Filed: Jun. 30, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1608 SOLERS, INC., Plaintiff - Appellant, v. INTERNAL REVENUE SERVICE, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:14-cv-01548-LMB-JFA) Argued: March 24, 2016 Decided: June 30, 2016 Before WILKINSON and NIEMEYER, Circuit Judges, and David C. NORTON, United States District Judge for the District of South Carolina,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1608 SOLERS, INC., Plaintiff - Appellant, v. INTERNAL REVENUE SERVICE, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:14-cv-01548-LMB-JFA) Argued: March 24, 2016 Decided: June 30, 2016 Before WILKINSON and NIEMEYER, Circuit Judges, and David C. NORTON, United States District Judge for the District of South Carolina, ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1608
SOLERS, INC.,
Plaintiff - Appellant,
v.
INTERNAL REVENUE SERVICE,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:14-cv-01548-LMB-JFA)
Argued: March 24, 2016 Decided: June 30, 2016
Before WILKINSON and NIEMEYER, Circuit Judges, and David C.
NORTON, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Norton joined.
ARGUED: Mariam Wagih Tadros, REES BROOME, PC, Tysons Corner,
Virginia, for Appellant. Gretchen M. Wolfinger, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Robert J. Cunningham, Jr., REES BROOME, PC, Tysons
Corner, Virginia, for Appellant. Caroline D. Ciraolo, Acting
Assistant Attorney General, Jonathan S. Cohen, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana
Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
NIEMEYER, Circuit Judge:
In this action, Solers, Inc., a Virginia corporation,
challenges the IRS’ response to its request for documents under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The
IRS identified 261 pages that were responsive to Solers’ request
and ultimately produced unredacted copies of all but 12 pages.
Solers challenged the IRS’ reasons for withholding 6 of those
pages and for producing 4 other pages with redactions.
After reviewing the documents in camera, the district court
sustained the IRS’ position and granted the IRS summary
judgment. For the reasons that follow, we affirm.
I
Solers, an information technology company, was audited by
the IRS for its 2010 tax year, and, pursuant to the audit, the
IRS proposed adjustments to Solers’ tax liability and potential
penalties. Not long after the IRS closed the audit, Solers
submitted a FOIA request to the IRS for all documents in the
IRS’ administrative file pertaining to its tax liabilities and
potential penalties for the 2010 tax year, specifically
requesting “[d]ocuments, notes, and internal IRS correspondence”
related to (1) the IRS’ audit; (2) the IRS’ notice of proposed
tax adjustment; (3) Solers’ response to the notice; (4) Solers’
protest of the proposed adjustment; (5) the quality control that
2
was performed on the notice of proposed adjustment; and (6)
guidance received by two IRS agents regarding “intentional
disregard penalties.” Solers also requested all correspondence
between specified individuals that related to it.
The IRS located 261 pages that were responsive to Solers’
request and initially provided Solers with most of these pages,
withholding 26 pages and producing 32 pages with redactions.
Solers commenced this action, alleging that the IRS was
unlawfully withholding records and seeking an order requiring it
to disclose “any redacted materials to the extent that those
materials are not subject to a proper exemption under 5 U.S.C.
§ 552.” After Solers filed its complaint, the IRS determined
that 17 of the 26 pages previously withheld could be released in
full; that 3 additional pages previously withheld could be
released with redactions; and that 29 of the 32 redacted pages
could be released in full. Solers eventually agreed that the
IRS had properly redacted 2 pages, leaving only 10 pages at
issue in this case -- 6 pages that the IRS withheld and 4 pages
that it produced with redactions.
At the outset of the proceedings, Solers filed a motion to
obtain a Vaughn index -- a list describing the documents
withheld and information redacted and giving detailed
information sufficient to enable a court to rule on whether the
withholdings fall within a FOIA exemption. See Rein v. U.S.
3
Patent & Trademark Office, 553 F.3d 353, 357 n.6 (4th Cir.
2009); Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973). The
district court granted the motion in part, directing the IRS “to
provide all information required in a Vaughn index” for each
document withheld or produced with redactions.
Thereafter, the parties filed cross-motions for summary
judgment, and, in support of its motion, the IRS attached two
affidavits from one of its attorneys that provided the following
information about the 10 pages withheld or redacted:
1. Handwritten Notes: Four of the six withheld pages
are handwritten notes made by Revenue Agent Arun
Sharma, the agent primarily responsible for
conducting Solers’ examination, during a
conversation he had with Solers’ accountant on
April 25, 2013. According to the IRS attorney,
the notes “consist[] of [Agent Sharma’s]
thoughts, impressions, and [indicate the]
possible direction of the examination.” The IRS
attorney also stated that “[n]o decision was made
at that time with regard to the issues discussed
by Revenue Agent Sharma and the CPA, and the
examination was not closed until almost a year
later on March 4, 2014.” The IRS withheld the 4
pages of notes pursuant to the deliberative
process privilege that is incorporated into 5
U.S.C. § 552(b)(5) (“Exemption 5”). The IRS
attorney also stated that he had “determined that
[the notes] do not contain any segregable
information.”
2. Summary Report: The IRS also withheld a one-page
summary report prepared by Agent Sharma on
October 16, 2013. The report discusses Agent
Sharma’s “review of returns of certain individual
third-party taxpayers, whose tax returns were
considered in conjunction with [Solers’]
examination.” The IRS withheld the summary
report pursuant to 5 U.S.C. § 552(b)(3)
4
(“Exemption 3”), in conjunction with 26 U.S.C.
§ 6103(a), as well as Exemption 5’s deliberative
process privilege; it also maintained that
portions of the report were subject to
withholding under § 552(b)(6) and (7)(C)
(“Exemptions 6 and 7(C)”).
3. Graph: The IRS also withheld a one-page graph
prepared by Agent Sharma on July 30, 2012. Agent
Sharma generated the graph “from the [IRS’] yk-1
database, which stores information about which
individuals and entities are related to each
taxpayer. The graph shows the identity of third-
party individuals and entities whose tax returns
were considered in conjunction with [Solers’]
examination.” The IRS withheld the graph in full
pursuant to Exemption 3, in conjunction with 26
U.S.C. § 6103(a), and Exemption 5’s deliberative
process privilege; it also maintained that
portions of the graph were subject to withholding
under Exemptions 6 and 7(C).
4. Checksheet: The IRS produced most of a “Closed
Case Review Checksheet,” which was completed by
Agent Sharma’s manager on March 13, 2014, making
a redaction only on a line of the form
identifying “related returns.” The IRS attorney
stated that the agency had redacted only the
portion of the checklist “that reflects the
identity of a third party whose return
information was considered in conjunction with
[Solers’] examination.” The IRS maintained that
the redaction of this third-party information was
justified under Exemption 3, in conjunction with
26 U.S.C. § 6103(a), as well as Exemptions 6 and
7(C).
5. Activity Record: The IRS also redacted a single
entry from one page of Agent Sharma’s activity
record. The IRS attorney stated that the deleted
entry, from July 9, 2013, reflects that Agent
Sharma “communicated with the IRS Office of Chief
Counsel with respect to a specific issue in the
examination,” explaining that “disclosure of [the
redacted entry] would reveal an area of the exam
for which the revenue agent sought legal advice.”
The IRS invoked Exemption 5’s incorporation of
5
the attorney-client privilege to justify the
redaction.
6. Two Emails: Finally, the IRS also redacted from
two emails “the names and contact information of
[IRS] personnel consulted in connection with
[Solers’] examination.” Both emails were sent
from the IRS Specialist Referral System to
Revenue Agent Dennis Cohen, an agent “who worked
on [Solers’] exam prior to Revenue Agent Sharma.”
The first email, dated July 12, 2012, indicates
that Agent Cohen had requested a consultation
with a Computer Audit Specialist and a Tax
Computation Specialist; from this email, the IRS
redacted the names and contact information of the
managers to whom the requests were referred. The
second email, dated July 16, 2012, informed Agent
Cohen that his request for a Computer Audit
Specialist had been assigned; from this email,
the IRS redacted the name and contact information
of the Computer Audit Specialist who had been
assigned to consult on the case, as well as the
name of the manager who had made the assignment.
The IRS maintained that its redactions of these
emails were justified under Exemptions 6 and
7(C).
Before the hearing on the parties’ cross-motions for
summary judgment, the district court directed the IRS to submit
unredacted copies of the 10 pages at issue for in camera review.
And at the hearing, the court ruled, based on the record and its
in camera review, that the IRS’ withholdings were justified. As
a preliminary matter, the court ruled that because it had
“thoroughly reviewed” the records “directly,” Solers’ challenge
to the sufficiency of the IRS’ Vaughn index was no longer an
issue. And as to the 10 withheld or redacted pages, the court
concluded: (1) that the IRS had properly withheld four pages
6
consisting of the agent’s handwritten notes, based on Exemption
5, 5 U.S.C. § 552(b)(5), because the notes “reflect the mental
processes of the revenue agent and [his] thoughts on [the]
possible direction of the investigation”; (2) that the IRS had
properly withheld the graph and summary report, based on
Exemption 3, id. § 552(b)(3), and 26 U.S.C. § 6103(a), because
“[t]hose two documents . . . contain identifying information for
third parties”; and (3) that the IRS had properly redacted
“identifying information of other individuals” from the
checksheet and the two emails, based on Exemptions 6 and 7(C), 5
U.S.C. § 552(b)(6), (7)(C). The court accordingly entered
judgment for the IRS.
From the court’s judgment dated May 15, 2015, Solers filed
this appeal.
II
As a general, preliminary matter, Solers contends that the
IRS “produced generic and inadequate affidavits that provide[d]
no justification for the withholding of any document,” thereby
“disregard[ing]” the district court’s order that the IRS provide
all information required in a Vaughn index. It argues that
because the IRS failed to provide a sufficiently detailed
justification for withholding the documents, it “was thwarted”
in its efforts to challenge those withholdings and that this
7
failure remained meaningful even after the district court’s in
camera review because “the district court’s ruling from the
bench . . . did not provide Solers with a detailed analysis and
rationale regarding its decision to sustain the [IRS’] claimed
exemption[s].” In essence, Solers challenges the sufficiency of
the IRS’ Vaughn index.
Solers’ argument, however, fails to appreciate the role of
a Vaughn index. A Vaughn index is “designed to enable the
district court to rule on a privilege without having to review
the document itself” and thus functions as “a surrogate for the
production of documents for in camera review.” Ethyl Corp. v.
U.S. EPA, 25 F.3d 1241, 1249 (4th Cir. 1994) (emphasis added);
see also
Rein, 553 F.3d at 366 (describing a proper Vaughn index
as a “substitute for in camera review”).
In this case, because the district court reviewed the
documents in camera, it correctly concluded that its own
“thorough[] review[]” had “completely eradicated” “any issue
about an inadequate Vaughn Index.” Stated otherwise, the issue
of whether the IRS provided a Vaughn index sufficient to enable
the district court to evaluate the IRS’ claimed exemptions
became irrelevant and moot after the IRS complied with the
district court’s order to produce the records for in camera
review and the court completed its own review of the records.
8
III
Turning next to the merits of Solers’ challenge to the IRS’
withholdings, FOIA requires generally that federal agencies make
their internal records available to the public upon request.
See 5 U.S.C. § 552(a)(3)(A). The Act, however, exempts certain
categories of records from disclosure. See id. § 552(b)(1)-(9)
(listing what are referred to as Exemptions 1 through 9). If an
exemption applies only to a portion of a document, FOIA requires
that “[a]ny reasonably segregable portion of a record shall be
provided . . . after deletion of the portions which are exempt.”
Id. § 552(b).
In this case, the IRS relied on Exemptions 3, 5, 6, and
7(C) to withhold or redact the 10 pages at issue. We address
the IRS’ claimed exemptions in the following four categories:
(1) the agent’s handwritten notes; (2) the summary report,
graph, and checksheet; (3) the activity record; and (4) the two
emails.
A. The Agent’s Handwritten Notes
The first category consists of four pages of handwritten
notes made by Revenue Agent Arun Sharma during a conversation he
had with Solers’ accountant on April 25, 2013. To justify
withholding the notes, the IRS relied on Exemption 5’s
incorporation of the deliberative process privilege, 5 U.S.C.
§ 552(b)(5), maintaining that the notes “consist[] of [Agent
9
Sharma’s] thoughts, impressions, and [indicate the] possible
direction of the examination.” The IRS also took the position
that the notes “do not contain any segregable information.”
Upholding the IRS’ position, the district court observed
that, while the notes were very difficult to read, they were
nonetheless covered by the deliberative process privilege
“because they do represent the [agent’s] thought process,”
adding that they “reflect the mental processes of the revenue
agent and [his] thoughts on [the] possible direction of the
investigation.”
Solers contends that the information with which it has been
provided about the notes does not establish the notes’
“deliberative” nature, leaving unclear whether “the notes were
somehow related to the process by which any agency policy was
formulated” or “whether the notes played a role in reaching an
agency decision.” Solers also asserts that the IRS “did not
provide any information to support its conclusion that the
documents were not segregable.”
Exemption 5 shields “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). “Among the privileges Exemption 5
encompasses are the attorney-client privilege . . . and the
deliberative process privilege.” Rein, 553 F.3d at 371. And
10
the deliberative process privilege, on which the IRS relies to
withhold the notes, “rests on the obvious realization that
officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news.”
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8-9 (2001). The privilege thus “encourages free-ranging
discussion of alternatives; prevents public confusion that might
result from the premature release of such nonbinding
deliberations; and insulates against the chilling effect likely
were officials to be judged not on the basis of their final
decisions, but for matters they considered before making up
their minds.” City of Virginia Beach v. U.S. Dep’t of Commerce,
995 F.2d 1247, 1252-53 (4th Cir. 1993) (internal quotation marks
and citation omitted).
To justify application of the deliberative process
privilege, “the government must show that, in the context in
which the materials [were] used, the documents [were] both
predecisional and deliberative.” City of Virginia Beach, 995
F.2d at 1253 (internal quotation marks and citation omitted).
Predecisional documents are those “prepared in order to assist
an agency decisionmaker in arriving at his decision,”
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,
421 U.S. 168,
184 (1975), and deliberative documents are those that “reflect[]
the give-and-take of the consultative process by revealing the
11
manner in which the agency evaluates possible alternative
policies or outcomes,” City of Virginia Beach, 995 F.2d at 1253
(internal quotation marks and citation omitted). The privilege
thus protects “recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency.”
Id. (emphasis added) (internal quotation marks and
citation omitted). But the privilege “does not protect a
document which is merely peripheral to actual policy formation;
the record must bear on the formulation or exercise of policy-
oriented judgment.” Ethyl
Corp., 25 F.3d at 1248. In addition,
“since the prospect of disclosure is less likely to make an
advisor omit or fudge raw facts than opinions, purely factual
material does not fall within the exemption unless it is
inextricably intertwined with policymaking processes such that
revelation of the factual material would simultaneously expose
protected deliberation.” City of Virginia
Beach, 995 F.2d at
1253 (internal quotation marks and citations omitted).
In this case, after the district court conducted its in
camera review and its review of the sworn statement of an IRS
employee, it concluded that the four pages of handwritten notes
“represent the key or salient points that that agent was writing
down” and “reflect the mental processes of the revenue agent and
[his] thoughts on [the] possible direction of the
12
investigation.” The court also determined that the four pages
could be withheld in their entirety, effectively ruling that
there were no segregable portions that could be produced.
We conclude that the district court’s factual findings
regarding the content of the notes are amply supported by the
record -- which includes the IRS representative’s statement that
the four pages of notes “consist[] of [Agent Sharma’s] thoughts,
impressions, and [indicate the] possible direction of the
examination” -- and therefore are not clearly erroneous. See
Ethyl Corp., 25 F.3d at 1246 (noting that, in FOIA cases,
“factual conclusions . . . are reviewed under a clearly
erroneous standard”). Moreover, because the notes were the
agent’s preliminary evaluation of issues implicated by the
audit, the court did not err in concluding that they were
predecisional and deliberative, thus satisfying the criteria for
withholding them under Exemption 5. See Nat’l Whistleblower
Ctr. v. Dep’t of Health & Human Servs.,
849 F. Supp. 2d 13, 38
(D.D.C. 2012) (“Handwritten notes may be deliberative or part of
the agency’s deliberative process where they contain the
author’s opinions, analysis, or impressions of the event he or
she describes”); Carter, Fullerton & Hayes LLC v. FTC, 520 F.
Supp. 2d 134, 144 (D.D.C. 2007) (upholding agency’s invocation
of the deliberative process privilege to withhold “a set of
handwritten notes of a senior FTC employee taken during
13
meetings” based on agency’s description of the notes as
“representing the employee’s ‘thoughts and impressions’ of the
meeting”); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13
(D.D.C. 1995) (concluding that “handwritten notes reflecting
preliminary thoughts of agency personnel” were covered by the
deliberative process privilege). We also affirm the district
court’s implicit ruling that there are no segregable portions of
the notes subject to production.
B. The Summary Report, Graph, and Checksheet
The other two pages withheld in full are (1) a summary
report prepared by Agent Sharma on October 16, 2013, describing
the process and results of his review of tax returns for certain
individual third-party taxpayers, which he conducted in
connection with the Solers’ audit; and (2) a graph prepared by
Agent Sharma on July 30, 2012, which he generated from a
database that “stores information about which individuals and
entities are related to each taxpayer” and which “shows the
identity of third-party individuals and entities whose tax
returns were considered in conjunction with [Solers’]
examination.” The IRS also produced a “Closed Case Review
Checksheet” form with one line on the document redacted,
explaining that it had redacted that portion of the checksheet
because it reflected “the identity of a third party whose return
information was considered in conjunction with [Solers’]
14
examination.” The IRS contends that its withholdings with
respect to these three pages are justified by Exemption 3 and 26
U.S.C. § 6103(a).
Exemption 3 protects from disclosure information that is
“specifically exempted from disclosure by [a] statute” “(i)
requir[ing] that the matters be withheld from the public in such
a manner as to leave no discretion on the issue; or (ii)
establish[ing] particular criteria for withholding or
refer[ring] to particular types of matters to be withheld.” 5
U.S.C. § 552(b)(3). And 26 U.S.C. § 6103 “is a statute
contemplated by FOIA Exemption 3.” Tax Analysts v. IRS, 410
F.3d 715, 717 (D.C. Cir. 2005) (internal quotation marks and
citation omitted). That statute prohibits the disclosure of
“[r]eturns and return information . . . except as authorized by
[Title 26],” 26 U.S.C. § 6103(a), and it defines the term
“return information” as including “a taxpayer’s identity . . .
[and] whether the taxpayer’s return was, is being, or will be
examined or subject to other investigation or processing,”
although the term “does not include data in a form which cannot
be associated with, or otherwise identify, directly or
indirectly, a particular taxpayer,”
id. § 6103(b)(2).
We conclude that, although the summary report does not
specifically name third-party individuals whose tax returns were
considered in conjunction with Solers’ audit, the individuals’
15
identities could easily be discerned from the report or any
segregable portion of it, therefore justifying its being
withheld. Likewise, because the graph and checksheet
specifically identified third-party individuals and entities, we
conclude that the IRS acted properly in withholding the graph
and redacting one line from the checksheet.
In an effort to avoid this conclusion, Solers asserted for
the first time during oral argument that four of its employees
had authorized the IRS to release their tax return information
to Solers, pursuant to 26 U.S.C. § 6103(c), and that the IRS was
therefore not entitled to rely on Exemption 3 and § 6103(a) to
withhold records insofar as they relate to those third parties.
It is well settled, however, “that contentions not raised in the
argument section of the opening brief are abandoned.” United
States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)
(citing Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th
Cir. 1999)). Moreover, the record reflects that after the IRS
noted to the district court that Solers’ employees had failed to
submit the proper authorization forms, Solers made no effort to
counter this representation. In these circumstances, Solers’
efforts to obtain tax documents identifying third parties are
unavailing.
16
C. The Activity Record
The IRS produced the relevant portions of Agent Sharma’s
activity record, a document similar to a time sheet, with a
single entry on one page redacted. The IRS explained that the
deleted entry reflected that Agent Sharma “communicated with the
IRS Office of Chief Counsel with respect to a specific issue in
the examination,” adding that “disclosure of [the redacted
entry] would reveal an area of the exam for which the revenue
agent sought legal advice.” The IRS relied on Exemption 5’s
incorporation of the attorney-client privilege to justify this
redaction, and the district court agreed with the IRS.
Solers contends mainly that the entry should not have been
redacted because “the subject matter of an attorney-client
communication is not privileged.”
While, as Solers contends, “the general purpose of the work
performed [by an attorney] [is] usually not protected from
disclosure by the attorney-client privilege because such
information ordinarily reveals no confidential professional
communications between attorney and client,” In re Grand Jury
Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (internal quotation
marks and citation omitted), the privilege nonetheless shields
from disclosure “the specific nature of the legal advice sought
by [the client],” In re Grand Jury Subpoena,
341 F.3d 331, 335
(4th Cir. 2003); see also
id. (holding that, while the fact that
17
an attorney “provid[ed] advice regarding an immigration matter”
would not be privileged, a question “specifically ask[ing]
whether [the client] consulted with Counsel about the
preparation of [a particular immigration form]” sought
information protected by the attorney-client privilege).
Accordingly, we conclude that the attorney-client privilege
justifies the IRS’ limited redaction of the activity report so
as to keep confidential the specific issues on which Revenue
Agent Sharma sought legal advice while working on the audit.
D. The Two Emails
Finally, the IRS made redactions to two emails that it
produced, withholding the names and contact information of
certain IRS personnel who were consulted in connection with
Solers’ audit. The IRS maintained that the redactions were
justified under Exemptions 6 and 7(C), and the district court
agreed.
Exemption 6 specifies that FOIA’s disclosure requirement
does not apply to “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). The
Supreme Court has instructed that the phrase “similar files,” as
used in Exemption 6, should be given “a broad, rather than a
narrow, meaning,” explaining that “[w]hen disclosure of
information which applies to a particular individual is sought
18
from Government records, courts must determine whether release
of the information would constitute a clearly unwarranted
invasion of that person’s privacy.” U.S. Dep’t of State v.
Washington Post Co., 456 U.S. 595, 600, 602 (1982). And to
determine whether an invasion of privacy would be “clearly
unwarranted,” courts employ a balancing test that weighs the
individual’s privacy interests against the public interest in
disclosure. The public interest is served to “the extent to
which disclosure of the information sought would ‘she[d] light
on an agency’s performance of its statutory duties’ or otherwise
let citizens know ‘what their government is up to.’” U.S. Dep’t
of Defense v. Fed. Labor Relations Auth.,
510 U.S. 487, 497
(1994) (alteration in original) (quoting Dep’t of Justice v.
Reporters Comm. for Freedom of Press,
489 U.S. 749, 773 (1989)).
A similar analysis applies with respect to the application
of Exemption 7(C), which allows agencies to withhold “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C).
In this case, Solers does not dispute that the redacted
information was contained in “personnel and medical files and
similar files,” within the meaning of Exemption 6, or that the
19
redacted information was “compiled for law enforcement
purposes,” within the meaning of Exemption 7(C). Rather, it
contends that the district court did not adequately consider
whether the release of the names and contact information of
these IRS employees would constitute “even a general invasion of
privacy” and that it failed to “weigh Solers’ right to review
its tax documents against the asserted privacy interests.”
We conclude, however, that the district court struck the
right balance in permitting these email redactions. On the one
side of the scale, IRS employees, as well as other government
employees, “have a substantial interest in the nondisclosure of
their identities and their connection with particular
investigations because of the potential for future harassment,
annoyance, or embarrassment.” Neely v. FBI, 208 F.3d 461, 464-
65 (4th Cir. 2000); see also Judicial Watch, Inc. v. United
States, 84 F. App’x 335, 339 (4th Cir. 2004) (unpublished)
(concluding that “the privacy interest protected by Exemption 6
encompasse[s] . . . the names of federal employees,” including
“lower-level I.R.S. employees”). But, on the other side of the
scale in this case, the record contains no indication that
disclosing the names and contact information of these IRS
employees would serve the public interest. See
Neely, 208 F.3d
at 464 (recognizing that the public interest in the names of
government employees alone “would appear to be negligible”
20
absent a “compelling allegation of agency corruption or
illegality”). Accordingly, we conclude that the district court
did not err in holding that the IRS employees’ interest in
maintaining the privacy of their names and contact information
outweighed the public interest in the disclosure of this
information.
The judgment of the district court is accordingly
AFFIRMED.
21
