Ayyad v. IRS, No. 16-3032, 2018 WL 704849 (D. Md. Feb. 2, 2018) (Xinis, J.)

Ayyad v. IRS, No. 16-3032, 2018 WL 704849 (D. Md. Feb. 2, 2018) (Xinis, J.)

Re: Request for certain tax records concerning plaintiffs

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court will deny summary judgment on the claimed inadequacy of the IRS' search, subject to reconsideration upon in camera review of the withheld documents."  The court finds that "[t]he IRS offers reasonably detailed affidavits as to the search conducted[.]"  The court also finds that "the searches at this stage were reasonable[,]" specifically agreeing with "the decision to only search [one] Agent['s] . . . email account, . . . because [the] Agent . . . is the 'sole' revenue agent assigned to Plaintiffs' tax examination, [and] . . . would 'typically' have been a sender, recipient, or copied on all [plaintiff]-related correspondence 'due to the centrality of his role in relation to the examination.'"  However, the court finds that "[u]nderstandably, [plaintiffs] take issue with [the] Agent['s] . . . post-suit 'discovery' of over 7,000 additional responsive documents not previously identified during the administrative searches."  "The Court shares [plaintiffs'] concerns."  "It simply strains credulity that in this electronic age, a reasonably well-trained agent designated as the IRS' 'disclosure' designee would somehow fail to request emails and attachments from the 'sole' revenue agent assigned to the [plaintiffs'] case."  "The Court also notes that on the IRS's proffered record, it is almost impossible to determine the significance of the remaining claimed deficiencies in the IRS production."  "This is because, as more fully explained below, the Court cannot ascertain whether any of the 'missing' documents to which [plaintiffs'] point are part of the withheld records under claimed exemptions."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege, Attorney-Client Privilege:  The court holds that "the IRS's affidavit is largely inadequate to support its request for summary judgment in its favor as to Exemption 5."  Regarding the records withheld under the attorney-client and deliberative privileges, the court finds that "an agency's 'merely asserting their conclusion that the document is exempt, employing general language' handicaps the Court's ability to 'independently assess the asserted privilege.'"  The court relates that "the IRS offers . . . blanket description[s] for . . . long list[s] of documents or portions of documents claimed exempt under [these] privilege[s]."  However, the court finds that "[t]he IRS fares somewhat better in establishing that work-product doctrine protects a number of documents from FOIA disclosure."  "The agency sufficiently pleads the applicability of Exemption 5 to [certain] memoranda and motions identified by [defendant's] Declaration as drafts prepared in anticipation of litigation."
   
• Exemptions 6 & 7(C):  The court holds that "the IRS motion for summary judgment is denied as to Exemptions 6 and 7(C)."  "[T]he Court does not disagree in principle that timekeeping reports, error code reports, and performance evaluations could be excludable to the extent that specific individual identifiers are included within the documents."  "However, the IRS is not bestowed a blanket exemption for all personnel records."  "Here, the Court cannot ascertain whether the IRS withheld entire documents, and if so, on what specific basis."  "Nor can the court ascertain from the evidence what efforts were taken to reasonably segregate non-protected material apart from the agents' generally affirming that such efforts were made."
   
• Exemption 3:  The court holds that "the IRS support for the claimed assessments is once again insufficient."  The court relates that, "[h]ere, the IRS claims withholding under 26 U.S.C.A. §§ 6103(a), 6103(b) and 6103(e)(7)."  The court finds that "[e]ach category includes a broad swath of documents accompanied by a near-boilerplate recitation that disclosure would 'reveal the nature, direction, scope and focus of the Revenue Agents’ case.'"  "No further detail is offered, and the Court cannot discern whether all documents are withheld in part or in full."
   
• Exemptions 7(A) & 7(E):  The court relates that "[t]he IRS here claims 7(A) and 7(E) exemptions broadly in light of Plaintiff's ongoing tax case, and because disclosure 'would harm pending or ongoing enforcement proceedings.'"  "The IRS asserts that disclosure of the reports would prematurely reveal the revenue agents' evidence and strategy and the focus, nature, and scope of the agency's investigations, . . . and provide an unfair advantage to Plaintiffs by granting 'greater access to information about [their tax] investigations than they would otherwise be entitled to receive.'"  "Based on the information provided thus far, the Court grants the IRS's motion as to [certain] documents[.]"  "As to all other withheld under Exemption 7(A) and 7(E), the descriptions are simply too vague and nonspecific to make any determination."  "Even with the more deferential standard given to law enforcement withholding, the agency's conclusory assertions cannot carry their FOIA burden."
   
• Litigation Considerations, Vaughn Index/Declaration & In Camera Inspection:  "On the whole, the Court [finds that] the IRS has failed to sustain its burden of demonstrating the propriety of withholding documents under Exemptions 3, 5, 6, 7A, 7C, and 7E."  "Accordingly, the Court must conduct an in camera review of the withheld documents."