61 F.4th 152
D.C. Cir.2023Background
- Bradley Waterman, a tax-attorney, was the subject of a Suspected Practitioner Misconduct Report filed with the IRS Office of Professional Responsibility (OPR) based on audits of his client; the Report included memoranda by auditor Michael Marchetti and supervisor Chelsea Kelly.
- OPR declined to pursue disciplinary action but retained the file; Waterman filed a FOIA request (January 7, 2016) seeking the Misconduct Report and all related documents.
- The IRS searched, released many pages, but withheld four documents (two memos withheld in full, one memo withheld in full, and part of an OPR electronic printout) invoking FOIA Exemptions 3 and 5 and relying on a Vaughn index and agency affidavits.
- The district court granted summary judgment for the IRS under Exemption 5; this court remanded on segregability, the district court conducted in camera review, and again granted summary judgment to IRS.
- On appeal the D.C. Circuit reviewed de novo. The panel affirmed withholding of the Brown memo and the redacted CCMS entry and affirmed protection for evaluative portions of Marchetti’s memo, but reversed as to the Kelly memo and the non‑evaluative chronological portions of the Marchetti memo (they must be disclosed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withheld records are "deliberative" under FOIA Exemption 5 (fact vs. opinion line) | Waterman: documents are purely factual chronologies and must be disclosed. | IRS: documents were prepared to help OPR decide whether to pursue discipline and thus are deliberative. | Court: Some portions are deliberative (Brown memo; evaluative parts of Marchetti memo); other portions are factual and non‑deliberative (Kelly memo; chronological portion of Marchetti memo must be disclosed). |
| Whether the IRS met its burden to justify withholdings with Vaughn index and affidavits | Waterman: agency affidavits are conclusory for some documents. | IRS: Vaughn index and Rawlins declaration adequately explain the withholdings. | Court: Agency met its burden for Brown memo, CCMS redaction, and evaluative passages of Marchetti memo; failed to show deliberativeness for Kelly memo and the purely chronological parts of Marchetti memo. |
| Segregability — whether non‑protected factual material was reasonably segregable | Waterman: non‑deliberative facts must be released. | IRS: redactions are limited and any non‑deliberative material has been released or redacted. | Court: Chronological factual material in Marchetti memo and entirety of Kelly memo are reasonably segregable and must be disclosed. |
| Relevance of IRS public "Alert" changing practitioner notification procedures | Waterman: the Alert undermines any expectation that these underlying factual materials are privileged. | IRS: the Alert concerns notification procedures and does not waive deliberative‑process protection for predecisional materials. | Court: Alert does not defeat Exemption 5 protection; it does not show waiver or negate deliberative purpose. |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (deliberative‑process privilege protects advisory opinions, recommendations, deliberations)
- Montrose Chemical Corp. of California v. Train, 491 F.2d 63 (D.C. Cir. 1974) (factual summaries prepared to aid decisionmaking may be protected)
- Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (distinguishes protected evaluative factual compilations from unprotected comprehensive chronologies)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (factual summaries culled from a larger universe that reflect judgment may be protected)
- Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (factual lists without commentary are not deliberative)
- Reporters Comm. for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021) (distinguishing pure fact‑checking from deliberative commentary)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (agency must justify withholdings with a Vaughn index)
- Playboy Enters. v. Dep’t of Justice, 677 F.2d 931 (D.C. Cir. 1982) (purpose of a factual summary controls whether it is protected)
- Nat’l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) (draft accounts may be protected when prepared to inform agency decisionmaking)
- Elec. Frontier Found. v. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (factual material in inter‑agency legal opinions can be protected)