Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2008

Berger v. IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2796




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2796


         LAWRENCE S. BERGER; REALTY RESEARCH CORPORATION,
                                      Appellants

                                           v.

      INTERNAL REVENUE SERVICE; DEPARTMENT OF THE TREASURY


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                             (D.C. Civil No. 05-cv-03854)
                 District Judge: The Honorable Harold A. Ackerman


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 25, 2008


                Before: SLOVITER, BARRY and ROTH, Circuit Judges

                            (Opinion Filed: August 11, 2008)


                                       OPINION




BARRY, Circuit Judge

      Appellants Lawrence S. Berger and Realty Research Corporation (“RRC”)

(together “appellants”) appeal the District Court’s order granting summary judgment to
appellees the Internal Revenue Service (“IRS”) and the Department of Treasury (“DOT”)

and denying appellants’ request for disclosure of documents under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and certain

provisions of the Internal Revenue Code (“IRC”). We will affirm.

                                             I.

       Appellants were the subjects of a civil Trust Fund Recovery Penalty (“TFRP”)

investigation and criminal investigation by the IRS. The investigation did not result in

any charges against either of them. On December 8, 2003, they wrote to the IRS

requesting records pertaining to themselves and to the investigations of them under the

FOIA, the Privacy Act, and the IRC. In addition to other records, appellants requested the

time records of Revenue Officer Mary Williams, who conducted the TFRP investigation.

       The IRS responded on July 23, 2004, releasing 459 pages of documents, but

advised appellants that it was withholding in full or in part numerous documents exempt

from disclosure under FOIA. On August 27, 2004, appellants appealed and expanded the

scope of their document request. On July 15, 2005, the IRS Appeals Office released

additional documents, but reaffirmed its decision to withhold the rest.

       On August 3, 2005, appellants filed a complaint in the District Court seeking

disclosure of the withheld documents. The case was referred to Mary Ellen Keys, an

attorney at the IRS’s Office of Assistant Chief Counsel for Disclosure and Privacy Law.

On June 6, 2006, appellants wrote to the IRS, again expanding the scope of their


                                             2
document request. On or about August 15, 2006, the IRS released approximately 900

additional pages.

       On October 27, 2006, appellees moved for summary judgment, arguing that the

remaining pages had been properly withheld. Affidavits from IRS officers were

submitted in support of the motion, including the Declaration of Ms. Keys, explaining

which pages had been withheld and the reasons for withholding them. Keys stated that

Officer Williams’s time records consisted of 711 pages that were being withheld in their

entirety under 5 U.S.C. § 552(b)(6) (“Exemption 6”). Keys noted that, in addition to

Exemption 6, the time records could also be withheld under 5 U.S.C. § 552(b)(3)

(“Exemption 3”), in conjunction with 26 U.S.C. § 6103(a), because the information

largely consisted of information relating to third-party taxpayers.

       On December 8, 2006, appellants filed a brief in opposition to appellees’ motion

and submitted a copy of the “Vaughn” index prepared by the IRS in conjunction with the

summary judgment motion.1 On January 9, 2007, the IRS informed the District Court that

it intended to release additional pages, and, on January 19, 2006, twenty-two pages were

released. On January 12, 2007, appellees filed a reply brief together with additional

affidavits, including another Declaration of Ms. Keys responding to arguments made in

appellants’ brief. Keys stated that the IRS had withheld Officer Williams’ time records



   1
     A “Vaughn” index is an affidavit that supplies an index of withheld documents and
details the agency’s justification for claiming an exemption. Patterson v. Fed. Bureau of
Investigation, 

, 599 n.7 (3d Cir. 1990).

                                             3
under Exemption 6 because they were a “personal accounting of the time spent on the

job,” reporting time spent examining various taxpayers and time reported as sick leave,

vacation time, training, and other administrative reasons, and that disclosure would be a

“clearly unwarranted invasion of personal privacy.” App. at 388. On May 22, 2007, the

District Court granted appellees’ motion for summary judgment, finding that the balance

of the time records had been properly withheld under Exemption 6, and that the Privacy

Act did not otherwise require their disclosure. Appellants timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                             II.

       Appellants argue that Officer Williams’s time records are not protected by

Exemption 6 of the FOIA, their release is required under the Privacy Act, and that the

District Court abused its discretion by declining to conduct an in camera review of the

remaining documents withheld by the IRS.

       When reviewing an order of a district court granting summary judgment in

proceedings seeking disclosure under the FOIA, a reviewing court must determine

whether the district court had an adequate factual basis for its decision and, if so, whether

that decision was clearly erroneous. Abdelfattah v. U.S. Dep’t of Homeland Sec., 

, 182 (3d Cir. 2007). We will reverse only “if the findings are unsupported by

substantial evidence, lack adequate evidentiary support in the record, are against the clear

weight of the evidence or where the district court has misapprehended the weight of the


                                              4
evidence.” 

v. U.S. Dep’t of Justice, 

, 70 (3d Cir. 1985).

       Exemption 6 of the FOIA exempts from disclosure “personnel and medical files

and similar files the disclosure of which would constitute a clearly unwarranted invasion

of personal privacy.” 5 U.S.C. § 552(b)(6). To determine whether the exemption applies,

courts balance the public interest in disclosure against the privacy interest protected by

the exemption. Sheet Metal Workers Int’l Assn, Local Union No. 19 v. U.S. Dep’t of

Veterans Affairs, 

, 897 (3d Cir. 1998). There is a presumption in favor of

disclosure, and the agency has the burden of proving that an exemption applies. 

argue that Officer Williams’s time records are not “similar files”

that would be expected to contain the type of personal information Exemption 6 was

designed to protect, and instead merely reflect the activities she performed while

investigating appellants or performing other work-related functions. However, the term

“similar files” is construed broadly and not limited to those files that contain intimate

details or highly personal information. U.S. Dep’t of State v. Washington Post Co., 

, 600 (1982). Rather, the exemption is intended to cover records that can be

“identified as applying to that individual.” 

Williams’s time records are a

personal recording of the time expended as an employee and therefore can be identified as

applying to her.

       Appellants argue that even if the time records are “similar files,” Officer Williams

has only a minimal, if any, privacy interest in those records. They argue, moreover, that


                                              5
even assuming she has a privacy interest in those parts of her time records containing

personal information, this does not explain why the rest of those records are protected.

Williams, they argue, would not be expected to have a privacy interest in those parts of

the records that merely recount the activities performed during the course of her official

duties as an employee of the IRS. We disagree. Williams has a privacy interest in her

records as a whole because they are a personal recording of how she spent her time at

work. Whether some parts contain information not subject to an exemption goes to

whether those parts are segregable from the portions that are exempt,2 and the District

Court found they were not. Moreover, “even a slight privacy interest will tip the scales in

favor of non-disclosure” when balanced against a weak public interest in disclosure.

Sheet Metal Workers Int’l Ass’n, Local Union No. 

.

       Appellants argue that the District Court erroneously found both that the public did

not have an interest in the time records and that Officer Williams’s privacy interest

outweighed any public interest in disclosure. When balancing the privacy interest against

the public interest in disclosure, the only relevant public interest is the extent to which

disclosure would “serve the ‘core purpose of the FOIA,’ which is ‘contributing



   2
      When responding to requests for the release of documents, “[a]ny reasonably
segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt . . . .” 5 U.S.C. 552(b). The District
Court found that “considering the extensive amount of personal information” in the time
records, they “may not be reasonably segregated such that only information which would
not clearly invade Williams’s personal privacy would be disclosed.” App. at 35. Ms.
Keys’s Declarations support this finding.

                                               6
significantly to public understanding of the operations or activities of the government.’”

(quoting U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 

(1994)) (emphasis omitted).

       Appellants maintain that the public has an interest in the manner in which the IRS

conducts civil tax investigations, whether public servants carry out their duties in an

efficient and law-abiding manner, whether investigations are comprehensive, and whether

budget monies are allotted in an efficient and cost-effective manner. Disclosure of

Officer Williams’s time records, however, would not “contribute significantly” to the

public understanding of the operations of the IRS or “appreciably further the citizens[’]

right to be informed about what their government is up to.” 

(quoting Dep’t of

). Indeed, disclosure of her records would only serve appellants’

narrow interest in knowing how she investigated their particular case. Williams’s privacy

interest in her time records, even if slight, outweighs this weak public interest in their

disclosure, and disclosure would be an unwarranted invasion of personal privacy.3

                                             III.

       Our scope of review of the grant of a motion for summary judgment with respect

to disclosure under the Privacy Act is the same as that used by the District Court.

Patterson v. Fed. Bureau of Investigation, 

, 602 (3d Cir. 1990). We must




   3
     Because we hold that Officer Williams’s time records are exempt under Exemption
6, we need not reach the issue of whether they are also exempt under Exemption 3.

                                              7
decide whether there is a genuine issue as to any material fact in dispute, assuming

resolution of the disputed fact in favor of the non-moving party, and determine whether

the moving party is entitled to judgment as a matter of law. 

that the time records should have been released to them under the

Privacy Act because they include information pertaining to Berger4 that can be retrieved

by taxpayer name.5 Under the Privacy Act, an individual may request from an agency

access to his records or to “any information pertaining to him” which is maintained in a

system of records from which information is retrieved by the name of the individual or

some other identifier assigned to that individual. 5 U.S.C. § 552a(a)(5) and (d)(1).

Records shall not be disclosed “except pursuant to a written request by, or with the prior

written consent of, the individual to whom the record pertains . . . .” 

       Officer Williams’s time records were created pursuant to the conditions of her

employment, not, as appellants suggest, “in connection with” her investigation of them.

Reply Br. at 8. Those records record the time Williams spent performing her job duties –

investigating other taxpayers as well as appellants, training, and administrative work – as

well as her vacation time and sick leave. Therefore, the time records pertain to Williams,



   4
     The Privacy Act only applies to the records of individuals and therefore this
challenge is to records pertaining to Berger only.
   5
      The parties dispute for the first time on appeal whether time records are retrievable
from an IRS system of records by taxpayer name. In the District Court, the parties limited
their Privacy Act arguments to whether the time records pertained to Berger. We do so as
well, and agree with the District Court that they do not.

                                              8
not Berger, and cannot, absent the consent of Williams, be released under the Privacy

Act.

                                             IV.

       Finally, appellants argue that the District Court abused its discretion by failing to

perform an in camera review of the “relatively few remaining documents” that were

withheld. Reply Br. at 25. Review was necessary, they argue, to ensure that the IRS had

complied with the FOIA’s segregation requirement and because the IRS’s conduct and

affidavits suggested that it was not withholding documents in good faith. The FOIA

permits a district court to examine in camera the contents of agency records that have

been withheld. 5 U.S.C. § 552(a)(4)(B). Such review is discretionary. Hilton v. Dep’t of

Justice, 

, 128 (3d Cir. 1988). In camera review, however, should not be

resorted to “routinely” and is unnecessary if agency affidavits or other showings are

specific. Ferri v. Bell, 

, 1225-26 (3d Cir. 1981).

       The District Court concluded that in camera review was not warranted because it

was “satisfied with the detail and specificity” of the IRS’s affidavits, in particular the

Declarations of Ms. Keys, and of the Vaughn index, and because there was no evidence

that the IRS acted in bad faith. App. at 14. The District Court did not abuse its discretion

in so concluding. Moreover, the IRS was at all times responsive to appellants’ requests

and, indeed, re-reviewed the records each time appellants expanded the scope of their

document requests and, again, after they submitted their brief on the motion for summary


                                               9
judgment.

                                          V.

      We will affirm the judgment of the District Court.




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