CHURCH OF SCIENTOLOGY OF TEXAS
v.
INTERNAL REVENUE SERVICE.
No. A 91 CA 152.
United States District Court,
W.D. Texas,
Austin Division.
March 9, 1993.
On cross motions for summary judgment in consolidated Freedom of Information
Act (FOIA) cases against the Internal Revenue Service (IRS), the
District Court, Sparks, J., held that: (1) Vaughn index submitted by IRS
was sufficient; (2) documents generated subsequent to date specified in FOIA
request were outside scope of request and did not have to be disclosed; (3)
documents or portions of documents containing information on allocation of IRS
resources were not exempt under FOIA exemption for internal personnel rules and
practices; (4) statement by IRS in Vaughn index that records are tax
return information is sufficient for purposes of FOIA exemption for records
specifically exempted from disclosure by statute; (5) information in documents
withheld to protect government employees' privacy interest in their handwriting
had to be reproduced in form that protected that privacy interest and
disclosed; and (6) IRS' statement regarding segregability, that "document
cannot be segregated for partial release" did not give requisite explanation
why document could not be segregated and released.
Motions granted in part and denied in part.
[1] RECORDS
Exemptions from compelled disclosure set forth in Freedom of Information Act
(FOIA) are to be narrowly construed. 5 U.S.C.A. s 552(b).
[2] RECORDS
Vaughn index must adequately describe record, state what Freedom of
Information Act (FOIA) exemption agency claims and explain why agency believes
record falls within exemption. 5 U.S.C.A. s 552(b).
[3] RECORDS
In Vaughn index regarding Freedom of Information Act (FOIA) request, agency
does not have to describe record to extent that description compromises secrecy
of record; description is sufficient if it enables court to reach its own
conclusion as to what is in record. 5 U.S.C.A. s 552(b).
[4] RECORDS
Mere conclusory and generalized statements that record falls within exempt
category of Freedom of Information Act (FOIA) is insufficient to satisfy
requirements of Vaughn index. 5 U.S.C.A. s 552(b).
[5] RECORDS
Court is entitled to rely on accuracy of Vaughn index in Freedom of
Information Act (FOIA) litigation. 5 U.S.C.A. s 552(b).
[6] RECORDS
Vaughn index submitted by Internal Revenue Service (IRS) in Freedom of
Information Act (FOIA) litigation was sufficient; index contained more than
conclusory statements, identified each record, described each record with
sufficient detail to permit court to determine what it contained, stated
exemption or exemptions IRS contended applied, and explained why IRS believed
each record or portion thereof was exempt. 5 U.S.C.A. s 552(b).
[7] RECORDS
Documents generated subsequent to date specified in Freedom of Information Act
(FOIA) request were outside scope of request and did not have to be
disclosed. 5 U.S.C.A. s 552(b).
[8] RECORDS
Records are exempt under Freedom of Information Act (FOIA) exemption for
internal personnel rules and practices if they are internal records that relate
to trivial agency matters of which public does not have legitimate interest or
if disclosure would risk circumvention of agency regulation. 5 U.S.C.A. s
552(b)(2).
[9] RECORDS
Documents or portions of documents containing information on allocation of
Internal Revenue Service (IRS) resources were not protected under Freedom of
Information Act (FOIA) exemption for internal personnel rules and practices;
while information was predominantly internal, there was no evidence that
disclosure might risk circumvention of agency regulations, and while it related
to trivial administrative matters, it was information in which public had
genuine interest. 5 U.S.C.A. s 552(b)(2).
[10] RECORDS
Internal Revenue Service (IRS) was entitled to withhold routing slip regarding
proposed meeting under Freedom of Information Act (FOIA) exemption for internal
personnel rules and practices; public did not have legitimate interest in such
trivial agency matters as routing slip. 5 U.S.C.A. s 552(b)(2).
[11] RECORDS
Freedom of Information Act (FOIA) exemption for records specifically exempted
from disclosure by statute other than FOIA itself authorizes agency to withhold
only those portions of record that are expressly protected by statute. 5
U.S.C.A. s 552(b)(3).
[12] RECORDS
Statute stating that income tax return and return information shall be
confidential is an exempting statute for Freedom of Information Act (FOIA)
purposes. 5 U.S.C.A. s 552(b)(3); Fed.Rules Cr.Proc.Rule 6(e), 18
U.S.C.A.; 26 U.S.C.A. s 6103(a).
[13] RECORDS
Simply removing identifying details from tax return information does not permit
disclosure of otherwise confidential return information pursuant to statute
providing that return information does not include data "in a form" which
cannot be associated with particular taxpayer but, rather, "in a form"
refers to statistical studies, compilations and other similar reformulation of
return information. 5 U.S.C.A. s 552(b)(3); 26 U.S.C.A. s 6103(b)(2).
See publication Words and Phrases for other judicial constructions and
definitions.
[14] RECORDS
Statement by Internal Revenue Service (IRS) in Vaughn index that records are
tax return information is sufficient for purposes of Freedom of Information
Act (FOIA) exemption for records specifically exempted from disclosure by
statute; providing details to establish that record is return information
would compromise confidentiality required by statute protecting such
information. 5 U.S.C.A. s 552(b)(3); 26 U.S.C.A. s 6103(b)(2).
[15] RECORDS
Internal Revenue Service (IRS) records containing third-party tax return
information were protected from disclosure under Freedom of Information Act
(FOIA) exemption for records specifically exempted from disclosure by statute;
there was no indication that records in question were compilation, statistical
study or other similar reformulation of return information, so as to fall
outside of statute protecting return information. 5 U.S.C.A. s 552(b)(3);
26 U.S.C.A. s 6103(b)(2).
[16] RECORDS
Federal Rules of Criminal Procedure generally prohibiting disclosure of
proceedings occurring before grand jury is exempting statute for purposes of
Freedom of Information Act (FOIA) exemption for records specifically exempted
from disclosure by statute. 5 U.S.C.A. s 552(b)(3); Fed.Rules
Cr.Proc.Rule 6(e), 18 U.S.C.A.
[17] RECORDS
Agency must establish nexus between record and operation of grand jury in order
to withhold record under Freedom of Information Act (FOIA) exemption for
records specifically exempted from disclosure by statute, such as rule
generally prohibiting disclosure of proceedings occurring before grand jury.
5 U.S.C.A. s 552(b)(3); Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A.
[18] RECORDS
Internal Revenue Service (IRS) was entitled to withhold records containing
information disclosure of which would disclose substance of testimony before
grand jury, pursuant to Freedom of Information Act (FOIA) exemption for records
specifically exempted from disclosure by another statute. 5 U.S.C.A. s
552(b)(3); Fed.Rules Cr.Proc.Rule 6(e), 18 U.S.C.A.
[19] RECORDS
Although Ethics in Government Act (EGA) and Freedom of Information Act (FOIA)
both authorize disclosure of financial disclosure statements by government
executives, requester must comply with disclosure requirements of EGA before it
is entitled to statements; requester cannot use FOIA to circumvent
express requirements of EGA. Ethics in Government Act of 1978, s 205(a, b),
as amended, 5 U.S.C.A.App. 4; 5 U.S.C.A. s 552(b)(3).
[20] RECORDS
Freedom of Information Act (FOIA) exemption for interagency or intraagency
memorandums or letters not available by law to party other than agency in
litigation with agency protects documents not normally discoverable in civil
litigation with agency, including materials which would be protected under
governmental deliberative process privilege, attorney work-product privilege
and attorney-client privilege. 5 U.S.C.A. s 552(b)(5).
[21] RECORDS
Document may be "inter-agency" or "intra-agency" for purposes of Freedom of
Information Act (FOIA) exemption protecting documents not normally discoverable
in civil litigation with agency, even if document was not created by agency
employee; this situation may arise when agency hires outside consultant. 5
U.S.C.A. s 552(b)(5).
[22] RECORDS
Executive deliberative process privilege of Freedom of Information Act (FOIA)
protects interagency or intraagency documents that disclosed deliberative or
policy-making processes of agency. 5 U.S.C.A. s 552(b)(5).
[23] RECORDS
Freedom of Information Act's (FOIA's) executive deliberative process privilege
exempts documents reflecting agency's thinking process in formulating its
policy and law, but documents detailing and explaining agency's policy and law
are not exempt. 5 U.S.C.A. s 552(b)(5).
[24] RECORDS
If agency adopts or incorporates by reference document covered by executive
deliberative process privilege of Freedom of Information Act (FOIA) into final
opinion, that document loses its status for purposes of that exemption and must
be disclosed unless it falls within coverage of another exemption. 5
U.S.C.A. s 552(b)(5).
[25] RECORDS
Internal Revenue Service (IRS) properly withheld document containing
investigating employees' thoughts and recommendations under executive
deliberative process privilege of Freedom of Information Act (FOIA); record
was predecisional document disclosure of which would interfere with IRS'
deliberative and policy-making decisions, there was no evidence that IRS had
adopted or incorporated document by reference into final opinion, and there was
no factual information in document which could be segregated and disclosed.
5 U.S.C.A. s 552(b)(5).
[26] WITNESSES
Attorney-client privilege protects communications between attorney and its
client that are intended to be confidential.
[27] FEDERAL CIVIL PROCEDURE
Work-product privilege protects documents prepared in anticipation of
litigation that reveal attorney's legal theories and mental impressions.
Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.
[28] FEDERAL CIVIL PROCEDURE
Attorney work-product materials are protected even if they were not prepared
for specific claim; it is sufficient if they were prepared in anticipation of
foreseeable litigation. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.
[29] FEDERAL CIVIL PROCEDURE
Work-product and attorney-client privileges protect factual materials contained
in privileged documents. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.
[29] WITNESSES
Work-product and attorney-client privileges protect factual materials contained
in privileged documents. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.
[30] RECORDS
Document in possession of Internal Revenue Service (IRS) which was prepared by
or under direction of government counsel in preparation for foreseeable
litigation was attorney work-product material and, thus, was exempt from
disclosure under Freedom of Information Act (FOIA) exemption
protecting documents not normally discoverable in civil litigation
with agency. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.; 5
U.S.C.A. s 552(b)(5).
[31] RECORDS
Communication between Internal Revenue Service (IRS) personnel and government
attorneys relating to factual background concerning investigation was protected
by attorney-client privilege and, thus, was exempt from disclosure under
Freedom of Information Act (FOIA) exemption protecting documents not normally
discoverable in civil litigation with agency. 5 U.S.C.A. s 552(b)(5).
[32] RECORDS
Freedom of Information Act (FOIA) exemption for personnel, medical and
"similar files" applies to any file in possession of agency that contains
personal information about individual. 5 U.S.C.A. s 552(b)(6).
See publication Words and Phrases for other judicial constructions and
definitions.
[33] RECORDS
To determine whether disclosure of file would constitute clearly unwarranted
invasion of individual's personal privacy for purposes of Freedom of
Information Act (FOIA) exemption for personnel, medical and similar files
requires balancing individual's right to privacy against preserving FOIA's
purpose of opening agency action to light of public scrutiny. 5 U.S.C.A. s
552(b)(6).
[33] RECORDS
To determine whether disclosure of file would constitute clearly unwarranted
invasion of individual's personal privacy for purposes of Freedom of
Information Act (FOIA) exemption for personnel, medical and similar files
requires balancing individual's right to privacy against preserving FOIA's
purpose of opening agency action to light of public scrutiny. 5 U.S.C.A. s
552(b)(6).
[34] RECORDS
Freedom of Information Act (FOIA) exemption for personnel, medical and similar
files disclosure of which would constitute clearly unwarranted invasion of
personal privacy does not protect nonconfidential information, even if it is
contained in protected file. 5 U.S.C.A. s 552(b)(6).
[35] RECORDS
Documents in possession of Internal Revenue Service (IRS) containing personal
information about employees were protected from disclosure under Freedom of
Information Act (FOIA) exemption for personnel, medical and similar files
disclosure of which would be unwarranted invasion of personal privacy; given
degree of animosity between requester and IRS, IRS employees had substantial
privacy interest in keeping personal information confidential. 5 U.S.C.A. s
552(b)(6).
[36] RECORDS
Agency seeking to withhold documents under Freedom of Information Act (FOIA)
exemption covering records or information compiled for law enforcement purposes
does not have to detail document-by-document why each document falls within one
of six categories of exemption, but agency must identify which subdivision of
exemption it contends each document falls into and give court sufficient
information to make de novo determination that document falls within
subdivision. 5 U.S.C.A. s 552(b)(7).
[36] RECORDS
Agency seeking to withhold documents under Freedom of Information Act (FOIA)
exemption covering records or information compiled for law enforcement purposes
does not have to detail document-by-document why each document falls within one
of six categories of exemption, but agency must identify which subdivision of
exemption it contends each document falls into and give court sufficient
information to make de novo determination that document falls within
subdivision. 5 U.S.C.A. s 552(b)(7).
[37] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption covering records or
information compiled for law enforcement purposes, it does not matter when
record or information was compiled but, rather, only requirement is that it be
"compiled" when government invokes exemption; "compiled" is anything
composed of materials collected and assembled from various sources or other
documents, including documents originally compiled for nonlaw enforcement
purposes. 5 U.S.C.A. s 552(b)(7).
See publication Words and Phrases for other judicial constructions and
definitions.
[38] RECORDS
Disclosure of document will in some particular, discernible way, disrupt,
impede or otherwise harm enforcement proceeding for purposes of Freedom of
Information Act (FOIA) exemption for records or information compiled for law
enforcement purposes, if disclosure would: inform party being investigated of
scope or direction or agency's investigation; potentially subject witnesses or
others providing information to agency to reprisal or harassment; permit
target of investigation to develop defenses that would enable violations to go
unremedied; permit investigated party to destroy or alter evidence; or chill
willingness of individuals providing information to agency to do so.
5 U.S.C.A. s 552(b)(7)(A).
[39] RECORDS
Once investigation has concluded and there is no reasonable possibility of
future law enforcement proceedings related to documents requested under Freedom
of Information Act (FOIA), documents lose protection of exemption for records
or information compiled for law enforcement purposes production of which could
reasonably be expected to interfere with enforcement proceedings. 5
U.S.C.A. s 552(b)(7)(A).
[40] RECORDS
If investigation is open or there is reasonable possibility of future law
enforcement proceedings at time of Freedom of Information Act (FOIA) request,
documents are exempt under exemption for records or information compiled for
law enforcement purposes production of which could reasonably be expected to
interfere with enforcement proceedings. 5 U.S.C.A. s 552(b)(7)(A).
[41] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption for records or
information compiled for law enforcement purposes production of which could
reasonably be expected to interfere with enforcement proceedings, agency is not
required to monitor investigation and release documents once investigation is
closed and there is no reasonable possibility of future proceedings. 5
U.S.C.A. s 552(b)(7)(A).
[42] RECORDS
Document compiled for law enforcement purposes and relating to open
investigation into incidents of actual and/or perceived harassment of Internal
Revenue Service (IRS) employees was protected from disclosure under Freedom of
Information Act (FOIA) exemption for records or information compiled for law
enforcement purposes production of which could reasonably be expected to
interfere with enforcement proceedings; disclosure could subject IRS employees
to harassment or reprisal and inform investigated party of direction and scope
of investigation. 5 U.S.C.A. s 552(b)(7)(A).
[43] RECORDS
Analysis under Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to constitute unwarranted invasion of personal privacy requires
balancing of individual privacy interests in keeping information confidential
against public interest in its release; only interest of general public, not
interest of requester, is relevant. 5 U.S.C.A. s 552(b)(7)(A, C).
[43] RECORDS
Analysis under Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to constitute unwarranted invasion of personal privacy requires
balancing of individual privacy interests in keeping information confidential
against public interest in its release; only interest of general public, not
interest of requester, is relevant. 5 U.S.C.A. s 552(b)(7)(A, C).
[44] RECORDS
Even private information that has been previously disclosed is "private" for
purposes of Freedom of Information Act (FOIA) exemption for documents compiled
for law enforcement purposes disclosure of which could reasonably be expected
to constitute unwarranted invasion of personal privacy. 5 U.S.C.A. s
552(b)(7)(A, C).
See publication Words and Phrases for other judicial constructions and
definitions.
[45] RECORDS
Basically, any personal information in possession of government agency is
"private" for purposes of Freedom of Information Act (FOIA) exemption for
documents compiled for law enforcement purposes disclosure of which could
reasonably be expected to constitute unwarranted invasion of personal
privacy. 5 U.S.C.A. s 552(b)(7)(A, C).
[46] RECORDS
Determination of whether invasion of privacy is warranted for purposes of
Freedom of Information Act (FOIA) exemption for documents compiled for law
enforcement purposes disclosure of which could reasonably be expected to
constitute unwarranted invasion of personal privacy requires court to examine
nature of information and its relationship to FOIA's basic purpose of opening
agency action to public scrutiny; if disclosure does not serve FOIA's purpose,
public interest does not outweigh privacy interests and information is
exempt. 5 U.S.C.A. s 552(b)(7)(A, C).
[46] RECORDS
Determination of whether invasion of privacy is warranted for purposes of
Freedom of Information Act (FOIA) exemption for documents compiled for law
enforcement purposes disclosure of which could reasonably be expected to
constitute unwarranted invasion of personal privacy requires court to examine
nature of information and its relationship to FOIA's basic purpose of opening
agency action to public scrutiny; if disclosure does not serve FOIA's purpose,
public interest does not outweigh privacy interests and information is
exempt. 5 U.S.C.A. s 552(b)(7)(A, C).
[47] RECORDS
Public interest does not outweigh privacy interests for purposes of Freedom of
Information Act (FOIA) exemption for documents compiled for law enforcement
purposes disclosure of which could reasonably be expected to constitute
unwarranted invasion of personal privacy if disclosure could subject government
employees to harassment and annoyance. 5 U.S.C.A. s 552(b)(7)(A, C).
[47] RECORDS
Public interest does not outweigh privacy interests for purposes of Freedom of
Information Act (FOIA) exemption for documents compiled for law enforcement
purposes disclosure of which could reasonably be expected to constitute
unwarranted invasion of personal privacy if disclosure could subject government
employees to harassment and annoyance. 5 U.S.C.A. s 552(b)(7)(A, C).
[48] RECORDS
Documents and portions of documents in possession of Internal Revenue Service
(IRS) containing government employees' personal information, including names,
addresses and social security numbers, fell within Freedom of Information Act
(FOIA) exemption for documents compiled for law enforcement purposes disclosure
of which could reasonably be expected to constitute unwarranted invasion of
personal privacy; there was no indication that disclosure would open IRS
action to public scrutiny and every indication that disclosure could subject
employees to harassment and annoyance. 5 U.S.C.A. s 552(b)(7)(A, C).
[49] RECORDS
Any privacy interest which government employees had in their handwriting did
not outweigh public interest in disclosure of information contained in
documents which were subject of Freedom of Information Act (FOIA) request and,
thus, documents could not be withheld on that ground under exemption for
documents compiled for law enforcement purposes disclosure of which could
reasonably be expected to constitute unwarranted invasion of personal
privacy. 5 U.S.C.A. s 552(b)(7)(C).
[49] RECORDS
Any privacy interest which government employees had in their handwriting did
not outweigh public interest in disclosure of information contained in
documents which were subject of Freedom of Information Act (FOIA) request and,
thus, documents could not be withheld on that ground under exemption for
documents compiled for law enforcement purposes disclosure of which could
reasonably be expected to constitute unwarranted invasion of personal
privacy. 5 U.S.C.A. s 552(b)(7)(C).
[50] RECORDS
Requirement that agency reproduce handwritten documents in form other than that
in which agency stores documents so as to protect privacy interests in
handwriting while permitting disclosure of portions of document not otherwise
exempt is implicit in Freedom of Information Act's (FOIA's) dominant theme of
full agency disclosure, its intent to open agency action to public scrutiny,
and its redaction provisions. 5 U.S.C.A. s 552(b)(7)(C).
[50] RECORDS
Requirement that agency reproduce handwritten documents in form other than that
in which agency stores documents so as to protect privacy interests in
handwriting while permitting disclosure of portions of document not otherwise
exempt is implicit in Freedom of Information Act's (FOIA's) dominant theme of
full agency disclosure, its intent to open agency action to public scrutiny,
and its redaction provisions. 5 U.S.C.A. s 552(b)(7)(C).
[50] RECORDS
Requirement that agency reproduce handwritten documents in form other than that
in which agency stores documents so as to protect privacy interests in
handwriting while permitting disclosure of portions of document not otherwise
exempt is implicit in Freedom of Information Act's (FOIA's) dominant theme of
full agency disclosure, its intent to open agency action to public scrutiny,
and its redaction provisions. 5 U.S.C.A. s 552(b)(7)(C).
[51] RECORDS
Information in documents withheld under Freedom of Information Act (FOIA)
exemption for documents compiled for law enforcement purposes disclosure of
which could reasonably be expected to constitute unwarranted invasion of
personal privacy in order to protect government employees' privacy interest in
their handwriting had to be reproduced in form that protected that privacy
interest and disclosed, to extent documents were not otherwise exempt. 5
U.S.C.A. s 552.
[51] RECORDS
Information in documents withheld under Freedom of Information Act (FOIA)
exemption for documents compiled for law enforcement purposes disclosure of
which could reasonably be expected to constitute unwarranted invasion of
personal privacy in order to protect government employees' privacy interest in
their handwriting had to be reproduced in form that protected that privacy
interest and disclosed, to extent documents were not otherwise exempt. 5
U.S.C.A. s 552.
[52] RECORDS
Freedom of Information Act (FOIA) exemption for documents compiled for law
enforcement purposes entitles agency to withhold any portion of document that
would reveal identity of confidential source and, in case of document compiled
in course of criminal investigation or national security intelligence
investigation, both identity of source and information provided are exempted.
5 U.S.C.A. s 552(b)(7).
[52] RECORDS
Freedom of Information Act (FOIA) exemption for documents compiled for law
enforcement purposes entitles agency to withhold any portion of document that
would reveal identity of confidential source and, in case of document compiled
in course of criminal investigation or national security intelligence
investigation, both identity of source and information provided are exempted.
5 U.S.C.A. s 552(b)(7).
[53] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to disclose identity of confidential source which furnished
information on confidential basis, agency is not required to demonstrate that
it expressly assured confidentiality to confidential source. 5 U.S.C.A. s
552(b)(7)(D).
[54] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to disclose identity of confidential source which furnished
information on confidential basis, court should find assurance of
confidentiality where it is reasonable to infer such from circumstances. 5
U.S.C.A. s 552(b)(7)(D).
[55] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to disclose identity of confidential source which furnished
information on confidential basis, it is irrelevant that identity of
confidential source is known. 5 U.S.C.A. s 552(b)(7)(D).
[56] RECORDS
For purposes of Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes disclosure of which could reasonably be
expected to disclose identity of confidential source which furnished
information on confidential basis, information and/or identity of individual
remains confidential even after investigation is concluded. 5 U.S.C.A. s
552(b)(7)(D).
[57] RECORDS
Documents and portions of documents withheld by Internal Revenue Service (IRS)
were not protected from disclosure under Freedom of Information Act (FOIA)
exemption for documents compiled for law enforcement purposes disclosure of
which could reasonably be expected to disclose identity of confidential source
which furnished information on confidential basis, as it was not established
that identified confidential source furnished information on confidential
basis. 5 U.S.C.A. s 552(b)(7)(D).
[58] RECORDS
Freedom of Information Act (FOIA) exemption for documents compiled for law
enforcement purposes disclosure of which would disclose techniques, procedures
or guidelines for law enforcement investigations or prosecutions applies only
to techniques, procedures and guidelines generally unknown to public, though
they are exempt even if known by public to some extent if disclosure of
circumstances of their use could lessen their effectiveness. 5 U.S.C.A. s
552(b)(7)(E).
[59] RECORDS
Documents withheld by Internal Revenue Service (IRS) were not protected from
disclosure under Freedom of Information Act (FOIA) exemption for documents
compiled for law enforcement purposes to extent that disclosure would disclose
techniques, procedures and guidelines for law enforcement investigations or
prosecutions, as IRS had not established that disclosure could reasonably be
expected to circumvent law. 5 U.S.C.A. s 552(b)(7)(E).
[60] RECORDS
If document which is subject of Freedom of Information Act (FOIA) request
cannot be segregated into exempt and nonexempt portions, agency must state that
it cannot and explain why it cannot. 5 U.S.C.A. s 552(b).
[61] RECORDS
Internal Revenue Service's (IRS') statement regarding segregability in response
to Freedom of Information Act (FOIA) request, that "document cannot be
segregated for partial release" did not explain why document could not be
segregated and released and, consequently, IRS had to segregate all nonexempt
portions and release them; without explanation, court was unable to determine
de novo whether document could or could not be segregated. 5 U.S.C.A. s
552(b).
[61] RECORDS
Internal Revenue Service's (IRS') statement regarding segregability in response
to Freedom of Information Act (FOIA) request, that "document cannot be
segregated for partial release" did not explain why document could not be
segregated and released and, consequently, IRS had to segregate all nonexempt
portions and release them; without explanation, court was unable to determine
de novo whether document could or could not be segregated. 5 U.S.C.A. s
552(b).
[62] RECORDS
Burden is on agency withholding document which is subject of Freedom of
Information Act (FOIA) request to prove that document cannot be segregated for
partial release. 5 U.S.C.A. s 552(b).
*1145 Stephen Greenberg, Small, Craig & Werkenthin, Homer Allen Hill, Jr.,
Austin, TX, W. Gary Fowler, Littler, Mendelson, Fastiff & Tichy, Dallas, TX,
Kendrick L. Moxon, Bowles & Moxon, Pro hac vice, Hollywood, CA, for plaintiff.
Mollie S. Crosby, U.S. Attorney's Office, Austin, TX, Josh Eagle, U.S. Dept.
of Justice, Washington, DC, for defendant.
ORDER
SPARKS, District Judge.
This is an action under the Freedom of Information Act (FOIA), 5
U.S.C. s 552. *1146 The Court has jurisdiction pursuant to 5 U.S.C. s
552(a)(4)(B) and 28 U.S.C. s 1331. The Court has reviewed the parties'
cross-motions for summary judgment and enters the following:
I.
The Freedom of Information Act, 5 U.S.C. s 552, was enacted to give the
public greater access to government records. See, Department of Air Force
v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Environmental
Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
Generally, it requires each government agency to grant the public access to all
records of the agency. See, 5 U.S.C. s 552(a)(1-3). A member of the public
begins the process by filing a "request" for records under the Act. The agency
is then required to search its files for any document(s) responsive to the
individual's request and make the records "promptly" available to the
individual. See, 5 U.S.C. s 552(a)(3).
[1] Section (b) of the act creates nine exemptions from compelled
disclosure. See, 5 U.S.C. s 552(b). The exemptions are to be narrowly
construed. See, U.S. Dept. of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct.
1606, 1611, 100 L.Ed.2d 1 (1988); Department of Air Force v. Rose, 425 U.S.
at 361, 96 S.Ct. at 1599. If the agency claims one or more of the nine
exemptions apply to a requested document, the agency may withhold the
document. It must, however, notify the person that it is withholding the
document and give its reasons for withholding the document. See, 5 U.S.C. s
552(a)(6)(A)(i). The Act also requires the agency to segregate and disclose
"any reasonably segregable portion of a record" after deleting the portions
which are exempt. See, 5 U.S.C. s 552(b).
If documents are withheld, the Act permits the individual to file a complaint
in Federal district court once the individual exhausts his administrative
remedies. The agency has the burden of establishing the exempt status of the
record. See, 5 U.S.C. s 552(a)(4)(B). The district court determines the
matter de novo and may examine the documents in camera. See, 5 U.S.C. s
552(a)(3)(B).
II.
On December 10, 1990, Plaintiff, Church of Scientology of Texas (CST or C of S
Texas), sent two letters to Defendant, Internal Revenue Service (IRS),
requesting information under the Freedom of Information Act. One letter
sought "a copy of all records, documents, notes, control cards, subject files,
tapes, buck slips, electronic information, and/or information relating to or
concerning C of S Texas Church of Scientology and/or Scientology, and Dianetics
in the Inspection Division of the National Office [of the IRS], including any
records on compliance projects." (emphasis added) The request also included
"any records that refer to C of S Texas or that are retrievable in a search for
files listed in C of S Texas or Scientology's name." The request was limited
"to records from January 1981 to the present." The second letter requested the
same information but from the "Exempt Organization files" and covered the
period "from January 1974 to the present." IRS employees located 2167 pages of
records responsive to the requests. The IRS released some records in full,
released portions of some records, and withheld in full some records claiming
they were exempt under the FOIA. After exhausting its administrative remedies,
the CST filed cause A-91-CA-152 on February 27, 1991, seeking to compel the IRS
to release the records withheld under the Inspection Division request. The
next day, on February 28, 1991, the CST filed cause A-91-CA-159 seeking court
ordered release of the records withheld under the Exempt Organization request.
The two causes were consolidated by court order dated March 7, 1991 and
transferred to this Court's docket on January 10, 1992.
The IRS does not contest that the withheld records fall within the
FOIA's coverage, but asserts that they are exempt from disclosure by one or
more of the nine exemptions contained in Subsection (b) of the Act.
Specifically, the IRS claims the withheld records are exempt from disclosure by
Exemptions 2, 3, 5, 6 and 7. It insists "that it has complied in good faith
with the requirements of the FOIA and that it has submitted materials more than
sufficient to support its withholding *1147 of certain documents under the
exemption provisions of the statute." See, Internal Revenue Service's
Statement, p. 5 (May 20, 1992).
In July 1991, pursuant to the Magistrate's order, the IRS served upon the CST
and filed with the district court a Vaughn Index [FN1] (Index). The Index
allegedly describes the contents of 2167 pages of records and details the legal
basis for withholding each record or portion thereof that the IRS withheld.
The Index itself is 534 pages. To further support its position that the
records were properly withheld, the IRS submitted the affidavits of John
Fuhrman [FN2], Roderick H. Darling [FN3] and Steven D. Raisch [FN4], all IRS
employees who searched for records responsive to the CST's requests and
reviewed those records to determine if they should be disclosed. The CST,
dissatisfied with the Index, filed a motion for a more detailed Index. The
magistrate denied the motion. The CST did not appeal the order, but,
subsequently, filed a "Counter-Vaughn Index" in which it attempts to
demonstrate why it believes the IRS's Index is inadequate and, where possible,
why the records are not exempt under subsection (b) of the Act. The CST also
submitted affidavits to further support its position.
FN1. See, Vaughn v. Rosen, 484 F.2d 820, (D.C.Cir.1973), cert. denied,
415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). A Vaughn Index
is designed to permit a court to efficiently and effectively determine an
agency's exemption claim to an FOIA request. The Fifth Circuit has adopted
the Vaughn Index. See, Stephenson v. Internal Revenue Service, 629
F.2d 1140 (5th Cir.1980).
FN2. Fuhrman is an attorney with the Office of Chief Counsel, Internal
Revenue Service, assigned to the staff of the Assistant Chief Counsel
(Disclosure Litigation).
FN3. Darling is a Conferee-Reviewer in the EO Technical Divisional, Office
of the Assistant Commissioner (Employee Plans and Exempt Organizations),
Internal Revenue Service.
FN4. Raisch is a Staff Inspector in the Disclosure Section of the Internal
Revenue Service Inspection Office in Washington, D.C.
The CST insists the IRS has not met its legal burden to justify withholding
the documents. It contends the Index submitted by the IRS is insufficient
because it is conclusory and does not describe each document with sufficient
detail to permit the Court to make an intelligent de novo determination whether
the entire document is exempt, a portion of the document is exempt or none of
the document is exempt. Additionally, the CST insists that even if the Index
is sufficiently descriptive, the records are nevertheless subject to disclosure
because they do not fall within one or more of the exemptions. Therefore, it
contends the IRS has failed to meet its burden and should be required to
produce the requested records to the CST.
[2][3][4] Congress did not intend for a court to review in camera every
record an agency withholds. A Vaughn Index relieves a court of this
burden. It allows a court to effectively and efficiently evaluate whether a
withheld record is exempt; informs a court what information is contained in a
withheld record so that the court can determine de novo if the record is in
fact exempt; and gives the requester a meaningful opportunity to contest the
agency's claim of exemption. The Index must therefore adequately describe the
record, state what exemption the agency claims and explain why the agency
believes the record falls within the exemption. The agency does not have to
describe a record to the extent that the description compromises the secrecy of
the record. A description is sufficient if it enables a court to reach its own
conclusion as to what is in the record. Mere conclusory and generalized
statements that a record falls within an exempt category, however, are
insufficient. See, Vaughn v. Rosen, 484 F.2d 820, 826-827 (D.C.Cir.1973),
cert. denied 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); See also,
N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311,
2318, 57 L.Ed.2d 159 (1978) ("The in camera review provision is discretionary
by its terms, and is designed to be invoked when the issue before the District
Court could not be otherwise resolved; it thus does not mandate that the
documents be individually examined in every case."); Schiller v. N.L.R.B.,
964 F.2d 1205, 1207 (D.C.Cir.1992); National Treasury Employees Union v.
U.S. Customs Service, 802 F.2d 525, 527 (D.C.Cir.1986).
*1148 [5] The Court is entitled to rely on the accuracy of the
Vaughn Index.
FOIA litigation is not immune from our open, adversary process. In camera,
ex parte review, though permitted under FOIA and sometimes necessary, is
generally disfavored--it 'is not a substitute' for the government's obligations
to justify its withholding in publicly available and debatable documents, and
it should be invoked only when the issue at hand " 'could not be otherwise
resolved.' " The purpose of the Vaughn Index is to "permit adequate
adversary testing of the agency's claimed right to an exemption," and those who
contest denials of FOIA requests--who are, necessarily, at a disadvantage
because they have not seen the withheld documents--can generally prevail only
by showing that the agency's Vaughn Index does not justify withholding
information under the exemptions invoked. FOIA litigants are entitled to
assume that the agency's Vaughn Index is accurate in every detail. And so
is the court. There is no excuse for submitting a Vaughn Index that
contains errors, even minor ones. We expect agencies to ensure that their
submissions in FOIA cases are absolutely accurate.
Schiller, 964 F.2d at 1209 (citations omitted).
[6] The Vaughn Index submitted by the IRS is sufficient. Contrary to the
CST's suggestion, the Index contains more than conclusory statements. The
Index identifies each record, describes each record with sufficient detail to
permit the Court to determine what it contains, states the exemption or
exemptions the IRS contends apply, and explains why the IRS believes each
record or portion thereof is exempt. In sum, the Index permits the Court to
effectively and efficiently evaluate the contents of each record and make an
intelligent decision whether any portion of it is exempt. It also gives the
CST a meaningful opportunity to contest the IRS's claim of exemption.
III. DATE RESTRICTIONS
[7] The IRS withheld a number of records claiming they were outside the
scope of the requests because they were generated subsequent to the date of the
requests. The FOIA does not expressly or implicitly require an agency to
locate documents outside the dates specified in the request. Furthermore, it
is unreasonable to expect an agency to locate and determine the disclosability
of documents generated subsequent to the date specified in a request. The
agency should only be required to make one thorough search per request.
Therefore, there has to be a temporal deadline for documents that satisfy the
request. The most logical deadline is the date specified in the request. A
different deadline would require the agency to make numerous searches--one when
the request is filed, one after reviewing the documents responsive to the
request, and if this last search locates any records, at least one more after
determining whether those records are subject to disclosure. It is easy to see
how a search could be a never ending process if the cut-off date for records
responsive to the request is a date other than the date specified in the
request. Additionally, The FOIA "places a premium on rapidly processing FOIA
requests." Bonner v. U.S. Dept. of State, 928 F.2d 1148, 1152
(D.C.Cir.1991). If an agency has to conduct more than one search, the response
time will be slower. If the requester desires documents from dates other than
those specified in the request the requester simply has to file another
request. This makes the most sense from an administrative standpoint.
Documents generated subsequent to the date specified in the request are outside
the scope of the request and need not be disclosed.
IV. EXEMPTIONS
The Court has determined the matter de novo.
A. Exemption 2
[8] The IRS contends some of the withheld records are exempt under 5
U.S.C. s 552(b)(2) (Exemption 2). Records that relate "solely to the internal
personnel rules and practices of an agency" are exempt from disclosure. 5
U.S.C. s 552(b)(2) (Exemption 2). Records that relate "solely to the internal
personnel rules and practices of an agency" *1149 are exempt from
disclosure. 5 U.S.C. s 552(b)(2). Records are exempt under Exemption 2 if
they are internal records that (1) relate to trivial agency matters of which
the public does not have a legitimate interest or (2) if disclosure would risk
circumvention of an agency regulation. See, Rose, 425 U.S. at 369, 96 S.Ct.
at 1603; Schiller, 964 F.2d at 1207; National Treasury Employees Union,
802 F.2d at 528.
The D.C. Circuit recently stated the Exemption 2 test as:
If the threshold test of predominant internality is met, an agency may
withhold the material "by proving either [1] 'disclosure may risk circumvention
of agency regulations,' or [2] 'the material relates to trivial administrative
matters of no genuine public interest.' "
Schiller, 964 F.2d at 1207, (quoting, Schwaner v. Department of Air
Force, 898 F.2d 793, 794 (D.C.Cir.1990).)
[9] The IRS withheld documents or portions of documents containing
information on the allocation of IRS resources claiming they were exempt under
Exemption 2. For example, the IRS withheld page 757 [FN5] described as:
FN5. The IRS also withheld these pages or portions thereof pursuant to
Exemptions 6 and 7(C).
Form 1038, Advance of travel funds, dated 10/22/90, with handwritten entries.
Personal information about lower level Service employee including [social
security number], home address. Information about allocation of resources and
employee handwriting.
The justification for withholding the resource allocation information states:
The withheld information contains or consists of matters related to the
allocation of human resources to the investigation by Inspection as well as
other personnel matters relating to Service employees involved in the
investigation. The withheld information therefore relates solely to the
internal personnel rules and practices of the agency.
The allocation information meets the "predominant internality" test. However,
it fails the second part of the test. First, there is no evidence that
disclosure might "risk circumvention of agency regulations." Second, although
the information "relates to trivial administrative matters," it is information
in which the public has a genuine interest. This is taxpayers' money and the
public is entitled to know how the IRS is allocating it. Consequently, unless
otherwise exempt, the information must be disclosed.
[10] The other documents and portions of documents withheld pursuant to
Exemption 2 are exempt. For example, the IRS withheld pages 749-752 [FN6]
described as:
FN6. The IRS also withheld these pages or portions thereof pursuant to
Exemptions 6 and 7(C).
The page numbers cited in the order correspond to the page number of the
document the IRS withheld, not the page number in the Vaughn or counter-
Vaughn Indexes. (e.g. pages 749-752 of the 2167 pages the IRS withheld and
not pages 749-752 of the Vaughn Index or the counter-Vaughn Index)
Page 749 is a handwritten routing slip dated 11/20/90 from a Service employee
to Inspection employees regarding a proposed meeting. The attachments concern
potential attendees and other details concerning the proposed meeting. (pages
750-752).
Identities of lower level employees, employee handwriting, matters
relating to internal personnel rules and practices of the Service.
The IRS's justification states:
The withheld information contains or consists of matters related to the
allocation of human resources to the investigation by Inspection as well as
other personnel matters relating to Service employees involved in the
investigation. The withheld information therefore relates solely to the
internal personnel rules and practices of the Service.
The public does not have a legitimate interest in such trivial agency matters
as a routing slip. Consequently, the material relates solely to trivial
administrative matters of no genuine public interest and the record and was
properly withheld.
*1150 Exemption 3
[11] 5 U.S.C. s 552(b)(3) exempts from disclosure all records that are
"specifically exempted from disclosure by statute" other than the FOIA itself.
Exemption 3 authorizes an agency to withhold only those portions of a record
that are expressly protected by statute. See, Julian, 486 U.S. at 11, 108
S.Ct. at 1612. The IRS withheld records under exemption 3 relying upon 26
U.S.C. s 6103(a); Federal Rule of Criminal Procedure 6(e); and 5 U.S.C.
Appendix 4, s 205. Each will be discussed separately.
(1) Records Relating to Tax Returns
[12][13] 26 U.S.C. s 6103(a) is an exempting statute for FOIA purposes.
See, Church of Scientology of California v. I.R.S., 484 U.S. 9, 11, 108
S.Ct. 271, 273, 98 L.Ed.2d 228 (1987); Linsteadt v. I.R.S., 729 F.2d 998,
1003 (5th Cir.1984). It states that "returns and return information shall be
confidential." See, 26 U.S.C. s 6103(a). A "return" is defined as "any tax
or information return, declaration or estimated tax, or claim for refund"
including supporting schedules, attachments and lists. See, 26 U.S.C. s
6103(b)(1). "Return information" is:
a taxpayer's identity, the nature, source, or amount of his income, payments,
receipts, deduction, exemptions, credits, assets, liabilities, net worth, tax
liability, tax withheld, deficiencies, overassessments, or tax payments,
whether the taxpayer's return was, is being, or will be examined or subject to
other investigation or processing, or any other data, received by, recorded by,
prepared by, furnished to, or collected by the Secretary with respect to a
return or with respect to the determination of the existence, or possible
existence, or liability (or the amount thereof) of any person under this title
for any tax, penalty, interest, fine, forfeiture, or other imposition, or
offense....
See, 26 U.S.C. s 6103(b)(2). "Return Information" does not include:
such term does not include data in a form which cannot be associated with, or
otherwise identify, directly or indirectly, a particular taxpayer.
Id. Thus, "tax returns" are exempt from disclosure, but "return
information" may be disclosed if it is "in a form" that keeps the identity of
the taxpayer confidential. The Supreme Court has interpreted "in a form" to
mean more than simply removing taxpayer identifying information. See,
Church of Scientology of California, 484 U.S. at 18, 108 S.Ct. at 276.
Thus, simply removing identifying details does not permit the disclosure of
otherwise confidential return information. See, Id. "In a form" refers to
statistical studies, compilations and other similar reformulation of return
information. See, Id. 484 U.S. at 17-18, 108 S.Ct. at 276. So, if the IRS
takes return information from various taxpayers and creates a statistical study
or a compilation, the statistical study or compilation would be subject to
disclosure.
[14] CST contends it is entitled to the returns because the IRS has
not established "the documents it is attempting to withhold pursuant to
Exemption 3 are truly third party tax return information" and because the IRS
has not provided sufficient facts to "demonstrate that the information [is]
return information." The Court is unaware of any way, and CST has not provided
any suggestions, the IRS can establish a record is third party return
information other simply stating that it is. Providing details to establish a
record is "third party return information" would compromise the confidentiality
required by s 6103(a). The Court also believes a statement by the IRS in
the Index that the records are return information is sufficient. The other
alternative is for the IRS to recite the pertinent parts of the "return
information" definition from s 6103--i.e. "This record contains a taxpayer's
identity, the nature, source, and amount of his income...."--which would only
serve to make the Index unnecessarily longer than it already is. This would
not enable the CST to challenge the withholding in any greater depth.
[15] The documents and portions of documents containing taxpayer return
information are exempt under Exemption 3. For example, the IRS withheld pages
70-78 [FN7] described as:
FN7. The IRS also withheld this record under Exemptions 5 and 7(C).
*1151 Page 70 is a handwritten transmittal slip, dated 12/13/90, regarding
the attached affidavits. The two affidavits are executed, one is for in camera
submission (pages 71-72) and the other is for public filing (pages 73-78).
Both were prepared in conjunction with respect to a litigation other than the
instant case. Neither affidavit has been filed in the other litigation.
Third party return information, documents which are not finalized and
therefore predecisional inasmuch as they have not been filed in court, attorney
work product, identities of lower level Service employees, and employee
handwriting.
The IRS's justification for withholding the return states:
The withheld information consists of or contains return information of (a)
third party taxpayer(s). Disclosure of this information is prohibited by
I.R.C. 6103(a).
Another example, the IRS withheld pages 1382-1387 [FN8] described as:
FN8. The IRS also withheld this page or portions thereof under Exemption
7(C).
Pages 1382-1383 are copies of computer printouts of third party return
information.
Third Party return information.
The IRS gives the same justification as pages 73-78 for withholding this
record.
The records were properly withheld as they contain third party tax return
information. There is no indication that either of the records is a
compilation, a statistical study or other similar reformulation of return
information. Rather, the information is return information of a single third
party. As such, it is exempt from disclosure even if the IRS removes all
identifying information.
(2) Grand Jury Proceedings
[16][17] Federal Rule of Criminal Procedure 6(e) is also an exempting
statute for purposes of the FOIA. See, Fund for Constitutional Government
v. National Archives and Records Service, 656 F.2d 856, 867-868
(D.C.Cir.1981) (Rule 6(e)'s "ban on disclosure is for FOIA purposes absolute
and falls within subpart (A) of Exemption 3."). Rule 6(e) provides
generally that proceedings occurring before a grand jury may not be disclosed.
The Rule provides for limited exceptions, none of which are applicable here.
The agency must establish a nexus between the record and the operation of the
grand jury, See, Senate of Puerto Rico v. Department of Justice, 823 F.2d
574, 582 (D.C.Cir.1987):
We have never embraced a reading of Rule 6(e) so literal a to draw
"a veil of secrecy ... over all matters occurring in the world that happen to
be investigation by a grand jury." There is no per se rule against disclosure
of any and all information which has reached the grand jury chambers; as the
district court correctly observed, the touchstone is whether disclosure would
"tend to reveal some secret aspect of the grand jury's investigation" such
matters as " 'the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, the deliberations or
questions or jurors, and the like.' " The disclosure of information
"coincidentally before the grand jury [which can] be revealed in such a manner
that its revelation would not elucidate the inner workings of the grand jury"
is not prohibited. Automatically sealing all that a grand jury sees or hears
would enable the government to shield any information from public view
indefinitely by the simple expedient of presenting it to the grand jury.
(footnotes and citations omitted) (emphasis in original); See also, Fund
for Constitutional Government 656 F.2d at 869, (quoting, SEC v. Dresser
Industries, Inc., 202 U.S.App.D.C. 345, 359, 628 F.2d 1368, 1382 (en banc),
cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980).) (The
"scope of the secrecy is necessarily broad," encompassing testimony before the
grand jury and "information which would reveal 'the identities of witnesses or
jurors, the substance of testimony, the strategy or direction of the
investigation, the deliberations or questions of the jurors, and the like.' ".)
*1152 [18] The IRS withheld page 1804 [FN9] pursuant to Exemption 3 in
conjunction with Rule 6(e). The IRS describes the record:
FN9. The IRS also relied on Exemptions 3 in conjunction with I.R.C.
6103(a), 7(C) and 7(D) in withholding this page or portions thereof.
Memorandum dated 9/17/86 to Assistant Commissioner (Inspection) from Regional
Inspector, Western Region containing responses to inquiries regarding complaint
letter from President of Church of Scientology International. Employee
signature.
Third party return information, identities of lower level Service employees
and third parties, employee handwriting, information regarding a grand jury,
and information provided by a confidential source.
It justifies withholding the grand jury information:
"Certain of the withheld information consists of or contains information
concerning grand jury proceedings, testimony, or other grand jury activities or
references thereto. Disclosure of this information is prohibited under Rule
6(e) of the Federal Rules of Criminal Procedures."
Disclosure of this information would disclose the substance of testimony
before the grand jury. It is therefore exempt from disclosure.
(3) Financial Disclosure Statements
[19] The IRS withheld pages 629-671 [FN10] pursuant to Exemption 3 in
conjunction with the Ethics in Government Act (EGA), 5 U.S.C., Appendix 4, s
201 et seq., claiming that the CST had not complied with the disclosure
requirements of the EGA. The IRS described pages 629-671 as:
FN10. The pages or portions thereof were also withheld pursuant to
Exemption 7(C).
"Financial Disclosure Reports, employee handwriting, and identities of
Service employees."
The justification for withholding the record states:
Title 5, Appendix 4, section 201, et seq. "Executive Personnel Financial
Disclosure Requirements" provides a comprehensive scheme which regulates the
filing of detailed personal financial statements by government executives.
Section 205 "Custody of and public access to reports" specifically provides
that Financial Disclosure Reports may be disclosed only in accordance with the
requirements of section 205(b)(2). Because plaintiff's FOIA request does
not meet these requirements, the Service has withheld these reports.
Section 205(a) of the EGA provides that financial disclosure statements
shall be made available to the public in accordance with subsection (b).
Subsection (b)(2) states that a financial disclosure statement may not be
disclosed unless and until the requester makes a written application stating
the "person's name, occupation and address; the name and address of any other
person or organization on whose behalf the inspection or copy is requested;
and that such person is aware of the prohibitions on the obtaining or use of
the report." Although the EGA and the FOIA both authorize the disclosure of
the financial disclosure statements, a requester must comply with the
disclosure requirements of the EGA before it is entitled to the statements.
The requester cannot use the FOIA to circumvent the express requirements of the
EGA. The IRS contends that the CST did not comply with the express
requirements of the EGA, a contention that the CST does not deny. Accordingly,
the IRS properly withheld the record pursuant to Exemption 3.
Exemption 5
[20] Exemption 5 permits the IRS to withhold "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency." See, 5 U.S.C. s 552(b)(5).
The purpose of Exemption 5 is to protect the " 'decision making process of
government agencies.' " See, National Labor Relations Board v. Sears,
Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29
(1975) (citations omitted). The Exemption protects documents not normally
discoverable in civil litigation with the agency, including: materials which
would be protected under the governmental deliberative process privilege, the
attorney *1153 work-product privilege and the attorney-client privilege.
See, Federal Trade Commission v. Grolier Incorporated, 462 U.S. 19, 26, 103
S.Ct. 2209, 2214, 76 L.Ed.2d 387 (1983); Sears, Roebuck & Co., 421 U.S. at
150-161, 95 S.Ct. at 1515-1522; Dow Jones & Co., Inc. v. Department of
Justice, 917 F.2d 571, 573 (D.C.Cir.1990). Exemption 5's test "is whether the
documents would be 'routinely' or 'normally' disclosed upon a showing of
relevance." Grolier Incorporated, 462 U.S. at 26, 103 S.Ct. at 2214,
(citing, Sears, Roebuck & Co., 421 U.S. at 148-149, 95 S.Ct. at 1515.)
[21] A document may be inter-agency or intra-agency even if it was not
created by an agency employee. This situation may arise when an agency hires
an outside consultant. The 5th Circuit has adopted a functional test to
determine whether a document created by someone outside the agency is
nevertheless an inter-agency or intra-agency document. See, State of Texas
v. I.C.C., 889 F.2d 59, 61 (5th Cir.1989). If the "agency has 'a special need
for the opinions and recommendations of temporary consultants,' documents
reflecting such information should be exempt from disclosure." Id.
(1) Executive Deliberative Process
[22][23][24] The IRS withheld a number of documents pursuant to Exemption
5's executive deliberative process privilege. The executive deliberative
process privilege protects inter-agency or intra-agency documents that disclose
deliberative or policy-making processes of the agency. See, Sears,
Roebuck & Co., 421 U.S. at 153, 95 S.Ct. at 1517-1518. Communications
subsequent to the agency decision do not effect the decision making process and
are not exempt. See, Id. 421 U.S. at 151, 95 S.Ct. at 1517. Furthermore,
"purely factual material appearing in [deliberative] documents in a form that
is severable without compromising the private remainder of the documents" is
not exempt. See, Mink, 410 U.S. at 91, 93 S.Ct. at 838. Accordingly, the
privilege exempts documents reflecting an agency's thinking process in
formulating its policy and law, but documents detailing and explaining the
agency's policy and law are not exempt. Sears, Roebuck & Co., 421 U.S. at
153, 95 S.Ct. at 1517-1518. If, however, an agency adopts or incorporates by
reference a document covered by the Exemption 5 into a final opinion, that
document loses Exemption 5 status and must be disclosed unless it falls within
the coverage of another exemption. See, Id. 421 U.S. at 161, 95 S.Ct. at
1521-1523.
[25] The documents and portions of documents revealing the deliberative
process of the IRS are exempt under Exemption 5. For example, the IRS withheld
pages 731-733 [FN11] which it describes as:
FN11. The IRS also withheld these pages or portions thereof pursuant to
Exemption 7(C).
Page 731 is a handwritten Routing Slip dated 10/11 to Inspection employees
containing thoughts and recommendations. Page 732 is a handwritten note dated
10/10/90 to an Inspection employee concerning a briefing, and page 733 is a
handwritten Memo Routing Slip date 10/10 to Inspection employees regarding a
briefing. Predecisional material, identities of lower level Service employees,
and employee handwriting.
The IRS's explanation for withholding the record states:
The withheld information reflects employee(s)' advice, opinions, and/or
recommendations concerning the open investigation of the Inspections Branch,
Internal Security Division, Office of Chief Inspector (Inspection), regarding
incidents of actual and/or perceived harassments and/or unusual occurrences
reported by IRS personnel whose official duties included assignments to
Scientology-related matters, preliminary analysis of information received by
Inspection regarding such matters, and/or proposed courses of action with
respect thereto, which comprised part of the Service's deliberation and
preceded the conclusion of the investigation.
The record is a predecisional document the disclosure of which would
interfere with the IRS's deliberative and policy-making decisions. There is no
evidence that the IRS has adopted or incorporated by reference this document
into a final opinion. Furthermore, there is no factual information in the
document which can be segregated and disclosed. *1154 Consequently, the IRS
properly withheld the document.
(2) Attorney-Client and Work-Product
[26][27] The IRS also withheld a number of documents pursuant to Exemption
5's attorney-client and attorney work-product withholding provisions.
Documents protected by the attorney-client and attorney work-product privileges
are not "routinely" or "ordinarily" available to opposing parties in litigation
and thus are exempt under Exemption 5. See, Grolier Incorporated, 462 U.S.
at 27, 103 S.Ct. at 2214. The attorney-client privilege protects
communications between an attorney and his client that are intended to be
confidential. See, Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir.1989),
cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990),
(citing, Wells v. Rushing, 755 F.2d 376, 379 n. 2 (5th Cir.1985));
Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir.1989). The work-
product privilege protects documents prepared in anticipation of litigation
that reveal an attorney's legal theories and mental impressions. See, Dunn
v. State Farm Fire & Casualty Company, 927 F.2d 869, 875 (5th Cir.1991);
FED.R.CIV.P. 26(b)(3).
[28] Attorney work-product materials are protected even if they were not
prepared for a specific claim; it is sufficient if they were prepared in
anticipation of foreseeable litigation. See, Schiller, 964 F.2d at 1209.
The privilege applies "without regard to the status of the litigation for which
it was prepared." Grolier Incorporated, 462 U.S. at 28, 103 S.Ct. at 2215;
See also, Nadler v. U.S. Dept. of Justice, 955 F.2d 1479, 1492 (11
Cir.1992) (The privilege applies to documents prepared in anticipation of and
during litigation.)
[29] Furthermore, unlike the deliberative process privilege, the work-
product and attorney-client privileges protect factual materials contained in
the privileged documents. See, Nadler, 955 F.2d at 1492, (citing, Martin
v. Office of Special Counsel, 819 F.2d 1181, 1185-86 (D.C.Cir.1987).)
[30][31] The documents and portions of documents containing attorney-client
and attorney work-product materials and information are exempt under Exemption
5. For example, the IRS withheld pages 70-78 [FN12] described as:
FN12. The IRS also withheld these pages or portions thereof pursuant to
Exemptions 3 and 7(C).
Page 70 is a handwritten transmittal slip, dated 12/13/90, regarding the
attached affidavits. The two affidavits are executed, one is for in camera
submission (pages 71-72) and the other is for public filing (pages 73-78).
Both were prepared in conjunction with respect to a litigation other the
instant case. Neither affidavit has been filed in the other litigation.
Third party return information, documents which are not finalized and
therefore predecisional inasmuch as they have not been filed in court, attorney
work product, identities of lower level Service employees, and employee
handwriting.
The explanation for withholding the document states:
The withheld information was prepared by or under the direction of government
counsel in contemplation of litigation.
The document was prepared by or under the direction of government counsel in
preparation of foreseeable litigation. Consequently, the document is attorney
work-product material and is exempt. Another example, the IRS withheld page
79 [FN13] described as:
FN13. The page or portions thereof was also withheld under Exemption 7(C).
Routing and transmittal slip date June 26, 1990, from Chief Counsel attorney
to Inspection employee.
Attorney-client communications, identities of lower level Service employees
and employee handwriting.
The explanation states:
This communication between Service personnel and government attorneys relates
to factual background concerning the investigation by the Inspections Branch,
Internal Security Division.
The document consists of attorney-client communications. Consequently, it is
exempt.
Exemption 6
Exemption 6 authorizes an agency to withhold "personnel and medical files and
similar *1155 files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C. s 552(b)(6).
"Congress' primary purpose in enacting Exemption 6 was to protect individuals
from the injury and embarrassment that can result from the unnecessary
disclosure of personal information." United States Department of State v.
Washington Post Company, 456 U.S. 595, 599, 102 S.Ct. 1957, 1960, 72 L.Ed.2d
358 (1982).
[32] The first question is what type of files are covered by Exemption 6.
The Exemption obviously covers medical and personnel files. The Exemption also
applies to "similar files." "Similar files" is not defined in the act;
however, the Supreme Court has addressed the issue:
In sum, We do not think that Congress meant to limit Exemption 6 to a narrow
class of files containing only a discrete kind of personal information.
Rather, "[t]he exemption [was] intended to cover detailed Government records on
an individual which can be identified as applying to that individual."
Id. 456 U.S. at 601-602, 102 S.Ct. at 1961, (quoting, H.R.Rep. No. 1497,
89th Cong., 2nd Sess., 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418,
2428.) Consequently, Exemption 6 applies to any file in the possession of an
agency that contains personal information about an individual.
[33][34] If the information is contained in a protected file, it is exempt
from disclosure if disclosure would "constitute a clearly unwarranted invasion
of [the individual's] personal privacy." This requires balancing the
individual's right of privacy against preserving the FOIA's purpose to "open
agency action to the light of public scrutiny." Rose, 425 U.S. at 372, 96
S.Ct. at 1604; See also, Federal Labor Relations Authority v. United States
Department of Defense, 975 F.2d 1105, 1110 (5th Cir.1992), petition for cert.
filed, 61 U.S.L.W. 3534 (U.S. January 19, 1993) (No. 92-1223), (citing,
Halloran v. Veterans Administration, 874 F.2d 315, 319 (5th Cir.1989) (
"... requires balancing the specific privacy interests implicated by the
information against the particular public interests that may be served--or
disserved--by the disclosure of the information.").) Exemption 6 does not,
however, protect nonconfidential information, even if it is contained in a
protected file. See, Rose, 425 U.S. at 372, 96 S.Ct. at 1604.
[35] The documents and portions of documents withheld pursuant to
Exemption 6 were properly withheld. For example, the IRS withheld pages 868-
884. [FN14] The IRS describes the record as:
FN14. Pages 868-884 or portions thereof were also withheld pursuant to
Exemption 7(C).
Page 868 is a handwritten note containing the names of several employees and
suggested investigation of a Service employee. Pages 869-885 are personnel
documents relating to this employee which include the SF-171, the employee's
evaluation, and other promotion package information regarding this and other
employees applying for a particular position.
Identities of lower level Service employees, employee handwriting, and other
personal information regarding various Service employees in the promotion
package.
Another example, the IRS withheld page 757 [FN15] described as:
FN15. Page 757 or portions thereof was also withheld pursuant to
Exemptions 2 and 7(C).
Form 1038, Advance of travel funds, dated 10/22/90, with handwritten entries.
Personal information about lower level Service employee including [social
security number], home address. Information about allocation of resources and
employee handwriting.
The IRS gives the same justification for each record:
Because public identification of these Service employees could conceivably
subject them to harassment and annoyance in their private lives and because the
Internal Revenue Service can discern little or no public interest in this
information, the Service has determined that release of personal or identifying
information contained in the withheld materials would constitute a clearly
unwarranted invasion of personal privacy of these persons.
The Service is aware that Scientology related entities and/or persons
affiliated or *1156 believed to be affiliated with Scientology have a
practice of aggressively harassing its perceived enemies. This awareness was
gained from the writings attributed to Scientology's founder, Scientology
scriptures, the court opinions detailing such action, and the incidents of
harassment reported in the Los Angeles Times series published between June 24,
and June 29, 1990, in the Time magazine article date May 6, 1991, in other
published material, and in the British Broadcasting Company (BBC) program
televised April 1989.
The Court is unable to theorize any public interest that may be served by
disclosing this information. On the other hand, the individuals have a
substantial interest in keeping this information private. The interests
involved in this case are drastically different than those present in
Federal Labor Relations Authority--the CST is not the collective bargaining
agent for the IRS employees. See, Federal Labor Relations Authority, 975
F.2d at 1109-1110. Furthermore, given the degree of animosity between the CST
and the IRS, IRS employees have a substantial privacy interest in keeping
personal information confidential. See, Fuhrman affidavit pp. 5-13 and
authority cited therein. The individual's privacy interests are superior to
the public's interest in disclosure and disclosing the records would constitute
a clearly unwarranted invasion of the individuals' personal privacy.
Exemption 7
[36] Exemption 7 covers records or information compiled for law
enforcement purposes. It was enacted to permit agencies to "keep certain
records confidential, lest the agencies be hindered in their investigations or
placed at a disadvantage when it came time to present their case." Robbins
Tire & Rubber Co., 437 U.S. at 224, 98 S.Ct. at 2318. It subdivides law
enforcement records into six different categories. If the record was compiled
for law enforcement purposes and falls within one or more of the six
subdivisions, the record is exempt. See, John Doe Agency v. John Doe
Corporation, 493 U.S. 146, 155, 110 S.Ct. 471, 477, 107 L.Ed.2d 462 (1989).
The agency does not have to detail document-by-document why each document falls
within one of the six categories. The agency must, however, identify which
subdivision(s) of Exemption 7 it contends each document falls into and give the
court sufficient information to make a de novo determination that the document
falls within the subdivision. See, John Doe Agency, 493 U.S. at 155, 110
S.Ct. at 477; Robbins Tire & Rubber Co., 437 U.S. at 235, 98 S.Ct. at
2323. The IRS has withheld records pursuant to four of the subdivisions.
[37] As a threshold requirement, the IRS must prove that the records or
information were compiled for law enforcement purposes. See, John Doe
Agency, 493 U.S. at 151, 110 S.Ct. at 475. Examining the plain language of the
Exemption, the Supreme Court has said that it is irrelevant when the record or
information was compiled. See, Id. 493 U.S. at 153, 110 S.Ct. at 476.
[FN16] The only requirement is that it be "compiled" when the government
invokes the exemption. See, Id. 493 U.S. at 153-156, 110 S.Ct. at 476-
477. "Compiled," the Supreme Court said, is anything "composed of materials
collected and assembled from various sources or other documents." Id. 493
U.S. at 153, 110 S.Ct. at 476, (citing, Webster' Third New International
Dictionary 464 (1961); Webster's Ninth New Collegiate Dictionary 268 (1983).)
This includes documents originally compiled for non-law enforcement purposes.
See, Id. 493 U.S. at 153, 110 S.Ct. at 476.
FN16. In John Doe Agency the Supreme Court permitted an agency to
withhold records and information pursuant to Exemption 7 even though the
records and information were compiled seven years before the investigation.
(1) Exemption 7(A)
[38] Exemption 7(A) exempts records or information compiled for law
enforcement purposes to the extent that the production of the records or
information "could reasonably be expected to interfere with enforcement
proceedings." The IRS must demonstrate that "disclosure of [the] document
would, in some particular, discernable way, disrupt, impede, or otherwise harm
the enforcement proceeding." North v. Walsh, 881 F.2d 1088, 1097
(D.C.Cir.1989). This occurs if disclosure would inform the party being
investigated *1157 of the scope or direction of the agency's investigation;
potentially subject witnesses or others providing information to the agency to
reprisal or harassment; permit the target of the investigation to develop
defenses that would enable violations to go unremedied; permit the party being
investigated to destroy or alter evidence; or chill the willingness of
individuals providing information to the agency to do so. See, Robbins
Tire & Rubber Co., 437 U.S. at 239-242, 98 S.Ct. at 2325-2326; North, 881
F.2d at 1097; Alyeska Pipeline Co. v. U.S. EPA, 856 F.2d 309, 312-313
(D.C.Cir.1988).
[39][40][41] Once the investigation has concluded and there is no
reasonable possibility of future law enforcement proceedings related to the
requested documents, the documents lose Exemption 7(A) status. See, Robbins
Tire & Rubber Co., 437 U.S. at 235, 98 S.Ct. at 2323. If the investigation is
open or there is a reasonable possibility of future law enforcement proceedings
at the time of the request, the documents are exempt. Furthermore, the agency
is not required to monitor the investigation and release the documents once the
investigation is closed and there is no reasonable possibility of future
proceedings.
FOIA requires the district court to determine de novo whether requested
information is properly withheld. Bonner argues that the de novo standard
requires a court to determine whether a document is properly withheld or
redacted as of the time of the court's review. FOIA judicial review, however,
while de novo, remains an assessment of the agency decision to withhold a
document. That decision, we hold, ordinarily must be evaluated as of the time
it was made.
Courts reviewing an agency's action must of necessity limit the scope of
their inquiry to an appropriate time frame. In FOIA cases particularly, court
review properly focuses on the time the determination to withhold is made, for
the Act places a premium on the rapid processing of FOIA requests. To require
an agency to adjust or modify its FOIA responses based on post-response
occurrences could create an endless cycle of judicially mandated reprocessing.
Bonner, 928 F.2d at 1152 (citations omitted) (emphasis in original).
[42] The documents and portions of documents withheld pursuant to Exemption
7(A) were properly withheld. For example, [FN17] the IRS withheld pages 1163-
1164 described as:
FN17. The IRS also withheld the page or portions thereof pursuant to
Exemption 7(C).
Page 1163 is a Memorandum of Interview or Activity dated June 21, 1990 in the
Western Region, Inspection regarding an open investigation. Page 1164 is a
copy of a business card obtained during that investigation.
Information gathered during the course of an open investigation, identities
of lower level Service employees and third parties.
The IRS justification for withholding the document states:
The document(s) was/were compiled for law enforcement purposes. The
document(s) was/were generated with respect to the open investigation by the
Inspection Service in Western Region regarding incidents of actual and/or
perceived harassment and/or unusual occurrences reported by Internal Revenue
Service personnel whose official duties included assignments to Scientology-
related matters. Release of the documents could reasonably be expected to
interfere with enforcement proceedings.
The document was compiled for law enforcement purposes and relates, at least
at the time of the request, to an open investigation into incidents of actual
and/or perceived harassment of IRS employees. Disclosure could reasonably be
expected to interfere with enforcement proceedings because disclosure could
subject IRS employees to harassment or reprisal and inform the party being
investigated of the direction and scope of the IRS investigation.
Consequently, the documents are exempt under Exemption 7(A).
(2) Exemption 7(C)
[43] Exemption 7(C) permits an agency to withhold documents compiled
for law enforcement purposes to the extent that disclosure "could reasonably be
expected to constitute *1158 an unwarranted invasion of personal privacy."
The IRS has withheld documents in full or part pursuant to Exemption 7(C) that
contain (1) identifying information--including names, addresses and social
security numbers--of actual or potential IRS contacts or lower level government
employees and (2) handwriting samples of IRS personnel. An Exemption 7(C)
analysis requires the Court to balance the individual privacy interests in
keeping the information confidential against the public interest in its
release. See, U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749,
762, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774 (1989); Burge v. Eastburn, 934
F.2d 577, 579-580 (5th Cir.1991). Only the interest of the general public, not
the interest of the requester, is relevant. See, Nadler, 955 F.2d at 1489.
If the individual privacy interests that would suffer if the document was
disclosed outweigh the public's interest in disclosure, the document is exempt
from disclosure. See, Reporters Committee, 489 U.S. at 762, 109 S.Ct. at
1476.
[44][45] The first question in an Exemption 7(C) analysis is--What type or
kind of document is protected? Exemption 7(C) protects "private" information.
Information is "private" if it is " 'intended for or restricted to the use of a
particular person or group of persons: not freely available to the
public.' " Id. (quoting, Webster's Third New International Dictionary 1804
(1976).) Intimate details of an individual's life and " 'information about an
individual which he could reasonably assert an option to withhold from the
public at large because of its possible adverse effects upon himself or his
family' " is "private" information. Nadler, 955 F.2d at 1489, (quoting,
L & C Marine Transport, LTD v. United States, 740 F.2d 919, 923 (11th
Cir.1984), (quoting, Attorney General Levi in his memorandum on the 1974
Amendments to the FOIA, Freedom of Information Act and Amendments of 1974 (P.L.
93-502), Source Book: Legislative History, Texts and Other Documents at 519-
20 (Joint Comm.Print 1975))). Even "private" information that has been
previously disclosed is "private." Reporters Committee, 489 U.S. at 762-
767, 109 S.Ct. at 1476-1478; Burge, 934 F.2d at 579. Basically, any
personal information in the possession of a government agency is "private."
See, Reporters Committee, 489 U.S. at 764-767, 109 S.Ct. at 1477-1478.
[46] If the information is "private," the next question is--Whether an
invasion of that privacy is warranted? This requires the Court to examine the
nature of the information and its relationship to the FOIA's basic purpose of
opening agency action to public scrutiny.
Official information that sheds light on an agency's performance of its
statutory duties falls squarely within [the] purpose [of Exemption 7(C) ].
That purpose, however, is not fostered by disclosure of information about
private citizens that is accumulated in various governmental files but that
reveals little or nothing about an agency's own conduct.
Id. 489 U.S. at 773, 109 S.Ct. at 1481. If disclosure does not
serve the FOIA's purpose, the public interest does not outweigh the privacy
interests and the information is exempt. See, Id. 489 U.S. at 773, 109
S.Ct. at 1481; Nadler, 955 F.2d at 1490.
[47] The public interest does not outweigh the privacy interests if
disclosure could subject government employees to harassment and annoyance.
See Nix v. United States, 572 F.2d 998, 1006 (4th Cir.1978). In Nix, the
requester sought the documents containing the identities of FBI agents and an
Assistant United States Attorney who were involved in an investigation into an
alleged civil rights violation of the requester. The potential harassment and
annoyance did not threaten the life or physically safety of the individuals.
See, Id. at 1066 n. 8. The court held that the disclosure of the
individuals' identities constituted an unwarranted invasion of their personal
privacy and were exempt pursuant to Exemption 7(C).
One who serves his state of nation as a career public servant is not thereby
stripped of every vestige of personal privacy, even with respect to the
discharge of his official duties. Public identification of any of these
individuals could conceivably subject them to harassment and annoyance in the
conduct of their official duties and private lives. While the right of privacy
to these FBI agents is perhaps minimal, we *1159 find that the public
interest in the identification of the FBI agents who conducted the
investigation of the alleged civil rights violation of Nix to be even less.
For the same reason, the assistant United States Attorney who made the decision
that appellant's alleged civil rights violation was without prosecutive merit
is also entitled to have his identity remain undisclosed as being an
unwarranted invasion of personal privacy under subsection (7)(C).
Id. at 1006 (footnote omitted); See also, Hale v. U.S. Dept. of
Justice, 973 F.2d 894, 902 (10th Cir.1992), petition for cert. filed,
--- U.S.L.W. ---- (U.S. January 28, 1993) (No. 92-7433) (Non-federal law
enforcement personnel and non-law enforcement personnel have a substantial
privacy interest in protecting their identity.).
[48] The documents and portions of documents containing government
employees' personal information, including names, addresses and social security
numbers, are exempt under Exemption 7(C). For example, the IRS withheld pages
749-752 [FN18] described as:
FN18. The IRS also withheld these pages or portions thereof pursuant to
Exemptions 2 and 6.
Page 749 is a handwritten routing slip dated 11/20/90 from a Service employee
to Inspection employees regarding a proposed meeting. The attachments concern
potential attendees and other details concerning the proposed meeting. (pages
750-752).
Identities of lower level employees, employee handwriting, matters relating
to internal personnel rules and practices of the Service.
The IRS also withheld page 729 [FN19] described as:
FN19. The IRS also withheld these pages or portions thereof pursuant to
Exemption 7(D).
Page 729 is a handwritten routing slip date 10/9/90 to Inspection employees
regarding information received from a confidential source.
Identities of lower level Service employees, employee handwriting, and
reference to confidential source.
The justifications for withholding the information is identical:
The document(s) was/were compiled for law enforcement purposes. Because
public identification of this/these individual(s) could conceivably subject
him/her/them to harassment and annoyance in the conduct of official duties and
in the employee(s)' private life/lives and because the Internal Revenue Service
can discern little or no public interest in this information, the Service
determined that release of personal or identifying information could reasonably
be expected to constitute an unwarranted invasion of the personal privacy of
the lower level government employee(s) whose identity/identities or whose
identifying information has been withheld.
The Service is aware that Scientology related entities and/or persons
affiliated or believed to be affiliated with Scientology have a practice of
aggressively harassing its perceived enemies. This awareness was gained from
the writings attributed to Scientology's founder, Scientology scriptures, the
court opinions detailing such action, and the incidents of harassment reported
in the Los Angeles Times series published between June 24, and June 29, 1990,
in the Time magazine article date May 6, 1991, in other published material, and
in the British Broadcasting Company (BBC) program televised April 1989.
Disclosure of the handwriting of Service employee(s) could reasonably be
expected to constitute an unwarranted invasion of personal privacy by
subjecting the employee(s) to harassment and annoyance in the conduct of
official duties and in the employee(s)' private life/lives. Since the Service
can discern little or no public interest in the information, the Service
determined not to release the handwriting of Service employee(s).
The records were compiled for law enforcement purposes and contain handwriting
samples and identities of IRS employees. This is obviously private
information. The question is whether public disclosure of this information
outweighs the privacy interests involved. First, there is no indication that
disclosure of this information will open IRS action to public scrutiny. Thus,
disclosure does not serve the FOIA's purpose. Second, although the employees
interest in their identities and addresses *1160 may be minimal, the
public's interest in the disclosure of the information is even less. See,
Nix, 572 F.2d at 1006. Finally, there is every indication that disclosure
of this information could subject the employees to harassment and annoyance in
the conduct of their official duties and their private lives. See, Declaration
of John Fuhrman pages 6-13. Consequently, the public interest does not
outweigh the privacy interests and the identities and addresses of lower level
employees are exempt.
[49][50] However, the records withheld pursuant to Exemption 7(C) because
they are in employees' handwriting are not exempt. While the employees may
have a privacy interest in their handwriting, that interest does not outweigh
the public interest in disclosure of the information contained in the
documents. In any event there is a very simple solution that will permit
release of the record and protect the employees' privacy interests. Although
the FOIA does not contain an express provision requiring an agency to reproduce
handwritten documents in a form other than the form in which the agency stores
the document to permit disclosure of the portions of the document that are not
otherwise exempt, such a requirement is implicit in the FOIA's dominant theme
of full agency disclosure, its intent to open agency action to public scrutiny,
and its redaction provisions.
This requirement is supported by May v. Department of Air Force, 777
F.2d 1012 (5th Cir.1985). May made a request under the Privacy Act, 5
U.S.C. s 552a for evaluation forms that related to him. The Air Force denied
the request pursuant to Exemption k(7) of the Privacy Act which exempts
evaluation materials from disclosure "to the extent that the disclosure of such
materials would reveal the identity of a source who furnished information to
the Government...." See, 5 U.S.C. s 552a(k)(7). The Air Force withheld the
evaluations on the ground that the forms were handwritten and disclosure would
reveal the identity of the individual supplying the information. The court
rejected this argument and required the Air Force to reproduce the evaluations,
to the extent that they were not otherwise subject to being withheld, in
typewritten form or in a third persons handwriting.
The Air Force does not dispute that it must release any information in May's
Form 705 evaluations that would not reveal the source of that information.
Rather, the Air Force argues that in the instant case the release of any
information from the forms, including the total number of forms, would reveal
the source of the information. The Air Force contends that because the
handwritten Form 705 recommendations put the raters' identities on every word
of the recommendations, Exemption (k)(7) protects against any disclosure of the
recommendations. If the information is otherwise subject to disclosure, this
concern could be easily remedied by preparing a special copy of the Form 705,
or parts thereof, typewritten or in a third-party's handwriting.
May, 777 F.2d at 1016. The court remanded the case to the trial court for
a determination if any portion of the evaluation forms could be disclosed
without disclosing the raters' identities. See, Id.
[51] All information in documents withheld to protect the employees' privacy
interests in their handwriting that are not otherwise exempt must be reproduced
in a form that protects the employees' privacy interests and disclosed.
Although the IRS must reproduce the documents, the Court believes (and the CST
agrees) that the CST should bear all costs associated with reproducing the
records. See, 5 U.S.C. s 552(a)(4).
(3) Exemption 7(D)
[52] Pursuant to Exemption 7(D), an agency may withhold records or
information compiled for law enforcement purposes to the extent that
disclosure "could reasonably be expected to disclose the identity of a
confidential source ... which furnished information on a confidential basis,
and in the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting
a lawful national security intelligence investigation, information furnished by
a confidential source." Exemption 7(D) contains two separate and distinct
exemptions. The first--"the identity of a confidential source ... which
furnished information *1161 on a confidential basis"--exempts the identity
of a confidential source. See, 5 U.S.C. s 552(b)(7) (emphasis added); See
also, Providence Journal Co. v. U.S. Dept. of Army, 981 F.2d 552, 566 (1st
Cir.1992). The agency may withhold any portion of the document that would
reveal the identity of the confidential source. See, Pope v. United States,
599 F.2d 1383, 1386 (5th Cir.1979). The second--"in the case of a record or
information compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source"--
exempts not only the identity of the confidential source but also the
information provided. See, 5 U.S.C. s 552(b)(7) (emphasis added); See
also, Providence Journal Co., 981 F.2d at 566. The IRS claims the documents
withheld pursuant to Exemption 7(D) are exempt under the first exemption and
release of any portion of the withheld records would reveal the identity of the
confidential source; therefore, the entire document is exempt.
The agency must demonstrate the source provided information "under an
express assurance of confidentiality or in circumstances from which such an
assurance could be reasonably inferred." Conf.Rep. No. 1380, 93d Cong., 2d
Sess. 13, reprinted in 1974 U.S.C.C.A.N. 6267, 6269; See also, Nadler,
955 F.2d at 1484. Congress enacted Exemption 7(D) to ensure that the FOIA did
not impair federal law enforcement agencies' ability to gather information.
See, Nadler, 955 F.2d at 1485. It was intended to ensure sources are
available to provide information for criminal investigations. See, Irons v.
FBI, 880 F.2d 1446, 1450-1451 (1st Cir.1989).
[53][54][55][56] The agency is not required to demonstrate that it expressly
assured confidentiality to a confidential source. See, Pope, 599 F.2d at
1386; See also, Nadler, 955 F.2d at 1486-1487. A court should also find an
assurance of confidentiality where it is reasonable to infer such from the
circumstances. See, Pope, 599 F.2d at 1386, (quoting, H.Conf.Rep. No. 93-
1380, 93d Cong., 2d Sess., p. 13, 1974 U.S.C.C.A.N. 6269); Providence
Journal Co., 981 F.2d at 563; See also, Nadler, 955 F.2d at 1486; Keys
v. Department of Justice, 830 F.2d 337, 345 (D.C.Cir.1987). The First and
Tenth Circuits assume an assurance of confidence, either express or implied,
when an individual gives information to a criminal law enforcement official
unless the circumstances indicate otherwise. See, Providence Journal Co.,
981 F.2d at 565; KTVY-TV, A Division of Knight-Ridder Broadcasting, Inc. v.
United States, 919 F.2d 1465, 1470 (10th Cir.1990); Johnson v. U.S. Dept.
of Justice, 739 F.2d 1514, 1517 (10th Cir.1984). It is irrelevant that the
identity of the confidential source is known. See, Radowich v. U.S. Atty.,
Dist. of Maryland, 658 F.2d 957, 960 (4th Cir.1981). Furthermore, the
information and/or identity of the individual remains confidential subject to
Exemption 7(D) after the investigation is concluded. See, Pope, 599 F.2d
at 1387; KTVY-TV, 919 F.2d at 1471.
[57] The documents and portions of documents containing the identity and
information from confidential sources are not exempt under Exemption 7(D). For
example, the IRS withheld page 729 [FN20] described as:
FN20. The IRS also withheld the page or portions thereof pursuant to
Exemption 7(C).
Page 729 is a handwritten routing slip dated 10/9/90 to Inspection employees
regarding information received from a confidential source.
Identities of lower level Service employees, employee handwriting, and
reference to confidential source.
The IRS justification states:
The withheld document contains information received from a confidential
source which was compiled by the Service during the course of its investigation
of possible harassment of Service employees. The release of this information
could reasonably be expected to reveal the identity of the confidential source.
The record was compiled for law enforcement purposes and contains the identity
of a confidential source. However, neither the justification nor the
affidavits submitted in this case establish that the confidential informant
furnished the information on a confidential basis. Each justification for
withholding documents under Exemption 7(D) *1162 contains the same flaw.
Consequently, the IRS improperly withheld the documents under Exemption 7(D)
and they must be disclosed unless otherwise exempt.
(4) Exemption 7(E)
[58] Exemption 7(E) permits an agency to withhold records or
information compiled for law enforcement purposes to the extent that
disclosure "would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law." Exemption 7(E) only applies to
techniques, procedures and guidelines generally unknown to the public. See,
Hale, 973 F.2d at 902. However, even if known by the public to some extent,
they are nevertheless exempt "if disclosure of the circumstances of their use
could lessen their effectiveness." Id. at 902-903.
[59] The IRS withheld pages 1673-1696 claiming they are exempt under a
number of Exemptions. Two of these pages, 1688-1689, it claims are exempt
under Exemption 7(E). The IRS describes pages 1676-1696 as:
Pages 1673-1696 are handwritten notes, reports, messages, and Memorandums of
Call dealing with the investigation regarding harassment of Service employees.
These items were written by the inspector conducting the investigation, or by
other Service personnel during the course of the investigation. These pages
contain various dates or are undated.
Identities of lower level Service employees and third parties, employee
handwriting, attorney-client communications, third party return information,
information provided by a confidential source, and investigative techniques
(pages 1688-1689).
The IRS justification states:
The document(s) was/were compiled for law enforcement purposes....
The release of certain information contained in these law enforcement records
would also disclose law enforcement techniques and procedures used in law
enforcement investigation, which are not well known to the public.
Although these are law enforcement records compiled for law enforcement
purposes the production of which would disclose techniques and procedures used
in law enforcement investigations and prosecutions, the IRS has not established
that their disclosure could reasonably be expected to circumvent the law.
Consequently, these pages are not exempt under Exemption 7(E) and the IRS must
release them.
V. SEGREGABILITY
[60][61][62] The IRS must also disclose "[a]ny reasonably segregable portion
of a record ... after deletion of the portions which are exempt." See, 5
U.S.C. s 552(b); See also, Schiller, 964 F.2d at 1209, (quoting, Mead
Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 260
(D.C.Cir.1977)) ("By 1977, it had 'long been a rule in this Circuit that non-
exempt portions of a document must be disclosed unless they are inextricably
intertwined with exempt portions.' ")). If a document cannot be segregated
into exempt and non-exempt portions, the agency must state that it cannot and
explain why it cannot. See, Schiller, 964 F.2d at 1209-1210. The only
statement regarding segregability the IRS made for each withheld document
was: "The document cannot be segregated for partial release." It did not
explain why the document could not be segregated and released. Without this
information the Court is unable to determine de novo whether the document can
or cannot be segregated. The burden is on the agency to prove the document
cannot be segregated for partial release. The IRS has not met its burden and,
consequently, must segregate all non-exempt portions and release them.
VI. CONCLUSION
IT IS ORDERED that the Internal Revenue Service's Motion for Summary
Judgment is GRANTED in part and DENIED in part.
IT IS ORDERED that the Church of Scientology of Texas' Motion for Summary
Judgment is GRANTED in part and DENIED in part.
IT IS ORDERED that the Internal Revenue Service immediately disclose to the
Church of Scientology of Texas all documents *1163 or portions thereof
containing resource allocation information that the Internal Revenue Service
withheld under the authority of Exemption 2 that are not otherwise held exempt
by this Order.
IT IS ORDERED that the Internal Revenue Service immediately reproduce all
documents containing employee handwriting and disclose all information in those
documents that is not otherwise held exempt under this Order.
IT IS ORDERED that the Internal Revenue Service immediately disclose to the
Church of Scientology of Texas pages 1688-1689.
IT IS ORDERED that the Internal Revenue Service may withhold all information
contained in records that is protected by the attorney-client privilege,
attorney work-product and/or deliberative process privilege.
IT IS ORDERED that the Internal Revenue Service may withhold all "tax return
information" as that term is defined by 26 U.S.C. s 6103(b)(2).
IT IS ORDERED that the Internal Revenue Service may withhold all information
contained in records that identifies "lower level employees" including
handwriting, names, addresses and/or social security numbers.
IT IS ORDERED that the Internal Revenue Service may withhold all information
withheld pursuant to Exemption 7(A).
IT IS ORDERED that the Internal Revenue Service may withhold all information
withheld pursuant to Exemption 6.
IT IS ORDERED that the Internal Revenue may withhold all "financial disclosure
statements."
IT IS ORDERED that the Internal Revenue may withhold all information withheld
pursuant to Exemption 3 in conjunction with Federal Rule Criminal Procedure
6(e).
IT IS ORDERED that the Internal Revenue Service immediately segregate and
disclose to the Church of Scientology of Texas all withheld documents or
portions thereof that have not been held exempt by this Order.
IT IS ORDERED that all other pending motions are DISMISSED.