United States District Court, District of Columbia
BRADLEY S. WATERMAN, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant.
MEMORANDUM OPINION [DKTS. ## 18, 24]
RICHARD J. LEON, United States District Judge
tax attorney Bradley S. Waterman ("plaintiff or
"Waterman") brings this Freedom of Information Act
("FOIA") suit against the Internal Revenue Service
("defendant" or "IRS"). As relevant here,
Waterman's complaint alleges that the IRS improperly
withheld information responsive to his FOIA request for all
agency information related to an Office of Professional
Responsibly investigation into Waterman's alleged
misconduct. See generally Compl. [Dkt. # 1].
to a joint stipulation filed by the parties, Count I of the
complaint has been dismissed. See Fed. R. Civ. P.
4l(a)(1)(A)(ii); Joint Stipulation of Dismissal of Count I
with Prejudice [Dkt. #23]. That dismissal leaves only the
parties' cross-motions for summary judgment on Count II
pending before this Court. See Def.'s Mot.
Dismiss & Mot. Summ. J. ("Def.'s Mot.")
[Dkt. # 18]; Pl's Cross-Mot. Summ. J. ("Pl's
Cross-Mot.") [Dkt. # 24]. Upon consideration of the
pleadings, the entire record, and the relevant case law, the
Court concludes that the IRS's decision to withhold the
information at issue was lawful under FOIA. Therefore, the
IRS's motion for summary judgment on Count II is GRANTED
and plaintiffs cross-motion for summary judgment on Count II
parties agree on the basic facts giving rise to this action.
Waterman is a licensed attorney who represents clients in
disputes with the IRS. Declaration of PI. Bradley S. Waterman
("Waterman Decl.") ¶¶ 1, 6 tDkt- #24-2].
In one such matter, Waterman represented the New Hampshire
Health and Education Facilities Authority ("the
Authority") in anticipation of proceedings before the
IRS's Tax-Exempt Bond office ("TEB"). According
to Waterman, he assisted the Authority in resolving a dispute
with TEB over the tax-exempt status of bonds that the
Authority had issued.
the IRS suspected foul play in Waterman's representation
of the Authority. In March 2014, the TEB filed a Report of
Suspected Practitioner Misconduct ("Report")
against Waterman with the IRS's Office of Professional
Responsibility ("OPR"). OPR is the IRS entity
"responsible for investigating and acting on reports
(also commonly known within OPR as 'referrals') of
suspected practitioner misconduct by individuals who practice
before the IRS." Decl. of Keith C. Ott ("Ott
Decl.") ¶ 3 [Dkt. # 18-3]. Pursuant to that
responsibility, OPR opened a case file on Waterman and
individuals within OPR examined the referral. Id.
¶ 6. After investigation, OPR ultimately determined that
the allegations against Waterman did not warrant further
inquiries or action. Id. ¶¶ 7-8. In
September 2014, OPR informed Waterman of the Report, its
conclusion not to take any additional disciplinary action,
and of Waterman's duty to abide by IRS rules and
regulations in the future. See Pl's Cross-Mot.
Ex. A. [Dkt. # 24-1]. It also informed Waterman that OPR
would retain the file containing the misconduct referral for
twenty-five years and reserved the right to reference the
file in any future OPR investigations or proceedings.
seeking and failing to obtain all of the information related
to the March 2014 Report through informal communications with
the IRS, Waterman submitted the FOIA request at issue in this
suit. See Def.'s Mot. Ex. A [Dkt. # 18-7]. In
that January 2016 FOIA request, Waterman sought the Report as
well as "all documents prepared in connection with or
otherwise relating to the Report, " including all
"correspondence, memoranda, notes, reports, and other
documents" prepared by IRS personnel responsible for
investigating and reviewing the Report. Id. at 2.
Waterman's request identified OPR Attorney-Advisor Keith
Ott as the point of contact for locating responsive
detailed in her declaration, IRS "Government Information
Specialist" Barbara D. Herring began processing
Waterman's FOIA request shortly after it was received.
Decl. of Barbara D. Herring ("Herring Decl.")
¶4 [Dkt. # 18-2]. Because plaintiff does not challenge
the adequacy of the IRS's search, I need not detail the
ins-and-outs of that search here. Suffice it to say, however,
that following a search in which the IRS checked and then
double-checked its files for all relevant documents, the
agency identified fifty-four pages of records that were
responsive to Waterman's request, segregated and produced
the non-exempt records and portions of records, and withheld
the records determined to be exempt from FOIA's
disclosure requirements. See Decl. of Elizabeth
Rawlins ("Rawlins Decl.") ¶¶ 8-14 [Dkt. #
18-4], As in most FOIA cases, the dispute here stems from
what the IRS chose not to produce. As detailed in
the agency's Vaughn index, see
Def.'s Mot. Attach. 5 ("Vaughn Index")
[Dkt. # 18-5], and declarations of agency personnel, see
generally, e.g., Rawlins Decl., the IRS withheld the
following information from Waterman. First, citing FOIA
Exemptions 6 and 7(c), the IRS redacted the telephone number
and e-mail addresses of IRS employees from a set of one-page
e-mails between IRS employees. Rawlins Decl. ¶¶
23-24. Second, and more significantly, the IRS withheld
documents and memoranda related to Waterman's
representation of the Authority before the TEB, the OPR's
investigation of that representation, and agency
employees' evaluations of whether to pursue disciplinary
action against Waterman. See Id. ¶¶ 16-21.
According to the IRS, its decision to withhold that
information was proper under two separate FOIA exemptions:
(1) FOIA Exemption 3, which the IRS asserts in conjunction
with a federal statute prohibiting disclosure of third-party
tax return information; and (2) FOIA Exemption 5.
Id. ¶¶ 16, 18.
surprisingly, plaintiff disagrees with the IRS's decision
to withhold the responsive information under the various FOIA
exemptions. He sued in this Court to challenge the
agency's decision, arguing that the IRS's choice to
withhold the requested documents and information contravenes
his FOIA rights. Currently pending before the Court are the
parties' cross-motions for summary judgment on
Waterman's FOIA claim.
parties have moved for summary judgment on Count II of the
complaint. Summary judgment may be granted "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). FOIA cases such as
this one are routinely decided on motions for summary
judgment. See Brayton v. Office of U.S. Trade Rep.,
641 F.3d 521, 527 (D.C. Cir. 2011).
requires executive branch agencies to make their records
available 'to any person' upon request, 5 U.S.C.
§ 552(a)(3)(A), subject to nine exemptions, id.
§ 552(b)(1)-(9)." Newport Aeronautical Sales v.
Dep't of Air Force, 684 F.3d 160, 162 (D.C. Cir.
2012). To prevail on summary judgment in a FOIA case, an
agency must show that it adequately searched for records
responsive to the relevant request and that any records
withheld by the agency fall within one of FOIA's
statutory exemptions. See id.; Weisberg v. U.S. Dep't
of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
has not challenged the adequacy of the IRS's search for
records. See Pl's Cross-Mot. 5 ("Defendant
performed an adequate search for all documents responsive to
Mr. Waterman's request."). Therefore, the only
question in this case is whether the IRS has demonstrated
that any responsive documents withheld by the agency fall
within the asserted FOIA exemptions. In such a dispute, a
court may grant summary judgment to an agency if, upon de
novo review of the agency's decision to withhold
responsive records, the court concludes that "the agency
has sustained its burden of demonstrating" that the
requested documents are "exempt from disclosure under
the FOIA." Newport Aeronautical Sales, 684 F.3d
at 164. A reviewing court may render that decision based
solely on information provided in an agency's affidavits
or declarations when those materials "describe the
justifications for withholding the information with specific
detail, demonstrate that the information withheld logically
falls within the claimed ...