Scott v. IRS, No. 18-81750, 2021 WL 2882014 (S.D. Fla. July 9, 2021) (Marra, J.)

Scott v. IRS, No. 18-81750, 2021 WL 2882014 (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, Eligibility:  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, Entitlement:  "[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, the court finds that "[plaintiff's] assertion that the re-released pages he received show misstatements . . . is unpersuasive."  "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, "while the Court finds the IRS's withholding of certain pages to have been unreasonable, 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."  In so finding, the court holds that "the IRS's argument that [plaintiff] is ineligible for costs simply because it prevailed on more than 80 percent of the pages it withheld or partially withheld is rejected."