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July 3, 1997

BRANCH MINISTRIES, INC., et al., Plaintiffs,

The opinion of the court was delivered by: FRIEDMAN

 This case is before the Court on Defendant's Motion for Summary Judgment or to Dismiss, Defendant's Motion for a Protective Order, Plaintiffs' Motion to Compel and Plaintiffs' Motion to Amend Exhibits Attached to Opposition to Motion for Protective Order. In response to the Court's order, the parties also submitted supplemental briefs on the relevance of the Supreme Court's decision in United States v. Armstrong, 517 U.S. 456, 134 L. Ed. 2d 687, 116 S. Ct. 1480 (1996), which was handed down after argument had already been heard on the motions in this case.


 Plaintiffs are Branch Ministries, Inc. ("BMI"), doing business as the Church at Pierce Creek, and Pastor Dan Little who is the pastor of the Church at Pierce Creek. On October 30, 1992, four days before the presidential election, BMI bought advertising space in two newspapers -- The Washington Times and USA Today -- to print an open letter. The letter, which was headed "Christian Beware," described then-Governor Clinton as supporting abortion on demand, homosexuality and the distribution of condoms to teenagers in the public schools. The letter cited various Biblical passages and concluded with the statement: "How then can we vote for Bill Clinton?" The letter concluded in fine print: "Tax-deductible contributions for this advertisement gladly accepted" and requested that donations be made to The Church at Pierce Creek.

 On January 19, 1995, the IRS revoked BMI's tax exempt status under 26 U.S.C. § 501(c)(3), retroactive to January 1, 1992. Plaintiffs assert that the revocation violates the Internal Revenue Code, the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, the First Amendment and the church's equal protection rights under the Fifth Amendment. *fn1" Plaintiffs request declaratory and injunctive relief.


 Several months after argument was heard on defendant's motion for a protective order, plaintiffs filed a motion seeking to amend the exhibits to their opposition. The new exhibits contain discovery materials from another case in which the IRS provided limited responses to questions about IRS investigations of television ministries. Defendant rightly points out that the fact that the IRS may have responded to discovery in another case is not dispositive of the legal question of whether plaintiffs in this case are entitled to the information they seek. Nevertheless, the IRS's discovery practices and responses are relevant here, especially since the application of IRS confidentiality policies are at issue in this case. Accordingly, plaintiffs' exhibits will be accepted for filing and the Court will consider them for whatever they may be worth.


 In connection with their claim of selective prosecution plaintiffs seek discovery in three areas: (1) the IRS's investigation of the Church at Pierce Creek; (2) all IRS investigations and lawsuits against other churches or religious organizations for violations of the campaign ban that have resulted in the revocation of tax exempt status or a fine; and (3) the IRS's interpretations of the Internal Revenue Code and the standards used to determine whether a church has violated the campaign ban.

 Generally speaking, a plaintiff is entitled to all "discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Rule 26(b), FED. R. CIV. P. In selective prosecution cases, however, a higher threshold must be met before the government will be required to provide discovery. In addition, the IRS argues that the information sought is privileged either because it is third-party tax return information under I.R.C. § 6103 or because it invades the protected internal deliberative processes of the agency.

 A. Information Pertaining to the Investigation of BMI

 Plaintiffs' Discovery Request Nos. 2, 7-10, and 21 (and subparts) seek information pertaining to the IRS's decision to revoke BMI's tax exempt status. Plaintiffs argue that the information pertains to BMI's own tax returns and return information and that they therefore are entitled to it under I.R.C. § 6103(e). The IRS responds that the decision to release such information is discretionary with the Secretary of the Treasury and that such information is affirmatively protected because it would reveal the IRS's deliberative processes. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-50, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Army Times Publishing Co. v. Dep't of the Air Force, 302 U.S. App. D.C. 432, 998 F.2d 1067, 1070-71 (D.C. Cir. 1993); Quarles v. Dep't of the Navy, 282 U.S. App. D.C. 183, 893 F.2d 390, 392 (D.C. Cir. 1990); Dudman Communications Corp. v. Dep't of Air Force, 259 U.S. App. D.C. 364, 815 F.2d 1565, 1567 (D.C. Cir. 1987).

 Section 6103(a) of the Internal Revenue Code renders all returns and return information confidential with certain specified exceptions. Section 6103(c) is one such exception; it permits disclosure of a taxpayer's own return and return information to that person or a designee. That exception states:

The Secretary may, subject to such requirements and conditions as he may prescribe by regulations, disclose the return of any taxpayer, or return information with respect to such taxpayer, to such person or persons as the taxpayer may designate in a written request for or consent to such disclosure . . . . However, return information shall not be disclosed to such person or persons if ...

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