Life Extension Foundation, Inc. v. Internal Revenue Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LIFE EXTENSION )
FOUNDATION, INC., )
)
Plaintiff, )
) Civil Case No. 12-280 (RJL)
v. )
)
INTERNAL REVENUE SERVICE. ) L E n
) ‘SBXN l 6 2913
Defendant. )
) l;¢z,~r»., i~g;‘r`i;shtrlctva Ba%kr!upt%‘it
m G<;uttstumzie »,»sstuciot o.um la
MEMORANDUM OPINION
(January/_(_, 2013) [#11, #14]
Plaintiff Life *Extension Foundation ("Foundation" or "plaintiff") brings this action
against the Internal Revenue Service ("the IRS" or "defendant") for failure to disclose
information pursuant to the Freedom of Infonnation Act ("FOIA"). Plaintiff seeks
certain documents from an examination file composed by the IRS’s Tax Exempt and
Government Entities Examination Division pursuant to a recent audit of the plaintiff
Before the Court are the parties’ cross-motions for summary judgment. Upon
consideration of the parties’ pleadings, relevant law, and the entire record herein, the
defendant’s motion is GRANTED and the plaintiff s cross-motion is DENIED.
BACKGROUND
Plaintiff is a public charitable organization, recognized under 26 U.S.C. §
50l(c)(3), that supports and furthers scientific research. Compl. 11 4, ECF No. l. On July
2l, 2011, plaintiff submitted a FOIA request to the IRS for "the examination file with
regard to the recent examination conducted by agents from the Tax Exempt and
Government Entities Examination Division in Independence, MO for taxable years 2006,
2007, and 2008." Id. 11 7. In its request, the Foundation specifically excluded "copies of
documents submitted by the [plaintiff]" and "documents previously provided by the IRS
agent to the [plaintiff]" from its FOIA inquiry. Ia’,, Ex. 1 at l.
Af`ter multiple requests for an extension of the response date, the IRS responded to
the Foundation’s FOIA request on November lO, 201 l. Id. 1111 8, ll-l3. ln its letter, the
IRS stated that although it had identified 329 pages that were responsive to the
Foundation’s FC)IA request, it was only providing the charitable organization with 232 of
those pages, and withholding 8 pages in part and 97 pages in full under FOIA exemptions
5 U.S.C. § 552(b)(3) ("Exemption 3"), 5 U.S.C. § 552(b)(5) ("Exemption 5") and 5
U.S.C. § 552(b)(7)(D) ("Exemption 7D"). Ia'. 1l 14. Gn December 8, 2011, plaintiff
formally appealed the IRS’s decision to the office of IRS Appeals. Id. 1 16. When the
Foundation’s appeal was denied on January 20, 2012, the IRS asserted additional FOIA
exemptions under Exemption 3, in conjunction with 26 U.S.C. § 6l03(b)(2) and 5 U.S.C.
§ 552(b)(7)(E) ("Exemption 7E"), to withhold the requested documents. Ia'. 11 17.
One month later, on February l7, 2012, plaintiff filed a complaint in this Court,
seeking an order to compel disclosure of the requested 97 pages of withheld records in
their entireties, as well as an order to conduct another search for additional responsive
records. See generally id. Although the IRS filed a partial motion to dismiss on April 27,
2012, the parties entered into a Consent Order resolving that motion on May 25, 20l2.
See Def.’s Partial Mot. to Dismiss, ECF No. 5; Consent ()rder, ECF No. 8. ln that Order,
2
the plaintiffs requests for an IRS search for additional responsive records and for
"expeditious proceedings" were dismissed without prejudice. Ia’. at l.
On July 16, 2012, the IRS moved for summary judgment, contending that it
properly withheld the records at issue under exemptions to FOIA. See Def.’s Mot. for
Summ. J. ("Def.’s Mot.") at l, ECF No. ll. The IRS supported its motion with two
affidavits, one from an IRS Disclosure Specialist responsible for FOIA requests and the
other from an attorney in the IRS’s Office of Chief Counsel. See Decl. of Stephen
Danish ("Danish Decl."), ECF No. ll-4; Decl. of Carlton W. King ("King Decl."), ECF
No. ll-3. The IRS also submitted additional declarations, in camera, in support of its
Motion for Summary Judgment. See Def.’s Notice of ln Camera Submission ("Def.’s In
Camera Sub."), ECF No. l2. On August l6, 2012, plaintiff also moved for summary
judgment, asserting that the IRS is not entitled to summary judgment because it has not
provided sufficient information about the withheld documents to carry its burden under
FOIA. Pl.’s Mem. in Gpp’n to Def.’s Mot. for Summ. J. and in Supp. of Pl.’s Cross-Mot.
for Summ. J. and In Camera Review of Withheld Documents ("Pl.’s Mem.") at l, ECF
No. 13-1. For the reasons set forth below, l disagree and GRANT summary judgment in
favor of the defendant.
ANALYSIS
I. Summary Judgment in a FOIA Case
Both parties have moved for summary judgment. FOIA cases, of course, are
"typically and appropriately" decided on motions for summary judgment. Defena’ers of
Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). lndeed, "[w]hen
3
assessing a motion for summary judgment under FOIA, the Court shall determine the
matter de novo." Judz'cial Watch, Inc. v. U.S. Dep ’t of Homeland Sec., 598 F. Supp. 2d
93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)).
Summary judgment is appropriate when the record demonstrates that there is no
genuine issue of material fact in dispute and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). With respect to an agency’s non-disclosure
decisions in a FOIA action, the court may rely on affidavits or declarations if they
describe "the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith." Military/ludz't Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. l98l); see also
SafeCard Servs., Inc. v. SEC, 926 F.2d ll97, 1200 (D.C. Cir. l99l) (affidavits and
declarations are "accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents")
(intemal quotation marks and citation omitted).
"Ultimately, an agency’sjustification for invoking a FOIA exemption is sufficient
if it appears ‘logical’ or ‘plausible."’ Larson v. Dep’t ofState, 565 F.3d 857, 862 (D.C.
Cir. 2009) (quoting Wolfv. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)). In assessing
the logic and plausibility of an agency assertion of an exemption, "reviewing courts
[should] respect the expertise of an agency" and avoid "overstep[ping] the proper limits
of the judicial role in FOIA review." Haya’en v. NSA, 608 F.2d 1381, 1388 (D.C. Cir.
l979); see also Military Audit Project, 656 F.2d at 753; Halperz`n v. CIA, 629 F.2d 144,
4
148 & n.20 (D.C. Cir. 1980).
II. The IRS’s Withh0lding and Release of Non-Responsive and Responsive
Pages
In its complaint, the plaintiff requests that this Court order the IRS to release the
97 pages of records from the examination file that were withheld in full in 2011. See
generally Compl. However, due to a calculation error and the release of some
previously-withheld documents, the number of responsive pages that the IRS continues to
withhold in full under FOIA, and are at issue in this case, is 67 pages of records.
More specifically, of the initial 329 page total that the IRS indicated was
responsive to plaintiffs FOIA request, only 306 had indeed been found responsive by
Stephen Danish ("Danish"), an IRS Disclosure Specialist responsible for FOIA requests
See King Decl. 11 9; Danish Decl. 11 6. Danish inadvertently counted 23 non-responsive
documents in the 329 page total, but did not provide such documents to the plaintiff
because they fell outside of the terms of plaintiffs request. Ia’. The IRS has now
determined that, of the 329 pages initially identified by Danish as responsive to plaintiffs
FOIA request, in fact only 307 pages are responsive, as 22 pages fall outside the scope of
plaintiffs request.l King Decl. 11 11. Accordingly, on November 10, 2011, when the IRS
released 232 pages to the plaintiff pursuant to the latter’s FOIA request, the agency only
l More specifically, pages 113 and 156 are blank pages, pages 223 through 233 and 235
through 242 consist of forms provided to the IRS by the plaintiff, and pages 15 and 16
were redacted, and page 18 not released, because they contain information related to
years other than those requested by the plaintiff. See King Decl. 11 11.
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withheld 75 responsive pages in full, rather than 97. 2
In addition, during the course of litigation, the IRS has released 8 additional pages,
in full, that were previously withheld from the plaintiff.3 King Decl. 11 12. As such, the
IRS has released, in full or in part, a total of 240 pages, and continues to withhold 67
responsive pages in full from the plaintiff pursuant to relevant exemptions to FOIA.
III. Exemptions Claimed by the IRS
The IRS contends that the withheld documents are exempt from disclosure under
FOIA Exemptions 3, 5, and 7(D). Def.’s Brief in Supp. of Mot. for Summ. J. ("Def.’s
Mem.") at 8-9, ECF No. 11-1. The plaintiff challenges these claimed exemptions,
asserting that the IRS has failed to provide sufficient information regarding their
2 Plaintiff disputes the IRS’s determination that these 22 pages were "outside the scope"
of its FOIA request. See Pl.’s Mem. at 10. Basing its contention of erroneous
classification on the fact that the IRS determined, after litigation had commenced, that
one of the 22 non-responsive pages was in fact responsive, the plaintiff requests that the
court conduct an in camera inspection of the materials to ensure that the IRS’s
designations are indeed correct. ld. "Agency affidavits are accorded a presumption of
good faith," however, and the IRS’s declarations explicitly detail how the IRS made its
responsiveness determination. SaféCard Servs., 926 F.2d at 1200; see Danish Decl. 11 6
("My review indicated that 23 of the pages initially thought to be responsive were, in
fact, outside the scope of [p]laintiff s request. These consisted of material provided to the
[lRS] by [p]laintiff, such as Forms 2848, Power of Attorney and Declaration of
Representative, and For1ns 8821, Tax information Authorization, which [p]laintiff had . .
. expressly excluded from the scope of its FOIA request."); King Decl. 11 ll ("Of the
initial total of 329 pages, the [IRS] now has determined that twenty-two pages were not
responsive, as they fall outside of the terms of [p]laintiffs request. Pages 113 and 156
are blank pages, Pages 223 through 233 and 235 through 242 consist of forms provided
to the [1RS] by [p]laintiff . . . . Pages 015 and 016 were redacted, and page 018 not
released, because they contain information related to years other than those requested by
[p]laintiff."). The plaintiff, on the other hand, has no evidence to support its bald
allegation of government misconduct or bad faith,
3 Page 234, previously deemed nonresponsive, and pages 73 to 79, previously withheld
pursuant to a FOIA exemption, have been released in their entirety to plaintiff, King
Decl. 11 12.
applicability to the withheld documents and that this court should review the withheld
documents in camera to determine whether the IRS’s representations are truthful and the
documents indeed qualify for exemption." Pl.’s Mem. at 7-8, 10, 12, 16. For the
following reasons, 1 agree with the IRS and grant its motion for summary judgment.
A. FOIA Exemption 3
Exemption 3 permits an agency to prevent the release of records that are
"specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). ln determining
the applicability of Exemption 3, "the sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within that statute’s coverage." Golancl v.
C[A, 607 F.2d 339, 350 (D.C. Cir. 1978); see Krz`korz`an v. Dep ’t ofStafe, 984 F.2d 461,
465 (D.C. Cir. 1993); Ass’n of Retz'red R.R. Workers, 1nc. v. U.S. R.R. Ret. Ba’., 830 F.2d
331, 336 (D.C. Cir. l987).
Under Exemption 3, the IRS seeks to withhold 4 pages (pgs. 150 to 153), in full,
pursuant to 26 U.S.C. § 6103(a). King Decl. 11 13(b). This statute provides that tax
"[r]eturns and return information shall be confidential," and "no officer or employee of
the United States . . , shall disclose any [tax] return or return information obtained by him
in any manner in connection with his service." 26 U.S.C. § 6103(a); see T ax Analysts v.
IRS, 410 F.3d 715, 718 (D.C. Cir. 2005) ("Tax returns and return information remain
confidential except where provided to the contrary."). "Return information" is defined
4 Although the plaintiff, in its briefing on this motion, disputes the IRS’s partial release of
8 pages pursuant to FOIA exemptions, it does not seek the release of these partially
withheld documents in the Complaint. As such, the Court will not address the plaintiffs
arguments with regard to the partially-withheld pages.
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broadly by the statute to include almost any information compiled by the IRS in
connection with its determination of a taxpayer’s liability for tax, interest, penalties, or
civil or criminal offenses. 26 U.S.C. § 6103(b)(2)(A).
Carlton King, an attorney in the IRS’s Office of Chief Counsel, attests that the 4
pages withheld by the IRS "consist of parts of the actual returns of taxpayers other than
[p]laintiff," and that "none of the provisions of the Code authorize the release of this
information to plaintiff."5 King Decl. 11 13(b). Because this information is precisely the
type of material prohibited from disclosure by 26 U.S.C. § 6103(a), the IRS is entitled to
summary judgment on its withholding of pages 150 to 153, in full, under Exemption 3.6
B. FOIA Exemption 5
FOIA Exemption 5 protects from disclosure inter-agency or intra-agency letters or
memoranda "which would not be available by law to a party . . . in litigation with the
agency." 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document "must fall
within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it." Dep ’t of the Interior v. Klamaz‘h Water
5 Although the IRS initially withheld ll pages, in full, as containing tax return
information of taxpayers other than the plaintiff, it released 7 of those pages (pgs. 73 to
7 9) when it determined that they only consisted of the results of lnternet searches that
returned results relating to taxpayers other than plaintiff King Decl. 11 l3(a).
6 lt is well-established in our Circuit that a district court may award summary judgment to
a government agency based solely on information presented in affidavits or declarations,
so long as the agency’s submissions set forth a "relatively detailed justification for
invoking an exemption to disclosure; specifically identify the reasons why a particular
exemption is relevant; and correlate those claims with those records (or portions thereof)
to which they apply." Schoenman v. FBI, 763 F. Supp. 2d 173, 188 (D.D.C. 2011)
(quoting Jua'z'cz'al Watch, Inc. v. FDA, 449 F.3d l41, 145 (D.C. Cir. 2006)) (internal
quotation marks omitted).
Users Protectz've Ass ’n, 532 U.S. 1, 8 (200l). Courts have incorporated civil discovery
privileges into this exemption, such as attorney work-product, attorney-client privilege,
and "deliberative process" privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 862 (D.C. Cir. 1980).
Here, the IRS asserts both the deliberative process privilege and the attorney-client
privilege as the basis for withholding the same 52 pages, in full, from the plaintiff. Def.’s
Mem. at 12-19; King Decl. 1111 14-16. These privileges, and their applicability to the 52
withheld pages, will be discussed in tum.
1. Deliberative Pr0cess Privilege
The deliberative process privilege exempts from disclosure those documents that
contain deliberations comprising part of a process by which governmental decisions and
policies are made. Klamath Water Users, 532 U.S. at 8. Accordingly, government
materials that are both "predecisional" and “deliberative" are shielded by the privilege.
Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997); see also Vaughn v. Rosen, 523
F.2d 1136, 1143-44 (D.C. Cir. 1975) (noting that a document is "deliberative" if it
"makes recommendations or expresses opinions on legal or policy matters"); Petroleum
Info. Corp. v. Dep ’t of the lnterior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) ("A document
is predecisional if it was prepared in order to assist an agency decisionmaker in arriving
at his decision, rather than to support a decision already made.") (intemal quotation
marks omitted). "[T]he ultimate purpose of this long-recognized [deliberative process]
privilege is to prevent injury to the quality of agency decisions" as well as to encourage
"the frank discussion of legal and policy issues” by ensuring that agencies are not "forced
9
to operate in a fishbowl." Sears, 421 U.S. at 151; Mapother v. DOJ, 3 F.3d 1533, 1537
(D.C. Cir. 1993); Woh”e v. Dep’t ofHealth & Human Servs., 839 F.2d 768, 773 (D.C. Cir.
1988) (en banc).
In this case, the IRS withholds 52 responsive pages, in full, under the deliberative
process privilege because these records "contain opinions, analyses, advice, thought
processes, strategies, and recommendations generated during the course of the IRS’s
consideration of the appropriate course of action to take regarding the examination of
[p]laintiff[‘s] [tax exempt status]." King Decl. 11 15. In his declaration, King explains
that the withheld 52 pages are composed of two documents: (1) a 45-page Routing and
Transmittal Slip, from attorney for IRS’s Tax Exempt and Government Entities office
("TEGE") Donna Mayfield Palmer to IRS Agent J ames Brophy, which is attached to a
draft of a Forrn 886A, Explanation of items (pgs. 285 to 329); and (2) a 7-page
memorandum of legal advice from Acting Gulf Area Counsel for TEGE Mark L. Hulse
to Brophy (pgs. 278 to 284). King Decl. 1111 14(a)-(b). King asserts that the Form 886A
was composed in draft by the IRS, contains extensive edits and comments that reflect
opinions and advice from IRS’s Office of Chief Counsel to the IRS, and was created to
evaluate whether the plaintiff was operating exclusively for exempt purposes. Ia’. 1111
14(b), 16. In addition, the 7-page memorandum, King explains, is "explicit legal advice"
from Counsel for TEGE to its client, the IRS, and discusses potential action regarding the
plaintiff and its tax exempt status. Ia'. 1111 14(a), 16. As such, the disclosure of these
materials "would expose the decision making processes of the IRS, including [the Office
of Chief] Counsel, in such a way that it might discourage candid discussion within the
10
IRS or with the Department of the Treasury and undermine their ability to perform their
responsibilities and duties." Ia'. 11 15.
lt is apparent that both the 45-page marked-up Form 886A and 7-page
memorandum are predecisional and deliberative in nature, and thus subject to the
deliberative process privilege. Both documents, as clearly and sufficiently described in
King’s declaration, despite plaintiffs arguments to the contrary, contain inter-agency
material that was generated as part of a continuous process of agency decision-making,
namely what determination the IRS should make with regard to plaintiffs tax-exempt
status. Id. The King declaration explains that both materials contain "personal opinions,
analyses, thought processes, strategies, and recommendations of the writers concerning
the proposed revocation of [p]laintiff s tax-exempt status," before any final determination
was made, including "discussions of [p]laintiffs activities, publicity materials, fee
structure for members, and its relationship with affiliate entities." Ia’. ("These materials
reflect ‘the give and take’ of the agency’s consultative, deliberative processes."). ln
addition, the King declaration clearly explains the reasons why disclosure would harm
the decision-making process. Id. The law of our Circuit is clear that under such
circumstances, the draft Form 886A and legal memorandum are appropriately exempt
from disclosure pursuant to Exemption (b)(5).7 See also Mz`lz`tary Aua’it Project, 656 F.2d
7 See, e.g., Brinton v. Dep ’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980) ("There can be
no doubt that . . . legal advice, given in the form of intra-agency memoranda prior to any
agency decision on the issues involved, fits exactly within the deliberative process
rationale . . . ."); Coastal States, 617 F.2d at 868 (recognizing that a "series of
memoranda to the Assistant Secretary of the Army from the General Counsel . . .
recommending legal strategy" is a "classic case of the deliberative process at wor ");
11
at 738 (summary judgment on basis of agency affidavits is warranted if they "describe the
documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption,
and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith."). Accordingly, 1 uphold the IRS’s assertion of the 7-page
memorandum and 45-page draft Form 886A as subject to the deliberative process
privilege and therefore exempt from disclosure under Exemption 3.
Plaintiff argues that "[t]here is no discussion of segregability" on the part of the
IRS as to the marked-up Form 886A and legal memorandum, observing that these
documents would normally be expected to have a separate fact section that would not be
protected under the deliberative process privilege. See Pl.’s Mem. at 14; Pl.’s Reply Br.
in Supp. of Pl.’s Cross-Mot. for Summ. J. and In Camera Review of Withheld
FPL Group, Inc. v. IRS, 698 F. Supp. 2d 66, 83-84 (D.D.C. 2010)(de1iberative process
privilege applies to draft memoranda and email discussions reflecting relevant revisions
and recommendations of IRS’s Gffice of Chief Counsel attorneys, who were involved in
drafting final written determination on tax issue); Morley v. CIA, 699 F. Supp. 2d 244,
255 (D.D.C. 2010) (records concerning pre-decisional deliberations, which preceded
ultimate agency action granting security clearance, were exempt from disclosure); Mayer,
Brown, R0we & Maw LLP v. IRS, 537 F. Supp. 2d 128 (D.D.C. 2008) (Special Counsel to
the IRS’s personal notes on relevant background documents regarding aspects of a
transaction he considered significant, as the agency debated how to best address certain
transactions, exempt under deliberative process exemption); Elec. Privacy Info. Cir. v.
DOJ, 584 F. Supp. 2d 65, 75 (D.D.C. 2008) ("If OLC provides legal advice as part ofa
decision-making process, this legal advice is protected under the deliberative process
privilege."); Exxon Corp. v. Dep’l ofEnergy, 585 F. Supp. 690, 698 (D.D.C. 1983)
("Draft documents, by their very nature, are typically predecisional and deliberative"); cf
T ax Analysls v. IRS, 483 F. Supp. 2d 8, 17 (D.D.C. 2007) (documents that are "legal
interpretations of . . . the internal Revenue Code with respect to particular issues or
provide the Office of Chief Counsel’s legal conclusions . . . regarding the tax laws" do
not fall within the deliberate process exemption) (intemal quotation marks and citations
omitted).
12
Documents ("Pl.’s Reply") at 8, ECF No. 17. The IRS responds that the legal advice
within the draft Form 886A is "inextricably intertwined" with any non-deliberative
segments of the document, and courts have withheld documents similar to the legal
memorandum at issue here without engaging in a segregability analysis. See Def.’s
Reply Br. in Supp. of Mot. for Summ. J. and Response Br. in Opp’n to Pl.’s Cross-Mot.
for Summ. J. ("Def.’s Response") at 8, ECF No. 15. 1 agree.
lt is well established that an agency claiming that a document is exempt under
FOIA must, after excising the exempted information, release any reasonably segregable
information unless the non-exempt information is inextricably intertwined with the
exempt information. Trans-Pac. Policing Agreemenl v. U.S. Customs Serv., 177 F.3d
1022, 1026-27 (D.C. Cir. 1999). A "blanket declaration" that materials do not contain
segregable information is insufficient. Wilderness S0c ’y v. U.S. Dep ’t of Interz'or, 344 F.
Supp. 2d 1, 19 (D.D.C. 2004). Rather, an "agency must provide a detailed justification
for its non-segregability" to demonstrate that "all reasonably segregable material has
been re1eased." johnson v. Exec. Ojj‘ice for U.S. Attorneys, 310 F.3d 77l, 776 (D.C. Cir.
2002) (internal quotation marks and citation omitted).
Here, the IRS’s supporting declarations provide sufficient descriptions of the
contents of the withheld documents, as well as the specific pages affected by each
exemption claim, and make clear that all withheld documents were reviewed line-by-line
to identify reasonably segregable material. For instance, the justification for the IRS’s
partial withholding of 4 documents under the deliberative process privilege goes through
the record page-by-page, stating:
13
Withheld portions of pages 03, 164, 253 and 257 record conversations
between elements of the [IRS] regarding possible action regarding
[p]laintiff. The withheld portions of page 03 are a summary of Counsel
advice regarding classification of [p]laintiff and a brief description of the
[lRS]’s deliberations of possible action regarding [p]laintiff Page 164 is a
short memorandum discussing the status of the case, and the withheld
portion summarizes discussions with Counsel regarding how to proceed
regarding [p]laintiff Pages 253 and 257 are pages from the [IRS] Agent’s
case notes. The withheld portions of page 253 summarize communications
between [IRS] employees regarding [p]laintiff, and the withheld portion of
page 257 summarizes communications between the [IRS] Agent and
Counsel regarding [p]laintiff s case.
King Decl. 11 14(c).
In the absence of contrary evidence or specific cites to potentially unsegregated
portions, the declarations are afforded the presumption of good faith. See SafeCard
Servs., 926 F.2d at 1200. This showing is thus sufficient to allow the Court to determine
that no portion of the fully-withheld documents could be segregated and subsequently
released. See Johnson, 310 F.3d at 776 (in demonstrating that all reasonably segregable
material has been released, "the agency is not required to provide so much detail that the
exempt material would be effectively disclosed"); Armstrong v. Exec. Ojj'ice of the
Presiclent, 97 F.3d 575 , 578 (D.C. Cir. 1996) (where the government affidavits show with
"reasonable specificity" why documents cannot be further segregated, district court did
not abuse its discretion by refusing to conduct in camera review); Weissman v. CIA, 565
F.2d 692, 697-98 (D.C. Cir. 1977) ("lt is only where the record is vague or the agency
claims too sweeping or suggestive of bad faith that a District Court should conduct an in
camera examination to look for segregable non-exempt matters.").
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2. Attorney-Client Privilege
Because all of the information withheld pursuant to the attorney-client privilege
was also withheld pursuant to the deliberative process privilege, 1 do not need to consider
the propriety of the defendant’s application of the attorney-client privilege.
C. FOIA Exemptions 3 and 7(D)
Withholding ll pages (pages 267 to 277), in full, under Exemptions 3 and 7(D),
the IRS argues that these materials are exempt "because their disclosure could reasonably
be expected to disclose the identity of a confidential source or sources" as well as
"seriously impair federal tax administration." King Decl. 11 17. Plaintiff contends that
the IRS’s declarations are too generalized to provide the plaintiff, or this court, with
adequate information to evaluate the IRS’s decision to withhold the documents, and that
summary judgment is inappropriate until in camera review of the withheld documents is
perforrned. Pl.’s Mem. at 12-13, 16-17.
As previously explained, Exemption 3 of FOIA incorporates nondisclosure
protections established in other federal statutes, see generally 5 U.S.C. § 552(b)(3), and it
is well-established that 26 U.S.C. § 6103 provides particular criteria for withholding
inforrnation. Accordingly, § 6103(e)(7) states that "[r]eturn information with respect to
any taxpayer may be open to inspection by or disclosure to any [authorized] person" if it
is determined that "such disclosure would not seriously impair [f]ederal tax
administration." Although phrased as a permissive statute, rather than a prohibitive one,
the IRS argues that § 6103(e)(7) can be interpreted to ban the disclosure of return
information that would seriously impair federal tax administration. Def.’s Mem. at 19.
15
Exemption 7(D) protects from disclosure "records or information compiled for law
enforcement purposes" that "could reasonably be expected to disclose the identity of a
confidential source . . . [who] furnished information on a confidential basis." 5 U.S.C. §
552(b)(7)(D). "A source is confidential within the meaning of [E]xemption 7(D) if the
source provided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred." Williams v.
FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (intemal quotation marks and citation omitted).
The court may consider a number of factors in determining whether a source’s
communication should be treated as confidential, "including notations on the face of a
withheld document, the personal knowledge of an official familiar with the source, a
statement by the source, or contemporaneous documents discussing practices or policies
for dealing with the source or similarly situated sources." Campbell v. U.S. Dep ’t of
Justz'ce, 164 F.3d 20, 34 (D.C. Cir. 1998). Of all of FOIA’s law enforcement
exemptions, it is well known that Exemption 7(D) affords the most comprehensive
protection. See Bz`llingion v. U.S. Dep ’t of Justz`ce, 301 F. Supp. 2d 15, 22 (D.D.C. 2004);
Voinche v. FBI, 940 F. Supp. 323, 331 (D.D.C. 1996).
The IRS submitted in camera declarations to support its withholding of this group
of 11 pages due to "the nature of the documents withheld" as well as the "nature of [its]
assertions" under FOIA Exemptions 3 and 7(D). See Def.’s Response at 12. The in
camera declarations provide additional details explaining why the IRS has not described
any investigation or informant information in any greater detail in its public submissions.
See Def.’s In Camera Sub. Although the Court is mindful that in camera declarations are
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to be avoided unless essential, see, e.g., Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir.
1976), where, as here, "an agency indicates that no additional information concerning an
investigation may be publicly disclosed without revealing precisely the information that
the agency seeks to withhold, the receipt of in camera declarations is appropriate."
Barnara’ v. Dep ’z‘ of Homeland Sec., 598 F. Supp. 2d l, 16 (D.D.C. 2009); see also Arieff
v. U.S. Dep ’t ofthe Navy, 712 F.2d l462, 1469 (D.C. Cir. 1983) (stating that in camera
affidavits are, "when necessary, part of a trial judge’s procedural arsenal") (intemal
quotation marks omitted).
After reviewing the IRS’s in camera declarations, the Court finds that the agency
has properly invoked Exemptions 3 and 7(D) with respect to pages 267 to 277. First, the
Court is satisfied that, on the basis of detailed in camera declarations, disclosure of these
materials would impair the collection, assessment, or enforcement of the tax laws under
Exemption 3. Indeed, an individual who has delegated authority to make such a
determination under 26 U.S.C. § 6103(e)(7) attests via in camera declaration that
releasing the particular pages at issue would seriously impair federal tax administration.
See Def.’s In Camera Sub.
Second, the in camera declarations contain ample descriptions of the 11 pages
withheld by the IRS, and explain why each of the pages cannot be further considered on
the public record without revealing material that the IRS seeks to withhold from public
disclosure. Ia’. Sufficient for Exemption 7(D) purposes, the detailed in camera
submissions from the IRS confirm that the withheld documents are part of an
investigatory record compiled for law enforcement purposes, that sources supplied the
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information under circumstances which indicate assurances of confidentiality, and that
disclosure of any portion of the document would reveal the identity of confidential
sources. Ia’. 1n other words, the court is satisfied that the sources provided information
under at least an implied promise of confidentiality, and that disclosure of this
information via the release of these 11 pages, which contains identifying information
throughout, could reasonably be expected to disclose their identities. See Billington, 301
F. Supp. 2d at 22 (based on in camera declarations, concluding that the government
properly withheld a six-page memorandum that implicated a government informant under
Exemption 7(D)). Accordingly, 1 find that the information contained within pages 267 to
277 is exempt from disclosure under Exemptions 3 and 7(D).
D. Plaintiff’s request for in camera inspection
Plaintiff has requested in camera review of documents withheld pursuant to
Exemption 5 and Exemption 3, in conjunction with 26 U.S.C. §§ 6103(a) and (e)(7).
District courts need not and should not make in camera inspections, however, where the
government has sustained its burden of proof on the claimed FOIA exemption, See, e.g.,
ACLUv. U.S. Dep ’z ofDef, 628 F.3d 612, 626 (D.C. Cir. 2011) (when an agency’s
declarations "provide specific information sufficient to place the documents within the
exemption category, and if there is no evidence in the record of agency bad faith, then
summary judgment is appropriate without in camera review") (intemal quotation marks
and citations omitted); Weissman, 565 F.2d at 697 ("1n every FOIA case, there exists the
possibility that [g]overnment affidavits claiming exemptions will be untruthful. , . . lf, as
appellant argues, [this] possibilit[y] [is] enough automatically to trigger an in camera
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investigation, one will be required in every FOIA case. This is clearly not what
[C]ongress intended, nor what this Court has found to be necessary.").
For the reasons discussed above, the IRS has met its burden to prove that the
withheld documents are totally exempt. Therefore, this Court has an adequate factual
basis to make its determination and need not examine the disputed documents in order to
determine their exempt status.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the defendant’s Motion for
Summary Judgment [Dkt. #11] and DEN1ES plaintiffs Cross-Motion for Summary
Judgment [Dkt. #14]. An Order consistent with this decision accompanies this
fit
RICHA . L ON
United States District Judge
Memorandum Opinion.
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