Crestek, Inc. & Subsidiaries v. Internal Revenue Serv.
Crestek, Inc. & Subsidiaries v. Internal Revenue Serv.
Opinion of the Court
Crestek, Inc. & Subsidiaries and its CEO, J. Michael Goodson (collectively, "Crestek"), challenge the Internal Revenue Service's response to their Freedom of Information Act, or FOIA, requests for 22 categories of documents related to their income tax liabilities from 2006 to 2014. See Compl. Exs. 1, 3. The IRS identified 14,482 pages of responsive records, 12,467 of which it produced in full. Mot. Summary J. Decl. of William V. Spatz (Spatz Decl.) ¶¶ 6-7. The IRS invoked several FOIA exemptions to withhold 920 pages in full and to redact portions of the remaining 1,095 pages. Id. ¶ 7. During this litigation, the IRS resolved some disputes by disclosing additional materials. Reply ISO Mot. Summary J. Supplemental Decl. of William V. Spatz (Supp. Spatz Decl. I) ¶ 20; Second Supplemental Decl. of William V. Spatz (Supp. Spatz Decl. II), ECF No. 41, ¶¶ 8-9. But Crestek still challenges the adequacy of the IRS's search for responsive records. It also disputes many withholdings and redactions that the IRS made under FOIA's exemptions for documents that would not otherwise be available to private parties in litigation and for law enforcement information that could reasonably be expected to compromise a confidential source or to risk circumvention of the law by disclosing investigatory techniques and procedures. Because the search was adequate and at least one FOIA exemption justifies each withholding and redaction, the IRS's Motion for Summary Judgment will be granted.
I. LEGAL STANDARD
To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. ,
To show that any unproduced documents are exempt from FOIA, an agency may file "affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King v. Dep't of Justice ,
An agency has discretion to craft its search to meet this standard and does not have to search every system if additional searches are unlikely to produce any marginal return. See Campbell v. Dep't of Justice ,
II. ANALYSIS
A. The IRS Conducted an Adequate Search
The IRS has provided affidavits describing its search for responsive documents. Mot. Summary J. Declaration of Charlene Inman (Inman Decl.) ¶¶ 4-11; Spatz Decl. ¶¶ 4-5. It has also provided an affidavit stating that, "[t]o the best of my knowledge, there are no other files responsive to [Crestek's] FOIA requests that would be located in any other office or location." Supp. Spatz Decl. I ¶ 13. Crestek challenges both the sufficiency of these declarations and their credibility. See Opp. to Mot. Summary J. 5-6; Sur-Reply to Mot. Summary J. 1-2.
*194Crestek raises two challenges to the sufficiency of the IRS declarations. First , Crestek complains that the declarations do not say the IRS located "all responsive documents." Opp. to Mot. Summary J. 6. But the law does not require such a representation. See Mobley ,
Second , Crestek complains that Lisa Rodriguez and Carmen Presinal-Roberts, "who actually originally gathered and identified the documents," did not author the declarations. Opp. to Mot. Summary J. 6. But Crestek cites no legal authority stating that the person who conducted a search must author the agency's declaration to prove the search's adequacy. See
Crestek has also failed to overcome the presumption of good faith accorded to the IRS declarations. See SafeCard ,
Crestek also challenges the Spatz Declaration's credibility for two reasons. First , it complains that Spatz relied on others to identify responsive records and that this was unreasonable since he identified responsive records that others did not find. Id. at 6. But the Spatz Declaration-and Crestek's observation that Mr. Spatz identified responsive records that others overlooked-shows that he did not simply rely on others. Spatz Decl. ¶¶ 4-5. Second , Crestek challenges the Supplemental Spatz Declaration's credibility because it references Ms. Inman's voicemail without explaining how he would have personal knowledge of it. Sur-Reply to Mot. Summary J. 1-2. But the Supplemental Spatz Declaration explains that Mr. Spatz's information about Ms. Inman's voicemail was based on her representations. Supp. Spatz Decl. I ¶ 8. And none of the statements that Crestek challenges are material to the adequacy of the IRS's search for responsive records. So, I conclude that the declarations provide sufficient and credible evidence that the IRS conducted an adequate search.
B. The IRS Has Justified All Disputed Exemption 5 Redactions and Withholdings
Exemption 5 applies to "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency."
1. The IRS Has Justified All Disputed Deliberative Process Redactions and Withholdings
The deliberative process privilege protects the confidentiality of "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co. ,
An agency invoking the deliberative process privilege "has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas Corp. ,
*196The IRS originally invoked the deliberative process privilege to redact or withhold 168 groups of responsive records. Spatz Decl. ¶ 22. Crestek argued that the IRS had not shown all the documents to be predecisional since the IRS did not state when each document was written or when the relevant decisions took place. Opp. to Mot. Summary J. 8-9. Crestek also argued that the IRS had not shown all the documents to be deliberative since the IRS had not identified the author and recipient. Id. at 9. Crestek did not specify which of its arguments applied to which of the IRS's withholdings and redactions under the deliberative process privilege.
The IRS responded to Crestek's challenge with a supplemental declaration that established the applicability of the deliberative process privilege to 15 of the 168 groups of records at issue. See Supp. Spatz Decl. I. The supplemental declaration clarified why 46 groups of records were predecisional. Id. ¶ 19. But the IRS identified the author and recipient of only 15 of the records that it showed to be predecisional. See Spatz Decl. 19 (Items 1-3), 20 (Items 3-4), 27 (Item 3), 28 (Items 6-7), 36 (Items 3-4), 38 (Item 3), 39 (Items 2-3 and 5), 41 (Item 1). Because the IRS did not show that the remaining 153 groups of records were both predecisional and deliberative, I ordered the IRS to produce these records or submit another supplemental declaration explaining the basis for its withholdings. ECF # 38 (May 14, 2018 Order).
The IRS responded to my order by producing 1,247 pages of responsive records without deliberative process redactions and submitting a supplemental declaration to justify its withholding of the 186 pages that remained at issue. Supp. Spatz Decl. II ¶¶ 8-10. Crestek's response to the supplemental declaration raises three final concerns.
First , Crestek expresses concern about the declaration's statement that "the IRS Appeals Office uses alternative dispute resolution techniques to promote agreement, and the ordinary prohibitions against ex parte communications between IRS Appeals Officers and other IRS employees do not apply to Fast Track." Pls.' Opp. to Supp. Spatz Decl. II 1 (quoting Supp. Spatz Decl. II ¶ 12). Crestek speculates that any ex parte communications that took place "would not properly be a part of the IRS deliberative process." Id. at 1-2.
Second , Crestek challenges the IRS's redactions to six pages of emails. It notes that the redactions protect discussions *197about the effect of a request for assistance that Crestek made to the Taxpayer Advocate Office, and it asserts that these discussions have no connection to the IRS's deliberations about Crestek's tax liability. Pls.' Opp. to Supp. Spatz Decl. II 2. But the IRS explains that the discussions do have a connection to the IRS's deliberative process. Because the Taxpayer Advocate Office has significant power over IRS employees and can require them to take an action permitted by law, to refrain from taking any action, or to stop any action under way, Crestek's request for assistance caused "serious uncertainty" about the next steps for Crestek's case. Supp. Spatz Decl. III ¶ 10. So the IRS exam team discussed "what the IRS could do in the Crestek audit while it was uncertain whether the Taxpayer Advocate Office would intervene" in the team's denial of Crestek's Application for Fast Track Settlement. Id. ¶ 12. These are deliberations that preceded a decision about what next steps the team should take, and they enjoy the protection of the deliberative process privilege.
Third , Crestek challenges the adequacy of Paragraph 27 of the IRS's second supplemental declaration because the IRS "does not provide the identifying names of the individuals claimed to be the IRS Counsel who engaged in communications." Pls.' Opp. to Supp. Spatz Decl. II 2.
After several rounds of briefing, four declarations, and extensive production, the parties have narrowed their disputes about the deliberative process privilege down to three issues. None of the Crestek's arguments about these issues has merit. So I will grant the IRS's motion for summary judgment on its redactions and withholdings under the deliberative process privilege.
2. The IRS Has Justified All Disputed Attorney Work-Product Privilege Redactions and Withholdings
The attorney work-product privilege protects the confidentiality of materials prepared in anticipation of litigation by or for a party or by or for a party's representative, including a party's attorney or agent. Tax Analysts v. IRS ,
*198to Mot. Summary J. 8. But it argues that the Court cannot evaluate the applicability of the privilege to any of the documents in question because the IRS has not stated when it first anticipated litigation, making it impossible to tell whether the documents were prepared in anticipation of litigation.
The IRS has resolved Crestek's first concern by submitting a supplemental declaration stating what litigation the IRS anticipated in preparing each document for which it has invoked the attorney work-product privilege and stating the date on which the IRS first anticipated that litigation. See Supp. Spatz Decl. I ¶¶ 14-17.
3. The IRS Has Justified All Disputed Attorney-Client Privilege Redactions and Withholdings Except Five Withholdings for Documents That Enjoy the Attorney Work-Product Privilege
Exemption 5 and the attorney-client privilege extend to "confidential communications from clients to their attorneys made for the purpose of securing legal advice or services" and to "communications from attorneys to their clients if the communications rest on confidential information obtained from the client." Tax Analysts ,
Once again, Crestek has not troubled to specify which documents it believe the IRS improperly redacted or withheld. See
C. The IRS Has Justified All the Exemption 7(D) Redactions and Withholdings
Exemption 7(D) shields from disclosure "records or information compiled for law enforcement purposes" that "could reasonably be expected to disclose the identity of a confidential source."
D. The IRS Has Justified All the Exemption 7(E) Withholdings
Exemption 7(E) protects from disclosure "records or information compiled for law enforcement purposes" that "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."
*200E. Crestek Has No Right to Discovery
Crestek's Sur-Reply requests that I postpone a decision on the IRS's Motion for Summary Judgment until Crestek conducts discovery. Sur-Reply to Mot. Summary J. 2, 4, 6.
Crestek is not entitled to discovery for at least additional three reasons. First, Crestek has not supported its request for discovery with an affidavit or declaration. See Hicks v. Gotbaum ,
*201III. CONCLUSION
For the reasons explained above, the IRS is entitled to summary judgment. A separate order will issue.
Ms. Inman states that she asked Ms. Rodriguez for files in her possession and that they worked together to determine which records were responsive. Inman Decl. ¶¶ 5-6, 9. Ms. Inman also states that Ms. Presinal-Roberts told her Crestek had obtained discovery of the non-privileged portions of its file for the tax years ending in June 2008 and June 2009. Id. ¶ 8. But this does not show a need for declarations by Ms. Rodriguez and Ms. Presinal-Roberts.
Crestek seems to infer that if Ms. Inman had left this voicemail the IRS would have repeated her question or referenced her voicemail in letters to Crestek sent between January and October 2016 stating that the IRS needed additional time to collect responsive documents. Sur-Reply to Mot. Summary J. 2. But there is no contradiction between Ms. Inman's question whether part of Crestek's FOIA requests had been satisfied and the letters' position that additional records were necessary to satisfy Crestek's FOIA requests in their entirety.
Crestek does not directly challenge the propriety of ex parte communications themselves. The IRS has explained their propriety under the applicable statute and Revenue Procedure and under Crestek's Application for Fast Track Settlement, which contains a voluntary waiver of restrictions on ex parte communications. Third Supplemental Declaration of William V. Spatz (Supp. Spatz Decl. III) ¶¶ 3-5.
Similarly, Crestek objects to the fact that Paragraph 25 of the IRS's second supplemental declaration references protected communications with IRS counsel without providing their names. Pls.' Opp. to Supp. Spatz Decl. II 2 (citing Supp. Spatz Decl. II ¶ 25). But the second supplemental declaration mentions these documents only in passing to note that my order required no supplemental explanation of why these documents are privileged. See Supp. Spatz Decl. II ¶ 25. The names of the IRS counsel appear in the IRS's first declaration. Spatz Decl. 19 (Items 1-3), 27 (Item 3), and 36 (Item 3). As my order suggested, there was no need for the IRS to repeat this information in its second supplemental declaration.
Even without this supplemental declaration and without specific dates on which the IRS anticipated litigation, the IRS provided sufficient information to determine that several documents constituted attorney work product. See, e.g. , Spatz Decl. ¶ 14 (explaining that the IRS reasonably anticipates litigation whenever it prepares a statutory notice of deficiency and listing withholdings related to the preparation of a statutory notice of deficiency).
Crestek states that the Spatz Declaration lists four documents under the description "Partially-Completed IRS Internal Forms 11369." Id. But the Spatz Declaration lists pages 12791-12796, 12944-12946, 12957-12959, and 13027-13032 under this description. Spatz Decl. ¶ 24(a). These pages contain six partially completed copies of Internal Form 11369. Spatz Decl. ¶ 29(a) (invoking Exemption 7(D), which also applies as stated above).
Crestek does not dispute that Exemption 7(E) applies to a blank copy of Internal Form 11369. See Opp. to Mot. Summary J. 9-10 (disputing only the withholding of partially completed forms); see also Spatz Decl. ¶ 24(a) (listing a blank Internal Form 11369 among the documents withheld). Although it might be possible to produce the entries made on a form while redacting the form itself, such a production would necessarily reveal information about the structure of the form and the types of information that the form treats as relevant to a law enforcement decision.
Crestek's Sur-Reply also argues, without citation to authority, that the public interest in its FOIA request "outweighs the deliberative process privilege and enforcement privileges" asserted by the IRS. Id. at 4-6. This appears to be an invitation to set FOIA's exemptions aside in evaluating Crestek's FOIA claims. If Crestek intends to argue that the public interest is a factor under FOIA Exemptions 5, 7(D), and 7(E), it has forfeited this argument by failing to brief it adequately. See Schneider v. Kissinger ,
Reference
- Full Case Name
- CRESTEK, INC. & SUBSIDIARIES v. INTERNAL REVENUE SERVICE
- Cited By
- 2 cases
- Status
- Published