Waterman v. IRS, No. 16-1823, 2018 WL 564566 (D.D.C. Jan. 24, 2018) (Leon, J.)

Waterman v. IRS, No. 16-1823, 2018 WL 564566 (D.D.C. Jan. 24, 2018) (Leon, J.)

Re:  Request for records concerning OPR investigation into plaintiff's alleged misconduct

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 6:  The court "conclude[s] that the IRS's redaction of [employee] contact information [,i.e., the work telephone numbers and e-mail addresses of particular agency employees,] was proper under Exemption 6."  The court finds that "[t]he contact information for individual employees sheds little 'light on an agency’s performance of its statutory duties,' . . . yet exposes individual employees to threatening or harassing contacts from the public."
   
• Exemption 5, Deliberative Process Privilege:  First, the court holds that defendant correctly withheld two "memoranda [which] organize and summarize 'part of the factual basis' that IRS employees 'believed made the referral' of [plaintiff] to OPR appropriate."  The court relates that "[plaintiff] does not appear to contest that the . . . memoranda are predecisional," but "instead primarily argues that the deliberative process privilege does not protect the memoranda because those memoranda contain only 'factual material[.]'"  The court finds that "the particular facts included in the memorandum were 'extract[ed]' from a 'larger universe of facts' regarding [plaintiff's] representation in an 'exercise of judgment as to what issues seemed most relevant' to the referring employees' decision to file an OPR Report[]" and "requiring the IRS to reveal the particular facts its employees thought warranted a referral of misconduct would expose the employees' deliberative evaluation of [plaintiff's] conduct against IRS rules and standards."  The court finds similarly regarding a "memorandum [written] to 'record [an] analysis of the referral, particularly to summarize the facts alleged, identify the violations alleged, and recommend further predecisional agency actions[,]'" as well as a summary of this memorandum.  Finally, the court finds that a "redacted a portion of [an] . . . e-mail between an OPR legal analysis manager and an OPR attorney[]" which discussed "'what action OPR should take in response to the referral[,]'" "involv[ed] the planning and evaluation of a 'proposed' agency action, prior to adoption of a final agency position, is by its nature predecisional and deliberative."