Case Detail

FOIA Project Annotation: A federal court in Florida has ruled that the IRS conducted an adequate search for records concerning specific Private Letter Rulings that mentioned three named attorneys in the agency's Office of Chief Counsel's National Office. The court also found that the agency had, with exceptions, properly withheld records under Exemption 3 (other statutes), Exemption 5 (privileges), and Exemption 6 (invasion of privacy) in response to a FOIA request from James Scott. Scott asked for any communications from Timothy Jones, Helen Hubbard, or Lewis Bell regarding any Private Letter Ruling request from August 2013 to May 2014. After determining that Jones, Hubbard, and Bell were attorneys in the National Office, the FOIA staff contacted the three attorneys and had them search their email accounts. None of the attorneys found any responsive records. Scott also provided five case numbers that could be responsive. A search of those numbers determined that only three case numbers were PLRs. Those cases files were searched. The searches yielded 255 potentially responsive pages, which were narrowed to 104 pages. The agency disclosed one page in full, 12 pages in part, and withheld 91 pages. Scott challenged the adequacy of the agency's search, but the Judge Kenneth Marra sided with the agency, noting that "the IRS has already adequately described why certain records were deemed non-responsive, and the Court rejects Scott's categorization of the order of review of the document and the large quantity of documents deemed non-responsive as 'suspect.'" The court added that "Scott has failed to rebut any facts material to whether the IRS's search was reasonable." The IRS withheld some records under Section 6103, which prohibits disclosure of records containing taxpayer return information. The court found some of the redactions made under Section 6103 did not constitute return information. The court observed that "the subject pages are not 'return information,' do not wholly consist of the name and other identifying return information of a third-party taxpayer and representative, and that this information is segregable." Turing to Exemption 5, Scott argued that withheld records were not predecisional. However, the court pointed out that "courts have consistently held that the only date relevant to determining whether a record is predecisional is the date that the decision was made." The court added that "the 'decision' at issue her is the final issuance of the PLR. All records being withheld either in full or in part reflect the 'opinions and recommendations of agency personnel that preceded the final issuance of the PLRs. Scott fails to demonstrate otherwise." The court also found the agency had articulated the foreseeable harm if records claimed under the deliberative process privilege were disclosed. The court noted that it was "aware that some of the redactions seem unusually broad" but indicated that the agency's affidavits "were sufficient to demonstrate a foreseeable harm."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Adequacy - Search, Exemption 3 - Limited agency discretion

FOIA Project Annotation: A federal court in Florida has rejected the IRS's request for reconsideration of its earlier ruling in FOIA litigation brought by pro se litigant James Scott for a variety of records that the agency claimed were protected by Exemption 3 (other statues), citing § 6103, which protects taxpayer return information. Judge Kenneth Marra found that the only error he had committed in his first opinion was to allow the IRS to classify two disputed material facts as undisputed material facts. After reviewing the records, Marra noted that Scott had disputed that certain records were covered by § 6103 and that other records fell within § 6110, which provides for disclosure unless the records fall within seven exceptions to disclosure. Marra pointed out that "the IRS's argument might have merit if Scott had not disputed the IRS's claim that the documents are not open to the public under § 6110. Now, after briefing on the Motion for Reconsideration, the Court realizes that this key legal conclusion was improperly placed in the section of undisputed facts when it was in fact disputed by Scott. This led the Court to examine the Withheld Pages once again, to see if they fall into any of the categories under § 6110 that makes a document not open to public inspection." He faulted the IRS for its assertion that "these pages are not open to the public under § 6110 is a broad sweeping legal conclusion made without reference to any factual basis to support it. The IRS refers to the confluence of a complex statutory scheme involving 5 U.S.C. § 552(b)(3) and 26 U.S.C. § 6110." The court then observed that after "carefully reviewing the Withheld Pages in camera, [it] finds that they do not fall under any of the statutory exceptions [to § 6110]."
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2018-12-26	1	COMPLAINT For Injunctive Relief against Internal Revenue Service. Filing fees $ 400.00 Receipt#: FLS 9-6101, filed by James E Scott.(dj) (Entered: 12/26/2018)
2018-12-26	2	Judge Assignment to Judge Donald M. Middlebrooks and Magistrate Judge Dave Lee Brannon (dj) (Entered: 12/26/2018)
2018-12-26	3	Summons Issued as to Internal Revenue Service. (dj) (Entered: 12/26/2018)
2019-01-11	4	ACKNOWLEDGMENT OF SERVICE as to U.S. Attorney General, U.S. Attorney and Internal Revenue Service. (kpe) (Entered: 01/11/2019)
2019-01-14	5	Defendant's MOTION to Stay Action in Light of Lapse in Appropriations by Internal Revenue Service. Attorney Carlos Javier Raurell added to party Internal Revenue Service(pty:dft). Responses due by 1/28/2019 (Raurell, Carlos) (Entered: 01/14/2019)
2019-01-15	6	PLAINTIFF'S OBJECTIONS TO DEFENDANT'S MOTION TO STAY ACTION IN LIGHT OF LAPSE OF APPROPRIATIONS re 5 Defendant's MOTION to Stay Action in Light of Lapse in Appropriations filed by James E Scott. Replies due by 1/22/2019. (drz) (Entered: 01/15/2019)
2019-01-15	7	ORDER granting 5 Motion to Stay. Signed by Judge Donald M. Middlebrooks on 1/15/2019. See attached document for full details. (ar2) (Entered: 01/15/2019)
2019-01-28	8	Motion to Lift Stay by Internal Revenue Service. Attorney Catriona M. Coppler added to party Internal Revenue Service(pty:dft). Responses due by 2/11/2019 (Attachments: # 1 Text of Proposed Order)(Coppler, Catriona) Modified Relief on 1/29/2019 (ls). Added MOTION for Extension of Time to File Response/Reply/Answer as to 1 Complaint on 1/29/2019 (ls). (Entered: 01/28/2019)
2019-01-29	9	Clerks Notice to Filer re 8 MOTION for Extension of Time to File Answer and to Lift Stay re 7 Order on Motion to Stay. Motion with Multiple Reliefs Filed as One Relief ; ERROR - The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. AND Wrong Motion Relief(s) Selected ; ERROR - The Filer selected the wrong motion relief(s) when docketing the motion. The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (ls) (Entered: 01/29/2019)
2019-01-29	10	ORDER LIFTING STAY and granting 8 Motion to Lift Stay and for Extension of Time to Answer Complaint. Internal Revenue Service Answer due 2/27/2019. Signed by Judge Donald M. Middlebrooks on 1/29/2019. See attached document for full details. (ar2) (Entered: 01/30/2019)
2019-02-27	11	ANSWER and Affirmative Defenses to Complaint by Internal Revenue Service. (Coppler, Catriona) (Entered: 02/27/2019)
2019-02-28	12	MOTION for Summary Judgment by James E Scott. Responses due by 3/14/2019 (lk) (Entered: 02/28/2019)
2019-02-28	13	MEMORANDUM in Support re 12 MOTION for Summary Judgment by James E Scott. (lk) (Entered: 02/28/2019)
2019-03-14	14	RESPONSE in Opposition re 12 MOTION for Summary Judgment filed by Internal Revenue Service. Replies due by 3/21/2019. (Attachments: # 1 Response to Plaintiff's Statement of Undisputed Material Facts, # 2 Declaration of Andrew Keaton)(Coppler, Catriona) (Entered: 03/14/2019)
2019-03-19	15	REPLY to Response to Motion re 12 MOTION for Summary Judgment filed by James E Scott. (lbc) (Entered: 03/19/2019)
2019-08-30	16	MOTION to Compel Production by James E Scott. Responses due by 9/13/2019 (ar2) (Entered: 08/30/2019)
2019-09-13	17	RESPONSE in Opposition re 16 MOTION to Compel Production filed by Internal Revenue Service. Replies due by 9/20/2019. (Attachments: # 1 Second Declaration of Andrew Keaton)(Coppler, Catriona) (Entered: 09/13/2019)
2019-09-23	18	REPLY to Response to 16 Motion to Compel Production filed by James E Scott. (Attachments: # 1 Exhibit)(ar2) (Entered: 09/23/2019)
2020-02-19	19	PAPERLESS ORDER. In response to a pending motion to compel, Defendant asserted that the "Service has just released all responsive, non-exempt records," and that Defendant has "not yet had the opportunity to move for summary judgment." (DE 17 at 5). That response was filed several months ago; however, to date, Defendant has not filed any motion for summary judgment. Accordingly, Defendant is directed to file its summary judgment motion by February 28, 2020. Signed by Judge Donald M. Middlebrooks on 2/19/2020. (jdr) (Entered: 02/19/2020)
2020-02-19		Set/Reset Deadlines/Hearings as per DE 19 : Dispositive Motion for {summary Judgment) due by 2/28/2020. (lk) (Entered: 02/20/2020)
2020-02-20	20	ORDER Denying 12 Motion for Summary Judgment. Signed by Judge Donald M. Middlebrooks on 2/20/2020. See attached document for full details. (ar2) (Entered: 02/20/2020)
2020-02-20	21	ORDER Denying 16 Motion to Compel. Signed by Judge Donald M. Middlebrooks on 2/20/2020. See attached document for full details. (ar2) (Entered: 02/20/2020)
2020-02-25	22	MOTION to Stay re 19 Order,, , MOTION for Extension of Time to file Motion for Summary Judgment re 19 Order,, by Internal Revenue Service. Responses due by 3/10/2020 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Coppler, Catriona) (Entered: 02/25/2020)
2020-02-26	23	ORDER OF TRANSFER to Judge Kenneth A. Marra for all further proceedings, accepted and signed on 2/26/2020. Magistrate Judge Dave Lee Brannon and Judge Donald M. Middlebrooks no longer assigned to case. Signed by Judge Donald M. Middlebrooks on 2/25/2020. See attached document for full details. (ar2) (Entered: 02/26/2020)
2020-02-26	24	ORDER denying as moot 22 Motion to Stay ; granting 22 Motion for Extension of Time. Summary Judgment Motions due by 3/20/2020. Signed by Judge Kenneth A. Marra on 2/26/2020. See attached document for full details. (ir) (Entered: 02/26/2020)
2020-02-27	25	RESPONSE in Opposition re 22 MOTION to Stay re 19 Order,, MOTION for Extension of Time to file Motion for Summary Judgment re 19 Order,, filed by James E Scott. Replies due by 3/5/2020. (lk) (Entered: 02/28/2020)
2020-02-27	26	MEMORANDUM in Support re 25 Response in Opposition to Motion by James E Scott. (lk) (Additional attachment(s) added on 2/28/2020: # 1 Exhibit 1) (lk). (Entered: 02/28/2020)
2020-03-20	27	MOTION for Summary Judgment by Internal Revenue Service. Responses due by 4/3/2020 (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Memorandum in Support, # 3 Declaration of David Nimmo, # 4 Declaration of Richelle Hawkins, # 5 Declaration of Andrew Keaton, # 6 Exhibit A, FOIA Request, # 7 Text of Proposed Order)(Coppler, Catriona) (Entered: 03/20/2020)
2020-03-24	28	MOTION to Compel Preparation of a Vaughn Index ( Responses due by 4/7/2020), MOTION for an Extension of Time to File Response to 27 Motion for Summary Judgment by James E Scott. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(ar2) (Entered: 03/25/2020)
2020-03-27	29	MOTION to Compel Production by James E Scott. (drz) (Entered: 03/27/2020)
2020-04-03	30	RESPONSE in Opposition re 29 MOTION to Produce, 28 MOTION to Compel Preparation of a Vaughn Index MOTION for Extension of Time to File Response/Reply/Answer as to 27 MOTION for Summary Judgment filed by Internal Revenue Service. Replies due by 4/10/2020. (Coppler, Catriona) (Entered: 04/03/2020)
2020-04-08	31	ORDER REFERRING CASE to Magistrate Judge William Matthewman for Discovery Matters. Motions referred to Judge William Matthewman. Signed by Judge Kenneth A. Marra on 4/8/2020. See attached document for full details. (ir) (Entered: 04/08/2020)
2020-04-13	32	REPLY to Response Defendant's Response in Opposition to Plaintiff's Motion to Compel Production re 29 MOTION to Produce filed by James E Scott. (jbs) (Entered: 04/13/2020)
2020-04-13	33	Clerk's Notice of Filing Deficiency Re: 32 Reply to Response to Motion filed by James E Scott. Document(s) missing required signature(s) (Fed.R.Civ.P. 11(a)). (jbs) (Entered: 04/13/2020)
2020-04-28	34	ORDER denying 29 Plaintiff's Motion to Compel Production. Signed by Magistrate Judge William Matthewman on 4/28/2020. See attached document for full details. (kza) (Entered: 04/28/2020)
2020-04-28	35	ORDER denying 28 Plaintiffs Motion to Compel Production of a Vaughn Index and granting Plaintiffs Motion for an Extension of Time Nun Pro Tunc. (Response due by 5/13/2020 to 27 Defendant's MOTION for Summary Judgment). Signed by Magistrate Judge William Matthewman on 4/28/2020. See attached document for full details. (kza) (Entered: 04/28/2020)
2020-05-18	36	Cross-Motion for Summary Judgment and Opposition to 27 Defendant's Motion for Summary Judgment filed by James E Scott. Replies due by 5/26/2020. (jbs) (Entered: 05/18/2020)
2020-05-18	37	Cross-Motion for Summary Judgment per DE 36 by James E Scott. Responses due by 6/1/2020 (jbs) (Entered: 05/18/2020)
2020-06-01	38	RESPONSE in Opposition re 37 MOTION for Summary Judgment and Reply in Support of the Service's Motion for Summary Judgment filed by Internal Revenue Service. Replies due by 6/8/2020. (Coppler, Catriona) (Entered: 06/01/2020)
2020-06-11	39	Reply Memorandum in Support of Plaintiff's 37 Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by James E Scott. (Attachments: # 1 Exhibit)(jbs) (Entered: 06/11/2020)
2020-09-29	40	ORDER REQUIRING FILING UNDER SEAL re 27 MOTION for Summary Judgment filed by Internal Revenue Service. Signed by Judge Kenneth A. Marra on 9/29/2020. See attached document for full details. (ir) (Entered: 09/29/2020)
2020-10-08		SYSTEM ENTRY - Docket Entry 41 [misc] restricted/sealed until further notice. (1749925) (Entered: 10/08/2020)
2021-01-26	42	OPINION AND ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 27 Motion for Summary Judgment. Signed by Judge Kenneth A. Marra on 1/26/2021. See attached document for full details. (ir) (Entered: 01/26/2021)
2021-01-26	43	FINAL JUDGMENT. All pending motions not otherwise ruled upon are denied as moot and this case is CLOSED. Signed by Judge Kenneth A. Marra on 1/26/2021. See attached document for full details. (ir) (Entered: 01/26/2021)
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