into this category. Thus, where the White House received a routine inquiry, request or comment from a taxpayer and forwarded it to the I.R.S. for a reply with a notation that the I.R.S. should take "whatever action it deemed appropriate", the document fell outside of the scope of the complaint and is properly withheld from the plaintiff as non-responsive to the FOIA request.
(2) Communications from the White House to the I.R.S. regarding the status of tax affairs of named taxpayers and the I.R.S. response to these communications.
Typically these documents consist of a White House referral of a request for assistance by an individual or corporate taxpayer with a suggestion on how the matter should be handled. The request for assistance usually contains a detailed description of the individual's financial plight and his/her present problem with the I.R.S. The I.R.S. withheld these documents in their entirety on the basis of (b)(3). The court, for the reasons stated earlier, disagrees with the defendant's expansive definition of (b)(3). However, portions of these documents do come within the scope of (b)(3). Thus, where the documents contain tax return information for which (b)(3) is properly invoked, that material has been edited by the Court and the portions disclosable ordered released, 5 U.S.C. § 552(b).
(3) Notes of telephone conversations and memoranda discussing policies and practices of the I.R.S.
The documents that fall into this category consist of very cryptic transcribed short hand notes of telephone conversations as well as memoranda discussing policies and practices of the I.R.S. The subject matter of these documents ranges from the I.R.S. position on tax exempt status for racially discriminatory schools to the handling of questions by the media. The defendant contends that Exemption (b)(5), which permits an agency to withhold "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 another agency", provides the basis for withholding these documents.
As the Supreme Court stated in NLRB v. Sears Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975), "the ultimate purpose of this long recognized privilege is to prevent injury to the quality of agency decisions." It is, as that court stated, "the deliberations comprising part of a process by which governmental decisions and policies are formulated" which are to be protected. Id. at 150-151. Thus, expressions of opinion, advice or suggestion are generally exempt under Exemption 5. Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Sterling Drug Co. v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698 (1971). However, factual material which is segregable from an otherwise deliberative memorandum must be disclosed. Environmental Protection Agency v. Mink, supra. But where factual and deliberative material are inextricably intertwined the entire document may be withheld. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (1971.) In certain cases exempt material may become non-exempt if the reasoning of the previously exempt material is incorporated by reference in otherwise disclosable materials. NLRB v. Sears Roebuck & Co., supra, Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 44 L. Ed. 2d 57, 95 S. Ct. 1491 (1975). Likewise, any "deliberative" or "advisory" material intended to explain a decision of policy already adopted is not within the purview of Exemption 5, NLRB v. Sears Roebuck & Co., supra; Sterling Drug Co. v. F.T.C., supra. In sum, it is deliberative, non-factual, pre-decisional memoranda, the disclosure of which would injure the quality of agency decisions, that are protected by Exemption 5. The wide variety and the sheer volume of these documents prohibit a lengthy explanation of the application of these principles to the documents in question. The court has, as indicated in the attached order, applied the above principles to each document and where appropriate ordered released, withheld, or edited information contained therein.
(B) Documents responsive to paragraph 16b of the complaint released to the plaintiff with deletions:
These documents cover a wide range of subjects. Many of them are discussions between Service and White House personnel regarding specific issues of tax policy, such as underwithholding or tax exempt status of racially discriminatory private schools. Many of these documents are simply routing forms that were attached to materials withheld in their entirety. Still others deal substantively with an individual taxpayer's difficulties with the I.R.S. Also included in these documents are taxpayers' opinions or inquiries on tax policy matters that were forwarded to the I.R.S. by the White House. The documents fall into the following subcategories:
(1) Documents which are non-responsive to the FOIA request.
For the reasons stated in the discussion of the plaintiffs' amended complaint, documents which were specifically excluded from the amended complaint are properly withheld from the plaintiffs. The Court has indicated on the attached order the reason each document is non-responsive.
(2) Documents which defendant claims are protected by Exemption 7(A).
Exemption 7(A) protects "investigatory files compiled for law enforcement purposes, but only to the extent that production of such records would interfere with enforcement proceedings." Defendant has supplied to this Court an affidavit of a Mr. Jay Horowitz, Assistant Special Prosecutor, Office of the Watergate Special Prosecution Force. Mr. Horowitz states that certain documents (numbers E-3 through E-8 listed on Defendant's Appendix A) would adversely affect the criminal investigation to which these documents are relevant. Plaintiffs do not contest this claim; rather they request the court to order the documents released once that investigation has been terminated. The court is satisfied that these documents are investigatory files within the meaning of Exemption 7 and for the reasons stated in the previous discussion of Exemption (7)(C), holds that disclosure of these documents after the termination of the present investigation would constitute an unwarranted invasion of personal privacy.
(3) Documents released to the plaintiff with the names of the I.R.S. employees deleted.
These documents are primarily discussions of I.R.S. policy. The I.R.S. has released the documents in their entirety except for the signatures of the I.R.S. employees who prepared, reviewed or commented on these documents. Voicing a concern that the I.R.S. employees involved in these matters will be harassed by the media if their names are released, the I.R.S. claims protection under (b)(5) and (b)(6). For the reasons stated in the discussion of Exemption 6 the court rejects the I.R.S. claim that these documents are protected by that exemption. As to the Service's claim of exemption under (b)(5), however, the Court finds that the deletions made in the documents are within the intended scope of the exemption.
As the Court has noted earlier, the (b)(5) exemption is intended to protect the decision-making process used by the agency in arriving at its policy decisions. An integral element in any such deliberative process, if it is to function effectively, is the free, uninhibited, and candid exchange of views and ideas among the participants in the process. The facilitation of this open exchange is one of the primary purposes of the protection afforded by this exemption. It is widely recognized that disclosure of the advice and comments made by particular individuals on a policy issue may have a chilling effect on the openness with which those individuals subsequently express such comments and advice. One aspect of the deliberative process therefore protected by exemption (b)(5) is the identity of persons giving particular advice on a policy matter. In the instant case, in which the issue seems to be one of first impression, the agency has disclosed the actual substance of the policy discussions, withholding only the identity of the participants in those discussions. (A participant in this context is anyone who authored, reviewed, approved, or commented on a given deliberative document. To be more restrictive in definition would undermine the protection afforded by the exemption by allowing indirect, deductive identification of the author or endorser of the views expressed). In light of the Act's general policy of maximum possible disclosure, and the resulting approval of segregation and release of non-exempt material as a device for furthering that policy, the Court believes that it is permissible for an agency to determine that only part of a deliberative memorandum need be withheld to protect the deliberative process, and to disclose the remainder of the document. Because the identity of the parties to the deliberations reflected by the memorandum is protected by the exemption, the Court cannot say that segregation and non-disclosure of that identity segment of the contested documents is improper. Accordingly, the Court has reviewed the relevant documents and has approved the withholding of the identity portion of any of those documents which are otherwise deliberative. Identity segments of non-deliberative documents (otherwise non-exempt) must of course be released.
(4) Documents containing correspondence between the White House and the I.R.S. on tax policy matters; letters from taxpayers or requests for assistance which were other than routine.
The defendant has deleted the names of taxpayers and identifying data from these documents, asserting Exemption 3 or Exemption 6. The majority of these documents do not contain information contained in returns and used in the determination of taxes, thus Exemptions 3 and 6 are inapplicable. Where (b)(3) deletions were proper, i.e. where taxpayers' names were linked to information contained in returns, the court has so indicated in the attached order.
III. THE 16e DOCUMENTS
In paragraph 16e of its complaint, plaintiff requests disclosure of the four documents submitted to United States District Judge Charles R. Richey for in camera inspection in Center On Corporate Responsibility v. Shultz, 368 F. Supp. 863 (D.D.C., 1973). Defendant has withheld the documents entirely, claiming (1) that they are not "identifiable agency records of the I.R.S.," (2) that they are "inter-agency or intra-agency records," and (3) that they are protected by the attorney-client privilege. The Court finds these contentions without merit, and directs that the documents be released.
The claim upon which the I.R.S. chiefly relies to shield these documents is the first, that they are not identifiable agency records of the Service within the meaning of § 552(a)(3). To support its claim, the I.R.S. points out that the documents were not generated by the agency itself in the normal course of its business, but rather came into its possession when the Office of Chief Counsel at the Service was provided the documents by the Justice Department (which apparently had received them from the White House for in camera submission to Judge Richey) for the purpose of determining whether the Service wished to appeal the Center On Corporate Responsibility decision. The I.R.S. also states that the documents were not in any of its own files prior to that time; rather, they were kept in a locked safe in the Chief Counsel's Office while the Service was using them, and were returned to the Justice Department after the decision was made not to appeal Judge Richey's decision. The defendant also argues that the four memoranda "do not directly involve any ordinary Service administrative function; and it is the White House, not the Service, which is equipped to state the circumstances of their generation, the applicability to them of any privileges, and all other considerations relevant to their defense from discovery." Memorandum In Support Of Defendant's Motion For Summary Judgment, p. 19 (filed November 13, 1975). No assertion is made that the documents are protected by the doctrine of executive privilege, nor that they are not responsive to the FOIA request as clarified and amended during the course of negotiations and litigation.
No case has been found which addresses the issue involved here, nor does the legislative history of the Act provide any real guidance. The Court believes however, that the structure and purposes of the Act operate to foreclose defendant's claim that these memoranda do not constitute agency records subject to the Act's disclosure requirements. In general, the Act seeks to make public all records of government actions and functions, unless specifically exempted by the Act itself. And it cannot be denied that making decisions with respect to litigation in which it is involved is a normal function of the I.R.S., or any agency, despite the fact that it is not the central function of the agency. Moreover, the Court does not believe that the nature of the function is a relevant criterion: the Act directs disclosure of all agency records unless specifically exempted, whatever the reason for their use by the agency. As the Service concedes, it did use these documents in making litigation decisions, cf. Wu v. National Endowment For Humanities, 460 F.2d 1030, 1032 (C.A. 5,1972) (report of outside consultants is agency record for purpose of Exemption 5). Nor is it decisive that the documents were generated by the White House rather than the I.R.S. Agencies often utilize or receive copies of documents generated in other agencies, and such documents, if identifiable, are clearly agency records for the purposes of the Act. Indeed the Act itself makes provision for this situation. Section 552(a)(6)(B) (iii) allows for a short extension of the Act's time provisions (in responding to a request) in a case where the agency must consult with another agency having a substantial interest in determination of the request. This provision would certainly be applicable to the instant situation, and is the method prescribed by the Act for the assertion of any claims of exemption by the agency which, inter alia, generated the document. To hold that a document received by an agency and actually used by it in agency decision-making is not an agency record for purposes of the Act simply because the document was not generated by that agency or because the decision was on a peripheral matter would seriously undermine one of the central purposes of the Act: to allow the public to become informed on the bases for agency decisions and actions. Such a holding would contradict the mandates of Congress that documents be disclosed unless specifically exempt and that the balance should be tipped in favor of disclosure in questionable situations.
Finally in this regard, the fact that the Service returned the documents to the Justice Department after using them does not exempt them from disclosure. The criterion provided by the Act is that the records be "identifiable" (or in the 1974 amendments, "reasonably identified"); that these records are identifiable is clear from the fact that they were produced to the Court in response to plaintiff's request. That the agency may no longer be in physical possession of the records (which is not what the Service contends here) is not determinative, cf. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1075-1076 (1971); if the agency knows what records a given request is directed towards, knows where those records are located, and is able to produce them, the Act requires that it do so.
A contrary holding would mean, for example, that the Federal Energy Administration, in making determinations requiring conversion to coal as a fuel source pursuant to the Energy Supply and Environmental Coordination Act of 1974, P.L. 93-319, 88 Stat. 246, could utilize data supplied by the Environmental Protection Agency, then return the data to EPA, and be exempt from producing the data under the FOIA. This is obviously not what Congress intended, and the Court will not create such a gaping loophole in the Act.
The Service also argues that Exemption 5 should apply to this material. As the Court has discussed earlier, and as the cases make clear, this exemption is intended to cover material reflecting the deliberative process involved in governmental policy-making. The four documents at issue here simply cannot be construed as being part of any proper governmental process. As Judge Richey noted in the Center On Corporate Responsibility case, the documents "demonstrate that the White House staff did in fact consider using the I.R.S. against their 'enemies '", 368 F. Supp. at 872, n. 19. The memoranda relate "to the recommendations and attempts to use the Internal Revenue Service in a selective and discriminatory fashion against those tax-exempt organizations which express opposition to the policies and programs of the Administration." Id. at 881. They are no more part of the legitimate governmental process intended to be protected by Exemption 5 than would be memoranda discussing the possibility of using a government agency to deliberately harass an opposition political party. In short, these memoranda possess none of the attributes required for an exemption under § 552(b)(5), and must accordingly be released.