Xanthopoulos v. IRS, No. 19-03006, 2022 WL 3152906 (D. Minn. Aug. 8, 2022) (Nelson, J.)

Xanthopoulos v. IRS, No. 19-03006, 2022 WL 3152906 (D. Minn. Aug. 8, 2022) (Nelson, J.)

Re:  Request for certain redacted portions of Internal Revenue Manual (“IRM”), § 21.1.3.3

Disposition:  Granting in part and denying in part defendant’s request to file supplemental declaration in camera and ex parte; denying plaintiff’s request to re-brief parties’ summary judgment motions

• Litigation Considerations, In Camera Inspection & Summary Judgment:  The court relates that “[t]he Eighth Circuit held that the Barnes Affidavit submitted by the IRS in support of nondisclosure, on which this Court had relied, was insufficient to show that the agency had met its burden of establishing the reason for nondisclosure, absent in camera review.”  “Although the Eighth Circuit found no evidence of bad faith, it found the affidavit contained a legal error in the form of an erroneous characterization of the IRS as only a law enforcement agency.”  “The IRS argues that where a court has found an agency’s previous affidavit insufficient to justify the reasonableness of the agency’s search and withholding of information, courts have allowed the agency to provide a supplemental affidavit to remedy the prior deficiencies.”  “The IRS seeks to provide the supplemental affidavit ex parte and in camera because ‘a further public affidavit would compromise the information it needs to protect from disclosure by Exemption 7(E).’”  “However, the IRS offers to file a redacted public version of the supplemental in camera and ex parte declaration.”  “[Plaintiff] opposes the IRS’s request to provide an ex parte and in camera affidavit.”  “At this time, the Court will permit the IRS to submit a supplemental affidavit from an IRS affiant of its choosing, other than [the original IRS declarant], but it must be publicly filed in unredacted form.”  “Indeed, courts have allowed agencies to submit supplemental affidavits when a previous affidavit was deemed insufficient, as is the case here.”  “But receiving affidavits in camera and ex parte is permitted only when ‘absolutely necessary’ in situations where (1) the validity of the government’s asserted FOIA exemptions cannot be evaluated without more information than is contained in public affidavits and the records themselves, and (2) ‘public disclosure would compromise the secrecy asserted.’”  “Having not reviewed the records themselves, the Court cannot determine at this time whether an in camera and ex parte affidavit is ‘absolutely necessary’ here.”  “The Court reserves the right to make that determination after it conducts its in camera review.”