ongoing Tax Court litigation. Ten of the twenty-one documents have been released in full; portions of the remaining eleven documents have been withheld by the defendant.
Defendant contends that the deleted portions of eight of the eleven documents at issue are exempt from disclosure under 5 U.S.C. § 552(b)(6) ("Exemption 6"), which exempts from disclosure under FOIA matters that are "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) (1976 & Supp. V 1981).
In determining whether a claim of exemption for a "clearly unwarranted invasion of privacy" under FOIA Exemption 6 may properly be asserted, a court must balance "(1) the plaintiff's interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of any alternative means of obtaining the requested information." Church of Scientology of California v. Dept. of the Army, et al., 611 F.2d 738, 746 (9th Cir. 1979); See Department of The Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976); Rural Housing Alliance v. U.S. Dep't of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73 (D.C. Cir. 1974). The Court has examined in camera those portions of each of the eight documents claimed by defendant to be exempt under Exemption 6 and has concluded that the balance of factors clearly weighs in favor of non-disclosure by the defendant.
Document A-1 is comprised of "log cards" maintained by defendant. Document A-6 is a ten-page document dealing largely with a draft legal opinion concerning plaintiff's tax-exempt status. Document A-10 consists primarily of a letter to Senator Inouye from the Acting Director of defendant's Tax Litigation Division. Document A-12 is a two-page memorandum concerning a prior summons enforcement suit against the plaintiff. Documents A-13 and A-15 are "buckslips" concerning litigation against the plaintiff. Document A-15 is a single-page handwritten memorandum relating to defendant's response to plaintiff's motion for summary judgment. Document A-18 is a transmittal memorandum dealing with the filing of defendant's answer in the Tax Court case.
In each of the documents described above, the excised portions consist of the names of attorneys and other personnel employed by the defendant. The Court agrees with the defendant that the interest of plaintiff and the public in knowing which attorneys and other personnel have been assigned to certain cases is de minimus when weighed against the interest of the individuals involved in maintaining anonymity as a means of avoiding potential harassment and find, therefore, that the excised portions are exempt from disclosure under Exemption 6.
Portions of Documents A-9 and A-21 have also been withheld by defendant on the basis that the excised data constitute confidential third-party return information whose release to plaintiff is unauthorized under 26 U.S.C. § 6103(a) (1976 & Supp. V 1981). A single deletion in Document A-6 is also claimed by defendant to be proper on this basis. Document A-20 has also been partially withheld as being outside the scope of plaintiff's request. Defendant's claims of exemption with respect to these four documents thus raise the threshold question of whether defendant has properly construed the scope of plaintiff's FOIA request to exclude all materials not pertaining to the California Church.
As discussed, infra, the Court finds that defendant's non-disclosure of data constituting return information within the definition of 26 U.S.C. § 6103(b)(2)(A) is subject to judicial review in accordance with the criteria set forth under section 6103. Under section 6103, return information may be disclosed to third-parties at the discretion of the agency if such parties can demonstrate that they are acting in the capacity of designee of the individual taxpayer.
It is undisputed that in its May 16, 1980, FOIA request, plaintiff's representative provided defendant with the authorization of only the California Church. Defendant asserts that release to plaintiff of any return information pertaining to the individuals and Scientology entities other than the California Church as listed in plaintiff's request is unauthorized and, therefore, proscribed under section 6103.
An actionable request under FOIA for records in the possession of the IRS is defined under 26 C.F.R. § 601.702(c)(1) (1982) as one "which conforms in every respect with the rules and procedures set forth in this subpart." A FOIA request which includes within its scope materials properly classified as "return information" under section 6103 must "establish the identity and the right of the person making the request to the disclosure of the records . . ." 26 C.F.R. § 601.702(c)(v) (1982). Plaintiff concedes that in accordance with these pertinent statutory and regulatory requirements, defendant is obligated to protect against the unauthorized disclosure of third-party return information, but contends that the California Church is so "clearly related" to the third parties at issue as to make additional authorization superfluous. Plaintiff also asserts that defendant was required by its own regulations to request the additional authorizations from plaintiff at the time it first determined such proofs were necessary, and before defendant responded to plaintiff's FOIA request.
The regulatory language quoted by the plaintiff in support of this latter contention provides in relevant part:
Additional proof of a person's identity shall be required before the request will be deemed to have met the requirement of paragraph (c)(3)(v) of this section if it is determined that additional proof is necessary to protect against unauthorized disclosure of information in a particular case.