Scott v. Internal Revenue Serv.
| Decision Date | 26 January 2021 |
| Docket Number | CASE NO.: 18-CV-81750-MARRA |
| Parties | JAMES E. SCOTT, Plaintiff, pro se, v. INTERNAL REVENUE SERVICE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon the Internal Revenue Service's Motion for Summary Judgment [DE 27] and Plaintiff's Cross-Motion for Summary Judgment [DE 36]. The Court has carefully considered the written submissions, the record, applicable law, and is otherwise fully advised in the premises.
Defendant, the Internal Revenue Service ("IRS"), moves for summary judgment asserting it is entitled to judgment as a matter of law that it has (1) performed an adequate search for records responsive to Plaintiff's Freedom of Information Act ("FOIA") request; and (2) properly withheld records, or portions thereof, under the FOIA exemptions provided in 5 U.S.C. § 552(b).
Pro se Plaintiff, James E. Scott ("Scott"), moves for summary judgment on the grounds that the IRS has (1) failed to carry its burden to show that each record withheld from disclosure is within the applicable statutory description, and (2) failed to carry its burden with respect to the claims of Exemption 5 that "an agency shall withhold information under this section only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection b" of 5 U.S.C. § 552(a)(8)(A)(i)(I). Scott's Motion to Compel Preparation of a Vaughn Index (DE 28) was denied, the Court finding that the tables contained at pages 7-12 of the Keaton Declaration to be the functional equivalent of a Vaughn Index. DE 35 at 5. Nonetheless, the Court ordered the documents withheld in part, and in full to be filed under seal for an in camera review. See DE 40; DE 41 (under seal).
1. On May 22, 2018, the IRS received a request under the Freedom of Information Act from Scott. Declaration of David Nimmo, hereinafter "Nimmo Decl." ¶ 6.
2. Scott's FOIA Request sought "certain records within the Office of Chief Counsel," including, "any outgoing letter, email, or record of other communication, originated by any of Timothy L. Jones, Helen M. Hubbard, or Lewis Bell regarding any Private Letter Ruling request, between 8/1/2013 and 05/21/2014." DE 1 at 6, Ex.1; Nimmo Decl. ¶ 8.
3. Scott's FOIA Request was assigned tracking number F18142-0070. Nimmo Decl. ¶ 6.
4. On May 22, 2018, the FOIA request was assigned to Tax Law Specialist John Quigley within the IRS's Office of Government Liaison, Disclosure & Safeguards. Nimmo Decl. ¶ 7.
5. On May 22, 2018, Mr. Quigley used the IRS's internal personnel directory to search for each of the three individuals — Timothy L. Jones, Helen M. Hubbard, and Lewis Bell — who were identified in Scott's Request. Nimmo Decl. ¶¶ 8, 9.
6. Mr. Quigley's search confirmed that all three individuals were attorneys in the Office of Chief Counsel's National Office ("National Office") in Washington, D.C. Nimmo Decl. ¶ 9.
7. On May 23, 2018, Mr. Quigley sent a search memorandum requesting responsive records to the Disclosure and Litigation Support ("DLS") branch within the Office of Chief Counsel. Nimmo Decl. ¶ 10.
8. DLS is responsible for coordinating and processing all FOIA requests that seek records contained in the National Office. Nimmo Decl. ¶ 10.
9. Because plaintiff's request sought "records within the Office of Chief Counsel" and identified attorneys within the National Office, DLS was the appropriate office to conduct the search for responsive records. Nimmo Decl. ¶ 10.
10. On May 30, 2018, Mr. Quigley received an initial response from Melva Tyler, who was a Supervisory Legal Administrative Specialist and the Branch Chief of DLS at the time. Nimmo Decl. ¶ 11. Ms. Tyler explained that DLS needed a specific Private Letter Ruling ("PLR") number,1 subject matter, or Uniform Issue List ("UIL") code in order to conduct a search for responsive records. Nimmo Decl. ¶ 11.
11. Mr. Quigley accordingly reached out to Scott and explained that he needed additional information in order to search for the records sought in the FOIA Request. Nimmo Decl. ¶¶ 12-13.
12. On June 19, 2018, Scott emailed Mr. Quigley a list of eight written determination2 numbers that he had identified as PLRs to search: 201334038, 201411032, 201424002,201431003, 201435013, 201442049, 201445002, and 201502008. Nimmo Decl. ¶ 14.
13. On June 21, 2018, Mr. Quigley sent a revised search memorandum to DLS listing the eight written determination numbers Scott had provided. (Nimmo Decl. ¶ 16.)
14. Ms. Tyler instructed a legal secretary to retrieve the files associated with the eight written determination letters Scott identified. Declaration of Richelle Hawkins, hereinafter "Hawkins Decl." ¶ 7.
15. It was Ms. Tyler's routine procedure to instruct a legal secretary to retrieve written determination files for the paralegal specialist who was assigned to process a FOIA request seeking records related to specific written determination numbers. Hawkins Decl. ¶ 7.
16. In order to locate the files associated with the written determination numbers Scott identified, the legal secretary searched the Office of Chief Counsel's case management information system ("CASE-MIS"). Hawkins Decl. ¶ 8.
17. CASE-MIS and its subsystems are electronic case management systems that are used, for among other purposes, to track cases within the Office of Chief Counsel (see Chief Counsel Directives Manual ("CCDM") 30.7.1). Hawkins Decl. ¶ 8.
18. Within CASE-MIS, the legal secretary searched for each of the eight written determination numbers Scott identified. Hawkins Decl. ¶ 9.
19. CASE-MIS indicated that each of the files associated with the eight written determinations were closed. Hawkins Decl. ¶ 9.
20. Records maintained in closed legal files are generally stored in the Docket, Records and User Fee ("DRU") branch within the Office of Chief Counsel. Hawkins Decl. ¶ 10.
21. The DRU is also the branch within the Office of Chief Counsel specifically responsible for storing PLR legal files. Hawkins Decl. ¶ 10.
22. Therefore, the DRU branch was the appropriate and customary location to search for files associated with the eight written determination numbers that Scott had identified as PLRs. Hawkins Decl. ¶ 10.
23. Accordingly, the legal secretary retrieved the files associated with the eight written determination numbers that Scott had identified from the DRU branch. Hawkins Decl. ¶ 11.
24. On June 27, 2018, Richelle Hawkins, a Paralegal Specialist in DLS was assigned to the FOIA request. Hawkins Decl. ¶ 4. Ms. Hawkins was provided with Mr. Quigley's revised search memorandum. Hawkins Decl. ¶ 4.
25. On that same day, the legal secretary provided Ms. Hawkins with the files that had been retrieved from the DRU branch. Hawkins Decl. ¶ 12.
26. Upon Ms. Hawkins initial review of the files from the DRU branch, she discovered that three of the written determination numbers that Scott had identified - 201334038, 201411032, and 201442049 - were not associated with PLRs. Hawkins Decl. ¶ 14.
27. Scott agreed to remove the three written determination numbers not associated with PLRs from his request, thereby limiting the scope of his request to five written determination numbers all of which were associated with PLR files: 201424002, 201431003, 201435013, 201445002, and 201502008. Nimmo Decl. ¶ 19; Hawkins Decl. ¶ 15.
28. In order to review the records contained in the PLR files, Ms. Hawkins first digitized the records by scanning them.3 Hawkins Decl. ¶ 16.
29. For each of the PLR files, Ms. Hawkins created a single PDF containing all of the records in that PLR file. Hawkins Decl. ¶ 16.
30. This digitization process preserved the PLR files in their original hardcopy format and allowed Ms. Hawkins to review the records electronically. Hawkins Decl. ¶ 16.
31. Ms. Hawkins next reviewed each of the PLR files to separate the records into two categories: (1) records subject to the disclosure requirements of 26 U.S.C. § 6110, and (2) records subject to the disclosure requirements of the FOIA. Hawkins Decl. ¶ 17.
32. This step was necessary because written determination files, including PLR files, generally contain records subject to these two separate disclosure regimes, § 6110 and the FOIA.4 Hawkins Decl. ¶ 17.
33. For each of the PLR files, Ms. Hawkins separated the final written determination and "background file documents" from the other records in each file. Hawkins Decl. ¶ 20.
34. This process resulted in a total of 255 pages of material that was both subject to disclosure under the FOIA and potentially responsive to Scott's request. HawkinsDecl. ¶ 20.
35. On midnight of December 21, 2018, the continuing resolution that had provided funding to the federal government expired and appropriations to federal agencies, including the IRS, lapsed. During the lapse in appropriations, government employees were prohibited from working, even on a voluntary basis, except in limited circumstances. See 31 U.S.C. § 1342. Nimmo Decl. ¶ 21.
36. Accordingly, Ms. Hawkins and Mr. Quigley were prohibited from working any further on Scott's FOIA request. Nimmo Decl. ¶ 21; Hawkins Decl. ¶ 21.
37. On January 25, 2019, a continuing resolution was entered and the federal government was reopened. Nimmo Decl. ¶ 22.
38. Both Ms. Hawkins and Mr. Quigley were informed once the government reopened that Scott had commenced this litigation during the shutdown. Nimmo Decl. ¶ 23; Hawkins Decl. ¶ 22.
39. Once litigation related to a FOIA request is filed in district court, the Disclosure Office transfers the case to the Office of Chief Counsel to assist the Department of Justice in its defense of the litigation. Nimmo Decl. ¶ 24.
40. In accordance with these procedures, both Ms. Hawkins and Mr. Quigley stopped working on the FOIA Request; provided copies of their case notes, correspondences, and potentially responsive records to the Office of Chief Counsel; and closed the case on AFOIA.5 Nimmo Decl. ¶ 24; Hawkins Decl. ¶¶...
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