288 F. Supp. 3d 206
D.C. Cir.2018Background
- Bradley S. Waterman, a licensed tax attorney, submitted a FOIA request seeking all IRS/OPR records related to a March 2014 Report of Suspected Practitioner Misconduct filed against him by the IRS Tax-Exempt Bond office (TEB).
- OPR investigated the referral, decided no further disciplinary action was warranted, and informed Waterman it would retain the file and might reference it in future matters.
- The IRS located 54 pages responsive to Waterman’s FOIA request, produced non-exempt material, and withheld/redacted portions under FOIA Exemptions 3, 5, 6, and 7(c) (the court focused on Exemptions 5 and 6).
- Withholdings included: work phone numbers and e-mail addresses of IRS employees (redacted), two memoranda from Sept. and Dec. 2013 that supported the referral, an Aug. 26, 2014 OPR analyst memorandum and related case-management printout, and portions of a Sept. 4, 2014 e-mail among OPR personnel.
- Waterman challenged the withholdings; the parties filed cross-motions for summary judgment on the remaining FOIA Count II. The court reviewed agency declarations and the Vaughn index and granted the IRS summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IRS properly redacted IRS employees' work phone numbers and e-mails under Exemption 6 (and 7) | Waterman argued disclosure was appropriate (and conceded redaction of contact info was "appropriate" in part) | IRS argued contact details implicate substantial privacy interests and provide little public benefit, so redaction is justified under Exemption 6 | Court held redactions proper under Exemption 6; privacy interest outweighs public interest |
| Whether memoranda and investigatory materials (Sept./Dec. 2013 memos; Aug. 26, 2014 memo and printout; Sept. 4 e-mail) are protected by Exemption 5 (deliberative process) | Waterman argued memoranda contain only factual material and so are not protected | IRS argued documents are predecisional and deliberative — summaries/selecting facts and recommendations reflect internal deliberations and are thus privileged | Court held documents were predecisional and deliberative; Exemption 5 applies and withholding/redactions were lawful |
| Whether factual material within the withheld documents is exempt | Waterman asserted the material is purely factual (not opinion) | IRS showed the selection, organization, and summary of facts were part of deliberative judgment and would reveal mental processes | Court applied functional approach and held that the factual material, insofar as it reflected selection/analysis aiding deliberation, is protected |
| Whether in camera review was required to verify withholdings | Waterman implied more scrutiny was needed | IRS provided detailed declarations and a Vaughn index describing withheld material and rationale | Court found the agency declarations sufficiently specific; in camera review not necessary |
Key Cases Cited
- Newport Aeronautical Sales v. Dep't of Air Force, 684 F.3d 160 (D.C. Cir. 2012) (agency must show adequate search and that withholdings fall under FOIA exemptions)
- Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141 (D.C. Cir. 2006) (Exemption 6 protects personal information such as names and addresses)
- Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (public interest under FOIA is disclosure about agency performance, not private facts)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 protects predecisional, deliberative documents like advisory opinions and recommendations)
- Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (deliberative process privilege shields internal recommendations to promote candid advice)
- Mapother v. Dep't of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (functional approach: selection/organization of facts can be protected when part of deliberation)
- Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974) (compilations/summaries that reveal evaluative judgments are protected)
- Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504 (D.C. Cir. 2011) (factual material compiled to assist deliberation may be privileged)
- American Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612 (D.C. Cir. 2011) (agency affidavits must describe withholdings with specific detail and not be contradicted to sustain summary judgment)