Patterson v. I.R.S., 92-4049

• Decision Date: 08 June 1995
• Docket Number: No. 92-4049,92-4049
• Parties: -2707 Stephanie A. PATTERSON, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 832

56 F.3d 832

75 A.F.T.R.2d 95-2707

Stephanie A. PATTERSON, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee.

No. 92-4049.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1995.

Decided June 8, 1995.

A. Benjamin Goldgar, Marianne C. Holzhall (argued), Keck, Mahin & Cate, Chicago, IL, for plaintiff-appellant.

Sue Hendricks Bailey, Asst. U.S. Atty., Indianapolis, IN, Gary R. Allen, Murray S. Horwitz (argued), Dept. of Justice, Tax Div., Appellate Section, Washington, DC, for defendant-appellee.

Before POSNER, Chief Judge, ESCHBACH, and MANION, Circuit Judges.

ESCHBACH, Circuit Judge.

Stephanie Patterson made two separate requests for information from the Internal Revenue Service ("IRS") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. In complying with her requests, the IRS disclosed some responsive documents, withheld in full or in part other documents based upon certain statutory exemptions, and reported that it was unable to identify any documents responsive to some of her inquiries. In an action brought by Patterson to compel fuller disclosure, the district court granted summary judgment in favor of the IRS on the basis of the claimed exemptions. On appeal, Patterson challenges the adequacy of the IRS' showings with respect to the exemptions and the adequacy of its search in response to the inquiries for which it was unable to locate any documents. We affirm as to the adequacy of the search. Because, however, the IRS failed to make the requisite showing to establish its right to some of the claimed exemptions, we reverse and remand in part.

I.

Patterson was an employee at the Indianapolis Office of the IRS. As a result of disciplinary actions taken against her by the IRS, she made two FOIA requests. On July 30, 1990, Patterson submitted a request for information to the Office of the Assistant Commissioner of the IRS. In this request, she sought "[a]ll Investigative/Inspections Reports dated between April 1, 1989 and July 30, 1990. The subject matter of these reports would include any matter relating and/or involving the undersigned." In response, Steven Raisch, Disclosure Officer for the IRS' Office of the Chief Inspector, searched the computer index of investigative files maintained by the Office of the Chief Inspector for documents indexed under Patterson's name. His search identified five items, four of which were released in full on August 15, 1990. With respect to the fifth item, the IRS withheld page 8 in full and parts of pages 2, 3, 4 and 7, ¹ relying on the exemption specified in 5 U.S.C. Sec. 552(b)(7)(C) for "records or information compiled for law enforcement purposes," which, if produced, "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Patterson's second request for information from the IRS was made on August 18, 1990. In this request, she sought the following information from Robert Boyer, Associate Chief of the Indianapolis Appeals Office:

(1) Written documentation dated 11/6/89 requesting "action be taken against Ms. Patterson for a violation of Section 215.2 of the Rules of Conduct,...." See attached memoranda dated 4/18/90 (2) All attendant documentation associated with, and/or that forms the bases for, the request delineated in item one above; and

(3) Any and all documentation, or "system of records", in your possession or under your control, authored by you or originating from any other employee, involving the undersigned

At the direction of Boyer, Patterson forwarded her request on September 5, 1990 to Ken Spencer, Disclosure Officer for the Indianapolis IRS Office. A month later, Spencer wrote to Patterson explaining that the November 6, 1989 document ("Boyer Memorandum") was being withheld pursuant to exemption 5 U.S.C. Sec. 552(b)(5) since it was an "inter-agency or intra-agency memorandum[ ] or letter[ ] which would not be available by law to a party other than an agency in litigation with the agency." Spencer also reported to Patterson that he was unable to locate any documents responsive to items (2) or (3) of her request.

After exhausting her administrative remedies, ² Patterson, appearing pro se, filed this action on October 17, 1990 contending that the IRS had improperly withheld documents under the FOIA. The IRS responded by claiming exemptions under 5 U.S.C. Secs. 552(b)(5), (b)(7)(C), and (b)(6), the latter provision protecting "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." On August 26, 1992, the IRS moved for summary judgment, attaching to its motion several Declarations in support of its entitlement to the claimed exemptions. William J. Martin, an IRS Disclosure Litigation attorney, offered a declaration in support of the IRS' entitlement to withhold information responsive to Patterson's first request based upon exemptions (b)(7)(C) and (b)(6) ("Martin Declaration"). ³ Stan Cleveland, the Disclosure Officer for the Indianapolis Office of the IRS who replaced Kenneth Spencer when he left, submitted a declaration in support of the IRS' entitlement to withhold information responsive to Patterson's second request based upon exemption (b)(5) ("Cleveland Declaration"). The Cleveland Declaration also described the process by which Spencer searched for documents to support the IRS' claim that it could not locate any responsive documents to the second and third items in the second FOIA request. Patterson filed a response to the motion for summary judgment and requested that the district court impose sanctions against the government's counsel. On November 3, 1992, the district court granted the IRS' motion for summary judgment based on exemptions 7(C) and 5 and denied Patterson's motion for sanctions. Patterson filed a timely notice of appeal. ⁴

II.

"[D]isclosure, not secrecy, is the dominant objective" of the FOIA. Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). Because of this, our obligation is "to construe FOIA exemptions narrowly in favor of disclosure." United States Dep't of Justice v. Landano, --- U.S. ----, ----, 113 S.Ct. 2014, 2024, 124 L.Ed.2d 84 (1993); John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 474-75, 107 L.Ed.2d 462 (1989); Matter of Wade, 969 F.2d 241, 246 (7th Cir.1992). The government agency bears the burden of justifying its decision to withhold the requested information. 5 U.S.C. Sec. 552(a)(4)(B); Becker v. IRS, 34 F.3d 398, 402 (7th Cir.1994). "A district court may grant summary judgment to the government in a FOIA case only if 'the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.' " PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C.Cir.1993) (quoting King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir.1987)). Since "[b]oth the court and the requester must look to the affidavits for an explanation of the agency's decision to withhold information ... an affidavit that contains merely a 'categorical description of redacted materials coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate.' " Id. Thus, the threshold inquiry in our review is to examine de novo the IRS' declarations in "considering whether the [district] court had an adequate factual basis for the decision rendered." Becker, 34 F.3d at 402; Matter of Wade, 969 F.2d at 245.

A. First FOIA Request

Patterson argues on appeal that the IRS failed to uphold its burden to justify its nondisclosure of certain information in response to her first request. The IRS responds that the Martin Declaration, or, more specifically, two-and-a-half paragraphs of the five page declaration, is sufficient to establish the IRS' nondisclosure pursuant to both exemptions 6 and 7(C). ⁵ This Declaration, however, is insufficient.

1. Exemption 7(C)

The exemption which the IRS relied upon in the district court is exemption 7(C) for "records or information compiled for law enforcement purposes" which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The Declaration is primarily concerned with reciting the statutory language. The only statement which attempts to describe the documents and the applicability of the exemption is p 11 of the Martin Declaration, which states that "[t]he documents involved in the present case were compiled for 'law enforcement purposes' because they were gathered in connection with the investigation of the plaintiff and other persons for possible violations of the Rules of Conduct and federal Equal Employment Opportunity statutes."

In order to withhold information under exemption 7, "[t]he government has the burden of showing the records it seeks to shelter under Exemption 7 were compiled for adjudicatory or enforcement purposes." Stern v. FBI, 737 F.2d 84, 88 (D.C.Cir.1984). ⁶ Because the IRS was allegedly participating in a law enforcement investigation as an employer under the "Equal Employment Opportunity statutes," rather than as an agency enforcing the revenue laws, it is not completely obvious that it was proceeding with an "enforcement purpose." The IRS must "distinguish between internal investigations conducted for law enforcement purposes and general agency monitoring that might reveal evidence that could later give rise to a law enforcement investigation." Id. at 89. In making this distinction, the D.C. Circuit has outlined the following standard: "[A]n agency's investigation of its own employees is for 'law enforcement purposes' only if it focuses 'directly on specifically alleged illegal acts, acts which could, if proved, result in civil or criminal sanctions.' " Id., (quoting Rural Housing Alliance v....