Cause of Action v. IRS, No. 13-0920, 2015 WL 5120863 (D.D.C. Aug. 28, 2015) (Jackson, J.)

Cause of Action v. IRS, No. 13-0920, 2015 WL 5120863 (D.D.C. Aug. 28, 2015) (Jackson, J.)

Re: Request for records concerning 26 U.S.C. § 6103

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "The Court finds that [defendant's] declaration does describe a search that was adequate with respect to items one and two of the FOIA request, but not with respect to items three and four."  First, "[t]he Court finds that the description provided in the declaration is sufficient to indicate 'what records were searched, by whom, and through what processes' with respect to items one and two of the request."  Second, "[t]he Court finds that the description of the search for records responsive to items three and four of the request is not adequate."  The court finds that "[defendant] provides no explanation for [its] conclusion that records of requests made by the Executive Branch would be located in the Office of Legislative Affairs or in any of the other offices [it] named, or why they would not be elsewhere."  Additionally, the court cites "[defendant's] failure to identify any key words or search terms that were used, or to describe the types of searches that were performed in any detail."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds that [defendant's] reliance on Exemption 5 is appropriate and that in camera review is therefore unnecessary."  The court finds that "the withheld portions of the records precede the finalization of the IRS's media response."  "In addition, defendant's declaration makes it plain that the redacted material is deliberative because it 'reflect[s] the give-and-take' of the consultative process . . . leading up to a 'governmental decision[ ]' about the IRS's public position with respect to the issues raised in plaintiff's press release."  "In addition, defendant has established that the deliberative process privilege applies to all but one of the records related to its litigation response to plaintiff's . . . FOIA lawsuit."  "The redacted portions of these records precede agency decisions about litigation strategy."  "As with the media-related materials, defendant's declaration demonstrates that the withheld materials, with one exception, contain 'the give-and-take' of the consultative process."  For similar reasons, the court also holds that defendant properly withheld "certain 'administrative materials concerning the development of the IRS calendar year 2009 reports to the Joint Committee on Taxation under 26 U.S.C. § 6103.'"
   
• Exemption 5, Attorney Work-Product Privilege:  The court finds that "[t]he remaining withholding falls squarely within the attorney work product privilege."  The court notes that defendant explained "that the redacted material reflects the 'mental processes' of Office of Chief Counsel attorneys regarding active litigation."
   
• Exemption 3:  "Upon review of the records, the Court finds that 'tax checks'[,]" "request[s] made by . . . taxpayer[s] . . . who [are] asking the IRS to disclose certain aspects of [their] return information to an individual in the Executive Office of the President[,]" "and related records do constitute 'return information' and are therefore exempt from disclosure under FOIA Exemption 3 and 26 U.S.C. § 6103."  Specifically, "the Court concludes that 'the taxpayer-specific character of the entirety of these [tax check] communications points under Tax Analysts toward their classification as 'data.'"  "Therefore, the 'tax checks' and related records constitute 'return information' that is exempt from disclosure under FOIA Exemption 3 and 26 U.S.C. § 6103."  "But the Court does not agree that any and all records responsive to items three through six of the FOIA request would necessarily constitute exempt 'return information.'"  The court relates that these portions of the request consisted of requests for "'[a]ny communications by or from anyone in the Executive Office of the President constituting requests for taxpayer or ‘return information’ ... that were not made pursuant to § 6103(g)' and related records," as well as "records related to 'requests for disclosure by any agency pursuant to' sections 6103(i)(1), (i)(2), and (i)(3)(A)."  Regarding these portions of the request, "the Court finds that defendant has not established that every record it could conceivably uncover that responds to [these] items . . . would fall within the definition of 'return information.'"  "For that reason, and because the Court has already determined that the search for records responsive to items three and four of the request was inadequate . . . the Court will remand the case to defendant so that it may conduct an adequate search for records responsive to items three through six and release all reasonably segregable, non-exempt information to plaintiff."
   
• Exemptions 6 and 7(C):  The court holds that "[d]efendant has not conducted a search for records responsive to items five and six of plaintiff's FOIA request, . . . so the Court cannot yet determine whether any responsive records could be redacted to avoid an 'unwarranted invasion of personal privacy' under Exemptions 6 or 7(C)."