The opinion of the court was delivered by: GREENE
This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, in which plaintiff, appearing pro se, seeks disclosure of records compiled as part of the "tax protest project" of the Baltimore District Office of the Internal Revenue Service. The matter comes before the Court on cross-motions for summary judgment. After careful review in camera of the eighty-seven documents at issue, and upon consideration of the briefs and affidavits filed by the parties, the Court grants plaintiff's motion for summary judgment with regard to certain deletions in six of the documents, and grants defendants' motion with regard to the remainder.
By letter dated September 28, 1979, plaintiff made a FOIA request of the Internal Revenue Service (IRS) for various manuals, publications, and records pertaining to the Baltimore District Office's tax protest project. This project gathers information about tax protest movements in order to aid IRS in identifying groups and individuals who may not be complying with the tax laws, and refers the names of those who are violating the tax laws to the Criminal Investigation Staff of the Service for further investigation. By letter of October 11, 1979, the Baltimore District Director responded to plaintiff's FOIA request by providing him with manual sections, news articles, and publications as requested, but denying him access to certain records pertaining to the tax protest project pursuant to exemptions 3, 5, 7(A), and 7(C), 5 U.S.C. § 552(b) (3), (b)(5), (b)(7)(A), and (b)(7)(C). On October 13, 1979, plaintiff submitted an administrative appeal for the documents denied. IRS failed to act on this appeal within the twenty-day time limit provided by 5 U.S.C. § 552(a)(6)(A) (ii), and plaintiff, now deemed to have exhausted his administrative remedies under section 552(a)(6)(C), filed suit to compel the production of the requested documents under FOIA
on January 2, 1980.
Of the 125 documents that were initially not released to plaintiff, 38 were provided to him at the time defendants filed their motion for summary judgment, leaving 87 documents at issue, disclosure of which was denied either in whole or in part. Defendants claim that 45 of these documents should not be released because they are entirely composed of confidential tax return information of third parties, as defined in 26 U.S.C. § 6103(b)(2). Other bases given for the withholding of all or part of requested documents are that (a) they contain names or information that indirectly identifies third parties who aided the tax protest investigation and IRS employees or agents who worked on such investigations, or they characterize third parties as tax protestors, and thus should be exempt from disclosure pursuant to section (7)(C) as "investigatory records compiled for law enforcement purposes" that "constitute an unwarranted invasion of personal privacy"; (b) they contain the identity, or information which would lead to the disclosure of the identity, of confidential sources of information for the tax protestor project, which should be exempt from disclosure under section (7)(D); and (c) they contain the addresses of individuals who either have made FOIA requests or who have corresponded with the Service, which should be exempt pursuant to section (6) as "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Section 6103(a) of the Internal Revenue Code, 26 U.S.C. § 6103(a), makes tax returns and tax return information confidential, and prohibits any officer or employee of the United States from disclosing such information,
except in certain defined circumstances. 4 Such material may be withheld under the FOIA, since section 6103 is a statute exempting materials from disclosure within the meaning of exemption 3, 5 U.S.C. § 552(b)(3). Shearn Moody, Jr. v. Internal Revenue Service, supra at 797; Chamberlain v. Kurtz, 589 F.2d 827, 838-839 (5th Cir.), cert. denied, 444 U.S. 842, 100 S. Ct. 82, 62 L. Ed. 2d 54 (1979).
The Court has carefully examined those documents allegedly containing return information in order to determine, first, whether they in fact do contain such information and second, whether "strategic editing" of the documents in order to segregate true return information from that which would not serve to identify the taxpayer involved might have allowed greater disclosure of these documents than that permitted by the IRS. See Shearn Moody, Jr. v. Internal Revenue Service, supra at 798. From this examination, it appears that all of the enumerated documents
contain return information in a form that is not meaningfully segregable from otherwise disclosable information. Many of them are simply lists of taxpayer names and addresses (e.g., document no. 5b); others are correspondence between the taxpayer and the IRS (e.g., document no. 24b) from which information that does not identify the taxpayer could not meaningfully be extracted and released. Accordingly, the Service properly withheld these documents, and defendants' motion for summary judgment with regard thereto will be granted.
Defendants have claimed an exemption for a number of documents (or parts of documents) under section (7)(C). That provision exempts from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy." The materials at issue under this exemption consist of lists of the identities and telephone numbers of individuals who cooperated with the Service as part of the tax protest project; the identities of IRS employees involved in the tax protest project, and other information which could reveal their identities (e.g., one special agent's social security number); and the identities and characterizations of certain individuals whom the Service has concluded are tax protestors.
To determine whether the release of information would constitute an unwarranted invasion of privacy under section (7)(C), the Court must balance the third party's right to privacy against the public's right to access to government information. Deering Milliken, Inc. v. Irving, 548 F.2d 1131 (4th Cir. 1977); Tarnopol v. F.B.I., 442 F. Supp. 5, 7 (D.D.C.1977). It has been held that a privacy interest deserving of protection exists under exemption 7(C) where release of the requested information could subject a third party to embarrassment or harassment. Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977); Lamont v. Department of Justice, 475 F. Supp. 761 (S.D.N.Y.1979). Plaintiff has not alleged that any public interest would be served by the disclosure of the identities of individuals who have provided the Service with information and of those IRS employees who have worked on the tax protest project.
Contrasting with the minimal public interest in the disclosure of these materials is the very real possibility that cooperating individuals would be subjected to unwanted public exposure, and that the IRS employees would be subjected to harassment or annoyance in their private lives or in the performance of their official duties, should their identities be disclosed in conjunction with the investigation of tax protest groups. This balance clearly weighs in favor of these third parties' privacy interest, and of withholding the requested information pursuant to exemption 7(C).
Portions of four documents (nos. 3, 9a, 15d, and 15e) have been withheld pursuant to exemption 7(D), as investigatory records compiled for law enforcement purposes which would "disclose the identity of a confidential source" if produced. 5 U.S.C. § 552(b)(7)(D). "Confidential source" has been construed to refer to an individual who provides information either under an express assurance of confidentiality, or in circumstances from which an assurance of confidentiality could reasonably be inferred. Pope v. United States, 599 F.2d 1383, 1386 (5th Cir. 1979); Malloy v. Department of Justice, 457 F. Supp. 543, 546 (D.D.C.1978). In the present case, there apparently were no express assurances of confidentiality. The affidavit of Dorrance Warnock, chief of the Criminal Investigation Division of the IRS in the Baltimore District, states that information was provided to an IRS special agent "under circumstances in which the source was led to believe that his identity would be kept confidential," (Warnock Affidavit, p. 3), and the substance of one of the documents (document no. 3) clearly shows this to be ...