B & P Co., Inc. v. IRS, No. 14-232, 2015 WL 4455747 (S.D. Ohio July 20, 2015) (Rice, J.)

B & P Co., Inc. v. IRS, No. 14-232, 2015 WL 4455747 (S.D. Ohio July 20, 2015) (Rice, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

•  Exemption 5, Deliberative Process Privilege:  "The Court finds that the IRS properly withheld the draft [Revenue Agent Report (RAR)], which is exempt from disclosure under FOIA exemption (b)(5), because it is protected by the deliberative process privilege."  The court explains that "[i]t is beyond dispute that the draft RAR is predecisional; it is not a final determination of [plaintiff's] tax liability for the years in question."  Also, the court agrees with defendant that "[d]isclosure of the draft RAR would also expose the IRS's deliberative process . . . [and] provide[] insight into the agency's deliberative process concerning possible criminal action to be taken against [plaintiff]."
   
• Exemptions 3 & 7(A):  "The Court concludes that the IRS has satisfied its burden of proving that disclosure of the draft RAR, which was compiled solely for law enforcement purposes, could interfere with enforcement proceedings, and would seriously impair Federal tax administration."  "Therefore, this document is also exempt from disclosure under 5 U.S.C. §§ 552(b)(3) and (b)(7)(A), as supplemented by 26 U.S.C. § 6103(e)(7)."  With regard to the application of (b)(7)(A), the court further notes that "FOIA exemption 7(A) applies regardless of whether the enforcement is civil or criminal in nature."
   
• Litigation Considerations, Adequacy of Search:  "Based on the evidence presented, the Court concludes that Defendant's search for records responsive to [plaintiff's] FOIA requests was adequate and reasonable."  "The IRS used 'methods reasonably expected to produce the requested information.'"  "The fact that the IRS was unable to find any more documents appears to be due solely to the operation of the agency's 10–year records retention policy."