Scott v. IRS, No. 18-81742, 2021 WL 2882012 (S.D. Fla. July 9, 2021) (Marra, J.)

Scott v. IRS, No. 18-81742, 2021 WL 2882012 (S.D. Fla. July 9, 2021) (Marra, J.)

Re:  Request for records in IRS Office of Chief Counsel ("OCC"), including certain code and subject matter directories, certain emails regarding a pre-submission conference, and certain files regarding specific case information

Disposition:  Denying plaintiff's motion for costs

• Attorney Fees, Entitlements:  The court notes that "[t]he IRS acknowledges that [plaintiff] is eligible for costs since the Court ordered it to turn over a number of records."
   
• Attorney Fees, Eligibility:  "[T]he Court, in its discretion, finds that the Motion for Costs should be denied."  First, the court finds that "there is no apparent public benefit in the disclosure of documents pursuant to [plaintiff's] FOIA request for certain records within the OCC."  "[Plaintiff's] FOIA request generally sought correspondences originated by certain IRS employees regarding private letter ruling requests."   "[Plaintiff] fails to show that these topics will assist the citizenry in making an informed judgment as to governmental operations or that they rise to [a] level of national import . . . ."  The court finds that "as . . . [plaintiff's] claimed public benefits demonstrate, all of [plaintiff's] examples rely on the potential public value of the information received, rather than the potential public value of the information sought."  "[W]hen considering the public benefit, courts are to consider only the FOIA request itself, and not the information that may or may not have been received."  "Minimal, incidental and speculative public benefit will not suffice."  "In this instance, the public benefit, if any, is de minimis."  Additionally, "[t]he Court finds unpersuasive [plaintiff's] assertion that the re-released pages he received show misstatements."  "It appears [plaintiff] received a page that was generated while the agency was deliberating."  "Ultimately, however, the agency came to a different final conclusion."  "Naturally, the IRS is entitled to deliberate during the process of making a final decision and alter its opinions along the way."  "Thus, it cannot be said that a misstatement was made under these circumstances."  "Considering all of the above, the public benefit factor weighs against an award of costs."
  
  Regarding factors two and three, the court finds that "[o]ther than [plaintiff's] unsubstantiated statements, there is nothing in this case that shows that the information [plaintiff] requested was motivated to benefit the public."  "Having reviewed the requests themselves and all the documents withheld in camera, the Court cannot discern any basis to conclude that the requests were submitted to advance a public benefit."  "This being said, the only reasonable conclusion that can be made is that this litigation was motivated by a commercial or private interest."  "Accordingly, these factors do not weigh in favor of awarding costs."
  
  Regarding the fourth factor, the court holds that "the IRS's argument that [plaintiff] is ineligible simply because it prevailed on 98% of the pages it withheld or partially withheld is rejected."  "[D]uring the pendency of this case, the IRS determined that some of its withholdings were improper."  "[T]he IRS voluntarily changed its position with respect to several records."  "This occurred after both the initial determination and the appeal process. It appears that [plaintiff] is correct that those records would not have been released absent this litigation."  Additionally, "the Court notes the IRS opposed motions seeking a Vaugh Index, only to have the Court ultimately agree that a limited Vaugh[n] Index was needed."  "Then, as the 'the ultimate arbiter' of whether the IRS had provided an adequate factual basis to support its claims of exemption, the Court determined that it needed to conduct an in camera review of the documents at issue and ordered the IRS to file the unredacted withheld pages to which it was claiming privilege under seal."  "If the IRS had provided adequate information in the first instance, the Court would not have had to compel a Vaugh Index, or had to review the withheld documents in camera."  Nevertheless, "when considering the . . . factors discussed above, the Court finds that any recalcitrance by the IRS does not outweigh the lack of support for the other factors that must be established to warrant an award of costs."