Scott v. IRS, No. 18-81742, 2021 WL 256417 (S.D. Fla. Jan. 26, 2021) (Marra, J.)

Scott v. IRS, No. 18-81742, 2021 WL 256417 (S.D. Fla. Jan. 26, 2021) (Marra, J.)

Re:  Request for various records, including certain communications and administrative documents

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

• Litigation Considerations, Adequacy of Search:  The court holds that "the IRS's search was reasonably calculated to uncover responsive records."  "As set forth in [defendant's] Declarations, the IRS searched the CASE-MIS system because not only was it the system explicitly identified in [plaintiff's] FOIA request, but because it is also the system used to store records pertaining to PLR files."  "In both [of defendant's] Declarations, the declarants attest that they are not aware of any other custodians or locations within the Office of Chief Counsel likely to maintain records responsive to [plaintiff's] FOIA request."  Regarding plaintiff's objections, the court finds that "the agency need only demonstrate that the search it conducted was reasonably calculated to uncover responsive records."  "Accordingly, whether there may be more records responsive to [plaintiff's] FOIA request is not the key inquiry."
   
• Exemption 6:  The court relates that "[t]he IRS claims the information withheld on [certain] pages contains personal information about individuals other than [plaintiff], the disclosure of which could reasonably be expected to constitute an unwarranted invasion of privacy and, there is no countervailing public interest in this information."  The court relates that "the withheld information includes emails between Office of Chief Counsel attorneys discussing personal health and family matters, conference line dial-in numbers and access codes, names and telephone numbers of IRS employees who are working in sensitive positions, and handwritten notes containing the personal telephone numbers of individuals other than [plaintiff]."  "The Court has reviewed the redacted information in camera and agrees."  "The Court has also compared the information withheld and the pages [plaintiff] claims were previously released, and they are not the same."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he IRS states all of the withheld records were drafted, written, or compiled by IRS employees or Office of Chief Counsel attorneys and were created primarily for intra-agency use by the IRS."  The court relates that "[t]he IRS claims these documents reflect the deliberations of IRS employees and Office of Chief Counsel attorneys regarding the processing, drafting, and issuance of [a Private Letter Ruling ("PLR")]."  "The IRS further asserts all of the records withheld under FOIA Exemption 5 discuss or propose options for reaching the proper legal determination with respect to the PLR, or provide suggested revisions, legal analysis, and other comments on the language of the draft versions of the PLR and various other intra-agency communications involved in the PLR decision-making process."  The court reviewed the withheld material in camera and finds that some of it is appropriately withheld and some is not.  Regarding the information appropriately withheld, the court finds that "[t]he information at issue . . . is either not factual or is so inextricably intertwined with the deliberative material that it cannot be segregated."  Additionally, the court finds that "[t]here is no evidence that the IRS has expressly adopted the withheld information by reference into the final PLR."  Finally, the court finds that "[plaintiff] has failed to demonstrate that the IRS waived the deliberative process privilege."  "[Plaintiff] cannot identify which records he is asserting have been disclosed and to whom these records have allegedly been disclosed."  Regarding foreseeable harm, the court finds that "[w]hile the PLR process may be finalized as to this specific PLR, if the Court were to rule that this type of information is not protected from disclosure, then it might impact all PLR processes."  "As set forth above, drafting authors would be much more hesitant with their notes and drafts if they were aware that their work could become public knowledge."