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Worsham v. U.S. Dep't of the Treasury, No. ELH-12-2635, 2013 WL 5274358 (D. Md. Sept. 17, 2013) (Hollander, J.)

Re: Request for records concerning "preparation of a publication entitled 'The Truth About Frivolous Tax Arguments'" and records concerning "backup withholding that the IRS directed [plaintiff's] financial institution to impose against" him Disposition: Holding motion for summary judgment and cross-motion for summary judgment sub curia pending in camera review of records responsive to request for records concerning preparation of IRS publication
  • Exemption 5 & Vaughn index & In Camera Review:  The court notes that "[t]he Vaughn index [Treasury] has submitted adequately identifies by dates, authors, and recipients the documents that were subject to withholding or redaction."  "However, many of the annotations contain little detail explaining the Treasury's assertion of the deliberative process privilege, noting only that the particular document contains the author's proposed changes to The Truth or the author's reasons for suggesting certain changes."  The court observes that "an agency's determination regarding 'messaging' and 'public relations' about its policy decisions concerned solely with how to present to the public policy determinations that have already been made are not subject to protection, unless the documents reflecting the messaging decisions would also necessarily disclose the agency's substantive policymaking process."  The court notes that the publication at issue here "presents to the public the IRS's established position, and the established position of the courts, as stated in judicial decisions compiled by the IRS, regarding variously commonly recurring legal arguments against the validity of the income tax."  However, the court decides that based upon the level of detail provided in the Vaughn index it "cannot conclude that all of the redacted material generated in the drafting and revision of The Truth is unprotected by the deliberative process privilege because, without review, the possibility cannot be foreclosed that communications made in the course of drafting and revising The Truth could reveal agency policymaking processes."  Finding the Vaughn "insufficiently detailed," the court directs Treasury to submit the documents for in camera review. 
  • Procedural: The court denies plaintiff's motion for production as moot "given that an agency decision as to production, withholding, and/or redaction has been issued as to all of the documents in controversy."  With respect to plaintiff's request for records concerning "backup withholding" imposed against him, the court notes that "[t]he IRS did not respond substantively to either request until after [plaintiff] filed suit."  However, "the timing of the IRS's response is of no moment."  The court observes that the IRS responded "by indicating that it has no responsive documents."  Plaintiff "does not dispute the sufficiency of the IRS's response to" his request for records concerning backup withholding.  Thus, "there are no live FOIA issues" with respect to his request for the backup withholding records.
Court Decision Topic(s)
District Court opinions
Exemption 5
Litigation Considerations, In Camera Inspection
Procedural Requirements, Supplemental to Main Categories
Litigation Considerations, Vaughn Index/Declarations
Updated August 6, 2014