Case Detail

FOIA Project Annotation: A federal court in Ohio has ruled that the IRS properly withheld records from B & P Company pertaining to its investigation of whether James Wright has a substantial ownership interest in the company and should be investigated for tax evasion under Exemption 5 (deliberative process privilege) and Exemption 7(A) (ongoing investigation or proceedings). The court also found the agency had conducted an adequate search for records requested by Wright pertaining to a 1999 judgment against him. When B & P Company and Wright received notice from the IRS that Wright owed $505,000 in restitution in connection with a 1999 judgment against him for tax evasion, both Wright and the company filed FOIA requests with the IRS for relevant documents. The only document responsive to B & P's request was a 41-page draft Revenue Agent Report. The agency withheld the report under Exemption 5 and Exemption 7(A). B & P conceded that the document was both predecisional and deliberative, but argued that since it did not pertain to Wright's criminal investigation its disclosure would not harm the agency. The court rejected the argument, noting that the agency's affidavit explained that "a freeze hold had been placed on B & P's audit 'because James L. Wright is under criminal investigation and he has an ownership interest, either direct or indirect, in B & P.'" Turning to the Exemption 7(A) claim, the court indicated that "the IRS has satisfied its burden of proving that disclosure of the draft RAR, which was compiled solely for law enforcement purposes, could interfere with enforcement proceedings, and would seriously impair Federal tax administration." After conducting a search for records pertaining to the 1999 judgment against Wright in several offices that were most likely to have the records, the IRS concluded that the records had been destroyed pursuant to the agency's ten-year retention policy. The IRS produced a 2004 probation officer's report on Wright that indicated that he still owed $501,000 in July 2004. The court pointed out that "this report corroborates the IRS's position that the amount of restitution owed by Wright was calculated prior to July of 2004, and explains why document responsive to Wright's FOIA requests no longer exist."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(A) - Interference with ongoing investigation, Adequacy - Search

Date Filed	Doc #	Docket Text
2014-07-16	1	COMPLAINT for Injunctive Relief against Internal Revenue Service ( Filing fee $ 400 paid - receipt number: 0648-4650500), filed by B & P Company, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Summons Form, # 10 Civil Cover Sheet) (Henderson, Toby) (Entered: 07/16/2014)
2014-07-16	2	MOTION for Leave to Appear Pro Hac Vice of Robert G. Bernhoft (Filing fee $ 200, receipt number 0648-4650545) by Plaintiffs B & P Company, Inc., James Wright. (Attachments: # 1 Exhibit Certificate in Good Standing) (Henderson, Toby) (Entered: 07/16/2014)
2014-07-16	3	Corporate Disclosure Statement by Plaintiffs B & P Company, Inc., James Wright. (Henderson, Toby) (Entered: 07/16/2014)
2014-07-16	4	MOTION for Leave for Robert G. Bernhoft to Act as Trial Attorney by Plaintiffs B & P Company, Inc., James Wright. (Henderson, Toby) (Entered: 07/16/2014)
2014-07-17		NOTATION ORDER sustaining 2 Motion for Leave to Appear Pro Hac Vice of Robert G. Bernhoft. Signed by Judge Walter H Rice on 7/17/2014. (jdf1) (Entered: 07/17/2014)
2014-07-17		NOTATION ORDER sustaining 4 Motion for Leave for Robert G. Bernhoft to Act as Trial Attorney. Signed by Judge Walter H Rice on 7/17/2014. (jdf1) (Entered: 07/17/2014)
2014-07-22	5	Summons Issued as to Internal Revenue Service, U.S. Attorney and U.S. Attorney General (srb1) (Entered: 07/22/2014)
2014-07-22		...Notice, if case is to be referred, it will be Magistrate Judge Sharon L. Ovington. (srb1) (Entered: 07/22/2014)
2014-08-22	6	MOTION for Extension of Time to File Answer New date requested 10/9/2014. by Defendant Internal Revenue Service. (Attachments: # 1 Text of Proposed Order) (Schutte, Margaret) (Entered: 08/22/2014)
2014-08-26	7	RESPONSE to Motion re 6 MOTION for Extension of Time to File Answer New date requested 10/9/2014. Notice of Non-Opposition filed by Plaintiffs B & P Company, Inc., James Wright. (Bernhoft, Robert) (Entered: 08/26/2014)
2014-08-27		NOTATION ORDER sustaining 6 Motion for Extension of Time to Answer. Signed by Judge Walter H Rice on 8/27/2014. (jdf1) (Entered: 08/27/2014)
2014-08-27		NOTICE OF TELEPHONE CONFERENCE: Preliminary Telephone Conference set for 10/20/2014 at 4:15 PM before Judge Walter H Rice. Prior to the pretrial conference counsel must comply with the MANDATORY DISCLOSURE RULES of Fed. R. Civ. P. 26(a)(1) and the MANDATORY, pre-preliminary pretrial conference between counsel, required by Fed. R. Civ. P. 26(f). NOTE...the format for the Rule 26(f) conference between counsel and the Report to the court has been altered. This new form is available on line and MUST be utilized in this case. The Report must be filed 7 DAYS PRIOR TO THE CONFERENCE. In all cases with class action allegations, the parties shall include in their Fed. R. Civ. P. 26(f) report proposed deadlines for completing discovery relevant to those allegations and for filing a motion to certify a class, and a proposed date for class action determination. Pretrial procedures and forms can be found at our website at www.ohsd.uscourts.gov. Should more attorneys be actively involved than those listed on the Court's docket, please notify the Courtroom Deputy, Cindy Fugate, at 937-512-1501, immediately, to include the additional attorneys in the Preliminary Pretrial Telephone Conference. If you wish a number other than your office number called, please advise 24 hours preceding the conference. (jdf1) (Entered: 08/27/2014)
2014-09-12	8	NOTICE of Appearance by Joseph E. Hunsader for Defendant Internal Revenue Service (Hunsader, Joseph) (Entered: 09/12/2014)
2014-10-09	9	ANSWER to 1 Complaint, filed by Internal Revenue Service. (Hunsader, Joseph) (Entered: 10/09/2014)
2014-10-14	10	RULE 26(f) REPORT Joint Report of the Parties by Plaintiffs B & P Company, Inc., James Wright. (Bernhoft, Robert) (Entered: 10/14/2014)
2014-10-20		Minute Entry for Preliminary Pretrial Telephone Conference held on 10/20/2014. (Scheduling Entry to be filed shortly.) (jdf1) (Entered: 10/20/2014)
2014-10-27	11	NOTICE of Appearance by Brandi M. Stewart for Defendant Internal Revenue Service (Stewart, Brandi) (Entered: 10/27/2014)
2014-12-02	12	PRELIMINARY PRETRIAL ORDER: Case is referred to Magistrate Judge Sharon L Ovington: Written notification to Court re: contingent consent or refusal to Magistrate Judge for trial purposes only: close of business 12/15/2014; Amended Pleadings due by 12/10/2014. Motions directed to pleadings due by 12/10/2014 Pltf - 1/7/15 Deft. Proposed Final Pretrial Order due by 6/23/2015. Final Pretrial Conference set for 6/30/2015 at 5:00 PM by Teleconference before Judge Walter H Rice. Exhibit Submission for Trial or Hearing due by 6/26/2015. Jury Trial set for 7/13/2015 at 9:00 AM in Courtroom 1 - Dayton before Judge Walter H Rice.. Signed by Judge Walter H Rice on 12/2/14. (pb1) (Entered: 12/02/2014)
2014-12-15	13	NOTICE by Plaintiffs B & P Company, Inc., James Wright of Refusal to Consent and Reference This Civil Action to a Magistrate Judge (Bernhoft, Robert) (Entered: 12/15/2014)
2015-02-11	14	MOTION for Extension of Time New date requested 3/20/2015. to file defendant's summary judgment motion by Defendant Internal Revenue Service. (Attachments: # 1 Text of Proposed Order) (Hunsader, Joseph) (Entered: 02/11/2015)
2015-02-12	15	ORDER granting 14 Motion for Extension of Time - IT IS HEREBY ORDERED that defendant's motion is GRANTED; IT IS FURTHER ORDERED that defendant's motion for summary judgment is to be filed no later than March 20, 2015, and that plaintiff's opposition and cross-motion, if any, are to be filed no later than April 17, 2015. Signed by Judge Walter H Rice on 02/12/15. (pb1) (Entered: 02/12/2015)
2015-03-20	16	MOTION for Summary Judgment by Defendant Internal Revenue Service. Responses due by 4/13/2015 (Attachments: # 1 Affidavit Kathy Enstrom Declaration, # 2 Affidavit Gail Minauro Declaration, # 3 Affidavit Elizabeth Rawlins Declaration, # 4 Supplement IRS's Statement of Undisputed Material Facts, # 5 Text of Proposed Order) (Hunsader, Joseph) (Entered: 03/20/2015)
2015-03-20	17	BRIEF re 16 MOTION for Summary Judgment by Defendant Internal Revenue Service. (Hunsader, Joseph) (Entered: 03/20/2015)
2015-04-08	18	Unopposed MOTION for Extension of Time New date requested 5/15/2015. to respond to Defendant's Summary Judgment Motion (Doc. No. 16). by Plaintiffs B & P Company, Inc., James Wright. (Bernhoft, Robert) (Entered: 04/08/2015)
2015-04-10		NOTATION ORDER sustaining 18 Motion for Extension of Time. Signed by Judge Walter H Rice on 4/10/2015. (jdf1) (Entered: 04/10/2015)
2015-05-15	19	RESPONSE in Opposition re 16 MOTION for Summary Judgment filed by Plaintiffs B & P Company, Inc., James Wright. (Attachments: # 1 Response to Statement of Facts and Proposed Undisputed Facts, # 2 Declaration of Daniel J. Treuden, # 3 Exhibit A, # 4 Exhibit B) (Bernhoft, Robert) (Entered: 05/15/2015)
2015-06-03	20	MOTION for Extension of Time New date requested 6/15/2015. (Extension to file summary judgment reply currently due June 6, 2015) by Defendant Internal Revenue Service. (Attachments: # 1 Text of Proposed Order) (Hunsader, Joseph) (Entered: 06/03/2015)
2015-06-03	21	ORDER granting 20 Motion for Extension of Time. Signed by Judge Walter H Rice on 06/03/15. (pb) (Entered: 06/03/2015)
2015-06-15	22	REPLY to Response to Motion re 16 MOTION for Summary Judgment filed by Defendant Internal Revenue Service. (Attachments: # 1 Affidavit) (Hunsader, Joseph) (Entered: 06/15/2015)
2015-06-29	23	Joint MOTION to Continue All Deadlines and Hearings by Plaintiffs B & P Company, Inc., James Wright. (Bernhoft, Robert) (Entered: 06/29/2015)
2015-06-30		NOTATION ORDER sustaining 23 Motion to Continue. Signed by Judge Walter H Rice on 6/30/2015. (jdf) (Entered: 06/30/2015)
2015-07-20	24	DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' FOIA CLAIMS (DOC. # 16 ); JUDGMENT TO ENTER ACCORDINGLY; TERMINATION ENTRY. Signed by Judge Walter H Rice on 7/20/15. (pb) (Entered: 07/20/2015)
2015-07-20	25	CLERK'S JUDGMENT. Signed on 7/20/15. (pb) (Entered: 07/20/2015)
Hide Docket Events