Waterman v. IRS, No. 16-1823, 2021 WL 4262722 (D.D.C. Sept. 20, 2021) (Leon, J.)
Waterman v. IRS, No. 16-1823, 2021 WL 4262722 (D.D.C. Sept. 20, 2021) (Leon, J.)
Re: Request for records concerning IRS Office of Professional Responsibility ("OPR") investigation into [plaintiff's] alleged misconduct
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's second renewed motion for summary judgment; denying defendant's cross-motion to strike plaintiff's second renewed motion as moot
- Litigation Considerations, "Reasonably Segregable" Requirements & Exemption 5, Deliberative Process Privilege: The court relates that "[t]he scope of the remand here is narrow: [The] Court of Appeals [for the District of Columbia Circuit] specifically called for [a segregability analysis]." "The Court . . . finds expressly that the IRS complied with its obligation under FOIA to disclose any records reasonably segregable from exempt records or portions of records." "Regarding [a] four-page computer printout, the IRS redacted only a limited portion of the document (amounting to a single paragraph) that is comprised entirely of an OPR analyst's opinion and recommendation concerning [plaintiff's] conduct and the IRS's response." "Such interim analysis and conclusions shared among agency personnel are quintessentially predecisional and deliberative in nature, and the redacted portion contains no material that would fall outside of that category." "Similarly, the portions of the September 4, 2014 email redacted pursuant to Exemption 5 are comprised exclusively of the agency employee sender's summary of the interim recommendations of the agency concerning whether to discipline [plaintiff]. "The redactions in both documents, therefore, reflect the IRS's lawful withholding of records protected by Exemption 5 and the deliberative process privilege while disclosing to [plaintiff] the remaining reasonably segregable portions of those documents." "The IRS withheld the other three documents at issue in their entirety, meaning the agency reached the conclusion that no portion of those documents was both outside of the scope of FOIA's exemptions and reasonably segregable from those portions that were exempt." "[The court] agree[s] with the IRS's conclusions regarding these three documents as well, largely for reasons articulated in [the court's] previous opinion . . . ." "Each of the withheld documents is predecisional and deliberative in nature, reflecting preliminary, interim summaries and analyses of [plaintiff's] alleged conduct." "And as [the court] stated before, the fact that these memoranda contain summations of the factual allegations concerning [plaintiff] – even straightforward recitals of his interactions with the agencies – does not alone render the deliberative process privilege inapplicable, as the very choice of which facts to present and rely upon in reaching investigative recommendations and decisions is shielded by the privilege and thus by Exemption 5." "The December 2014 memorandum, like the redacted portion of the computer print-out, additionally contains an analyst's opinions and recommendations as to the agency's course of action regarding [plaintiff], the archetypal form of record shielded by the deliberative process privilege." "Because [the court] find[s] that the entirety of each of these memoranda is comprised of predecisional deliberation by agency personnel, [the court] necessarily also find that the IRS was justified in entirely withholding the memoranda from [plaintiff] pursuant to Exemption 5." "In short, there is no portion of these documents that would be considered non-exempt and thus no question of whether such a portion could have been segregable and required to be disclosed."