Scott v. IRS, No. 18-81750, 2021 WL 256418 (S.D. Fla. Jan. 26, 2021) (Marra, J.)

Scott v. IRS, No. 18-81750, 2021 WL 256418 (S.D. Fla. Jan. 26, 2021) (Marra, J.)

Re:  Request for certain communication records

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 agrees that the IRS has met the requirements for an adequate FOIA search."  Specifically, the court agrees with "[t]he IRS assert[ion] [that] [defendant's] declarations . . . provide a 'reasonably detailed, non-conclusory' explanation of the IRS's search and supplemental search."  "The IRS asserts that its searches, as set forth in the declarations, were 'reasonably calculated to uncover all relevant records' and were made in good faith."  Responding to plaintiff's objections, the court finds that "[t]he IRS has already adequately described why certain records were deemed non-responsive, and the Court rejects [plaintiff's] categorization of the order of review of the documents and the large quantity of documents deemed non-responsive as 'suspect.'"  "[Plaintiff's] contention that [defendant's] declarations . . . are not entitled to a presumption of good faith is likewise rejected."
   
• Exemption 3:  The court relates that "[t]he IRS withheld eight pages in part and 34 pages in full under [Exemption 3] and 26 U.S.C. § 6103(a)."  The court relates that "Section 6103's prohibitions are clear:  tax returns and return information are to be kept confidential, unless disclosure is permitted by Title 26."  However, "[t]he Court has reviewed the subject pages in camera and finds these pages are not 'return information,' do not wholly consist of the name and other identifying return information of a third-party taxpayer and representative, and that this information is segregable."
   
• Exemption 5, Deliberative Process Privilege:  First, the court holds that "the 'decision' at issue here is the final issuance of the [Private Letter Ruling ("PLR")]."  "All records being withheld either in full or in part reflect the 'opinions and recommendations of agency personnel that preceded the final issuance of the PLR(s)."  "[Plaintiff] fails to demonstrate otherwise."  "Accordingly, there can be no material dispute that the records at issue are predecisional."  Second, "[t]he Court has reviewed [certain] redactions . . . in camera and finds that the withheld sections include both deliberative material and taxpayer representative information."  The court finds similarly regarding several other withholdings.  However, the court also finds that "[one] sentence does not fall within the parameters of what case law has established as properly withheld under the deliberative process and should be released."  "It does not reflect an advisory opinion, recommendation or deliberation comprising part of a process by which governmental decisions and policies are formulated."  The court finds similarly regarding several other sentences.  Regarding plaintiff's objections, the court finds that "[t]here is no evidence that the IRS has expressly adopted the withheld information by reference into the final PLR."