Waterman v. Internal Revenue Service

MOTION for Summary Judgment as to Count II, MOTION to Dismiss as to Count I

D.D.C.June 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DISTRICT OF COLUMBIA BRADLEY S. WATERMAN, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) _____________________________________ ) Case No. 16-cv-01823 (RJL) DEFENDANT’S MOTION TO DISMISS, AND MOTION FOR SUMMARY JUDGMENT Defendant INTERNAL REVENUE SERVICE moves to dismiss under Fed. R. Civ. P. 12(b)(6) Count I of Plaintiff’s complaint seeking records pursuant to the Privacy Act, 5 U.S.C. § 552a, et seq., and moves for summary judgment on Count II of Plaintiff’s complaint seeking records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a), et seq. This Court should dismiss Count I because Plaintiff failed to submit a proper Privacy Act request, and the database from which Plaintiff seeks records is exempted from the disclosure provisions of the Privacy Act. This Court should enter judgment in favor of Defendant as to Count II because the material facts are not in dispute, and Defendant is entitled to judgment as a matter of law. The Service has performed an adequate search for documents responsive to Plaintiff’s FOIA request, and has withheld only those documents, or portions thereof, authorized to be withheld by 5 U.S.C. § 552(b). Accordingly, the Court should grant judgment in favor of Defendant. Case 1:16-cv-01823-RJL Document 18 Filed 06/12/17 Page 1 of 3 2 Attached to this motion are the declarations of Elizabeth Rawlins, Barbara D. Herring, and Keith Ott, a statement of points and authorities, and a statement of undisputed material facts with Exhibits A-H, as described therein. A proposed order is also filed with this motion. DATED: June 12, 2017 Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General CHANNING D. PHILLIPS United States Attorney /s/Joycelyn S. Peyton JOYCELYN S. PEYTON Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, D.C. 20044 Tel: 202-514-6576 Fax: 202-514-6866 Joycelyn.S.Peyton@usdoj.gov Counsel for the United States Case 1:16-cv-01823-RJL Document 18 Filed 06/12/17 Page 2 of 3 3 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of Defendant’s Motion to Dismiss, and Motion for Summary Judgment has been made on June 12, 2017, via the CM/ECF system, to the following recipients: L. BARRETT BOSS Cozen O’Connor 1200 19th St. NW Ste. 300 Washington, D.C. 20036 bboss@cozen.com Counsel for Bradley Waterman /s/ Joycelyn S. Peyton JOYCELYN S. PEYTON Trial Attorney, Tax Division U.S. Department of Justice Case 1:16-cv-01823-RJL Document 18 Filed 06/12/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DISTRICT OF COLUMBIA BRADLEY S. WATERMAN, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) _____________________________________ ) Case No. 16-cv-01823 (RJL) STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS, AND MOTION FOR SUMMARY JUDGMENT Defendant INTERNAL REVENUE SERVICE moves to dismiss under Fed. R. Civ. P. 12(b)(6) Count I of Plaintiff’s complaint seeking records pursuant to the Privacy Act, 5 U.S.C. § 552a, et seq., and moves for summary judgment on Count II of Plaintiff’s complaint seeking records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a), et seq. This Court should dismiss Count I because Plaintiff failed to submit a proper Privacy Act request, and the database from which Plaintiff seeks records is exempted from the disclosure provisions of the Privacy Act. This Court should enter judgment in favor of Defendant as to Count II because the material facts are not in dispute, and Defendant is entitled to judgment as a matter of law. Plaintiff’s request for records seeks a full copy of the Report for Suspected Practitioner Misconduct (“Report”) submitted against him to the Internal Revenue Service’s (“Service” or “IRS”) Office of Professional Responsibility (“OPR”), and all documents “prepared in connection with or otherwise related to” the Report. In response to Plaintiff’s FOIA request, the Service has performed an adequate search for records responsive to Plaintiff’s request. As a result of its search, the Service located 54 pages of responsive records. Of the 54 pages, the Service released in full to Plaintiff 32 pages of documents; pursuant to 5 U.S.C. § 552(b) “(FOIA Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 1 of 21 2 exemptions”), it appropriately withheld in part 2 pages of records, and withheld in full 20 pages. Specifically, Defendant has withheld records in part or in full under FOIA exemptions 5, 6, 7(c), and 3 in conjunction with 26 U.S.C. § 6103(a). Defendant has complied with its obligations under the FOIA. Accordingly, this Court should dismiss Count I of the complaint, and grant judgment in favor of Defendant as to Count II. STANDARDS OF REVIEW A. STANDARD FOR FED. R. CIV. P. 12(b)(6) Under Fed. R. Civ. P. 12(b)(6), a party may challenge the sufficiency of a complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Patrick v. District of Columbia, 179 F. Supp. 3d 82, 86 (D.D.C. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim has facial plausibility when the pleaded factual content “allows the court to draw the reasonable inference that the [defendant] is liable for the misconduct alleged.” Patrick, 179 F. Supp. 3d at 89 (citing Iqbal, 556 U.S. at 678). When ruling on Rule 12(b)(6) motions to dismiss, the court may examine documents incorporated into the complaint by reference, matters of which a court may take judicial notice, and other “documents upon which the plaintiff’s complaint necessarily relies,” even if produced by the defendant. Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)); see also, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); but see FED. R. CIV. P. 12(d) (holding that “if, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 2 of 21 3 B. STANDARD FOR SUMMARY JUDGMENT Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56 “mandates the entry of summary judgment” if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The opposition to a motion for summary judgment “must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.” PDK Labs Inc. v. Ashcroft, 338 F. Supp. 2d 1, 6 (D.D.C. 2004). Only disputes over facts that “might affect the outcome of the suit” can preclude the entry of summary judgment. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). “FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). It requires that federal agencies comply with requests to make their records available to the public, unless such “information is exempted under [one of nine] clearly delineated statutory [exemptions].” Id. (internal quotation marks omitted); see also 5 U.S.C. §§ 552(a)-(b). “FOIA cases are typically and appropriately decided on motions for summary judgment.” Negley v. F.B.I., 825 F. Supp. 2d 63, 68 (D.D.C. 2011). Generally, an agency must make two showings to prevail in a FOIA motion for summary judgment: (1) that a reasonable search for Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 3 of 21 4 responsive records was conducted, and (2) that any withheld records fall under one of FOIA’s exemptions from disclosure. ARGUMENT I. PLAINTIFF’S PRIVACY CLAIM SHOULD BE DISMISSED BECAUSE HE FAILED TO ADMINISTRATIVELY EXHAUST THAT CLAIM, AND ALTERNATIVELY, BECAUSE THE PRIVACY ACT EXEMPTS FROM DISCLOSURE THE RECORDS SOUGHT A. Dismissal Of Privacy Act Claim (Count I) Based Upon Plaintiff’s Failure To Exhaust The Privacy Act provides that an individual may request “access to his record or to any information pertaining to him which is contained” in the agency’s system of records. 5 U.S.C. § 552a(d)(1) (emphasis added). 5 U.S.C. § 552a(g)(1)(B). The Service has promulgated regulations that specify the procedures requestors must follow in order to pursue a claim under Privacy Act, which are set forth in 31 CFR §§ 1.26 and 31 C.F.R. Part 1, Subchapter C, Appendix B. “To properly allege an access claim, a plaintiff must show: (1) a request for records [by an individual, about himself] was made; (2) the request was denied; and (3) such denial or failure to act was improper under the Privacy Act.” Id. Where a plaintiff asserts a Privacy Act claim but fails to make a proper Privacy Act request, courts will find that the plaintiff has failed to exhaust his administrative remedies and will dismiss the claim. Taylor, 127 F.3d at 477; MacLeod v. IRS, Case No. 99-cv-1088, 2001 U.S. Dist. LEXIS 9327, at *4 (S.D. Cal. June 4, 2001); Reeves v. United States, No. CV-S-94-1291, 1994 U.S. Dist. LEXIS 17007, at *9 (E.D. Cal. Nov. 16, 1994); Lilienthal v. Parks, 574 F. Supp. 14, 18 (E.D. Ark. 1983). This Court should dismiss Count I because Plaintiff’s request failed to comply with the applicable agency regulations. Among the several requirements established by the Service’s Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 4 of 21 5 regulations implementing the Privacy Act, requests for records must be sent to a specific Service office depending on the system of records to which the requestor seeks access. See Privacy Act of 1974, as Amended; System of Records Notice, 80 FR 54064-01 (discussing various systems of records maintained by the Internal Revenue Service). Plaintiff’s request seeks practitioner disciplinary records maintained by OPR. Compl., ¶¶ 5, 11-12; Privacy Act of 1974, as Amended, 77 FR 56913-01 (describing records as disciplinary records maintained in the OPR records system, “TREASURY/IRS 37.00 - Practitioner Disciplinary Records-Treasury/IRS”). The Service’s regulations provide that requests for such records must be sent to the Service’s national office in Washington, D.C. See Privacy Act of 1974, as Amended; System of Records Notice, 80 FR 54064-01. Plaintiff, however, sent his request to Atlanta, Georgia. See Exhibit A, Privacy Act and FOIA Request dated Jan. 7, 2016 Accordingly, Plaintiff failed to make a proper request for records under the Privacy Act, and Count I should be dismissed for failure to state a claim.1 B. Dismissal Because the Privacy Act and the Service’s Regulations Exempt from Disclosure the Records Plaintiff Seeks The system from which Plaintiff seeks records is exempted from the disclosure provisions of the Privacy Act. Accordingly, this Court should dismiss Count I of Plaintiff’s complaint. Although the Privacy Act generally grants requestors access to their own records, the Act also allows the heads of agencies to promulgate rules that exempt a system of records from 1 There are limited situations where a plaintiff is not required to exhaust his administrative remedies prior to filing suit under 5 U.S.C. § 552a(g)(1)(B), such as “where the challenge is to the adequacy of the agency procedure itself, such that ‘the question of the adequacy of the administrative remedy . . . is for all practical purposes identical with the merits of the plaintiff’s lawsuit.’” Bavido v. Apfel, 215 F.3d 743, 748 (7th Cir. 2000). Those circumstances do not exist in this case. Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 5 of 21 6 the disclosure provisions of the Privacy Act provided that the system of records meets certain statutory requirements. 5 U.S.C. § 552a(j)-(k). Section 522a(k)(2) provides in relevant part: The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is . . . . investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section. 5 U.S.C. § 552a. Pursuant to that section, the Department of Treasury has promulgated rules exempting from disclosures made pursuant to 5 U.S.C. 552a(d) the Treasury/IRS 37.007, Practitioner Disciplinary Records Treasury/IRS. 31 C.F.R., Part 1, Subpart C, § 1.36. Because “the system is investigatory material compiled for law enforcement purposes and for the purposes of assuring the safety of individuals protected by the Department pursuant to the provisions of 18 U.S.C. § 3056,”2 the Department of Treasury determined that the system containing practitioner disciplinary records was appropriately exempted under section 552a(k)(2). The records Plaintiff seeks in this case are maintained in the Treasury/IRS 37.007, Practitioner Disciplinary Records Treasury/IRS system of records. See Privacy Act of 1974, as Amended, 77 FR 56913-01 (describing records maintained in records system). Plaintiff seeks a report for professional misconduct, and its related documents, which was submitted to OPR for suspected violation of Circular 230. Compl. ¶¶ 5, 11; Ott Decl., ¶ 7. Pursuant to the Service’s 2 18 U.S.C. § 3056 delineates the powers, authorities, and duties of the United States Secret Service. Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 6 of 21 7 published notices of records, the records Plaintiff seeks are clearly and solely located in the Treasury/IRS 37.007, Practitioner Disciplinary Records Treasury/IRS system of records, which is exempted from the disclosure provisions of the Privacy Act pursuant to § 552a(k)(2). See Privacy Act of 1974, as Amended; System of Records Notice, 80 FR 54064-01; see also 31 C.F.R., Part 1, Subpart C, § 1.36. Accordingly, this Court should dismiss Count I of Plaintiff’s complaint because it fails to state a claim for which relief can be granted. See, e.g. Snyder v. Central Intelligence Agency, 230 F.Supp.2d 17, 21 (D.D.C.2002) (plaintiff not entitled under the Privacy Act’s access provision to information withheld pursuant to exemptions (j)(1) and (k)(1)). II. THE COURT SHOULD GRANT SUMMARY JUDGMENT ON PLAINTIFF’S FOIA CLAIM (COUNT II) Defendant is entitled to summary judgment as a matter of law because the material facts as set forth in Defendant’s Statement of Undisputed Material Facts are not in dispute, and the agency has performed an adequate search for all documents responsive to Plaintiff’s requests, and the Service has withheld only those documents, or portions thereof, authorized to be withheld pursuant to FOIA exemptions 5, 6, 7(C), and 3 in conjunction with 26 U.S.C. § 6103(a). A. The Service Conducted an Adequate Search for Responsive Records. To prevail in a motion for summary judgment, the responding agency must show “that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The adequacy of an agency’s search for records “is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted). In determining whether the Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 7 of 21 8 search was reasonable, the issue “is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was adequate.” Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982). The responding agency is not required to “set forth with meticulous documentation the details of an epic search for the requested records.” Id. at 127. Instead, “in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.” Id. (citation omitted). Agency declarations “are afforded a presumption of good faith,” and only evidence that the agency’s search was not made in good faith will suffice to rebut an adequate declaration regarding the agency’s search. Defenders of Wildlife v. United States Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (citation omitted); Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001) (citations omitted). In the present case, the Service has submitted the detailed, non-conclusory declarations of Disclosure Specialist Barbara Herring and Chief Counsel attorney Elizabeth Rawlins describing the Service’s reasonable, good faith search for responsive records. Ms. Herring describes how she began her search for responsive records by contacting Keith Ott in OPR at the direction of Plaintiff’s FOIA request, which listed Mr. Ott as a contact person for documents responsive to the request. Herring Decl., ¶¶ 6-7. Ms. Herring states that, on February 5, 2016, she received from Mr. Ott the complete OPR case file, which contained 54 pages of responsive documents. Id. Ms. Herring did not extend her search beyond the OPR case file because “the documents sought by Mr. Waterman’s request would only be kept in the OPR case files.” Id., ¶ 6. Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 8 of 21 9 The Service continued its search after Plaintiff initiated this litigation when Ms. Rawlins was assigned to this case on September r21, 2016. Rawlins Decl., ¶ 1. Ms. Rawlins began her search on or around September 21, 2016, when upon her review of the records located by Ms. Herring, she noted that “the official OPR case file contained few e-mails,” and asked James J. McElligott to perform a follow-up search for responsive records, particularly for email communications. Id., ¶ 10. As a result, Mr. McElligot located two additional responsive email communications. Id., ¶¶ 9, 11. Ms. Rawlins then separately requested all of the related documents in the CCMS database, and determined that those records were identical to the records in the OPR case file besides the two additional emails located by Mr. McElligot. Besides the records retrieved by Ms. Herring, Ms. Rawlins, and Mr. Ott, there are no other records maintained in OPR’s case files that are responsive to Plaintiff’s request. Herring Decl., ¶ 7; Ott Decl., ¶ 13. Together, the declarations provide a “reasonably detailed, nonconclusory explanation” of their searches. The searches were “reasonably calculated to uncover all relevant records” and made in good faith. See Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.D. Cir. 1994). Accordingly, as a matter of law, the Service has met its burden as to the adequacy of the search. B. The Withheld Responsive Records Are Exempt from Disclosure. The district court conducts a de novo review of the agency’s decision to withhold requested documents under any of FOIA’s specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). Thus, the burden is on the agency to show that all nondisclosed, responsive material fall within a stated exemption. Stein v. U.S. Dep’t of Justice, 134 F. Supp. 3d 457, 468-69 (D.D.C. 2015) (citing Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992); 5 U.S.C. § 552(a)(4)(B). Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 9 of 21 10 Summary judgment on the applicability of the agency’s applied exemptions may be based on the agency’s affidavit alone if the affidavit “describes the justifications for withholding the information with specific detail, [and] demonstrates that the information withheld logically falls within the claimed exemption.” ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Further, the affidavit must not be “contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” Id. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). The agency’s affidavit must show why the documents fall within a given exemption with reasonable specificity. Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). The affidavit will not suffice if the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. Id. On the other hand, Plaintiff “must proffer proper evidence to support a claim that an exemption has been improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant.” Billington v. United States Dep’t of Justice, 301 F. Supp. 2d 15, 23 (D.D.C. 2004). i. FOIA Exemption 5 was properly asserted to protect Internal Revenue Service records. The Service has justifiably claimed protection under FOIA Exemption 5 for withholding the records, or portions thereof, described in the Rawlins declaration. Section 552(b)(5) protects from disclosure under the FOIA “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The FOIA thus incorporates those privileges which the government enjoys in pretrial discovery under relevant statutes and case law. See United States v. Weber Aircraft Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 10 of 21 11 Corp., 465 U.S. 792, 799 (1984). Three well-established common law privileges are encompassed within FOIA Exemption 5: (1) the attorney work product doctrine; (2) the attorney- client privilege; and (3) the governmental deliberative process privilege. See Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002). Here, the Service has withheld records under the deliberative process privilege. 1. Deliberative Process Privilege The Service has justifiably withheld the records described in ¶¶ 19-21 of the Rawlins declaration under FOIA exemption 5 in conjunction with the governmental deliberative process privilege. The deliberative process privilege protects “records ‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1995) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeisee, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). Although factual material that can be separated from opinion is generally not exempt from disclosure under the deliberative process privilege, courts have extended the privilege to facts that may expose the deliberative process of a government agency owing to the nature of the facts or the manner in which the facts were gathered or summarized. See, e.g. Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (exempting material collected in drafting histories of the use of herbicides during the Vietnam War); Gomez v. City of Nashua, 126 F.R.D. 432, 436 (D.N.H. 1989) (exempting facts derived from “selective note- taking”); Zinker v. Doty, 637 F. Supp. 138, 140-41 (D. Conn. 1986) (same). The privilege also protects other subjective records reflecting the author’s personal opinions prior to agency adoption of a policy. Tax Analysts, 294 F.3d at 80. Such records are exempt Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 11 of 21 12 under FOIA because disclosure could inhibit “frank discussion of legal or policy matters,” leading to weaker decisions and policies. Sears, Roebuck & Co., 421 U.S. at 150; see also, Tax Analysts, 294 F.3d at 80. In determining whether the governmental deliberative process privilege protects a particular document, that document must be both predecisional and deliberative in nature. Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993); Judicial Watch v. Export Import Bank, Inc., 108 F. Supp. 2d 19, 35 (D.D.C. 2000). “Predecisional” means antecedent to an agency’s adoption of its final action. Jordan v. DOJ, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc). The deliberative nature of the record protects from disclosure communications that would publicly expose the agency’s deliberative process, including facts that are inexorably intertwined with the deliberations. Russell v. Dept. of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). The withheld information typically contains opinions and/or recommendations reflecting the “give-and-take” of the agency’s deliberative processes leading to a decision regarding compliance with internal revenue laws. Hamilton Securities Group, Inc. v. HUD, 106 F. Supp. 2d 23, 31 (D.D.C. 2000). Such records are exempt from disclosure because the potential for the public to see the changes made from the draft version of a document to the final version could “stifle the creative thinking and candid exchange of ideas.” Dudman Comm. Corp. v. Dept. of the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987). Finally, “a document from a subordinate to a superior official is more likely to be predecisional.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980); see also Ginsberg v. I.R.S., No. 96-2265-CIV-T-26E, 1997 WL 882913, at *4 (M.D. Fla. Dec. 23, 1997) (holding protectible IRS agent’s “request for technical assistance” and supervisor’s addendum revealing “areas of concern of the two authors” during conduct of examination). Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 12 of 21 13 As described in Ms. Rawlins’ declaration, the Service withheld memoranda, a computer print-out, and an email communication prepared by revenue agents and OPR employees, which reflect the deliberations of the Services’ employees regarding the misconduct referral. Rawlins Decl., ¶¶19-21. The withheld records are certainly predecisional because OPR had not determined what action, if any, it would take in response to the referral. Id. Two of the three withheld memoranda are dated September 10, 2013 and December 23, 2013. Rawlins Decl., ¶ 17. These two memoranda were attached to the Report as support for the allegations of professional misconduct. Id. The submission of the Report and its attached memoranda initiated the OPR review process. Thus, the two memoranda are necessarily predecisional. Further, the revenue agent and supervising manager who drafted the memoranda were not responsible for making the final determination regarding what action, if any, OPR would take in response to the referral. Id., 19; Ott Decl., ¶¶ 6-7. The third memorandum drafted by Kevin Brown is also predecisional as is evident from its content. Rawlins Decl., ¶ 19. “Mr. Brown’s purpose in writing the document was to record his analysis of the referral, particularly to summarize the facts alleged, identify the violations alleged, and recommend further predecisional agency actions, such as assigning the case to an OPR attorney.” Id. Finally, the redacted portion of a four-page (4) computer print-out and a one-page (1) email are withheld under this privilege because they pre-date the final agency decision, which was made on September 10, 2014, and explicitly consist of recommendations made to OPR regarding the action it should take in response to the referral. Rawlins Decl., ¶¶ 20-21; Ott Decl., ¶ 6. Further, the withheld documents clearly reflect the Service’s employees’ deliberative process. The memoranda drafted Group Manager Chelsea Kelly and Revenue Agent Michael Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 13 of 21 14 Marchetti contain facts selectively gathered and noted for the specific purpose of supporting the referral for misconduct. Id., ¶ 19. The memorandum drafted by Kevin Brown analyzes the first two memoranda, and makes a recommendation regarding whether OPR should take any further action, which not ultimately adopted as OPR’s final positon. Id. The other documents withheld pursuant to this exemption contain facts, reasons, and rationales that were not the ultimate ground for the agency action. Id. ¶¶ 20-21. The Service therefore properly withheld them pursuant to FOIA exemption 5. ii. FOIA Exemption 6 was properly asserted. The Service properly withheld the records described at ¶¶ 23-24 of the Rawlins declaration. FOIA exemption 6 exempts from disclosure personnel, medical, and similar files where the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(6); see Department of State v. Washington Post Co., 456 U.S. 595, 599-603 (1982); Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008). To qualify under exemption 6, information must meet two criteria. Multi Ag Media LLC, 515 F.3d at 1228. First, it must be personal information contained in personnel files, medical files, or similar files. Id. The Supreme Court has broadly interpreted “similar files” as any information that “applies to a particular person.” U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). Second, disclosure of the information at issue must compromise a substantial privacy interest. Multi Ag Media LLC, 515 F.3d at 1228. A court must balance the privacy of the individual identified in the files against the public interest in disclosure. Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009). Courts have found that individuals, including government employees have a sufficient interest in the privacy of their names and detailed time- Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 14 of 21 15 keeping records, performance reports, etc., to justify withholding under exemption 6. See, e.g. Berger v. IRS, 288 F. App’x 829 (3d Cir. Aug. 11, 2008) (“[Revenue Officer’s] time records are a personal recording of the time expended as an employee and therefore can be identified as applying to her.”). The public’s interest is limited to the statutory purpose of FOIA, namely, to “shed light on an agency’s performance of its statutory duties.” See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). The information withheld under exemption 6 in this case is an IRS employee’s work telephone number and work email address, which would be of little, or no, interest to the general public in that it does not shed any light on how the government operates. The information would constitute an unwarranted invasion of the privacy interest of the individuals involved with little or no benefit to the public. Rawlins Decl. ¶¶ 23-24. Accordingly, the Service is properly withholding personal information pursuant to Exemption 6. iii. FOIA Exemption 7 was properly applied. FOIA Exemption 7 exempts from disclosure “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). The threshold determination under exemption 7 is whether the documents at issue were (a) compiled by a law enforcement agency; and (b) compiled for a law enforcement purpose(s). Abramson v. FBI, 456 U.S. 615, 622 (1982). First, the Service is a law enforcement agency for purposes of exemption 7. Church of Scientology v. IRS, 995 F.2d 916, 919 (9th Cir. 1993); Lewis v. IRS, 823 F.2d 375, 379 (9th Cir. 1987); Keys v. DOJ, 830 F.2d 337, 340 (D.C. Cir. 1987). Second, courts have consistently held that records compiled for civil or criminal investigations by the Service are “records or information compiled for law enforcement purposes.” Tax Analysts, 294 F.3d at 77; see also Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 15 of 21 16 Jefferson, 284 F.3d at 178 (acknowledging that records obtained by OPR regarding ethical violations may be investigatory law enforcement files). This Court has “recognized that Exemption 7(C) ‘covers investigatory files related to enforcement of all kinds of laws,” including those involving “adjudicative proceedings.’” Jefferson v. Dep't of Justice, Office of Prof'l Responsibility, 284 F.3d 172, 178 (D.C. Cir. 2002) (citing Rural Hous. Alliance v. U.S. Dep't of Agric., 498 F.2d 73, 81 n. 46 (D.C. Cir. 1974), supplemented, 511 F.2d 1347 (D.C. Cir. 1974). FOIA exemption 7(C) authorizes the withholding of information compiled for law enforcement purposes, the release of which could reasonably be expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C. §552(b)(7)(C). In applying the personal privacy exemptions under FOIA, the courts must balance the private and public interests involved. See, e.g., Johnson v. Comm’r, 239 F. Supp. 2d 1125, 1137 (W.D. Wash. 2002). Under the balancing test, a FOIA plaintiff is required to show that a “substantial public interest” in disclosure outweighs the privacy interests involved. Becker v. IRS, 34 F.3d 398, 404 05 (7th Cir. 1994). Where the plaintiff has failed to demonstrate any superior public interest that would be served by disclosure, the competing interest of avoiding an unwarranted invasion of personal privacy takes precedence, and the information is exempt from disclosure. See Reporters Comm., 489 U.S. at 762; Safecard Serv., Inc., 926 F.2d at 1205; Antonelli v. FBI, 721 F.2d 615, 618- 19 (7th Cir. 1983). The Supreme Court has held that withholding of a document under FOIA Exemption 7(C) turns on the nature of the requested document and its relationship to the basic purpose under the FOIA, which is to open agency action to the light of public scrutiny. See Reporters Comm., 489 U.S. at 772. The statutory purpose of the FOIA is not “fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 16 of 21 17 about an agency’s own conduct.” Id. at 773. Not only must the requester state a legitimate public interest, but he must demonstrate that the public interest in disclosure is sufficiently compelling to outweigh strong privacy interests. Id. at 775. There is no such public interest in this case. The Service withheld information consisting of Service employee’s telephone numbers and email addresses. Rawlins Decl., ¶¶ 23-24. Federal employees have a legitimate privacy interest in being free from harassment that may result in disclosure of their identities and the connection to particular investigations. Neely v. F.B.I., 208 F.3d 461, 464 (4th Cir. 2000). Accordingly, the Service is properly withholding this information pursuant to FOIA Exemption 7(C). iv. FOIA exemption 3 with 26 U.S.C. § 6103 was properly asserted. The Service properly withheld under 5 U.S.C. § 552(b)(3) in conjunction with 26 U.S.C. § 6103(a), certain records, or portions of records, that contain the tax return information of a third- party. FOIA exemption 3 allows the withholding of information prohibited from disclosure by another statute under certain circumstances. 5 U.S.C. § 552(b)(3). Under this exemption, if the Court determines that a qualifying statute exists and that any of the withheld information is within the statute’s scope, the material must be withheld no matter how unwise or self-protective the statute may be. See Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 868 n.29 (D.C. Cir. 1981); Goland v. CIA, 607 F.2d 339, 350 n.65 (D.C. Cir. 1978). Section 6103 of Title 26 is an exempting statute within the meaning of FOIA Exemption 3; thus, records protected under § 6103 are exempt from disclosure. Chamberlain v. Kurtz, 444 U.S. 842 (1979); Lehrfeld v. Richardson, 132 F.3d 1463, 1466 (D.C. Cir. 1998); Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C. Cir. 1997). Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 17 of 21 18 Section 6103’s prohibitions are clear. It provides that tax returns and return information are to be kept confidential, unless disclosure is permitted by Title 26. Church of Scientology of California v. IRS, 484 U.S. 9 (1987). The term “return information” is broadly defined. Absent an Internal Revenue Code exception, an individual is not entitled to the tax return information of a third-party without authorization from that third-party. Stanbury Law Firm v. IRS, 221 F.3d 1059, 1062 (8th Cir. 2000) (citing 26 U.S.C. § 6103(a)); Berger v. IRS, 487 F.Supp.2d 482, 494- 95 (D.N.J. 2007); George v. IRS, No. 05-0955, 2007 WL 1450309, at *5 (N.D. Cal. May 14, 2007) (protecting third-parties’ return information contained in the plaintiff’s Service file). Here, the information withheld under § 6103(a) consists of return information related to a third party. Rawlins Decl., ¶ 17. Specifically, the withheld documents and information describe “actions taken and statements made by Mr. Waterman in his capacity as his client’s representative in the context of a potential tax liability of his client,” “the progress of the tax examination of Mr. Waterman’s client,” and other information related to the third-party taxpayer’s examination. Id. There are no provisions in Title 26 that would permit release of the third-party’s tax return information in this case.3 The primary example of the absence of a permitted disclosure is 3 Section 6103(l)(4), provides in relevant part, “The Secretary may disclose returns and return information-- upon written request . . . to any person, or to the duly authorized legal representative of such person, whose rights are or may be affected by an administrative action or proceeding under section 330 of title 31, United States Code, solely for use in the action or proceeding, or in preparation for the action or proceeding, but only to the extent that the Secretary determines that such returns or return information is or may be relevant and material to the action or proceeding.” 26 U.S.C.A. § 6103. This section, which permits but does not mandate disclosure, is not applicable because there is no “administrative action or proceeding.” Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 18 of 21 19 Plaintiff’s failure to provide written authorization from the third party permitting disclosure ofthat party’s return information. Ex. A, Waterman Jan. 7, 2016 FOIA Request. In his FOIA request, Plaintiff contends that § 6103 is inapplicable because he is authorized to represent the taxpayer before the Internal Revenue Service “with respect to all matters pertaining to the Bonds, including the report.” Id. at 4. This is plainly incorrect. Although the power of attorney (“POA” or “Form 2848”) attached to Plaintiff’s FOIA request clearly applies to his representation of the taxpayer related to eight specifically-described bonds, the POA does not, by its own terms, extend to the referral or to Plaintiff’s efforts to defend himself against allegations of professional misconduct, even if those allegations arose within the context of his representation of the taxpayer. Id. The FOIA regulations are derived in part from § 6103(c) of the Code, and are contrary to Plaintiff’s assertion that he in entitled to all information about the third party taxpayer “with respect to all matters pertaining to the Bonds, including the report.” The FOIA regulations provide that (1) a request to disclose returns and return information to a taxpayer’s designee “must be in the form of a separate written document pertaining solely to the authorized disclosure;” (2) it must identify, among other things, “[t]he type of return (or specified portion of the return) or return information (and the particular data) that is to be disclosed;” and (3) such authorization must be submitted to the Service “within 120 days following the date upon which Plaintiff’s case file was closed on September 18, 2017. Declaration of Keith Ott (“Ott Decl.”), 8. Accordingly, Plaintiff is not entitled to records under this provision. Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 19 of 21 20 the request or consent was signed and dated by the taxpayer.” 26 C.F.R. § 301.6103(c)-1 (emphasis added). Even if the scope of the POA encompassed the use for which Plaintiff seeks to put it in this case, the Form 4828 still fails to comply with the regulations promulgated by the Service implementing the FOIA. First, Plaintiff’s Form 2848 pertains to matters other than the disclosure Plaintiff seeks in this case (if it relates to the requested disclosure at all), and it fails to specifically identify the type of return information that would be disclosed in this matter. Finally, and perhaps most egregiously, the authorization form was signed by the taxpayer over three and a half years before Plaintiff submitted his FOIA request to the Service. Statement of Undisputed Material Facts, Exhibit A; Rawlins Decl., ¶ 4. Accordingly, the withheld information constitutes tax return information of a third party as defined in § 6103(b)(2)(A), and it was properly withheld pursuant to FOIA Exemption 3.4 CONCLUSION For the reasons stated above, Plaintiff failed to state a claim for which relief can be granted under the Privacy Act, and Defendant’s search pursuant to Plaintiff’s FOIA request was adequate, and its withholdings justified. Accordingly, this Court should dismiss Count I of the complaint, and grant judgment in favor of Defendant on Count II based on the undisputed facts. Defendant therefore respectfully requests that this Court grant its combined motion to dismiss, and motion for summary judgment, and deny Plaintiff’s request for attorney’s fees and other relief not provided for in the Privacy Act and the FOIA. 4 The complaint seeks attorney’s fees, but such relief is premature because plaintiff has not filed a motion seeking attorney’s fees. Accordingly, this dispositive motion does not discuss plaintiff’s claim for relief. Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 20 of 21 21 DATED: June 12, 2017 Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General CHANNING D. PHILLIPS United States Attorney /s/Joycelyn S. Peyton JOYCELYN S. PEYTON Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, D.C. 20044 Tel: 202-514-6576 Fax: 202-514-6866 Joycelyn.S.Peyton@usdoj.gov Counsel for the United States Case 1:16-cv-01823-RJL Document 18-1 Filed 06/12/17 Page 21 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRADLEY S. WATERMAN, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) _______________________________________) Case No. 16-cv-01823-RJL DECLARATION OF BARBARA D. HERRING I, Barbara D. Herring, pursuant to the provisions of 28 U.S.C. § 1746(2), declare as follows: 1. I, Barbara D. Herring, commonly referred to as Diann Herring, am a Government Information Specialist currently employed by the Internal Revenue Service (“IRS”), Government Liaison, Disclosure & Safeguard, Disclosure Field East Area, Disclosure Office 8 in Memphis, Tennessee. I have been in the Memphis Disclosure Office since April 2008, and I have been employed by the IRS in various positions since January 1972. 2. My responsibilities as a Government Information Specialist include processing requests made pursuant to Internal Revenue Code section 6103(e), “Disclosure to Persons Having Material Interest,” as well as Freedom of Information Act (“FOIA”) requests submitted to the IRS. My duties with respect to processing FOIA requests include determining whether the request complies with the applicable statute and regulations, directing and coordinating searches for responsive documents, reviewing responsive documents for applicable FOIA exemptions and other discretionary disclosure provisions, and preparing correspondence and final responses to Case 1:16-cv-01823-RJL Document 18-2 Filed 06/12/17 Page 1 of 4 2 requesters. My duties as a Government Information Specialist require knowledge of the applicable statute and IRS regulations and procedures governing requests for information, as well as the IRS’s institutional practices, the roles of various components within the IRS, and the types of records maintained in each component. 3. I am familiar with the requirements for disclosure in response to a FOIA request, including that the FOIA exempts certain types of documents from disclosure in response to a request. I am also familiar with the segregation requirement of subsection (b) of the FOIA for any non-exempt information contained in responsive agency records. I personally reviewed and am familiar with the documents at issue in this litigation, and attempted to release every reasonably segregable nonexempt portion of every responsive document. 4. By letter dated January 7, 2016, Bradley S. Waterman submitted a FOIA request to the IRS’s Atlanta Office. On January 12, 2016, the IRS Disclosure Scanning Operation in Atlanta stamped Mr. Waterman’s request as received. In my capacity as a Government Information Specialist, I was assigned to process Mr. Waterman’s FOIA request, and began processing the request no later than January 15, 2016. I make this declaration to address my search for records responsive to Mr. Waterman’s FOIA request. 5. Mr. Waterman’s request sought copies of a Report of Suspected Practitioner Misconduct (“Report”) filed with the IRS Office of Professional Responsibility (“OPR”) by Revenue Agent Michael Marchetti, of the IRS Tax-Exempt Bond (“TEB”) function. The Report pertains to Mr. Waterman’s conduct during his representation of a taxpayer during a TEB examination. In addition to the Report, Mr. Waterman’s request also sought all documents prepared in connection with or otherwise relating to the Report, including but not limited to correspondence, memoranda, notes, reports, and other documents prepared by Revenue Agent Case 1:16-cv-01823-RJL Document 18-2 Filed 06/12/17 Page 2 of 4 3 Marchetti, TEB Group Manager Chelsea Kelly, TEB Field Operations Manager Allyson Belsome, TEB Director Rebecca Harrigal, OPR Section Manager McGee, OPR Attorney- Advisor James McElligott III, and other IRS personnel. 6. Mr. Waterman’s FOIA request identified OPR Attorney Keith Ott as the OPR contact person for locating responsive documents in OPR files. On January 25, 2016, I contacted Mr. Ott to request copies of all documents in the case file. Mr. Ott transmitted copies of all file documents by secure electronic mail transmission on February 5, 2016. The OPR case file contained fifty-four (54) pages of documents. 7. I did not extend my search for responsive documents beyond OPR because the documents sought by Mr. Waterman’s request would only be kept in the OPR case files. The file for the TEB examination of the taxpayer Mr. Waterman represented would not contain documents generated by or during OPR’s review of the misconduct referral because the TEB examination and the OPR referral are two separate matters, the first relating to a taxpayer and the second relating to the representative. By letter dated February 9, 2016, I prepared and mailed a letter to Mr. Waterman indicating that I was in receipt of the FOIA request dated January 7, 2016, but that I would be unable to respond by February 10, 2016, which was the 20 business- day period allowed by law for my response. I also indicated that I intended to invoke the ten- day statutory extension, but that it would not be possible to locate and review responsive documents by February 25, 2016 (after which date Mr. Waterman could file suit). Therefore, I advised that the response date was extended to April 7, 2016. 8. By letter dated April 6, 2016, I prepared and mailed a second letter to Mr. Waterman, indicating that I continued to work on his request and needed additional time to complete my work. I stated that I would contact him by April 29, 2016 if I was still unable to Case 1:16-cv-01823-RJL Document 18-2 Filed 06/12/17 Page 3 of 4 Case 1:16-cv-01823-RJL Document 18-2 Filed 06/12/17 Page 4 of 4 Case 1:16-cv-01823-RJL Document 18-3 Filed 06/12/17 Page 1 of 5 Case 1:16-cv-01823-RJL Document 18-3 Filed 06/12/17 Page 2 of 5 Case 1:16-cv-01823-RJL Document 18-3 Filed 06/12/17 Page 3 of 5 Case 1:16-cv-01823-RJL Document 18-3 Filed 06/12/17 Page 4 of 5 Case 1:16-cv-01823-RJL Document 18-3 Filed 06/12/17 Page 5 of 5 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 1 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 2 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 3 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 4 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 5 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 6 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 7 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 8 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 9 of 10 Case 1:16-cv-01823-RJL Document 18-4 Filed 06/12/17 Page 10 of 10 1 2 3 4 5 6 7 8 9 B C D E F G H I J K Partial Entire None 2 Letter dated September 10, 2014, from Takisha V. McGee, Section Manager, Office of Professional Responsibility to Bradley S. Waterman, informing him of the report of suspected practitioner misconduct and of the IRS' intention not to pursue the matter further at that time. Takisha V. McGee, Section Manager, Office of Professional Responsibility Bradley S. Waterman x All (2) NA 4 A four-page print out from OPR's Case and Correspondence Management System (CCMS), showing the progression of the case file and notating OPR employees' actions taken concerning the referral. OPR, IRS computerized record X All (4) Information redacted pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a). The redacted information constitutes the tax information of a third-party taxpayer. I.R.C. § 6103(a) prohibits the disclosure of the tax information of a third-party taxpayer unless that third-party taxpayer consents to the disclosure. Here, the redacted notation discusses Mr. Waterman's actions while representing his client, a third party taxpayer, in a tax examination. Therefore, the redacted information is the confidential tax return information of Mr. Waterman's client. FOIA Exemption 5 and the deliberative process privilege. The deliberative process privilege protects documents reflective of the predecisional, deliberative processes of governmental agencies. The redacted portion of this computerized record contains an agency employee's recommendations for proceeding with certain actions concerning Mr. Waterman. 1 OPR Case Routing Sheet showing Waterman's name and case file number 2014 - 00404 X All (1) NA 1 E-mail dated March 27, 2014 from Jessica Burrell-McIntosh, acknowledging receipt of Form 8484, Report of Suspected Practitioner Misconduct. Jessica Burrell-McIntosh, Management Analyst, OPR Michael Marchetti, Tax Exempt Bond Specialist and Chelsea Kelly, Group Manager, Tax Exempt Bonds X All (1) The telephone number and email address of the individual IRS employee is withheld and redacted pursuant to FOIA Exemption 6 and 7C. 1 E-mail dated September 4, 2014 from Takisha McGee to James McElligott Takisha McGee, Section Manager, Legal Analysis Branch James McElligott, Attorney, OPR X All (1) Information withheld from disclosure pursuant to FOIA exemption (b)(5) and the deliberative process privilege. The deliberative process privilege protects documents reflective of the predecisional deliberative processes of governmental agencies. This document is being withheld partially because it contains a recommendations regarding whether the agency should initiate disciplinary action against Mr. Waterman. The telephone numbers of the individual IRS employee have been redacted pursuant to FOIA Exemption 6 and 7C. 1 E-mail dated September 23, 2015 from Waterman to James McElligott, seeking a copy of the report filed with OPR. Bradley S. Waterman James McElligott, Attorney, OPR X All (1) NA Document Description Author(s) (when identified) Withholding Exemption/RationaleNo. of Pages Recipients Released by DOJ Released by Disclosure Withholding Page 1 Case 1:16-cv-01823-RJL Document 18-5 Filed 06/12/17 Page 1 of 4 10 11 12 13 14 B C D E F G H I J K 19 Printed electronic research by James McElligott, attorney OPR, composed of 19 pages: Printed IRS electronic records of Waterman's tax account information stored in the IRS computer databases, printed record from DC Bar website showing Mr. Waterman in good standing, and printed news article of Mr. Waterman's bond-issuer client. X All (19) NA 2 2 page letter dated Nov. 20, 2015 from Stephen A. Whitlock, Director, Office of Professional Responsibility, to Mr. Waterman, explaining that OPR lacked the authority to disclose information in a closed case file containing third-party tax information. Stephen A. Whitlock, Director, Office of Professional Responsibility, IRS Bradley S. Waterman X All (2) NA 6 Letter dated August 5, 2015 from Bradley S. Waterman to Director Stephen Whitlock, Office of Professional Responsibility, requesting a copy of the Report of Suspected Practitioner Misconduct filed with OPR by Revenue Agent Mike Marchetti and related documents concerning Mr. Waterman. This document includes a photocopy of Mr. Waterman's driver's license and a copy of the envelope. Bradley S. Waterman Stephen A. Whitlock, Director, Office of Professional Responsibility, IRS X All (6) NA 2 Form 8484, Suspected Practitioner Misconduct Report for the Office of Professional Responsibility, dated February 28, 2014 Chelsea Kelly, Group Manager, Tax Exempt Bonds Office of Professional Responsibility, IRS X All (2) NA 2 Explanation of Suspected Misconduct, an attachment to the above-described Form 8484, setting forth a summary of why the referral for suspected misconduct was being made. Michael Marchetti, Revenue Agent Office of Professional Responsibility, IRS X All (2) NA Page 2 Case 1:16-cv-01823-RJL Document 18-5 Filed 06/12/17 Page 2 of 4 15 16 17 B C D E F G H I J K 3 Memorandum dated December 23, 2013 from Chelsea Kelly, Group Manager, Tax Exempt Bonds, to Mike Marchetti, Tax Exempt Bond Specialist, summarizing a telephone conversation held on the same date with Waterman as the bond issuer's representative. This memorandum is an attachment to the referral to OPR for suspected misconduct. Chelsea Kelly, Group Manager, Tax Exempt Bonds 1. Mike Marchetti, Tax Exempt Bond Specialist; and 2. Forwarded to the OPR as an attachment to and basis for the referral for suspected misconduct. X Memorandum is withheld in fully pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a), which prohibits the disclosure of the tax information of a third-party taxpayer unless that third-party taxpayer consents to the disclosure. The withheld information constitutes the tax information of a third-party taxpayer, because it contains confidential tax information concerning the progress of a tax examination of New Hampshire Health and Education Facilities Authority ("HEFA"). This memorandum is also withheld from disclosure pursuant to FOIA exemption (b)(5) and the deliberative process privilege, which protect material revealing the predecisional, deliberative processes of government agencies, i.e., internal agency records containing the opinions, deliberations, and recommendations rendered by governmental officials in connection with their official duties The content of the memorandum sets forth part of the factual basis on which the referral is based, and was drafted to make a record of Waterman's actions and statements suspected as violating Circular 230. 9 Memorandum dated September 10, 2013 from Mike Marchetti, Tax Exempt Bond Specialist, to Chelsea Kelly, Group Manager, Tax Exempt Bonds. Mike Marchetti, Tax Exempt Bond Specialist 1. Chelsea Kelly, Group Manager, Tax Exempt Bonds 2. Forwarded to OPR as an attachment to and basis for the referral for suspected misconduct. X This memorandum is withheld in full pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a), which prohibits the disclosure of the tax information of a third-party taxpayer unless that third-party taxpayer consents to the disclosure. Here, the memorandum contains confidential tax information concerning the progress of a tax examination of HEFA. . This memorandum is also withheld from disclosure pursuant to FOIA exemption (b)(5) and the deliberative process privilege, protects material revealing the predecisional, deliberative processes of government agencies, i.e., internal agency records containing the opinions, deliberations, and recommendations rendered by governmental officials in connection with their official duties. The content of the memorandum sets forth part of the factual basis on which the referral is based, because Revenue Agent Marchetti was making a record of Waterman's actions and statements suspected of violating Circular 230. 1 A fax transmittal coversheet, dated March 17, 2014, prepared by Chelsea Kelly and directed to OPR, which accompanied the electronic transfer of the referral, Form 8484, and attachments, totaling 17 pages including the one-page cover sheet. Chelsea Kelly, Group Manager, Tax Exempt Bonds Office of Professional Responsibility, IRS X All (1) NA Page 3 Case 1:16-cv-01823-RJL Document 18-5 Filed 06/12/17 Page 3 of 4 18 B C D E F G H I J K 3 An unsigned file copy of a memorandum dated August 26, 2014, prepared by Kevin Brown, Management & Program Analyst, OPR, setting forth an initial analysis of the referral. Kevin Brown, Management & Program Analyst, OPR. Takisha McGee, Section Manager, Legal Analysis Branch X This unsigned memorandum is withheld in full pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a), which prohibits the disclosure of the tax information of a third-party taxpayer unless that third-party taxpayer consents to the disclosure. Here, the memorandum contains confidential tax information concerning the tax examination of HEFA. Information is also being withheld pursuant to FOIA exemption (b)(5) and the deliberative process privilege, which protects documents reflective of the predecisional, deliberative processes of governmental agencies. This non-final memorandum contains an agency employee's deliberations regarding whether the agency should initiate disciplinary action against Mr. Waterman. Page 4 Case 1:16-cv-01823-RJL Document 18-5 Filed 06/12/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DISTRICT OF COLUMBIA BRADLEY S. WATERMAN, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) _____________________________________ ) Case No. 16-cv-01823 (RJL) DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS Defendant INTERNAL REVENUE SERVICE submits that there exist no genuine issues of material facts set forth in the numbered paragraphs below. These material facts are conclusively established by the uncontested paragraphs of Plaintiffs’ complaint, exhibits attached to this statement, and the declarations of Elizabeth Rawlins, Barbara D. Herring, and Keith Ott that have been submitted in support of the present motion for summary judgment. PARTIES AND JURISDICTION 1. Plaintiff Bradley S. Waterman is an individual taxpayer residing in Florida, but with a principal place of business in Washington, D.C. Dkt. No. 1 (“Compl.”) at ¶ 2, Exhibit E. 2. Defendant Internal Revenue Service (“Service” or “IRS”) is a component of the Department of Treasury, and is an agency within the meaning of 5 U.S.C. § 552(f) and 5 U.S.C. § 552A(a)(1). 3. This Court has jurisdiction over the Privacy Act claim pursuant to 5 U.S.C. § 552a(g)(1) because Plaintiff submitted a request for records pursuant to the Privacy Act of 1974, and contends that Defendant Internal Revenue Service has refused to comply with his request by fully disclosing all responsive records. Ex. E, Compl. at ¶ 19. Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 1 of 13 2 4. This Court has jurisdiction over the Freedom of Information Act (“FOIA”), 5 U.S.C. 552(a), because the complainant has a principal place of business in Washington, D.C. 5. Venue is proper in the District of Columbia pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 552a(g)(5), and 28 U.S.C. § 1391(e). BACKGROUND AND THE REQUEST FOR RECORDS 6. In the Spring of 2014, Revenue Agent Michael Marchetti of the IRS’s Tax- Exempt Bond function (“TEB”) submitted a Report of Suspected Practitioner Misconduct (“Report”) to the Service’s Office of Professional Responsibility (“OPR”). Ex. E, Compl. at ¶ 5; Declaration of Keith Ott (“Ott Decl.”), ¶ 6. 7. The report alleged that, during his representation of a client (the third-party taxpayer) in a matter before the Service, Plaintiff engaged in improper conduct and violated the Service’s rules of professional conduct. Ex. E, Compl. at ¶ 5; Ott Decl., ¶ 6. 8. OPR investigates and acts on reports of suspected practitioner misconduct by individuals who practice before the Service. Ott Decl., ¶ 3. 9. When OPR receives a referral of suspected misconduct by a representative or former representative of a taxpayer, OPR personnel open a case file captioned with the practitioner’s name. This case file is the official record of the investigation and will contain the written communications pertinent to the investigation and disposition of the referral and OPR investigation. Once closed, all such OPR case files are organized by the practitioner’s last name (in conjunction with the individual’s first name and middle name (if any)), and the closed case files are maintained by the practitioners’ names in OPR’s file room located at the Internal Revenue Service, 1111 Constitution Ave., N.W., Washington, D.C. 20224, until transmittal of Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 2 of 13 3 the closed case files according to their age to a federal records center for further retention and eventual destruction pursuant to applicable records control schedules. Ott Decl., 5. 10. OPR reviewed the report, and sent Plaintiff a “soft letter” dated September 10, 2014. Ex. E, Compl. ¶¶ 7-10; Ott Decl., ¶ 6. In the context of this case, a “soft letter” is cautionary notice informing the practitioner that OPR has received a report of suspected misconduct. Ott Decl., ¶ 7. 11. The “soft letter” informed Plaintiff that OPR had decided not to take any further action regarding the report, and that no response from Plaintiff was required. Ex. E, Compl. at ¶ 7. The letter informed Plaintiff that he could submit a response to the allegations, and that the report and any response from him will be retained by OPR for twenty-five years in accordance with government record-retention requirements. Finally, the letter informed Plaintiff that the report could be relevant to the OPR’s consideration of any future reports received on the practitioner. Ex. E, Compl. ¶¶ 9-10. 12. Plaintiff’s case was closed on September 18, 2014. Ott Decl., ¶ 8. 13. On August 5, 2015, Plaintiff submitted to OPR a non-FOIA request for “the Report and all other documents in the OPR’s possession, custody, or control that relate to the Report, including documents relating to the OPR’s determination that the allegations did not warrant further investigation or action.” Ott Decl., ¶ 10; Ex. E, Compl. ¶ 11. 14. By letter dated November 20, 2015, OPR advised Plaintiff that OPR did not have the authority to release third-party tax return information, pursuant to OPR’s delegated authority under 26 U.S.C. § 6103(l)(4)(A)(ii), because Plaintiff’s case was closed. Ott Decl., ¶ 10. 15. On January 7, 2016, Plaintiff submitted to the Service a request for records captioned “Freedom of Information Act and/or Privacy/Act of 1954” seeking a copy of the Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 3 of 13 4 Report and all documents prepared in connection with or otherwise relating to the Report, including but not limited to correspondence, memoranda, notes, reports, and other documents prepared by Revenue Agent Marchetti, TEB Group Manager Chelsea Kelly, TEB Field Operations Manager Allyson Belsome, TEB Director Rebecca Harrigal, OPR Section Manager McGee, OPR Attorney- Advisor James McElligott III, and other IRS personnel. Exhibit A, Privacy Act and FOIA Request dated Jan. 7, 2016; Declaration of Barbara D. Herring (“Herring Decl.”), ¶ 4. 16. The records’ request identified OPR Attorney Keith Ott as the OPR contact person for locating responsive documents in OPR files. Id. SEARCH FOR RESPONSIVE RECORDS 17. Plaintiff’s request was processed by Barbara D. Herring. Id. Ms. Herring is a Government Information Specialist currently employed by the IRS, Government Liaison, Disclosure & Safeguard, Disclosure Field East Area, Disclosure Office 8 in Memphis, Tennessee. Id., ¶ 1. In her capacity as a Government Information Specialist, Ms. Herring was assigned to process Mr. Waterman’s FOIA request, and began processing the request no later than January 15, 2016. Id., ¶ 4. 18. On January 25, 2016, Ms. Herring contacted Mr. Ott to request copies of all documents in the case file. Mr. Ott transmitted copies of all file documents by secure electronic mail transmission on February 5, 2016. The OPR case file contained fifty-four (54) pages of documents. Id., ¶ 6. 19. Ms. Herring did not extend her search for responsive documents beyond OPR because the documents sought by Mr. Waterman’s request would only be kept in the OPR case files. Id., ¶ 7. The file for the TEB examination of the taxpayer Mr. Waterman represented would not contain documents generated by or during OPR’s review of the misconduct referral Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 4 of 13 5 because the TEB examination and the OPR referral are two separate matters, the first relating to a taxpayer and the second relating to the representative. Id. 20. By letter dated February 9, 2016, Ms. Herring prepared and mailed a letter to Mr. Waterman indicating that she was in receipt of the FOIA request dated January 7, 2016, but that she would be unable to respond by February 10, 2016, which was the 20 business-day period allowed by law for my response. Id. She also indicated that she intended to invoke the ten-day statutory extension, but that it would not be possible to locate and review responsive documents by February 25, 2016 (after which date Mr. Waterman could file suit). Ms. Herring advised that the response date was extended to April 7, 2016. Id. 21. By letter dated April 6, 2016, Ms. Herring prepared and mailed a second letter to Mr. Waterman, indicating that she continued to work on his request and needed additional time to complete her work. Id., ¶ 8. She stated that she would contact him by April 29, 2016 if she was still unable to complete his request. Id. During this time, she consulted with two tax law specialists regarding the applicability of certain FOIA exemptions. Id. She also consulted with OPR Attorney Keith Ott. Id. 22. Ms. Herring redacted certain portions and withheld others in full pursuant to her consultation with OPR Attorney Keith Ott. Id., ¶ 9. By letter dated April 19, 2016, she produced to Mr. Waterman thirty-two (32) pages in full and two (2) pages in part pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a). Id.; Exhibit B, FOIA Response Letter dated April 19, 2016. She withheld twenty (20) pages in full pursuant to FOIA Exemption 3 in conjunction with I.R.C. § 6103(a) and FOIA Exemption 5 in conjunction with the work product doctrine. Id. Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 5 of 13 6 23. The letter did not address Plaintiff’s rights under the Privacy Act. Ex. B, FOIA Response Letter dated April 19, 2016. 24. To the best of Ms. Herring’s knowledge, no other records responsive to Mr. Waterman’s FOIA request exist. 25. Plaintiff filed an administrative appeal on May 15, 2016, which the Service denied on June 2, 2016. Exhibit C, Plaintiff’s FOIA Appeal Letter; Exhibit D, IRS Appeal Response Letter; Ex. E, Compl. ¶¶ 14-15. Plaintiff initiated the present litigation on September 12, 2016. Id. THE REVIEW OF POTENTIALLY RESPONSIVE DOCUMENTS 26. Elizabeth Rawlins is an attorney in the Office of Chief Counsel, Procedure & Administration. Rawlins Decl., ¶ 1. She has been employed as an attorney with the Office of Chief Counsel, IRS, in the Procedure & Administration division (and its predecessor divisions) since April 1991. Id. As part of her official duties, she is responsible for coordinating with the Department of Justice the Service’s defense of the instant lawsuit. Id. 27. While conducting her search for responsive documents and reviewing those that had been withheld, Ms. Rawlins determined that a three (3) page document (part of the twenty (20) pages withheld in full) should be released with redactions. Id., ¶¶ 8, 9. However, this three (3) page document, existing in digital format, could not be electronically redacted because its digital format had become corrupted. Id. This three (3) page document originated from OPR’s electronic Case and Correspondence Management System (CCMS). Id. Ms. Rawlins contacted OPR and obtained a new electronic copy of this document, identified in the “Vaughn index” as 0003 - 0006. Id. Due to differences in the computerized format in which the new electronic Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 6 of 13 7 copy was produced, this document now spans four (4) pages. Id. This document has been released to Mr. Waterman with redactions on two (2) pages. Id.; Exhibit G, FOIA Release Letter dated April 19, 2017. 28. On February 24, 2017, Ms. Rawlins contacted James J. McElligott, the OPR attorney who was assigned to examine and respond to the referral of Mr. Waterman for suspected practitioner conduct. Id., ¶ 10. Ms. Rawlins asked that Mr. McElligott search for any and all documents he may have relating to that assignment. Id. She particularly asked that he search for electronic mail (“e-mail”) records because the fifty-four (54) pages contained in the official OPR case file contained few e-mails. Id. 29. Mr. McElligott searched an electronic database, OPR’s Case and Correspondence Management System (“CCMS”), which he accessed from his desktop computer. Id., ¶ 11. He input Mr. Waterman’s last name into CCMS and located the electronic file associated with the OPR referral that is the focus of the FOIA request in this litigation. Id. Within that file, Mr. McElligott found two (2) additional stored e-mail messages. Id.; Exhibit H, FOIA Release Letter dated June 12, 2017. 30. For this reason, the number of pages actually in dispute totals twenty-one (21), consisting of seventeen (17) of the original twenty (20) pages that the Service withheld, the two (2) additional pages that Ms. Rawlins located, and the two (2) redacted pages of the four (4) page document originating from OPR’s CCMS system. Id., ¶ 8. 31. Ms. Rawlins reviewed the FOIA Exemptions that the IRS claimed for each document withheld in whole or in part. Her review led her to determine that the Service release certain additional pages that had been previously withheld by the IRS. Id., ¶ 12; Exhibit F, FOIA Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 7 of 13 8 Release Letter dated December 1, 2016. The pages now being withheld in full or in part are described in the Vaughn index attached to the Declaration of Elizabeth Rawlins as Exhibit A. Id. 32. Also on February 24, 2017, Ms. Rawlinss asked Mr. McElligott to transmit to her all other documents stored in this database relating to Mr. Waterman’s FOIA request. Id., ¶ 13. He did so, and Ms. Rawlins examined the electronic copies. Id. She found that with the exception of the two (2) stored e-mail messages, all other documents stored in this CCMS file are duplicates of the original paper documents filed in OPR’s official case file, which original documents are identified in the Vaughn index. Id. 33. Ms. Rawlins reviewed all documents withheld in full or in part in this litigation and attempted to make every reasonably segregable nonexempt portion of every responsive document available to the Plaintiff. Id., ¶ 14. She withheld in full only those documents that fall within a FOIA exemption, or those documents wherein the portions exempt from disclosure under the FOIA are so inextricably intertwined with nonexempt material as to be nonsegregable. Id. THE CLAIMED FOIA EXEMPTIONS 34. The Service is asserting FOIA Exemption (b)(3) in conjunction with 26 U.S.C. § 6103(a), as the basis for withholding certain documents, or portions of documents, that consist of third-party taxpayer return information. Id., ¶ 16. The exemption is being asserted in conjunction with I.R.C. § 6103(a) to withhold the return information of a taxpayer other than Mr. Waterman. Id. 35. The third-party taxpayer has not consented to the disclosure of its return information to Mr. Waterman to assist him with responding to the allegations of practitioner misconduct. Id. Specifically, Mr. Waterman has not provided the IRS with a consent to Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 8 of 13 9 disclosure signed by the third-party taxpayer consistent with I.RC. § 6103(c) and the Service’s applicable FOIA regulation. Id. 36. The documents for which the Service is asserting (b)(3) in conjunction with section 6103(a) are as follows: a. The three-page (3) document, numbered as IRS0042 - IRS0044 is being withheld in full based upon Exemption 3. Id., ¶ 17. It is a memorandum dated December 23, 2013, written by Chelsea Kelly, Group Manager, Tax Exempt Bonds, to Michael Marchetti, Tax Exempt Bond Specialist (revenue agent), summarizing a telephone conversation Ms. Kelly held on that date with Mr. Waterman as the taxpayer’s representative. Id. This memorandum is an attachment to the referral to OPR for suspected misconduct. Id. The content of this document describes actions taken and statements made by Mr. Waterman in his capacity as his client’s representative about the potential tax liability of his client. Id. b. The nine-page (9) document, numbered as IRS0045 - IRS0053, is being withheld in full based on Exemption 3 in conjunction with I.R.C. § 6103. Id. The document is a memorandum dated September 10, 2013 from Michael Marchetti, Tax Exempt Bond Specialist (revenue agent), to his supervisor Chelsea Kelly, Group Manager, Tax Exempt Bonds. Id. This memorandum was also an attachment to the referral, and summarizes Mr. Waterman’s interactions with IRS personnel over a period of several months as the representative of his client, a third-party taxpayer. Id. The content of this memorandum describes the progress of the tax examination of Mr. Waterman’s client. Id. c. The three-page (3) document, numbered as IRS0055 - IRS0057, is being withheld in full based on Exemption 3 in conjunction with I.R.C. § 6103. Id. The document is an Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 9 of 13 10 unsigned file copy of a memorandum, dated August 26, 2014, prepared by Kevin Brown, Management & Program Analyst, OPR, and addressed to Takisha McGee, Section Manager, Legal Analysis Branch. Id. In this memorandum, Mr. Brown described the nature of the referral, the basic fact pattern and the allegations contained therein. Id. The memorandum also contains Mr. Brown’s recommendation for how OPR could further investigate the case. Id. The text of this memorandum recites and relates to Mr. Waterman’s client’s tax examination. Id. d. The redacted notation appearing on two (2) pages of the four-page (4) computer print-out from OPR’s Case and Correspondence Management System, numbered as IRS0003 - IRS0006, is withheld as third-party tax return information. Id. This print-out shows notations of OPR employees’ actions taken concerning the referral. Id. The redacted portion begins at the end of the first page and extends to the top of the second page. The redacted notation was entered by Kevin Brown, Management & Program Analyst, OPR, on August 26, 2014 and briefly summarizes his analysis of the facts underpinning the referral and his recommendation for further OPR action. Id. This notation summarizes the same information contained in the memorandum described above and numbered as IRS0055-0057. Id. 37. The Service is also withholding certain documents based on FOIA exemption (b)(5), in conjunction with the deliberative process privilege. Id., ¶ 18. The Service is withholding in full the following documents under the deliberative process privilege: a. The first memorandum, numbered as IRS0042 - IRS0044, was prepared by Group Manager Chelsea Kelly, the immediate supervisor of the examining agent Michael Marchetti. Id., ¶ 19. Ms. Rawlins contacted Ms. Kelly by telephone to confirm that Ms. Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 10 of 13 11 Kelly wrote the memorandum to record Mr. Waterman’s statements as supporting information for the OPR referral for suspected misconduct. Id. The memorandum sets forth part of the factual basis that Ms. Kelly believed made the referral appropriate. Id. b. The second memorandum, numbered as IRS0045 - IRS0053, was prepared by Revenue Agent Michael Marchetti, who was the agent assigned to examine the potential tax liability of Mr. Waterman’s client, the third-party taxpayer, and submitted to his immediate supervisor Ms. Kelly. Id. Mr. Marchetti recorded in this memorandum a description of Mr. Waterman’s actions and statements that Mr. Marchetti believed made the referral appropriate. Id. Ms. Rawlins confirmed in a telephone conversation with Ms. Kelly that this was the purpose for which this memorandum was written. Id. c. The third memorandum, numbered as IRS0055 - 0057 and prepared by Mr. Kevin Brown, is also predecisional and deliberative. Id. Mr. Brown’s purpose in writing the document was to record his analysis of the referral, particularly to summarize the facts alleged, identify the violations alleged, and recommend further predecisional agency actions, such as assigning the case to an OPR attorney. Id. 38. The deliberative process privilege is also asserted for the redacted portion of a four- page (4) computer print-out, numbered as IRS0003 - IRS0006, from CCMS showing notations describing the progression of the OPR official case file, from opening to closing, and showing notations of OPR employees’ actions taken concerning the referral. Id., ¶ 20. 39. The Service initially withheld in full the document numbered as IRS0003 - IRS0006, but later disclosed this document with one redaction, beginning at the end of the first page and extending to the top of the second page. Id.; Ex. G, FOIA Release Letter dated April 19, 2017. The redacted notation was entered by Kevin Brown, Management & Program Analyst, OPR, on Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 11 of 13 12 August 26, 2014 and describes his analysis of the referral and his recommendation for further OPR action. Id. This notation is a concise summary of the information set forth in the third memorandum, also prepared by Mr. Brown and numbered as IRS0055-0057, described above in paragraphs 17(c) and in 19(c). Id. 40. A one-page (1) e-mail dated September 4, 2014, numbered as IRS0009, written by Takisha McGee, Section Manager, Legal Analysis Branch, and sent to James J. McElligott, Attorney, OPR, was released with a redaction to withhold a discussion between Ms. McGee and her supervisor, Garrett Gluth, concerning what action OPR should take in response to the referral. Id., ¶ 21; Ex. H, FOIA Release Letter dated June 12, 2017. The redacted content describes a discussion that took place before any action was taken and describes an action (but not a final agency action) to be taken in the future. Id. 41. The Service is withholding information pursuant to Exemption 7(C), which exempts law enforcement records the disclosure of which would constitute an unwarranted invasion of personal privacy, and Exemption 6, which protects information in personnel and medical files and similar files when the disclosure would constitute a clearly unwarranted invasion of personal privacy. Id., ¶¶ 22-23. 42. Exemptions 7(C) and 6 are asserted for the redactions of an IRS employee’s work telephone number and e-mail address appearing on the one-page (1) e-mail numbered as IRS0008. Id. This e-mail was authored by Jessica Burrell-McIntosh on March 27, 2014 and addressed to Michael Marchetti and Chelsea Kelly. Id. Its purpose was to acknowledge OPR’s receipt of the referral of suspected practitioner misconduct involving Mr. Waterman. Id. This information is redacted because its disclosure would constitute an unwarranted invasion of personal privacy. Id. Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 12 of 13 13 43. Exemptions 7(C) and 6 are also asserted for a similar redaction appearing on a one-page e-mail, numbered as IRS0009, dated September 4, 2014 from Takisha McGee to James McElligott. ¶ 24. This redaction withholds the work telephone numbers of the IRS employee because the disclosure of this information would constitute an unwarranted invasion of personal privacy. Id. 44. Any nonexempt information found in responsive Service records also containing exempt material was segregated from the exempt material and disclosed. Id., ¶ 14. DATED: June 12, 2017 Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General CHANNING D. PHILLIPS United States Attorney /s/Joycelyn S. Peyton JOYCELYN S. PEYTON Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, D.C. 20044 Tel: 202-514-6576 Fax: 202-514-6866 Joycelyn.S.Peyton@usdoj.gov Counsel for the United States Case 1:16-cv-01823-RJL Document 18-6 Filed 06/12/17 Page 13 of 13 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 1 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 2 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 3 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 4 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 5 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 6 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 7 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 8 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 9 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 10 of 11 Case 1:16-cv-01823-RJL Document 18-7 Filed 06/12/17 Page 11 of 11 Case 1:16-cv-01823-RJL Document 18-8 Filed 06/12/17 Page 1 of 2 Case 1:16-cv-01823-RJL Document 18-8 Filed 06/12/17 Page 2 of 2 Case 1:16-cv-01823-RJL Document 18-9 Filed 06/12/17 Page 1 of 3 Case 1:16-cv-01823-RJL Document 18-9 Filed 06/12/17 Page 2 of 3 Case 1:16-cv-01823-RJL Document 18-9 Filed 06/12/17 Page 3 of 3 Case 1:16-cv-01823-RJL Document 18-10 Filed 06/12/17 Page 1 of 3 Case 1:16-cv-01823-RJL Document 18-10 Filed 06/12/17 Page 2 of 3 Case 1:16-cv-01823-RJL Document 18-10 Filed 06/12/17 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRADLEY S. WATERMAN : 1200 19th Street, N.W. : 3rd Floor : Washington, D.C. 20036 : : Plaintiff, : : v. : C.A. No. 1:16-cv-1823 : : INTERNAL REVENUE SERVICE : 1111 Constitution Avenue, N.W. : Washington, D.C. 20224 : : Defendant. : : COMPLAINT FOR INJUNCTIVE RELIEF 1. The plaintiff seeks the disclosure of agency records improperly withheld from him by the Internal Revenue Service (the "IRS" or the "Defendant") and thus brings this action for injunctive and other appropriate relief pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a et seq., and the Freedom of Information Act, 5 U.S.C. § 552(a) et seq. Parties 2. Plaintiff Bradley S. Waterman (“Mr. Waterman” or “Plaintiff”) is a citizen of the United States and a resident of Florida. He is an attorney with his principal place of business in Washington, D.C. 3. Defendant IRS is a component of the Department of Treasury and therefore, an agency of the United States Government within the meaning of 5 U.S.C. § 552(f)(1) and 5 U.S.C. § 552a(a)(1). Defendant IRS is in possession and/or control of the requested records Case 1:16-cv-01823-RJL Document 1 Filed 09/12/16 Page 1 of 5Case 1: 6-cv-01823-RJL Document 18-11 Filed 06/12/17 Page 1 of 9 2 pertaining to Mr. Waterman. Defendant IRS is headquartered at 1111 Constitution Avenue, N.W., Washington, D.C. 20224. Jurisdiction and Venue 4. The Court has both subject matter jurisdiction over this action and personal jurisdiction over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 552a(g)(1), and 28 U.S.C. § 1331. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 552a(g)(5), and 28 U.S.C. § 1391(e). Facts 5. On April 30, 2014, the IRS’s Office of Professional Responsibility (“OPR”) received a Report of Suspected Practitioner Misconduct (“Report”) from Revenue Agent Michael Marchetti of the IRS’s Tax-Exempt Bond function (“TEB”). The Report alleged that Mr. Waterman engaged in improper conduct during his representation of a client in a matter before Defendant IRS (“Allegations”). Neither TEB nor OPR sent Mr. Waterman a copy of the Report. Indeed, TEB never notified Mr. Waterman that it filed the Report with OPR, and Mr. Waterman was unaware that TEB had initiated a proceeding against him. 6. Upon review, OPR determined that the Allegations did not warrant further investigation or action. 7. By letter dated September 10, 2014, OPR Section Manager Takisha V. McGee notified Mr. Waterman of the Allegations and OPR’s determination not to investigate or take action (“Notification Letter”). Again, OPR failed to send a copy of the Report with that letter. 8. In the Notification Letter, OPR stated that it would retain the administrative file containing the Allegations for twenty-five years pursuant to 31 C.F.R. §10.53(c), the applicable Case 1:16-cv-01823-RJL Document 1 Filed 09/12/16 Page 2 of 5Case 1: 6-cv-01823-RJL Document 18-11 Filed 06/12/17 Page 2 of 9 3 records control schedule approved by the National Archives and Records Administration, and the Internal Revenue Manual § 1.15.11-1(4). 9. In the Notification Letter, OPR stated that the Allegations - if true - could be viewed as cumulative conduct if there is a referral relating to Mr. Waterman in the future. 10. In the Notification Letter, OPR advised Mr. Waterman that he could provide a written response to the Allegations, which would be maintained in the administrative file with the Allegations. 11. Before filing Privacy Act and Freedom of Information Act requests, Mr. Waterman requested a copy of the Report from both TEB and OPR to prepare his response to the Report. Both TEB and OPR refused to provide Mr. Waterman with a copy of the Report. 12. By letter dated January 7, 2016, Mr. Waterman submitted a request (“Request”) to Defendant IRS under the Privacy Act and Freedom of Information Act for copies of all documents prepared in connection with or otherwise relating to the Report, including (but not limited to) correspondence, memoranda, notes, reports, and other documents prepared by Revenue Agent Marchetti, TEB Group Manager Chelsea Kelly, TEB Field Operations Manager Allyson Belsome, TEB Director Rebecca Harrigal, OPR Section Manager McGee, OPR Attorney-Advisor James McElligott III, and other IRS personnel. 13. By letter dated April 19, 2016, Reinita L. House, Acting Disclosure Manager of IRS Disclosure Office 08, responded to Mr. Waterman’s Request, informing him that twenty full pages and two partial pages of the fifty-four responsive pages were being withheld pursuant to FOIA exemptions (“Initial Determination”). The letter did not address Mr. Waterman’s rights under the Privacy Act. 14. By letter dated May 15, 2016, Mr. Waterman appealed the denial of access to the records withheld according to the Initial Determination. Case 1:16-cv-01823-RJL Document 1 Filed 09/12/16 Page 3 of 5Case 1: 6-cv-01823-RJL Document 18-11 Filed 06/12/17 Page 3 of 9 4 15. By letter dated June 2, 2016, P. Perez, Appeals Team Manager of Defendant IRS’s Appeals Office, denied Mr. Waterman’s Appeal and upheld the Initial Determination. Count I (Violation of the Privacy Act, 5 U.S.C. § 552a) 16. Plaintiff realleges paragraphs 1 through 15 as if fully stated herein. 17. Plaintiff is an individual seeking access to information about himself. 18. Any documentation in the possession, custody, and control of Defendant is a record maintained in a system of records, as described in 5 U.S.C. § 552a(a)(4)-(5). 19. Upon information and belief, there are approximately fifty-four pages responsive to Plaintiff’s request. Defendant is wrongfully withholding twenty full pages and two partial pages, despite Plaintiff’s notification to Defendant that he requires access to these records to respond to the Allegations maintained in the administrative file. 20. Plaintiff has exhausted all required and available administrative remedies. 21. Plaintiff is being irreparably harmed by reason of Defendant’s unlawful withholding of requested records. Plaintiff will continue to be irreparably harmed unless Defendant is compelled to conform its conduct to the requirements of the law. 22. Plaintiff has a legal right under the Privacy Act to obtain the information he seeks, and there is no legal basis for Defendant’s denial of said right. Defendant’s refusal to provide Plaintiff with the entire Report and all related documents amounts to a deprivation of Plaintiff’s federal rights. WHEREFORE, Plaintiff requests that this Court award him the following relief: (1) declare that Defendant violated the Privacy Act; (2) order Defendant to immediately disclose the requested records in their entirety and make copies available to Plaintiff; (3) award Plaintiff Case 1:16-cv-01823-RJL Document 1 Filed 09/12/16 Page 4 of 5Case 1: 6-cv-01823-RJL Document 18-11 Filed 06/12/17 Page 4 of 9 5 reasonable costs and attorney’s fees as provided in 5 U.S.C. § 552a(g)(3)(B); and (4) grant such other relief as the Court may deem just and proper. Count II (Violation of the Freedom and Information Act, 5 U.S.C. § 552) 23. Plaintiff realleges paragraphs 1 through 15 as if fully stated herein. 24. Defendant is unlawfully withholding records requested by Plaintiff pursuant to 5 U.S.C. § 552. 25. Plaintiff has exhausted applicable administrative remedies. 26. Plaintiff is being irreparably harmed by reason of Defendant’s unlawful withholding of requested records. Plaintiff will continue to be irreparably harmed unless Defendant is compelled to conform its conduct to the requirements of the law. WHEREFORE, Plaintiff respectfully requests that the Court: (1) declare that Defendant violated the Freedom of Information Act; (2) order Defendant to immediately disclose the requested records in their entireties and make copies available to Plaintiff; (3) award Plaintiff reasonable costs and attorney’s fees as provided in 5 U.S.C. §552(a)(4)(E); and (4) grant such other relief as the Court deems just and proper. Date: September 12, 2016 Respectfully Submitted, /s/ L. Barrett Boss L. Barrett Boss (D.C. Bar No. 398100) Cozen O’Connor 1200 19th Street, N.W. 3rd Floor Washington, D.C. 20036 (202) 912-4818 bboss@cozen.com Counsel for Plaintiff Case 1:16-cv-01823-RJL Document 1 Filed 09/12/16 Page 5 of 5Case 1: 6-cv-01823-RJL Document 18-11 Filed 06/12/17 Page 5 of 9 CIVIL COVER SHEET JS-44 (Rev. 7/16 DC) I. (a) PLAINTIFFS (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________ (EXCEPT IN U.S. PLAINTIFF CASES) DEFENDANTS COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _____________________ (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED (c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) ATTORNEYS (IF KNOWN) II. BASIS OF JURISDICTION (PLACE AN x IN ONE BOX ONLY) III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY! o 1 U.S. Government Plaintiff o 2 U.S. Government Defendant o 3 Federal Question (U.S. Government Not a Party) o 4 Diversity (Indicate Citizenship of Parties in item III) Citizen of this State Citizen of Another State Citizen or Subject of a Foreign Country PTF o 1 o 2 o 3 DFT o 1 o 2 o 3 Incorporated or Principal Place of Business in This State Incorporated and Principal Place of Business in Another State Foreign Nation PTF o 4 o 5 o 6 DFT o 4 o 5 o 6 IV. CASE ASSIGNMENT AND NATURE OF SUIT (Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit) o A. Antitrust 410 Antitrust o B. Personal Injury/ Malpractice 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical Personal Injury Product Liability 368 Asbestos Product Liability o C. Administrative Agency Review 151 Medicare Act Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If Administrative Agency is Involved) o D. Temporary Restraining Order/Preliminary Injunction Any nature of suit from any category may be selected for this category of case assignment. *(If Antitrust, then A governs)* o E. General Civil (Other) OR o F. Pro Se General Civil Real Property 210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157 Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee - Conditions of Confinement Property Rights 820 Copyrights 830 Patent 840 Trademark Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC 7609 Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other Other Statutes 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation 462 Naturalization Application 465 Other Immigration Actions 470 Racketeer Influenced & Corrupt Organization 480 Consumer Credit 490 Cable/Satellite TV 850 Securities/Commodities/ Exchange 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act) Case 1:16-cv-01823-RJL Document 1-1 Filed 09/12/16 Page 1 of 2Case 1:16-cv-01823-RJL Document 18 1 Filed 06/12/17 Page 6 of 9 o G. Habeas Corpus/ 2255 530 Habeas Corpus - General 510 Motion/Vacate Sentence 463 Habeas Corpus - Alien Detainee o H. Employment Discrimination 442 Civil Rights - Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation) *(If pro se, select this deck)* o I. FOIA/Privacy Act 895 Freedom of Information Act 890 Other Statutory Actions (if Privacy Act) *(If pro se, select this deck)* o J. Student Loan 152 Recovery of Defaulted Student Loan (excluding veterans) o K. Labor/ERISA (non-employment) 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act o L. Other Civil Rights (non-employment) 441 Voting (if not Voting Rights Act) 443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities - Employment 446 Americans w/Disabilities - Other 448 Education o M. Contract 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise o N. Three-Judge Court 441 Civil Rights - Voting (if Voting Rights Act) V. ORIGIN o 1 Original Proceeding o 2 Removed from State Court o 3 Remanded from Appellate Court o 4 Reinstated or Reopened o 5 Transferred from another district (specify) o 6 Multi-district Litigation o 7 Appeal to District Judge from Mag. Judge o 8 Multi-district Litigation - Direct File VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) VII. REQUESTED IN COMPLAINT CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 DEMAND $ JURY DEMAND: Check YES only if demanded in complaint YES NO VIII. RELATED CASE(S) IF ANY (See instruction) YES NO If yes, please complete related case form DATE: _________________________ SIGNATURE OF ATTORNEY OF RECORD _________________________________________________________ INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet. I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States. III. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction under Section II. IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding nature of suit found under the category of the case. VI. CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause. VIII. RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk’s Office. Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form. Case 1:16-cv-01823-RJL Document 1-1 Filed 09/12/16 Page 2 of 2Case 1:16-cv-01823-RJL Document 18 1 Filed 06/12/17 Page 7 of 9 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Civil Action No. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:16-cv-01823-RJL Document 1-2 Filed 09/12/16 Page 1 of 2Case 1:16-cv-01823-RJL Document 18 11 Filed 06/12/17 Page 8 of 9 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ’ I personally served the summons on the individual at (place) on (date) ; or ’ I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or ’ I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or ’ I returned the summons unexecuted because ; or ’ Other (specify): . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Case 1:16-cv-01823-RJL Document 1-2 Filed 09/12/16 Page 2 of 2Case 1:16-cv-01823-RJL Document 18 11 Filed 06/12/17 Page 9 of 9 Case 1:16-cv-01823-RJL Document 18-12 Filed 06/12/17 Page 1 of 1 Case 1:16-cv-01823-RJL Document 18-13 Filed 06/12/17 Page 1 of 1 15519175.1 U.S. Department of Justice Tax Division Civil Trial Section, Eastern Region CDC:DSM: JSPeyton P.O. Box 227 Telephone: 202-514-6576 DJ 5-16-4933 Washington, D.C. 20044 Telecopier: 202-514-6866 CMN 2016102277 June 12, 2017 Sent via Email L. Barrett Boss Cozen O’Connor 1200 Nineteenth Street, N.W. Ste. 300 Washington, D.C. 20036 bboss@cozenc.com Re: Bradley S. Waterman v. Internal Revenue Service 16-cv-01823-RJL (USDC D.C.) Dear Mr. Boss: The Internal Revenue Service (“IRS”) has instructed me to release the attached documents in response to your Freedom of Information Act (“FOIA”) request for records that are the subject of the above-referenced suit. The records bear control numbers IRS0007-IRS0010. I am also re-sending the documents previously released to you bearing the control numbers IRS000001-IRS000006. For consistency, these documents now bear the control numbers IRS0001-IRS0006. The password will be sent separately via email contemporaneously. After I confer with my client in the next coming weeks, I will let you know whether the Service intends to release any additional records or portions of records. Sincerely, Joycelyn S. Peyton, Trial Attorney Civil Trial Section, Eastern Region cc: Associate Area Counsel, IRS, Office of Chief Counsel (Melissa Avrutine) IRS Counsel, IRS, Office of Chief Counsel (Elizabeth Rawlins) Case 1:16-cv-01823-RJL Document 18-14 Filed 06/12/17 Page 1 of 1