May v. I.R.S.
| Citation | 85 F.Supp.2d 939 |
| Decision Date | 06 August 1999 |
| Docket Number | No. 98-4042-CV-C-5.,98-4042-CV-C-5. |
| Parties | Joseph A. MAY, Plaintiff, v. INTERNAL REVENUE SERVICE, United States of America, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Joseph A. May, Jefferson City, MO, pro se.
R. Scott Clarke, U.S. Department of Justice, Washington, Judith M. Strong, U.S. Attorney's Office, Kansas City, MO, for Internal Revenue Service.
Pending before the Court is Defendant Internal Revenue Service's ("IRS") Motion for Summary Judgment. For the reasons set forth below, the Motion is granted.
On May 20, 1996, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, May submitted a request to the Kansas-Missouri District Disclosure Office of the IRS located in St. Louis, Missouri. In the request, May sought twelve categories of documents related to a criminal investigation of him conducted by the IRS. The categories of documents were as follows:
1. All files and documents relative to the criminal referral and investigation of Joseph A. May located at Treasury/IRS 90.001, Chief Counsel Criminal Tax Case Files.
2. All litigation case files and documents concerning Joseph A. May for any tax years located at Treasury/IRS 26.011, Litigation Case/Files.
3. All files and documents relative to and/or concerning Joseph A. May for any tax years located at Treasury/IRS 46.002, Case Management and Time Reporting System, Criminal Investigation Division.
4. All files and documents relative to and/or concerning any informant against Joseph A. May for any tax years; Treasury/IRS 46.003, Confidential Informants, Criminal Investigation Division.
5. All files and documents relative to and/or concerning Joseph A. May for any tax years located at Treasury/IRS 46.004, Controlled Accounts (Open and Closed).
6. All files and documents relative to and/or concerning Joseph A. May for any tax years located at Treasure/IRS 46.009, Centralized Evaluation and Processing of Information Items (CEPIIs), Criminal Investigation Division.
7. All files and documents relative to and/or concerning Joseph A. May for any tax years located on the premises of or in the possession of Special Agents Gary A. Marshall, Anthony Hutcherson, and Kerri Reiter, including but not limited to the Criminal Investigation Division, 5800 East Bannister Road, # 302, Kansas City, Missouri 64134, and 2013 N. Salem Drive, Independence, MO 64058.
8. All Investigation History sheets relative to and/or concerning Joseph A. May for any tax years located on premise of or in the possession of Special Agents Gary A. Marshall, Anthony Hutcherson, and Kerri Reiter.
9. All transcripts of verbatim statements, affidavits, memoranda of interviews, and Special Agent's notes related to and/or concerning Joseph A. May for any tax year.
10. All Special Time and Attendance Worksheet(s) for Special Agents Gary A. Marshall, Anthony Hutcherson, and Kerry Reiter, which concern the investigation of Joseph A. May.
11. All diaries or other similar documents concerning the investigation of Joseph A. May for any tax year in the possession of Special Agent Gary A. Marshall, Anthony Hutcherson, and Kerry Reiter.
12. All computerized records concerning the investigation of Joseph A. May.
By letter dated June 12, 1996, May clarified that his request for information relating to "all tax years" was limited to tax years 1985 through 1994.
May's request was processed by Disclosure Officer Karen Hines.2 Due to the fact that the Disclosure Office was unable to respond to the request in the allotted ten (10) day statutory time period, the Office, by letter dated June 28, 1996, sought a voluntary extension of time. The letter notified May that if he did not grant the extension, he could consider the letter a denial of his request and could appeal the action. May did not agree to the extension and he sent an administrative appeal letter on July 20, 1996.
During this time period, in order to ascertain the existence and location of responsive documents, on July 15 and 22, Hines contacted Special Agent Gary Marshall, the agent who was assigned to the criminal investigation of May.3 Due to the broad nature of May's request, it was necessary for Hines to contact several different offices and/or departments. Marshall informed Hines that there were thirteen (13) boxes of files pertaining to May in the CID's Kansas City Office.4 Marshall also informed her that additional documents may be located in the Office of the Chief, CID, and in May's local Service Center. Hines also spoke with Bob Fowler, an attorney with the Office of Kansas-Missouri Associate District Counsel. He stated that his office had a tax court file which would not be responsive to May's request and a criminal tax file of a case relating to May from the mid-1990s, which May had been given access to previously. Fowler sent the files to the Disclosure Office for copying.
By letter dated July 26, 1996, the Disclosure Office requested a second extension of time to process May's request. May responded by letter dated August 6, 1996, that he would not agree to the extension and that he would resubmit his appeal. On August 27, 1996, Georgia Predmore, the individual processing May's appeal, contacted Hines and inquired when her Office would have a final determination on which documents could be released to May. Hines informed Predmore that she could probably get a letter out to May within the next 3-4 weeks, but that it could take anywhere from 2-6 months to close the case, depending upon the number of documents needed to be copied and reviewed.
On September 4, 1996, Disclosure Litigation responded to May's administrative appeal. The letter stated that because the Disclosure Office had located a large volume of records and intended to send May an interim response by September 27, 1996, they would hold the appeal in abeyance. The letter indicated that if, after reviewing the Disclosure Office's final response, May still wished to pursue an administrative appeal, he should contact Disclosure Litigation.
On September 16, 1996, the Disclosure Office sent a letter to May regarding the status of his request. In the letter, the Office indicated that an initial search had revealed several hundred documents and that an estimated cost for copying would be One Thousand Fifty Dollars ($1,050.00). The Disclosure Office stated that it required advance payment prior to making the copies. May transmitted a bank money order for $1,050 for copying the documents on September 20, 1996. By letter dated September 30, 1996, the Disclosure Office acknowledged receipt of the money order and informed May that it would take several months for the Disclosure Office to review and copy the documents. The Disclosure Office advised May that it would provide a status report to him every 30 days.
On October 8, 1996, Hines spoke with Marshall. During the conversation, Hines realized that she had miscalculated the copying costs. Hines determined that it would cost May an additional Five Hundred and Seventy-Five Dollars ($575.00) to copy the documents. When she informed May of the error, May stated that after speaking with his attorney, he would like the opportunity to review the documents prior to further copying taking place. After several attempts to set a date, May finally reviewed the documents on December 6, 1996, in Kansas City, after meeting with Marshall and Special Agent Clark Gaywood. By letter addressed to the Disclosure Office dated December 11, 1996, May stated that he would like to receive copies of all the documents except for correspondence between himself and the IRS.
On January 9, 1997, Marshall telephoned Hines and indicated that CID had completed copying the documents. Hines received the documents on January 18, 1997. Over the course of the next year, the Disclosure Office reviewed the documents to determine releasability. During this process, Hines conferred with Marshall and Fowler concerning the disclosability of certain information contained in the documents. The documents contained in the CID files included information relating to motor vehicle records and tax returns of third party witnesses, testimony before the grand jury, etc.
Various communications were had concerning the status of the documents, and by letter dated January 23, 1998, Hines provided May with a final response to a previous FOIA request he had made, and indicated that the Disclosure Office had hoped to have a final response regarding his current request within 4-6 weeks. On February 13, 1998, May filed the instant lawsuit seeking the production of the records.
By letter dated March 10, 1998, the Disclosure Office stated that it had finished processing May's request and had copied 12,469 pages to be released to him. The copying fees totaled $1,855.35, from which the $1,050.00 advance was subtracted. This left a balance owed of $805.35. The Disclosure Office indicated that the IRS's final response, together with copies of records to be released and an explanation of records to be withheld, would be issued as soon as payment was received. May did not respond to the letter. On June 8, 1998, Hines spoke to Margaret Martin, an attorney with the Office of Chief Counsel. Martin inquired if May had paid the amount owed for the documents and if the Special Agents had sent their diaries and timesheets to the Disclosure Office. Hines informed her that neither action had occurred.5 Martin stated that it was necessary to obtain the documents and review them for possible release. Between mid-June and September 1998, the Disclosure Office reviewed, edited and copied the diaries and timesheets so that only information pertaining to May was visible on the documents.
On October 2, 1998, the Disclosure Office received a letter from May and a check for $805.35 for the remaining copying costs. By letter dated ...
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