
    Sharma’s]      thoughts,       impressions,       and     [indicate      the]      possible
    direction of the examination.”                The IRS also took the position
    that the notes “do not contain any segregable information.”
    Upholding the IRS’ position, the district court observed
    that, while the notes were very difficult to read, they were
    nonetheless       covered       by   the    deliberative           process        privilege
    “because       they    do   represent      the     [agent’s]       thought        process,”
    adding that they “reflect the mental processes of the revenue
    agent    and    [his]   thoughts      on   [the]        possible    direction       of   the
    investigation.”
    Solers contends that the information with which it has been
    provided       about    the     notes      does     not     establish        the    notes’
    “deliberative” nature, leaving unclear whether “the notes were
    somehow related to the process by which any agency policy was
    formulated” or “whether the notes played a role in reaching an
    agency decision.”             Solers also asserts that the IRS “did not
    provide    any    information        to    support       its   conclusion         that   the
    documents were not segregable.”
    Exemption          5     shields       “inter-agency           or       intra-agency
    memorandums or letters which would not be available by law to a
    party other than an agency in litigation with the agency.”                                 5
    U.S.C.     §    552(b)(5).           “Among       the     privileges      Exemption        5
    encompasses      are    the    attorney-client          privilege    .   .    .    and   the
    deliberative process privilege.”                  
    Rein, 553 F.3d at 371
    .                 And
    10
    the deliberative process privilege, on which the IRS relies to
    withhold       the    notes,    “rests     on      the    obvious     realization     that
    officials will not communicate candidly among themselves if each
    remark is a potential item of discovery and front page news.”
    Dep’t of Interior v. Klamath Water Users Protective Ass’n, 
    532 U.S. 1
    , 8-9 (2001).            The privilege thus “encourages free-ranging
    discussion of alternatives; prevents public confusion that might
    result     from        the     premature        release         of    such     nonbinding
    deliberations; and insulates against the chilling effect likely
    were officials to be judged not on the basis of their final
    decisions,      but     for    matters   they        considered       before   making   up
    their minds.”         City of Virginia Beach v. U.S. Dep’t of Commerce,
    
    995 F.2d 1247
    , 1252-53 (4th Cir. 1993) (internal quotation marks
    and citation omitted).
    To    justify           application        of       the    deliberative     process
    privilege, “the government must show that, in the context in
    which    the    materials       [were]     used,         the   documents     [were]   both
    predecisional and deliberative.”                     City of Virginia 
    Beach, 995 F.2d at 1253
    (internal quotation marks and citation omitted).
    Predecisional documents are those “prepared in order to assist
    an   agency          decisionmaker       in        arriving      at    his     decision,”
    Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 
    421 U.S. 168
    ,
    184 (1975), and deliberative documents are those that “reflect[]
    the give-and-take of the consultative process by revealing the
    11
    manner     in   which     the    agency      evaluates     possible      alternative
    policies or outcomes,” City of Virginia 
    Beach, 995 F.2d at 1253
    (internal quotation marks and citation omitted).                    The privilege
    thus     protects     “recommendations,          draft    documents,     proposals,
    suggestions, and other subjective documents which reflect the
    personal opinions of the writer rather than the policy of the
    agency.”        
    Id. (emphasis added)
    (internal quotation marks and
    citation    omitted).           But   the   privilege     “does    not    protect      a
    document which is merely peripheral to actual policy formation;
    the record must bear on the formulation or exercise of policy-
    oriented judgment.”        Ethyl 
    Corp., 25 F.3d at 1248
    .               In addition,
    “since the prospect of disclosure is less likely to make an
    advisor omit or fudge raw facts than opinions, purely factual
    material    does    not    fall       within     the   exemption   unless       it    is
    inextricably intertwined with policymaking processes such that
    revelation of the factual material would simultaneously expose
    protected deliberation.”              City of Virginia 
    Beach, 995 F.2d at 1253
    (internal quotation marks and citations omitted).
    In this case, after the district court conducted its in
    camera review and its review of the sworn statement of an IRS
    employee, it concluded that the four pages of handwritten notes
    “represent the key or salient points that that agent was writing
    down” and “reflect the mental processes of the revenue agent and
    [his]      thoughts       on      [the]        possible    direction       of        the
    12
    investigation.”            The court also determined that the four pages
    could be withheld in their entirety, effectively ruling that
    there were no segregable portions that could be produced.
    We     conclude       that       the      district            court’s      factual       findings
    regarding the content of the notes are amply supported by the
    record -- which includes the IRS representative’s statement that
    the four pages of notes “consist[] of [Agent Sharma’s] thoughts,
    impressions,         and     [indicate            the]         possible        direction         of    the
    examination” -- and therefore are not clearly erroneous.                                               See
    Ethyl       
    Corp., 25 F.3d at 1246
         (noting       that,      in     FOIA    cases,
    “factual       conclusions          .       .    .     are      reviewed          under    a     clearly
    erroneous      standard”).              Moreover,              because      the    notes       were    the
    agent’s       preliminary       evaluation                of     issues      implicated          by    the
    audit,       the   court      did   not          err      in    concluding         that     they      were
    predecisional and deliberative, thus satisfying the criteria for
    withholding them under Exemption 5.                                   See Nat’l Whistleblower
    Ctr. v. Dep’t of Health & Human Servs., 
    849 F. Supp. 2d 13
    , 38
    (D.D.C. 2012) (“Handwritten notes may be deliberative or part of
    the     agency’s       deliberative              process          where        they     contain        the
    author’s opinions, analysis, or impressions of the event he or
    she describes”); Carter, Fullerton & Hayes LLC v. FTC, 520 F.
    Supp. 2d 134, 144 (D.D.C. 2007) (upholding agency’s invocation
    of    the    deliberative       process              privilege         to   withhold       “a    set    of
    handwritten          notes     of       a       senior         FTC     employee         taken     during
    13
    meetings”     based       on     agency’s          description          of    the     notes       as
    “representing the employee’s ‘thoughts and impressions’ of the
    meeting”); Judicial Watch, Inc. v. Clinton, 
    880 F. Supp. 1
    , 13
    (D.D.C.    1995)     (concluding            that    “handwritten         notes       reflecting
    preliminary thoughts of agency personnel” were covered by the
    deliberative process privilege).                     We also affirm the district
    court’s implicit ruling that there are no segregable portions of
    the notes subject to production.
    B.     The Summary Report, Graph, and Checksheet
    The other two pages withheld in full are (1) a summary
    report prepared by Agent Sharma on October 16, 2013, describing
    the process and results of his review of tax returns for certain
    individual        third-party         taxpayers,           which        he     conducted          in
    connection with the Solers’ audit; and (2) a graph prepared by
    Agent   Sharma      on    July       30,     2012,    which       he    generated          from    a
    database that “stores information about which individuals and
    entities    are     related      to    each       taxpayer”       and    which       “shows   the
    identity     of     third-party        individuals          and    entities          whose    tax
    returns      were        considered          in      conjunction             with     [Solers’]
    examination.”           The    IRS    also     produced       a    “Closed          Case   Review
    Checksheet”       form     with       one    line     on    the        document       redacted,
    explaining that it had redacted that portion of the checksheet
    because it reflected “the identity of a third party whose return
    information       was      considered          in    conjunction             with     [Solers’]
    14
    examination.”            The   IRS     contends         that       its    withholdings            with
    respect to these three pages are justified by Exemption 3 and 26
    U.S.C. § 6103(a).
    Exemption 3 protects from disclosure information that is
    “specifically       exempted         from    disclosure            by    [a]       statute”       “(i)
    requir[ing] that the matters be withheld from the public in such
    a    manner   as    to    leave       no    discretion         on       the    issue;      or     (ii)
    establish[ing]           particular          criteria              for        withholding           or
    refer[ring] to particular types of matters to be withheld.”                                          5
    U.S.C.      § 552(b)(3).          And       26    U.S.C.       §    6103       “is     a    statute
    contemplated by FOIA Exemption 3.”                          Tax Analysts v. IRS, 
    410 F.3d 715
    , 717 (D.C. Cir. 2005) (internal quotation marks and
    citation omitted).             That statute prohibits the disclosure of
    “[r]eturns and return information . . . except as authorized by
    [Title      26],”   26    U.S.C.       §    6103(a),        and     it    defines          the    term
    “return information” as including “a taxpayer’s identity . . .
    [and] whether the taxpayer’s return was, is being, or will be
    examined      or    subject      to       other       investigation           or     processing,”
    although the term “does not include data in a form which cannot
    be    associated         with,       or     otherwise          identify,            directly       or
    indirectly, a particular taxpayer,” 
    id. § 6103(b)(2).
    We   conclude      that,       although        the   summary           report       does    not
    specifically name third-party individuals whose tax returns were
    considered in conjunction with Solers’ audit, the individuals’
    15
    identities    could   easily    be    discerned    from    the    report      or   any
    segregable    portion     of    it,    therefore        justifying     its     being
    withheld.       Likewise,       because      the    graph        and   checksheet
    specifically identified third-party individuals and entities, we
    conclude that the IRS acted properly in withholding the graph
    and redacting one line from the checksheet.
    In an effort to avoid this conclusion, Solers asserted for
    the first time during oral argument that four of its employees
    had authorized the IRS to release their tax return information
    to Solers, pursuant to 26 U.S.C. § 6103(c), and that the IRS was
    therefore not entitled to rely on Exemption 3 and § 6103(a) to
    withhold records insofar as they relate to those third parties.
    It is well settled, however, “that contentions not raised in the
    argument section of the opening brief are abandoned.”                         United
    States   v.   Al-Hamdi,   
    356 F.3d 564
    ,     571    n.8   (4th    Cir.    2004)
    (citing Edwards v. City of Goldsboro, 
    178 F.3d 231
    , 241 n.6 (4th
    Cir. 1999)).     Moreover, the record reflects that after the IRS
    noted to the district court that Solers’ employees had failed to
    submit the proper authorization forms, Solers made no effort to
    counter this representation.            In these circumstances, Solers’
    efforts to obtain tax documents identifying third parties are
    unavailing.
    16
    C.   The Activity Record
    The IRS produced the relevant portions of Agent Sharma’s
    activity record, a document similar to a time sheet, with a
    single entry on one page redacted.               The IRS explained that the
    deleted entry reflected that Agent Sharma “communicated with the
    IRS Office of Chief Counsel with respect to a specific issue in
    the   examination,”      adding   that     “disclosure     of   [the   redacted
    entry] would reveal an area of the exam for which the revenue
    agent sought legal advice.”           The IRS relied on Exemption 5’s
    incorporation of the attorney-client privilege to justify this
    redaction, and the district court agreed with the IRS.
    Solers contends mainly that the entry should not have been
    redacted     because     “the   subject    matter    of   an    attorney-client
    communication is not privileged.”
    While, as Solers contends, “the general purpose of the work
    performed    [by    an   attorney]   [is]    usually      not   protected   from
    disclosure     by    the    attorney-client        privilege     because    such
    information     ordinarily      reveals     no   confidential     professional
    communications between attorney and client,” In re Grand Jury
    Subpoena, 
    204 F.3d 516
    , 520 (4th Cir. 2000) (internal quotation
    marks and citation omitted), the privilege nonetheless shields
    from disclosure “the specific nature of the legal advice sought
    by [the client],” In re Grand Jury Subpoena, 
    341 F.3d 331
    , 335
    (4th Cir. 2003); see also 
    id. (holding that,
    while the fact that
    17
    an attorney “provid[ed] advice regarding an immigration matter”
    would   not      be     privileged,            a    question          “specifically     ask[ing]
    whether     [the        client]          consulted             with     Counsel     about       the
    preparation        of       [a      particular             immigration         form]”      sought
    information        protected             by        the     attorney-client         privilege).
    Accordingly,       we       conclude          that       the    attorney-client         privilege
    justifies the IRS’ limited redaction of the activity report so
    as to keep confidential the specific issues on which Revenue
    Agent Sharma sought legal advice while working on the audit.
    D.    The Two Emails
    Finally,         the    IRS    made       redactions         to     two   emails    that   it
    produced,     withholding           the        names       and    contact      information      of
    certain    IRS    personnel         who        were      consulted       in    connection    with
    Solers’    audit.           The    IRS    maintained            that    the    redactions    were
    justified under Exemptions 6 and 7(C), and the district court
    agreed.
    Exemption         6    specifies         that       FOIA’s       disclosure   requirement
    does not apply to “personnel and medical files and similar files
    the disclosure of which would constitute a clearly unwarranted
    invasion    of    personal          privacy.”             5     U.S.C.    § 552(b)(6).          The
    Supreme Court has instructed that the phrase “similar files,” as
    used in Exemption 6, should be given “a broad, rather than a
    narrow,     meaning,”             explaining             that     “[w]hen       disclosure      of
    information which applies to a particular individual is sought
    18
    from Government records, courts must determine whether release
    of   the    information     would    constitute        a     clearly   unwarranted
    invasion of that person’s privacy.”                   U.S. Dep’t of State v.
    Washington Post Co., 
    456 U.S. 595
    , 600, 602 (1982).                              And to
    determine    whether   an    invasion         of   privacy    would    be       “clearly
    unwarranted,” courts employ a balancing test that weighs the
    individual’s privacy interests against the public interest in
    disclosure.     The public interest is served to “the extent to
    which disclosure of the information sought would ‘she[d] light
    on an agency’s performance of its statutory duties’ or otherwise
    let citizens know ‘what their government is up to.’”                    U.S. Dep’t
    of Defense v. Fed. Labor Relations Auth., 
    510 U.S. 487
    , 497
    (1994) (alteration in original) (quoting Dep’t of Justice v.
    Reporters Comm. for Freedom of Press, 
    489 U.S. 749
    , 773 (1989)).
    A similar analysis applies with respect to the application
    of Exemption 7(C), which allows agencies to withhold “records or
    information compiled for law enforcement purposes, but only to
    the extent that the production of such law enforcement records
    or information . . . could reasonably be expected to constitute
    an   unwarranted    invasion        of   personal      privacy.”            5    U.S.C.
    § 552(b)(7)(C).
    In this case, Solers does not dispute that the redacted
    information was contained in “personnel and medical files and
    similar files,” within the meaning of Exemption 6, or that the
    19
    redacted          information         was     “compiled        for        law     enforcement
    purposes,” within the meaning of Exemption 7(C).                                  Rather, it
    contends that the district court did not adequately consider
    whether    the      release      of    the    names    and    contact       information     of
    these IRS employees would constitute “even a general invasion of
    privacy” and that it failed to “weigh Solers’ right to review
    its tax documents against the asserted privacy interests.”
    We conclude, however, that the district court struck the
    right balance in permitting these email redactions.                               On the one
    side of the scale, IRS employees, as well as other government
    employees, “have a substantial interest in the nondisclosure of
    their     identities          and       their        connection           with     particular
    investigations because of the potential for future harassment,
    annoyance, or embarrassment.”                  Neely v. FBI, 
    208 F.3d 461
    , 464-
    65 (4th Cir. 2000); see also Judicial Watch, Inc. v. United
    States,      84    F.    App’x    335,       339    (4th    Cir.    2004)       (unpublished)
    (concluding that “the privacy interest protected by Exemption 6
    encompasse[s] . . . the names of federal employees,” including
    “lower-level I.R.S. employees”).                     But, on the other side of the
    scale   in    this       case,    the       record    contains       no    indication      that
    disclosing         the   names        and    contact       information      of     these   IRS
    employees would serve the public interest.                           See 
    Neely, 208 F.3d at 464
    (recognizing that the public interest in the names of
    government         employees      alone       “would       appear    to    be    negligible”
    20
    absent      a   “compelling       allegation         of   agency   corruption     or
    illegality”).         Accordingly, we conclude that the district court
    did   not   err   in    holding    that   the    IRS      employees’   interest   in
    maintaining the privacy of their names and contact information
    outweighed      the    public     interest      in    the    disclosure   of    this
    information.
    The judgment of the district court is accordingly
    AFFIRMED.
    21
    

Document Info

Docket Number: 15-1608

Citation Numbers: 827 F.3d 323, 117 A.F.T.R.2d (RIA) 2290, 2016 U.S. App. LEXIS 12060, 2016 WL 3563487

Judges: Wilkinson, Niemeyer, Norton

Filed Date: 6/30/2016

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (16)

kenneth-r-edwards-v-city-of-goldsboro-chester-hill-individually-and-in , 178 F.3d 231 ( 1999 )

R. Keith Neely v. Federal Bureau of Investigation , 208 F.3d 461 ( 2000 )

Renegotiation Board v. Grumman Aircraft Engineering Corp. , 95 S. Ct. 1491 ( 1975 )

United States Department of State v. Washington Post Co. , 102 S. Ct. 1957 ( 1982 )

Tax Analysts v. Internal Revenue Service , 410 F.3d 715 ( 2005 )

In Re: Grand Jury Subpoena United States of America v. ... , 341 F.3d 331 ( 2003 )

The City of Virginia Beach, Virginia Thomas M. Leahy, III v.... , 995 F.2d 1247 ( 1993 )

United States v. Ibrahim Ahmed Al-Hamdi, United States of ... , 1 A.L.R. Fed. 2d 695 ( 2004 )

Robert G. Vaughn v. Bernard Rosen, Executive Director, ... , 484 F.2d 820 ( 1973 )

In Re: Grand Jury Subpoena United States of America v. ... , 204 F.3d 516 ( 2000 )

Rein v. United States Patent & Trademark Office , 553 F.3d 353 ( 2009 )

United States Department of Justice v. Reporters Committee ... , 109 S. Ct. 1468 ( 1989 )

Judicial Watch, Inc. v. Clinton , 880 F. Supp. 1 ( 1995 )

United States Department of Defense v. Federal Labor ... , 114 S. Ct. 1006 ( 1994 )

Department of the Interior v. Klamath Water Users ... , 121 S. Ct. 1060 ( 2001 )

Ethyl Corporation v. United States Environmental Protection ... , 25 F.3d 1241 ( 1994 )

View All Authorities »