Johnson v. C.I.R.

• Decision Date: 01 November 2002
• Docket Number: No. C01-5489RJB.,C01-5489RJB.
• Citation: 239 F.Supp.2d 1125
• Parties: Lavina Rae JOHNSON, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.
• Court: U.S. District Court — Western District of Washington

239 F.Supp.2d 1125

Lavina Rae JOHNSON, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.

No. C01-5489RJB.

United States District Court, W.D. Washington.

November 1, 2002.

COPYRIGHT MATERIAL OMITTED

Lavina Rae Johnson, Sequim, WA, pro se.

Diane E. Tebelius, U.S. Attorney's Office, Seattle, WA, Jennifer L. Best, U.S. Dept. of Justice, Tax Div., Washington, DC, for defendant.

ORDER GRANTING INTERNAL REENUE SERVICE'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING CASE

BRYAN, District Judge.

This matter comes before the court on the Internal Revenue Service's Motion for Summary Judgment (Dkt.54) and on Plaintiffs Rule 56(f) Motion to Postpone Consideration of Defendant's Motion for Summary Judgment (Dkt.61). The court has considered the pleadings filed in support of and in opposition to the motions and the file herei

FACTUAL BACKGROUND Plaintiff filed several Freedom of Information Act (FOIA) and Privacy Act (PA) requests with the Internal Revenue Service (IRS), requesting a variety of documents and records.

1. Plaintiff contends that, on June 24, 1998 (Count 12 of the Third Amended Complaint), she filed a request for a Document filed under DLN 91277-049-00000-8. The Ogden Campus Disclosure Office has no record of having received this FOIA/PA from plaintiff. Kenneth Wilder, the Disclosure Specialist at the Ogden Campus Disclosure Office, determined that the Ogden Campus Disclosure Office received a duplicate FOIA request from plaintiff seeking the document corresponding to the same DLN. Mr. Wilder determined that the IRS had no documents that corresponded to the DLN requested. On August 2, 2001, Mr. Wilder sent a letter notifying plaintiff that there were no documents responsive to her request.

2. On June 25, 1998 (Count 13 of the Third Amended Complaint), plaintiff requested a Document filed under DLN 91277-029-77500-8. The Ogden Campus Disclosure Office received the request on July 7, 1998. The Ogden Campus Disclosure Office determined that it did not possess any documents or records corresponding to the requested DLN, and notified plaintiff of the same on July 20, 1998.

3. On July 28, 2000 (Count 2 of the Third Amended Complaint), plaintiff requested the Collection Case file pertaining to her 1993, 1994, and 1995 personal income taxes. The Ogden Campus Disclosure Office received the request on August 1, 2000. On August 3, 2000, the Ogden Campus Disclosure Office notified plaintiff that her request had been forwarded to the Seattle Disclosure Office because it pertained to collection activities. The August 3, 2000 letter also notified plaintiff that the twenty workday statutory period for responding to a FOIA request would not begin to run until the FOIA/PA request was received by the Seattle Disclosure Office.

On August 8, 2000, the Seattle Disclosure Office received the FOIA/PA request. Sheila Walters, a Disclosure Specialist at the Seattle Disclosure Office, interpreted the FOIA/PA request to mean that plaintiff was seeking any records associated with collection activity for the three years stated in her request. Because Ms. Walters determined that additional time would be required to gather the responsive documents and to make the necessary redactions, Ms. Walters sent plaintiff letters on September 20, 2000, November 9, 2000, December 21, 2000, January 22, 2001, and March 14, 2001, seeking additional time to process the FOIA/PA request. Ms. Walters directed the disclosure clerk to contact the Federal Documents Center to obtain a copy of the collections case file, which consisted of 329 pages. Ms. Walters reviewed the responsive documents to determine whether the IRS needed to redact any information, then redacted 155 pages in full and fifteen pages in part because they contained the return information of a person or persons other than plaintiff. The redacted and withheld pages were withheld pursuant to FOIA, 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C). Ms. Walters also withheld five pages in full under 5 U.S.C. § 552(b)(5) because they contained correspondence reflecting the IRS' deliberative process. These five pages consisted of a memorandum from Chief Counsel to the Special Procedures Advisor in Seattle, providing legal advice regarding pending collection activities. Ms. Walters withheld fifteen pages in part and one page in full under 5 U.S.C. § 552(b)(7)(A) on the basis that those documents pertained to an ongoing law enforcement investigation and could interfere with the investigation. Ms. Walters also withheld these pages under 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(e)(7), on the basis that release of these pages would impair federal tax administration. On November 29, 2001, the Seattle Disclosure Office provided plaintiff with 208 pages responsive to her request. The November 29, 2001 letter accompanying the released records described the redactions made and cited to the applicable FOIA subsections underlying those redactions. Ms. Walters enclosed a Form 393 in the November 29, 2001 response letter, setting forth plaintiffs appeal rights. There is nothing in the record to suggest that plaintiff filed an administrative appeal of this determination.

After plaintiff filed this lawsuit, Melinda K. Fisher, an attorney in the Office of General Counsel of the IRS, reviewed the documents responsive to plaintiffs July 28, 2000 FOIA/PA request that had been withheld from disclosure, and determined that some of the responsive information was exempt from disclosure and some could be released. Ms. Fisher's determinations were as follows:

Material withheld in full pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)7(C). Ms. Fisher concluded that of the 115 pages previously withheld in full pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C): (a) the IRS should continue to withhold 110 pages in full because these pages included personal return information and internal correspondence related to an individual or individuals other than plaintiff; (b) the IRS should continue to withhold under 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), two pages in full of database transcripts calculating the income tax liability for a business taxpayer or taxpayers other than plaintiff; (c) the IRS should redact and withhold in part the remaining three pages previously withheld in full, with portions of these pages redacted pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C), on the basis that the withheld portions consisted of information related to a taxpayer or taxpayers other than plaintiff.

Material previously withheld in full pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C). Ms. Fisher concluded that of the fifteen pages previously withheld in part pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C), (a) the IRS should continue to withhold the redacted portions of eleven pages because the information redacted related to a taxpayer or taxpayers other than plaintiff, and that release of this information would not serve the public interest by shedding light on the IRS' performance of its statutory duties; (b) the IRS should continue to withhold some portions of the documents while other portions previously withheld should be released because the information consisted of Inventory Control System transcripts and memoranda related to a taxpayer or taxpayers other than plaintiff, and that release of this information would not serve the public interest by shedding light on the IRS' performance of its statutory duties; and (c) the IRS should continue to withhold Business Master File data pursuant to I.R.C. § 6103(b)(2), of a taxpayer or taxpayers other than plaintiff on the basis that this material is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a).

Material previously withheld in full pursuant to 5 U.S.C. § 552(b)(5). The five pages previously withheld in full, pursuant to 5 U.S.C. § 552(b)(5), consisted of a memorandum by the IRS District Counsel to IRS personnel assigned to investigate plaintiffs tax liability. On review, Ms. Fisher determined that two of these pages should be released in full; those pages contained legal analysis regarding the placement of a nominee lien. Ms. Fisher determined that this information regarding a pending investigation should be released because the information no longer posed harm to the IRS's investigation. Ms. Fisher also determined that the IRS should continue to withhold the remaining three pages in part, pursuant to 5 U.S.C. § 552(b)(3), in conjunction with I.R.C. § 6103(a), and 5 U.S.C. § 552(b)(7)(C), because the documents contained information on a taxpayer or taxpayers other than plaintiff; because release of this information would not serve the public interest by shedding light on the IRS' performance of his statutory duties; and because the privacy interest of the taxpayer or taxpayers in protecting personal tax information outweighed the public interest.

Material previously withheld in part pursuant to 5 U.S.C. § 552(b)(7)(A). Of the fifteen pages previously withheld in part pursuant to 5 U.S.C. § 552(b)(7)(A), on review, Ms. Fisher determined that the IRS should release the information on fourteen pages but that the IRS should continue to withhold the remaining page in part, pursuant to 5 U.S.C. § 552(b)(7)(A) because the information described the size and scope of a pending IRS investigation, disclosure of which could reasonably be expected to interfere with that investigation.

Material previously withheld in full pursuant to 5 U.S.C. § 552(b)(7)(A). Ms. Fisher determined that the one page previously withheld in full, pursuant to 5 U.S.C. § 552(b)(7)(A), should be released.

Material previously withheld in...