Case: 08-20724 Document: 00511034757 Page: 1 Date Filed: 02/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2010
No. 08-20724 Charles R. Fulbruge III
Clerk
MARK E BATTON,
Plaintiff - Appellant
v.
MARK W EVERS, Commissioner Internal Revenue Service; UNITED
STATES OF AMERICA,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GARZA, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Appellant Mark E. Batton appeals the district court’s grant of summary
judgment in favor of the Internal Revenue Service (“IRS”) on his Freedom of
Information Act (“FOIA”) claims.1 He also asserts that the district court erred
1
The IRS correctly notes that the appellant improperly named the United States and
Mark W. Evers, the Commissioner of the Internal Revenue Service (whose real name is Mark
W. Everson), as defendants. Under the FOIA, a court has jurisdiction to “enjoin the agency
from withholding agency records and to order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B) (2006) (emphasis added). A FOIA
plaintiff may not assert a claim against an individual federal official; the proper defendant is
the agency. See Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) (“Neither the Freedom of
Information Act nor the Privacy Act creates a cause of action for a suit against an individual
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by denying his motion for a Vaughn index, quashing the subpoenas he served on
several IRS agents, and denying his motion for attorneys’ fees and costs. We
conclude that the district court abused its discretion by failing to order a Vaughn
index; accordingly, we REVERSE the award of summary judgment and
REMAND for further proceedings.
I. Background
In 2005, the IRS conducted an audit of taxpayer Mark E. Batton (“Batton”)
to assess his federal income tax liabilities for the tax years 2001 to 2003.2 While
the IRS has not brought any criminal charges against Batton,3 it has developed
a substantial file concerning his potential tax liabilities. It is this file that is the
subject of the instant litigation.
On November 7, 2006, Batton, acting through his attorney, filed a FOIA
request, seeking all information and documents relating to the audit that are in
the possession of the IRS. See 5 U.S.C. § 552 (2006). Batton’s FOIA request
identified sixteen categories of documents to be produced, including his 2001
federal tax return; copies of all communications between himself and the IRS
pertaining to his federal tax liabilities for the 2001 to 2003 tax years; and copies
employee of a federal agency.”); see also Santos v. DEA, 357 F. Supp. 2d 33, 36 (D.D.C. 2004)
(“A plaintiff may not assert a FOIA claim against individual federal officials.”). Accordingly,
neither the United States nor Mr. “Evers” is a proper party to this action. On remand, the
plaintiff should be given an opportunity to substitute the IRS as the proper party to this
action.
2
During its investigation, the IRS served Batton with a summons requiring him to
testify and produce documents relating to his tax filings. When Batton did not respond, the
IRS brought an action to enforce the summons. The district court found Batton in contempt
and ordered him to be incarcerated. Batton appealed to this court and we affirmed. United
States v. Batton, 267 F. App’x 363 (5th Cir.) (unpublished), cert. denied, 129 S. Ct. 310 (2008).
Batton later filed a motion for a stay of detention pending appeal, which was also denied.
United States v. Batton, 287 F. App’x 414 (5th Cir. 2008) (unpublished). Batton has
subsequently been released from incarceration.
3
The IRS informed this court at oral argument that it is no longer investigating
Batton’s criminal liability; it is, however, continuing to investigate his potential civil liability
for tax years 2001 to 2003.
2
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of any checks, deposit slips, or other banking records related to his tax liabilities
for those years.
On December 8, 2006, the IRS responded to Batton’s FOIA request by
informing Batton that additional time was needed to comply with his request.4
The IRS sent similar letters to Batton in January, February, March, May, July,
and August 2007.5 During this time, the IRS did not produce any of the
requested documents. On September 6, 2007, Batton filed suit in federal district
court, seeking disclosure of the requested documents, as well as costs and
attorneys’ fees.
On January 18, 2008, the IRS notified Batton that approximately 5,318
pages of documents had been located and identified as responsive to his FOIA
request. At that time, the IRS released 953 pages of documents to Batton, of
which thirty-four pages were partially redacted. On July 29, 2008, the IRS
released an additional 249 pages of documents pursuant to Batton’s FOIA
request. Only one of the 249 pages was partially redacted.
Batton then subpoenaed five IRS agents for depositions and to compel
production of the remaining documents relating to his FOIA request. The IRS
moved to quash the subpoenas. The district court granted the motion. Batton
4
FOIA obligates the IRS to determine within twenty days of receiving a request
whether it will comply and “immediately notify the person making such request of such
determination and the reasons therefor.” § 552(a)(6)(A)(i). The statute does authorize an
agency to grant itself a ten-day extension before commencing the investigation,
§ 552(a)(6)(B)(i), but states that a person making the FOIA request “shall be deemed to have
exhausted his administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions.” § 552(a)(6)(C)(i). A court may then
authorize the agency to take additional time to review the records only if the agency
demonstrates that “exceptional circumstances exist and that the agency is exercising due
diligence in responding to the request.” Id.
5
In a letter dated February 28, 2007, the IRS informed Batton that he needed to pay
a $300 fee before the IRS could process his requested documents. The letter instructed Batton
that failure to pay the fee by March 30, 2007, would result in his request being terminated and
the file closed. Batton paid the fee before the deadline.
3
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later filed a motion to extend the discovery period. That motion was denied by
the district court.
The IRS moved for summary judgment, asserting that it was entitled to
withhold the requested documents under several exemptions to the FOIA. In
support of its motion, the IRS submitted declarations by IRS agents Sarah
Sheldon (“the Sheldon declaration”), Michael Gregory (“the Gregory
declaration”), and Karen Hines (“the Hines declaration”). The Sheldon
declaration identified two broad types of documents—“Examination
Workpapers” and “Agent’s Working Papers”—and the purportedly applicable
exemptions justifying withholding. For each statutory exemption asserted,
Sheldon listed the page numbers of the file that were withheld in whole or in
part. The Gregory declaration supplemented the Sheldon declaration and
asserted that Examination Workpapers are exempt from disclosure because they
would constitute a “serious impairment to the Federal tax administration.” The
Hines declaration set forth the procedures by which the IRS conducted its search
for responsive documents.
Batton moved to compel the IRS to produce a more detailed index
identifying the documents located in response to his FOIA request and
articulating a basis for the withholding of each document (“a Vaughn index”).
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); see also Jones v. FBI, 41
F.3d 238, 241 (6th Cir. 1994) (“A Vaughn index is a routine device through which
the defendant agency describes the responsive documents withheld or redacted
and indicates why the exemptions claimed apply to the withheld material.”).
The district court denied Batton’s motion for a Vaughn index and granted the
IRS’s motion for summary judgment. The court held that Batton did not create
a genuine issue of material fact about the application of any of the exemptions
claimed by the IRS.
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Batton filed this timely appeal. He asserts that the district court erred by
denying his motion to compel production of a Vaughn index, quashing his
subpoenas, granting summary judgment, and denying him costs and attorneys’
fees.
II. Standard of Review
We review a district court’s grant of summary judgment de novo.
Flightsafety Servs. Corp. v. Dep’t of Labor, 326 F.3d 607, 610 (5th Cir. 2003). In
general, summary judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
F ED. R. C IV. P. 56(c). In the FOIA context, however, the traditional standard is
modified because “the threshold question in any FOIA suit is whether the
requester can even see the documents the character of which determines
whether they can be released.” Cooper Cameron Corp. v. U.S. Dep’t of Labor,
OSHA, 280 F.3d 539, 543 (5th Cir. 2002).6 Accordingly, the FOIA statute
provides that, when the Government withholds information from disclosure, the
agency has the burden to prove de novo that the information is exempt from
disclosure. § 552(a)(4)(B). Thus, “because the burden to establish an exemption
remains with the agency, the district court should not grant summary judgment
based on a ‘conclusory and generalized’ assertion, even if the FOIA requester has
6
The parties concede a de novo standard applies here. Earlier precedents have
suggested what appears to be a different standard of review for FOIA summary judgments.
Villanueva v. Dep’t of Justice, 782 F.2d 528, 530 (5th Cir. 1986) (“An appellate court reviewing
a trial court’s Freedom of Information Act decision must determine whether the district court
had an adequate factual basis for its decision, and, if so, whether the decision it reached was
clearly erroneous.”). However, a review of the cases shows that the focus in each is different.
In Villanueva, the court conducted an in camera inspection of the documents and, necessarily,
made findings of fact thereupon. In that instance, of course, our usual standard of review for
fact findings—the clearly erroneous standard—would apply. Thus, where the court
necessarily has to determine facts as part of the FOIA withholding analysis, the clearly
erroneous standard applies. However, where, as here (and as in Cooper) the question is more
of a threshold one of whether the court had sufficient information from which to determine the
exemptions—a question of law—the de novo standard applies.
5
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not controverted that assertion.” Cooper Cameron Corp., 280 F.3d at 543
(quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18
(D.C. Cir. 1999)).
In applying this standard, we are mindful of the purpose behind the FOIA.
The FOIA was enacted to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425
U.S. 352, 361 (1976) (quotation marks and citation omitted). The exemptions
to disclosure are explicitly limited by statute and should be construed narrowly.
Id. Thus, in a FOIA case, a court “generally will grant an agency’s motion for
summary judgment only if the agency identifies the documents at issue and
explains why they fall under exemptions.” Cooper Cameron Corp., 280 F.3d at
543 (emphasis added).
Conversely, we review a district court’s decision whether to order the
production of a Vaughn index, as well as general discovery orders, for an abuse
of discretion. Stephenson v. IRS, 629 F.2d 1140, 1145 (5th Cir. 1980) (“Resort to
in camera review is discretionary, as is resort to a Vaughn index.”) (internal
citation omitted). This court has stated that, while the FOIA “leaves to the
[district] court’s discretion whether to order an examination of the contents of
the agency records at issue, in camera,” in determining whether the claimed
exemptions apply, “the legislative intent for exercise of this discretion is
relatively clear.” Id. at 1144. This is because “in instances where it is
determined that records do exist, the District Court must do something more to
assure itself of the factual basis and bona fides of the agency’s claim of
exemption than rely solely upon an affidavit.” Id. at 1145.
Finally, in analyzing the affidavits and declarations submitted by the
government, the agency is entitled to a “presumption of legitimacy” unless there
is evidence of bad faith in handling the FOIA request. U.S. Dep’t of State v. Ray,
502 U.S. 164, 179 (1991). The presumption of legitimacy, however, does not
6
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relieve the withholding agency of its burden of proving that the factual
information sought falls within the statutory exemption asserted. Stephenson,
629 F.2d at 1145.
With these standards in mind, we now turn to the merits of this case.
III. The Adequacy of the Search
As a threshold matter, we must first address whether the IRS’s search for
responsive documents was adequate. Santos v. DEA, 357 F. Supp. 2d 33, 37
(D.D.C. 2004). An agency may demonstrate that it conducted an adequate
search by showing that it used “methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
68 (D.C. Cir. 1990).
In this case, the IRS relied on the Sheldon and Hines declarations to
demonstrate the adequacy of its search. The Sheldon declaration states that the
Oklahoma City Disclosure Office searched documents identified by the agent
assigned to investigate Batton, “as well as internal databases and systems of
records to locate documents responsive to [Batton’s] FOIA request. The [IRS]
conducted the search based on the personal information provided by [Batton] in
his FOIA request within the databases and systems of records available to the
Disclosure Office.” The Hines declaration lists the particular databases that
were searched and explains that these databases contain the type of information
requested by Batton.
We conclude that, based on the Sheldon and Hines declarations, the IRS
has demonstrated that it performed a search reasonably calculated to yield
responsive documents. The IRS’s search uncovered over 5,200 responsive
documents using the personal identifying information contained in Batton’s
FOIA request. The Hines declaration states that the search was conducted
using the available electronic databases, as well as paper documents and
documents in the possession of the assigned IRS investigative agent. While
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Batton asserts that other documents may exist that were not located in the
search, we must decide only whether the search was adequate. See In re Wade,
969 F.2d 241, 249 n.11 (7th Cir. 1992) (“The issue is not whether other
documents may exist, but rather whether the search for undisclosed documents
was adequate.”); Oglesby, 920 F.2d at 68 (“There is no requirement that an
agency search every record system.”). We conclude that the Sheldon and Hines
declarations sufficiently prove the adequacy and reasonableness of the IRS’s
search.
IV. The Vaughn Index
The central issue on appeal is whether the declarations submitted by the
IRS in support of its motion for summary judgment sufficiently identify the
documents at issue, including the relevant information contained in each
document, and explain why the asserted exemptions justify withholding. Cooper
Cameron Corp., 280 F.3d at 543. Batton asserts that the district court should
have ordered a more detailed Vaughn index because it is impossible to determine
whether the claimed exemptions apply to the documents based on the Sheldon
and Gregory declarations. The IRS asserts that it is entitled to withhold
Examination Workpapers 7 and Agent’s Working Papers 8 under numerous
7
The Sheldon declaration defines “Examination Workpapers,” as:
[D]ocuments contain[ing] the agent’s development and analysis of
the evidence obtained during the course of his examination of
plaintiff and reflects the agent’s belief that plaintiff has not
complied with the Internal Revenue Code. The documents consist
of information gathered from public and private sources, interview
notes, case history notes, and internal transcripts prepared by the
IRS. The revenue agent conducted on-line research of public
websites to obtain information relating to state tax and offshore
banking. The revenue agent also obtained additional information
from private third parties regarding transactions and banking
information. The interview notes consist of the revenue agent’s
8
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exemptions. The Sheldon declaration sets forth the different exemptions
applicable to certain categories of documents and their corresponding page
numbers. We address each of the asserted exemptions in turn.
Examination Workpapers
1. Exemption 3 & Internal Revenue Code § 6103(a)—Third Party Tax Returns
and Tax Information
The Sheldon declaration asserts that “certain Examination Workpapers
consisting of case history notes and information from private sources [that]
contain return information for persons other than plaintiff are exempt from
notes for interviews conducted with the plaintiff, plaintiff’s
representative, and third parties. Finally, the case history notes
consist of the revenue agent’s log of activity in the examination
including contacts made with plaintiff, powers of attorney, third
parties, contacts with the IRS employees and managers, information
requested and received from plaintiff, as well as the agent’s
thoughts on how to proceed.
8
The Sheldon declaration defines “Agent’s Working Papers” as:
[T]he revenue agents’ notes, calculations, and summaries . . .
prepared by the agents as part of their examination of plaintiff’s tax
liabilities and [that] may be used to determine whether to refer
plaintiff’s case to Criminal Investigation for a possible investigation.
The working papers consist of the revenue agents’ analysis of
different transactions and plaintiff’s financial statements. The
notes summarize the issue(s), the facts or information gathered and
from whom, whether additional documents were requested, the
agents’ analysis, the provisions of the Internal Revenue Code the
agents believed applied, and the agents’ conclusions. Portions of the
revenue agents’ notes contain financial calculations where the
agents were calculating the correct amount of income, expenses, or
deductions based on the information they gathered during the
examinations.
9
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disclosure to plaintiff under FOIA exemption (b)(3) in conjunction with Internal
Revenue Code § 6103(a).”
FOIA Exemption 3, 5 U.S.C. § 522(b)(3) (2006), states that an agency need
not disclose any documents “specifically exempted from disclosure by statute” if
the statute “requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue” or “establishes particular criteria
for withholding or refers to particular types of matters to be withheld.” Section
6103(a) of the Internal Revenue Code, in turn, provides that tax returns, as well
as return information, are confidential and shall not be disclosed to anyone other
than the taxpayer. See 26 U.S.C. § 6103(a) (2006).
The IRS asserts that the case history notes and information from private
sources are properly withheld under Exemption 3 because they contain third
party tax returns and taxpayer information. But it is impossible to tell from the
Sheldon declaration and the rest of the summary judgment record what
information is contained within the “case history notes and information from
private sources” and whether, in whole or in part, the documents contain third
party taxpayer information.
While we generally accept a district court’s factual descriptions of the
contents of the requested documents unless the descriptions are clearly
erroneous, see Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312,
319 (D.C. Cir. 2006), the district court did not make any factual descriptions of
the documents in this case or conduct an in camera review. Nor does it logically
follow that case history notes and information from private sources contain
exclusively third party tax information, rather than segregable portions. We
recognize that in many instances an agency may submit an affidavit or
declaration categorically describing the types of documents and the applicable
exemptions to justify its withholding. But where the agency affidavit fails to
identify the particular type of the document being withheld—and the party
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seeking disclosure contests the type of information it contains—a district court
may not simply rely on a broad categorical approach to withholding. Cooper
Cameron Corp. 280 F.3d at 553-54.
Indeed, in a case arising under virtually identical circumstances, this court
held that a Vaughn index or similar procedure must be utilized to determine the
factual nature of the information sought and whether that information fell
within the statutory exemption asserted. Stephenson, 629 F.2d at 1144. In that
case, the IRS sought to withhold portions of its investigative file from a
requesting taxpayer because, inter alia, the investigatory files on the taxpayer
“contained certain documents . . . reflecting the tax affairs of unrelated third
parties.” Id. at 1143 n.5. This court vacated the grant of summary judgment
and remanded the case to the district court because, in cases where the parties
agree that the governmental agency possesses the records and documents, “more
is required.” Id. at 1145. Thus, a court abuses its discretion by refusing to order
a Vaughn index or similar procedure when it relies “upon agency affidavit in an
investigative context when alternative procedures such as sanitized indexing,
random or representative sampling in camera with the record sealed for review,
oral testimony or combinations thereof would more fully provide an accurate
basis for decision.” Id. at 1145-46.
This conclusion is further bolstered by the statutory scheme of the FOIA.
Section 522(b) of the FOIA states that “[a]ny reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of
the portions which are exempt under this subsection.” In this case, no factual
findings were made regarding the content of the documents or whether any third
party tax returns contained within the documents were segregable from other
portions. See Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992) (“It is error
for a district court to simply approve the withholding of an entire document
without entering a finding on segregability, or the lack thereof.”) (internal
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quotation marks and citation omitted). The general description of “case history
notes and information from private parties” does not tell us anything about the
individual documents and why more general information—for example, the
dates, authors, or brief description of the subject matter of the notes and
information—cannot be disclosed. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172,
1180-81 (D.C. Cir. 1996) (“Since Vaughn and its progeny require that an agency
itemize each document and explain the connection between the information
withheld and the exemption claimed, the Army should be required on remand
to provide any disclosable information regarding each document in the . . .
‘compilation.’”).
We note that agency affidavits are generally accorded a “presumption of
legitimacy” unless there is evidence that the agency handled the FOIA request
in bad faith. See Ray, 502 U.S. at 179. Nonetheless, the IRS may not simply
rely on a presumption of good faith to prove the applicability of an exemption.
See, e.g., Cooper Cameron Corp., 280 F.3d at 543 (generalized statements are
insufficient to carry the agency’s burden of proof). In other words, while we
assume that the IRS is telling the truth in its affidavits, its conclusory “say so”
does not, alone, carry its burden of establishing an exemption.
In sum, it is impossible to tell based on the Sheldon declaration and the
entire summary judgment record whether all of the information contained
within the broad category of “case history notes and information from private
sources” is exempt from disclosure under Exemption 3 and § 6103(a) of the
Internal Revenue Code. Accordingly, we conclude that the district court abused
its discretion by failing to order a Vaughn index and granting the IRS summary
judgment on the applicability of this exemption.
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2. Exemption 3 & Internal Revenue Code § 6103(e)(7)—Serious Impairment to
the Federal Tax Administration
The Sheldon declaration also asserts that “Examination Workpapers
consisting of information from public and private sources as well as interview
notes are exempt from disclosure to plaintiff under FOIA exemption (b)(3) in
conjunction with I.R.C. § 6103(e)(7), as the [IRS] has determined that the
release of this information would constitute a ‘serious impairment to the Federal
tax administration.’” The declaration further states:
Pages of the Examination Workpapers were prepared by the
revenue agent during the course of his examination of plaintiff and
in connection with a possible referral of plaintiff’s case to Criminal
Investigation for investigation. A referral to Criminal Investigation
to date has not been made. The pages withheld represent the
revenue agent’s development and analysis of evidence obtained
during the course of his examinations and, therefore, reflect the
agent’s basis for believing plaintiff may have failed to comply with
the Internal Revenue Code. At present, the release of this
information would impair the civil tax examination and impede the
IRS’s ability to properly enforce the Internal Revenue Laws and
further hamper the IRS’s ability to collect any tax owed.
The Gregory declaration supplements this conclusion by asserting that the
release of “information from public and private sources as well as interview
notes . . . would constitute a ‘serious impairment of the Federal tax
administration.’”
We conclude that the Sheldon and Gregory declarations contain an
insufficient description of the withheld documents from which we may conclude
that Exemption 3 applies. The declarations fail to describe with specificity the
documents constituting “information from public and private sources as well as
interview notes” or why the IRS believes that release of these documents would
impede its ability to collect any taxes owed. King v. U.S. Dep’t of Justice, 830
F.2d 210, 224 (D.C. Cir. 1987) (“Categorical description of redacted material
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coupled with categorical indication of anticipated consequences is clearly
inadequate.”). Indeed, in Stephenson, this court held that such conclusory
statements failed to provide an adequate factual basis from which to conclude
the documents are exempt. 629 F.2d at 1144 n.9, 1145.
While the Sheldon and Gregory declarations clearly explain that the
release of “information from public and private sources as well as interview
notes” would impair the IRS’s administration of the federal tax laws, we cannot
discern the type of information contained within the documents from the
declarations. The generic category “information from public and private sources
as well as interview notes” prevents this court from meaningfully reviewing the
applicability of the exemption. Stephenson, 629 F.2d at 1145; see also Oglesby,
79 F.3d at 1184 (rejecting the adequacy of the agency’s Vaughn index because
the “affidavits contain only sweeping and conclusory assertions that the agency
withheld the documents because they contained material which could reasonably
be expected to cause damage to national security [and] offer no functional
description of the documents; [the agency] has failed to disclose the types of
documents, dates, authors, number of pages, or any other identifying
information for the records it has withheld”).
Accordingly, we conclude that there is insufficient factual information from
which this court may conclude that the agency satisfied its burden of proof in
withholding these documents under Exemption 3. As such, it was error to
sustain the withholding of these documents without more information in the
form of a Vaughn index or in camera inspection.
3. Exemptions 6 and 7(C)—Invasion of Personal Privacy
The Sheldon declaration also asserts that “certain Examination
Workpapers, including information from public and private sources, and/or
portions thereof that contain information pertaining to persons other than
plaintiff are exempt from disclosure under FOIA exemptions (b)(6) and (b)(7)(C)
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because the release of the information would be an unwarranted invasion of
personal privacy of the individuals identified in these records and would provide
little, if any, insight into the operations of the IRS.”
Exemption 6 provides that an agency need not disclose “personnel and
medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” § 552(b)(6). Exemption 7(C)
provides that an agency need not disclose “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law
enforcement records or information . . . (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C).
The Supreme Court has clarified that “whether disclosure of a private
document under Exemption 7(C) is warranted must turn on the nature of the
requested document and its relationship to the basic purpose of the Freedom of
Information Act to open agency action to the light of public scrutiny, rather than
on the particular purpose for which the document is being requested.” U.S. Dep’t
of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772 (1989)
(internal citation and quotation marks omitted). Instead, the “court must
balance the public interest in disclosure against the interest Congress intended
the Exemption to protect.” Id. at 776. This court has performed the same
analysis in cases arising under Exemption 6. Avondale Indus., Inc. v. NLRB, 90
F.3d 955, 960 (5th Cir. 1996).
Here again, we are unable to determine the nature of the withheld
documents from the general category “certain Examination Workpapers,
including information from public and private sources, and/or portions thereof
that contain information pertaining to persons other than plaintiff.” Absent a
more detailed description of the types of documents falling within this category,
we are unable to meaningfully review the applicability of this exemption.
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In so holding, we do not suggest that a listing by categorical type of
withheld documents is inappropriate. Indeed, this court has recognized that a
categorical approach may be taken to determine whether records are exempt
from disclosure in cases that implicate law enforcement records or concerns over
an unwarranted invasion of privacy. Cooper Cameron Corp., 280 F.3d at 544 &
n.11; Reporters Comm. for Freedom of the Press, 489 U.S. at 777-78. But unlike
a case where an agency asserts that “rap sheets in general . . . are ‘law
enforcement records’” that are exempt from disclosure, Reporters Committee for
Freedom of the Press, 489 U.S. at 779, the Sheldon affidavit does not identify
particular types of documents that are categorically exempt. In other words,
using the law enforcement example from the Reporters Committee case, it is one
thing to say that a particular type of document—e.g., a “rap sheet”—is
categorically a “law enforcement document” and quite another to say “we
withheld a group of law enforcement documents.” In this case, the ambiguity in
the type of documents withheld and the information contained therein makes it
impossible to determine whether the individuals named in the documents have
a viable privacy interest. See Avondale Indus., Inc., 90 F.3d at 960.
In short, it is impossible to tell the type of information contained within
the broad category of “certain Examination Workpapers, including information
from public and private sources.” These broad, conclusory descriptions of the
documents afford Batton no opportunity to challenge the withholding and offer
this court no opportunity to meaningfully review the applicability of the claimed
exemptions. Vaughn, 484 F.2d at 824-25.
We do not have factual findings to aid our review of the applicability of
Exemptions 6 and 7(C), and we cannot determine on this record whether
information could be redacted to prevent an invasion of personal privacy. The
FOIA authorizes several means of preventing disclosure of third party
identifying information. See § 552(a)(2) (providing that, “[t]o the extent required
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to prevent a clearly unwarranted invasion of personal privacy, an agency may
delete identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, or staff manual or instruction”); § 522(b)
(“Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under
[subsection (b)].”). A Vaughn index, perhaps coupled with an in camera review
of a limited subset of documents, would aid this analysis.
4. Exemption 7(A)—Law Enforcement Purposes
Finally, the Sheldon declaration asserts that “certain documents,” in whole
or in part, are exempt under § 552(b)(7)(A), which exempts an agency from
disclosing “records or information compiled for law enforcement purposes, but
only to the extent that production of such law enforcement records or
information (A) could reasonably be expected to interfere with enforcement
proceedings.” The Sheldon declaration states that these documents are exempt
under 7(A) because
[t]here is an on-going examination of the plaintiff’s tax liabilities
and the release of the withheld information would interfere with the
development of the government’s case, by prematurely disclosing
information to plaintiff before the Service has completed its
investigation and made a final determination as to plaintiff’s
outstanding tax liabilities. Because the examination involves
several offshore transactions with plaintiff, a premature release of
the agents’ analysis and investigative efforts could enable plaintiff
to craft explanations or defenses based on this information. Such
events would interfere with the Service’s ability to determine
whether plaintiff has complied with the tax laws, and to correctly
determine the Federal taxes owed by plaintiff. The release of this
material at this time would impede the IRS’s collection and law
enforcement efforts.
The Supreme Court has held that generic categorical determinations of
exemption may be made under Exception 7(A) for witness statements. NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 235-36 (1978). In that case, the
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Court held that the entire category of NLRB witness statements were exempt
from disclosure under 7(A). Here, it appears that the district court held that the
documents were categorically exempt from disclosure under Exemption 7(A) as
well. This is a question of law that we review de novo, giving no deference to the
district court’s decision. Avondale Indus., Inc., 90 F.3d at 958.
But the problem here is that it is impossible to determine the exact type
of documents that the IRS asserts are exempt under 7(A). Unlike Robbins,
where the court was presented with the question of whether NLRB witness
statements are exempt, the Sheldon affidavit speaks only of “certain documents”
that are exempt because disclosure would interfere with law enforcement
proceedings. As we discussed above, it is one thing to speak categorically about
a particular type of document and quite another to speak categorically about a
generic group of documents. The Supreme Court made clear that the type of
document—for example, witness statements—can lend itself to a categorical
claiming of the exemption. 437 U.S. at 241. It expressly refused to find that an
agency can simply claim the exemption for everything in a file labeled
“investigative.” Id. at 236. This is plainly insufficient to satisfy the IRS’s
burden of proving the applicability of the exemption to the withheld documents.
Stephenson, 629 F.2d at 1145.
Accordingly, we find that the district court abused its discretion by failing
to order a Vaughn index of the Examination Workpapers. We now turn to the
remaining category of documents that the IRS asserts are exempt, the “Agent’s
Working Papers.”
Agent’s Working Papers
The Sheldon declaration also asserts that Agent’s Working
Papers—defined as “documents consisting of the revenue agents’ notes,
calculations, and summaries”—are exempt from disclosure. We address each of
these exemptions in turn.
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1. Exemption 5—Deliberative Process Privilege
The Sheldon declaration asserts that the Agent’s Working Papers “are
exempt under FOIA exemption 5 as pre-decisional and part of the deliberative
process. The information includes the revenue agent’s development and analysis
obtained during the course of their examination of plaintiffs [sic], as well as their
opinions and recommendations as to the direction of the examination and a
possible criminal referral.”
Exemption 5 states that an agency may 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.” § 552(b)(5). Courts have
interpreted this provision to cover materials that “reflect the personal opinions
of the writer rather than the policy of the agency,” Morley v. CIA, 508 F.3d 1108,
1127 (D.C. Cir. 2007) (quotation marks and citation omitted), but not “[f]actual
material that does not reveal the deliberative process,” id. (quotation marks and
citation omitted).
We agree that “the revenue agents’ development and analysis . . . as well
as their opinions and recommendations as to the direction of the examination
and a possible criminal referral” are exempt as part of the deliberative process
under Exemption 5.
Batton asserts that, while this information may be exempt, factual
information contained within the documents is not and the IRS must redact the
exempt material to disclose any pertinent factual information. We have no
factual findings to review as to whether the Agent’s Working Papers include
factual information as Batton asserts and, if so, whether that information is
segregable. The Sheldon declaration does describe the Agent’s Working Papers
as including “the facts or information gathered.” Accordingly, a factual dispute
exists about the content of the Agent’s Working Papers. Because the factual
content of the documents is unclear, “the applicability of the exemption cannot
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be assessed” and the court must remand the case for the agency to provide “at
least the minimal information necessary to make a determination.” Morley, 508
F.3d at 1127 (quotation marks and citation omitted).
2. Exemption 7(A)—Law Enforcement Purposes
Finally, the Sheldon affidavit asserts that, for the same reasons the
Examination Workpapers are exempt under Exemption 7(A), the Agent’s
Working Papers are exempt under Exemption 7(A) because disclosure “would
interfere with the IRS’s on-going examination of the plaintiff.”
Again, we are presented with an exemption that often may be
appropriately analyzed under a categorical approach. Robbins Tire & Rubber
Co., 437 U.S. at 224. Thus, the question is whether the broad category of
“Agent’s Working Papers” is sufficiently detailed for this court to determine
whether Exemption 7(A) applies.
In this respect, the Sheldon declaration does define “Agent’s Working
Papers” more narrowly than “Examination Workpapers.” The declaration defines
the documents withheld as “the revenue agents’ notes, calculations, and
summaries” and asserts that disclosure of these documents would impair the
IRS’s collection and law enforcement efforts. The IRS asserts that over 2,500 of
the withheld pages are immune from disclosure under this exemption.
Nonetheless, this court is bound by prior precedent in determining
whether the Sheldon declaration is sufficient to sustain the IRS’s burden of
proving that Exemption 7(A) applies. In this respect, our decision in Stephenson
is directly on point. In that case, the IRS asserted that disclosure of similar
agent working papers would interfere with the investigation of the requesting
taxpayer by revealing the evidence gathered against the taxpayer, as well as
“the direction of the investigation, and the scope and limits of the Government’s
investigation.” 629 F.2d at 1143 n.5. The Stephenson court held that where the
existence of the records is known and a factual dispute exists regarding the
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content of the documents, the district court abused its discretion by failing to
order a Vaughn index or similar device. Id. at 1144.
The facts of this case are not distinguishable from the facts in Stephenson.
The parties do not dispute that the IRS’s investigative file exists. The parties
disagree regarding the content of the withheld documents because Batton
asserts that at least part of these documents contain factual information that
must be disclosed under the FOIA. The district court did not order a Vaughn
index, which would require the IRS to provide a more detailed description of the
contents of the withheld documents. Nor did the district court resolve the
factual dispute or make a finding regarding segregability. Accordingly, we must
remand the case for additional proceedings because we are unable to determine
whether the withheld materials, in whole or in part, fall within the exemptions
asserted.
In sum, we hold that the district court abused its discretion by failing to
order a Vaughn index and therefore must reverse the district court’s grant of
summary judgment in favor of the IRS and remand for further proceedings in
accordance with this opinion.
We need not reach the issue of whether Batton is entitled to discovery in
this case because we are ordering the production of a Vaughn index on remand.
Thus, it is premature to decide whether any further discovery is needed after the
index is produced. We express no opinion about whether Batton may be entitled
to depose IRS agents in future proceedings in this case. Similarly, the issue of
whether Batton is entitled to attorneys’ fees and costs is not ripe for our review
at this time. As a result of our ruling here, we consider both issues—discovery
and fees/costs—to be open issues on remand.
V. Conclusion
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For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment in favor of the IRS and REMAND the case to the district
court for additional proceedings to establish a factual basis for the asserted
exemptions.
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