402 F. App'x 648
2d Cir.2010Background
- FOIA suit against the IRS challenging responses to a 2003 estate tax examination; district court granted summary judgment for IRS on all counts; plaintiffs allege searches were inadequate and documents improperly withheld; IRS disclosures relied on multiple exemptions (Exs. 3, 5, 7(D)); IRS affidavits described search scope and rationale; Leboff was the sole examiner and records were claimed to be within his possession; some documents were located only after a second search or later review; sanctions against plaintiffs’ counsel were proposed by the district court but disputed on appeal; court reviews de novo the FOIA grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of the IRS search | Adamowicz argues the search was insufficient | IRS shows a reasonably calculated search led by a supervisor | Search adequate; no genuine fact issue |
| Exemption 3 – statutory withholding | Estate seeks third-party return information | Withholdings required by 26 U.S.C. §6103; no entitlement | Exemption 3 valid; third-party information properly withheld |
| Exemption 5 – privilege protections | Documents should not be privileged | Documents reflect attorney-client and work-product communications | Exemption 5 applies; privilege properly invoked |
| Exemption 7(D) – confidential source | Waiver of confidentiality by inconsistent redactions | Confidentiality maintained by source; waiver cannot be effected by agency disclosures | Exemption 7(D) upheld; confidentiality preserved |
| Sanctions against counsel | District Court’s Rule 11 sanction process violated due process | Sanctions were not a finding of misconduct; guidance rather than sanction | No basis to review sanctions on appeal; issue dismissed/benign |
Key Cases Cited
- Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) (presumption of agency good faith in FOIA affidavits)
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) (affidavit from supervising FOIA employee suffices; not every participant must testify)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (deliberative process privilege protects advisory materials)
- In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (attorney-client privilege and privilege descriptions adequate; secrecy preserved)
- Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) (FOIA exemptions applied to agency materials)