DocketNumber: Civil Case No. 16–1823 (RJL)
Citation Numbers: 288 F. Supp. 3d 206
Judges: Leon
Filed Date: 1/24/2018
Status: Precedential
Modified Date: 7/25/2022
Licensed tax attorney Bradley S. Waterman ("plaintiff" or "Waterman") brings this Freedom of Information Act ("FOIA") suit against the Internal Revenue Service ("defendant" or "IRS"). As relevant here, Waterman's complaint alleges that the IRS improperly withheld information responsive to his FOIA request for all agency information related to an Office of Professional Responsibly investigation into Waterman's alleged misconduct. See generally Compl. [Dkt. # 1].
Pursuant to a joint stipulation filed by the parties, Count I of the complaint has been dismissed. See Fed. R. Civ. P. 41(a)(l)(A)(ii) ; Joint Stipulation of Dismissal of Count I with Prejudice [Dkt. # 23]. That dismissal leaves only the parties' cross-motions for summary judgment on Count II pending before this Court. See *209Def.'s Mot. Dismiss & Mot. Summ. J. ("Def.'s Mot.") [Dkt. # 18]; Pl.'s Cross-Mot. Summ. J. ("Pl.'s Cross-Mot.") [Dkt. # 24]. Upon consideration of the pleadings, the entire record, and the relevant case law, the Court concludes that the IRS's decision to withhold the information at issue was lawful under FOIA. Therefore, the IRS's motion for summary judgment on Count II is GRANTED and plaintiff's cross-motion for summary judgment on Count II is DENIED.
BACKGROUND
The parties agree on the basic facts giving rise to this action. Waterman is a licensed attorney who represents clients in disputes with the IRS. Declaration of Pl. Bradley S. Waterman ("Waterman Decl.") ¶¶ 1, 6 [Dkt. # 24-2]. In one such matter, Waterman represented the New Hampshire Health and Education Facilities Authority ("the Authority") in anticipation of proceedings before the IRS's Tax-Exempt Bond office ("TEB"). According to Waterman, he assisted the Authority in resolving a dispute with TEB over the tax-exempt status of bonds that the Authority had issued.
Apparently, the IRS suspected foul play in Waterman's representation of the Authority. In March 2014, the TEB filed a Report of Suspected Practitioner Misconduct ("Report") against Waterman with the IRS's Office of Professional Responsibility ("OPR"). OPR is the IRS entity "responsible for investigating and acting on reports (also commonly known within OPR as 'referrals') of suspected practitioner misconduct by individuals who practice before the IRS." Decl. of Keith C. Ott ("Ott Decl.") ¶ 3 [Dkt. # 18-3]. Pursuant to that responsibility, OPR opened a case file on Waterman and individuals within OPR examined the referral. Id. ¶ 6. After investigation, OPR ultimately determined that the allegations against Waterman did not warrant further inquiries or action. Id. ¶¶ 7-8. In September 2014, OPR informed Waterman of the Report, its conclusion not to take any additional disciplinary action, and of Waterman's duty to abide by IRS rules and regulations in the future. See Pl.'s Cross-Mot. Ex. A. [Dkt. # 24-1]. It also informed Waterman that OPR would retain the file containing the misconduct referral for twenty-five years and reserved the right to reference the file in any future OPR investigations or proceedings. Id.
After seeking and failing to obtain all of the information related to the March 2014 Report through informal communications with the IRS, Waterman submitted the FOIA request at issue in this suit. See Def.'s Mot. Ex. A [Dkt. # 18-7]. In that January 2016 FOIA request, Waterman sought the Report as well as "all documents prepared in connection with or otherwise relating to the Report," including all "correspondence, memoranda, notes, reports, and other documents" prepared by IRS personnel responsible for investigating and reviewing the Report. Id. at 2. Waterman's request identified OPR Attorney-Advisor Keith Ott as the point of contact for locating responsive documents. Id.
As detailed in her declaration, IRS "Government Information Specialist" Barbara D. Herring began processing Waterman's FOIA request shortly after it was received. Decl. of Barbara D. Herring ("Herring Decl.") ¶ 4 [Dkt. # 18-2]. Because plaintiff does not challenge the adequacy of the IRS's search, I need not detail the ins-and-outs of that search here. Suffice it to say, however, that following a search in which the IRS checked and then double-checked its files for all relevant documents, the agency identified fifty-four pages of records that were responsive to Waterman's request, segregated and produced the non-exempt records and portions *210of records, and withheld the records determined to be exempt from FOIA's disclosure requirements. See Decl. of Elizabeth Rawlins ("Rawlins Decl.") ¶¶ 8-14 [Dkt. # 18-4].
As in most FOIA cases, the dispute here stems from what the IRS chose not to produce. As detailed in the agency's Vaughn index, see Def.'s Mot. Attach. 5 ("Vaughn Index") [Dkt. # 18-5], and declarations of agency personnel, see generally, e.g. , Rawlins Decl., the IRS withheld the following information from Waterman. First, citing FOIA Exemptions 6 and 7(c), the IRS redacted the telephone number and e-mail addresses of IRS employees from a set of one-page e-mails between IRS employees. Rawlins Decl. ¶¶ 23-24. Second, and more significantly, the IRS withheld documents and memoranda related to Waterman's representation of the Authority before the TEB, the OPR's investigation of that representation, and agency employees' evaluations of whether to pursue disciplinary action against Waterman. See id. ¶¶ 16-21. According to the IRS, its decision to withhold that information was proper under two separate FOIA exemptions: (1) FOIA Exemption 3, which the IRS asserts in conjunction with a federal statute prohibiting disclosure of third-party tax return information; and (2) FOIA Exemption 5. Id. ¶¶ 16, 18.
Not surprisingly, plaintiff disagrees with the IRS's decision to withhold the responsive information under the various FOIA exemptions. He sued in this Court to challenge the agency's decision, arguing that the IRS's choice to withhold the requested documents and information contravenes his FOIA rights. Currently pending before the Court are the parties' cross-motions for summary judgment on Waterman's FOIA claim.
STANDARD OF REVIEW
Both parties have moved for summary judgment on Count II of the complaint. Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). FOIA cases such as this one are routinely decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep. ,
"FOIA requires executive branch agencies to make their records available 'to any person' upon request,
Waterman has not challenged the adequacy of the IRS's search for records. See Pl.'s Cross-Mot. 5 ("Defendant performed an adequate search for all documents responsive to Mr. Waterman's request."). Therefore, the only question in this case is whether the IRS has demonstrated that any responsive documents withheld by the agency fall within the asserted FOIA exemptions. In such a dispute, a court may grant summary judgment to an agency if, upon de novo review of the agency's decision to withhold responsive records, the court concludes that "the agency has sustained its burden of demonstrating" that the requested documents are "exempt from disclosure under the FOIA." Newport Aeronautical Sales ,
ANALYSIS
In response to Waterman's FOIA request, the IRS withheld two categories of information and relied on two different sets of FOIA exemptions. I address each in turn, ultimately concluding that all of the IRS's withholdings were permissible under FOIA.
A. Contact Information of IRS Employees
The first category of information the IRS withheld was the phone numbers and email addresses of certain IRS employees. Citing FOIA Exemptions 6 and 7, the IRS contends that its redaction of the employees' contact information properly balanced the employees' privacy interests against the minimal public need for disclosure. I agree.
FOIA Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
To start, the work telephone and e-mail addresses of particular agency employees constitute information that "can be identified as applying" to individuals. Prison Legal News v. Samuels ,
The IRS's analysis was reasonable. The contact information for individual employees *212sheds little "light on an agency's performance of its statutory duties," Dep't of Justice v. Reporters Comm. for Freedom of the Press ,
B. Investigatory Materials and Memoranda Generated by Agency Personnel
The IRS withheld a second set of documents and information. Specifically, the IRS declined to produce: 1) two memoranda, dated September 2013 and December 2013, that summarize certain facts that employees of the TEB function believed warranted Waterman's referral to OPR; 2) a copy of an August 26, 2014 memorandum prepared by an OPR analyst and addressed to the manager of the IRS's Legal Analysis Branch, as well as portions of a four-page computer print-out from OPR's case management system summarizing that analysis; and 3) portions of a September 4, 2014 e-mail from the manager of the IRS's Legal Analysis Branch to an OPR attorney.
As a basis for withholding the above information, the IRS cites FOIA Exemption 5. Exemption 5 shields from disclosure all "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency."
The deliberative process privilege protects from disclosure "government documents that are both 'predecisional' and 'deliberative.' "
1. September 2013 and December 2013 Memoranda Referring Waterman to OPR
I first examine the IRS's decision to withhold the September 2013 and December 2013 memoranda. The September 2013 memorandum was authored by the IRS revenue agent responsible for examining the tax liability of Waterman's client, the Authority. The memorandum, which was sent to the agent's direct supervisor, summarized the interactions between Waterman and "IRS personnel over a period of several months" that the revenue agent "believed made the referral" of Waterman to OPR "appropriate." Rawlins Decl. ¶¶ 17(b), 19(b). Along the same lines, the December 2013 memorandum, drafted by the direct supervisor of the revenue agent, "sets forth part of the factual basis"-namely, facts drawn from the supervisor's "telephone conversation" with Waterman in his capacity as the Authority's representative-that the supervisor "believed made the referral" of Waterman to OPR "appropriate." Id. ¶¶ 17(a), 19(a). Both memoranda were attached to the report referring Waterman to OPR for further investigation and served as the "basis for the referral for suspected misconduct." Id. ¶¶ 17(a), 17(b), 19(a), 19(b); Vaughn Index 3.
Waterman does not appear to contest that the September and December 2014 memoranda are predecisional, and for good reason: They were drafted as part of the first step in initiating the OPR review process by individuals without the responsibility for making final OPR decisions. Rawlins Decl. ¶ 19; Ott Decl. ¶¶ 6-7. Waterman instead primarily argues that the deliberative process privilege does not protect the memoranda because those memoranda contain only "factual material"-namely, the employees' "account[s]" of Waterman's conduct. Pl.'s Cross-Mot. 8. Unfortunately for Waterman, he is incorrect. How so?
Although factual information is often outside the bounds of Exemption 5's protections, the line between fact and agency opinion or deliberation "is not infallible and must not be applied mechanically." Mapother v. Dep't of Justice ,
The principle articulated in those cases controls here. As the IRS declarant explains, the September and December 2014 memoranda organize and summarize "part of the factual basis" that IRS employees "believed made the referral" of Waterman to OPR appropriate. Rawlins Decl. ¶ 19(a)-(b). In other words, the particular facts included in the memorandum were "extract[ed]" from a "larger universe of facts" regarding Waterman's representation in an "exercise of judgment as to what issues seemed most relevant" to the referring employees' decision to file an OPR Report. Hardy ,
2. August 26, 2014 Memorandum and Redacted OPR Computer Print-Out
The IRS also withheld a copy of an August 26, 2014 memorandum drafted by an OPR analyst and distributed to a manager of the Legal Analysis Branch. According to the analyst, the purpose of the memorandum was to "record his analysis of the referral, particularly to summarize the facts alleged, identify the violations alleged, and recommend further predecisional agency actions." Rawlins Decl. ¶ 19(c). That memorandum is clearly predecisional, as it contains a preliminary, internal analysis of Waterman's alleged misconduct, including a discussion of whether Waterman's actions warrant subsequent action by the agency. It is also deliberative. To start, for the reasons just discussed in relation to the September and December 2013 memoranda, the agent's selection and evaluation of factual material in the context of a referral investigation is part and parcel of the agency's deliberative process. Moreover, the portions of the memorandum containing the analyst's opinion and "recommendation for how OPR could further investigate the case" are clearly deliberative for purposes of the deliberative process privilege. Id. ¶ 17(c); cf. Hardy ,
3. Redacted September 4, 2014 E-Mail
Finally, the IRS redacted a portion of a September 4, 2014 e-mail between an OPR legal analysis manager and an OPR attorney. According to the IRS's declarant, the redacted portion of the e-mail contains a discussion between the OPR manager and her supervisor regarding "what action OPR should take in response to the referral." Rawlins Decl. ¶ 21. The redacted information therefore recounts a "discussion that took place before any action was taken and describes an action (but not a final agency action) to be taken in the future."
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment and DENIES plaintiff's cross-motion for summary judgment. An Order consistent with this decision accompanies this Memorandum Opinion.
That is especially true here, given that Mr. Waterman apparently "already has" the contact information at issue. Pl.'s Cross-Mot. 10.
Because I conclude that the agency's decision to redact the phone numbers and e-mail addresses was proper under Exemption 6, I need not address the IRS's reliance on Exemption 7.
In addition to Exemption 5, the IRS also relied upon Exemption 3, in conjunction with
Contrary to Waterman's contentions, in camera review of the documents at issue is not necessary to sustain the IRS's withholding decisions. The IRS's declarations provide detailed descriptions of the withheld material as well as justifications for the withholdings, including the names and positions of the authors and recipients of the material; confirmation of the purposes of the withheld memoranda; and descriptions of the context in which the withheld information was generated. By providing all of that information, the IRS, in my judgment, has discharged its duty to provide "reasonably specific" justifications for its positions and has demonstrated that "the information withheld logically falls within the claimed exemption[s]." Am. Civil Liberties Union ,