Solers, Incorporated v. IRS

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-01548-LMB-JFA. [999874842]. [15-1608]

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 1 of 21

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1608

SOLERS, INC.,
Plaintiff - Appellant,
v.
INTERNAL REVENUE SERVICE,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:14-cv-01548-LMB-JFA)

Argued:

March 24, 2016

Decided:

June 30, 2016

Before WILKINSON and NIEMEYER, Circuit Judges, and David C.
NORTON, United States District Judge for the District of South
Carolina, sitting by designation.

Affirmed by published opinion.
Judge Niemeyer wrote
opinion, in which Judge Wilkinson and Judge Norton joined.

the

ARGUED:
Mariam Wagih Tadros, REES BROOME, PC, Tysons Corner,
Virginia, for Appellant.
Gretchen M. Wolfinger, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON
BRIEF:
Robert J. Cunningham, Jr., REES BROOME, PC, Tysons
Corner, Virginia, for Appellant.
Caroline D. Ciraolo, Acting
Assistant Attorney General, Jonathan S. Cohen, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana
Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 2 of 21

NIEMEYER, Circuit Judge:
In

this

action,

Solers,

Inc.,

a

Virginia

corporation,

challenges the IRS’ response to its request for documents under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

The

IRS identified 261 pages that were responsive to Solers’ request
and ultimately produced unredacted copies of all but 12 pages.
Solers challenged the IRS’ reasons for withholding 6 of those
pages and for producing 4 other pages with redactions.
After reviewing the documents in camera, the district court
sustained

the

IRS’

position

and

granted

the

judgment.

IRS

summary

For the reasons that follow, we affirm.

I
Solers, an information technology company, was audited by
the IRS for its 2010 tax year, and, pursuant to the audit, the
IRS proposed adjustments to Solers’ tax liability and potential
penalties.

Not long after the IRS closed the audit, Solers

submitted a FOIA request to the IRS for all documents in the
IRS’ administrative file pertaining to its tax liabilities and
potential

penalties

for

the

2010

tax

year,

specifically

requesting “[d]ocuments, notes, and internal IRS correspondence”
related to (1) the IRS’ audit; (2) the IRS’ notice of proposed
tax adjustment; (3) Solers’ response to the notice; (4) Solers’
protest of the proposed adjustment; (5) the quality control that

2

Appeal: 15-1608

was

Doc: 27

performed

guidance

Filed: 06/30/2016

on

received

Pg: 3 of 21

the

proposed

by

disregard penalties.”

notice
two

of

IRS

agents

adjustment;

regarding

and

(6)

“intentional

Solers also requested all correspondence

between specified individuals that related to it.
The IRS located 261 pages that were responsive to Solers’
request and initially provided Solers with most of these pages,
withholding 26 pages and producing 32 pages with redactions.
Solers commenced this action, alleging that the IRS was
unlawfully withholding records and seeking an order requiring it
to disclose “any redacted materials to the extent that those
materials are not subject to a proper exemption under 5 U.S.C.
§ 552.”

After Solers filed its complaint, the IRS determined

that 17 of the 26 pages previously withheld could be released in
full;

that

3

additional

pages

previously

withheld

could

be

released with redactions; and that 29 of the 32 redacted pages
could be released in full.

Solers eventually agreed that the

IRS had properly redacted 2 pages, leaving only 10 pages at
issue in this case -- 6 pages that the IRS withheld and 4 pages
that it produced with redactions.
At the outset of the proceedings, Solers filed a motion to
obtain
withheld

a

Vaughn
and

index

--

information

a

list

redacted

describing
and

the

documents

giving

detailed

information sufficient to enable a court to rule on whether the
withholdings fall within a FOIA exemption.
3

See Rein v. U.S.

Appeal: 15-1608

Patent

Doc: 27

&

Filed: 06/30/2016

Trademark

Office,

Pg: 4 of 21

553

F.3d

353,

357

n.6

(4th

Cir.

2009); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

The

district court granted the motion in part, directing the IRS “to
provide all information required in a Vaughn index” for each
document withheld or produced with redactions.
Thereafter,

the

parties

filed

cross-motions

for

summary

judgment, and, in support of its motion, the IRS attached two
affidavits from one of its attorneys that provided the following
information about the 10 pages withheld or redacted:
1.

Handwritten Notes: Four of the six withheld pages
are handwritten notes made by Revenue Agent Arun
Sharma, the agent primarily responsible for
conducting
Solers’
examination,
during
a
conversation he had with Solers’ accountant on
April 25, 2013.
According to the IRS attorney,
the
notes
“consist[]
of
[Agent
Sharma’s]
thoughts,
impressions,
and
[indicate
the]
possible direction of the examination.”
The IRS
attorney also stated that “[n]o decision was made
at that time with regard to the issues discussed
by Revenue Agent Sharma and the CPA, and the
examination was not closed until almost a year
later on March 4, 2014.” The IRS withheld the 4
pages of notes pursuant to the deliberative
process privilege that is incorporated into 5
U.S.C. § 552(b)(5) (“Exemption 5”).
The IRS
attorney also stated that he had “determined that
[the
notes]
do
not
contain
any
segregable
information.”

2.

Summary Report: The IRS also withheld a one-page
summary report prepared by Agent Sharma on
October 16, 2013.
The report discusses Agent
Sharma’s “review of returns of certain individual
third-party taxpayers, whose tax returns were
considered
in
conjunction
with
[Solers’]
examination.”
The IRS withheld the summary
report
pursuant
to
5
U.S.C.
§ 552(b)(3)
4

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 5 of 21

(“Exemption 3”), in conjunction with 26 U.S.C.
§ 6103(a), as well as Exemption 5’s deliberative
process
privilege;
it
also
maintained
that
portions
of
the
report
were
subject
to
withholding
under
§ 552(b)(6)
and
(7)(C)
(“Exemptions 6 and 7(C)”).
3.

Graph: The IRS also withheld a one-page graph
prepared by Agent Sharma on July 30, 2012. Agent
Sharma generated the graph “from the [IRS’] yk-1
database, which stores information about which
individuals and entities are related to each
taxpayer. The graph shows the identity of thirdparty individuals and entities whose tax returns
were considered in conjunction with [Solers’]
examination.” The IRS withheld the graph in full
pursuant to Exemption 3, in conjunction with 26
U.S.C. § 6103(a), and Exemption 5’s deliberative
process
privilege;
it
also
maintained
that
portions of the graph were subject to withholding
under Exemptions 6 and 7(C).

4.

Checksheet: The IRS produced most of a “Closed
Case Review Checksheet,” which was completed by
Agent Sharma’s manager on March 13, 2014, making
a
redaction
only
on
a
line
of
the
form
identifying “related returns.”
The IRS attorney
stated that the agency had redacted only the
portion of the checklist “that reflects the
identity
of
a
third
party
whose
return
information was considered in conjunction with
[Solers’] examination.”
The IRS maintained that
the redaction of this third-party information was
justified under Exemption 3, in conjunction with
26 U.S.C. § 6103(a), as well as Exemptions 6 and
7(C).

5.

Activity Record: The IRS also redacted a single
entry from one page of Agent Sharma’s activity
record. The IRS attorney stated that the deleted
entry, from July 9, 2013, reflects that Agent
Sharma “communicated with the IRS Office of Chief
Counsel with respect to a specific issue in the
examination,” explaining that “disclosure of [the
redacted entry] would reveal an area of the exam
for which the revenue agent sought legal advice.”
The IRS invoked Exemption 5’s incorporation of
5

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

the attorney-client
redaction.
6.

Pg: 6 of 21

privilege

to

justify

the

Two Emails: Finally, the IRS also redacted from
two emails “the names and contact information of
[IRS] personnel consulted in connection with
[Solers’] examination.”
Both emails were sent
from the IRS Specialist Referral System to
Revenue Agent Dennis Cohen, an agent “who worked
on [Solers’] exam prior to Revenue Agent Sharma.”
The first email, dated July 12, 2012, indicates
that Agent Cohen had requested a consultation
with a Computer Audit Specialist and a Tax
Computation Specialist; from this email, the IRS
redacted the names and contact information of the
managers to whom the requests were referred. The
second email, dated July 16, 2012, informed Agent
Cohen that his request for a Computer Audit
Specialist had been assigned; from this email,
the IRS redacted the name and contact information
of the Computer Audit Specialist who had been
assigned to consult on the case, as well as the
name of the manager who had made the assignment.
The IRS maintained that its redactions of these
emails were justified under Exemptions 6 and
7(C).

Before

the

hearing

on

the

parties’

cross-motions

for

summary judgment, the district court directed the IRS to submit
unredacted copies of the 10 pages at issue for in camera review.
And at the hearing, the court ruled, based on the record and its
in camera review, that the IRS’ withholdings were justified.
a

preliminary

matter,

the

court

ruled

that

because

it

As
had

“thoroughly reviewed” the records “directly,” Solers’ challenge
to the sufficiency of the IRS’ Vaughn index was no longer an
issue.

And as to the 10 withheld or redacted pages, the court

concluded:

(1) that the IRS had properly withheld four pages

6

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 7 of 21

consisting of the agent’s handwritten notes, based on Exemption
5, 5 U.S.C. § 552(b)(5), because the notes “reflect the mental
processes

of

the

revenue

agent

and

[his]

thoughts

on

[the]

possible direction of the investigation”; (2) that the IRS had
properly

withheld

the

graph

and

summary

report,

based

on

Exemption 3, id. § 552(b)(3), and 26 U.S.C. § 6103(a), because
“[t]hose two documents . . . contain identifying information for
third

parties”;

“identifying

and

(3)

information

that
of

the

IRS

other

had

properly

individuals”

redacted
from

the

checksheet and the two emails, based on Exemptions 6 and 7(C), 5
U.S.C.

§ 552(b)(6),

(7)(C).

The

court

accordingly

entered

judgment for the IRS.
From the court’s judgment dated May 15, 2015, Solers filed
this appeal.

II
As a general, preliminary matter, Solers contends that the
IRS “produced generic and inadequate affidavits that provide[d]
no justification for the withholding of any document,” thereby
“disregard[ing]” the district court’s order that the IRS provide
all information required in a Vaughn index.
because

the

IRS

failed

to

provide

a

It argues that

sufficiently

detailed

justification for withholding the documents, it “was thwarted”
in its efforts to challenge those withholdings and that this

7

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 8 of 21

failure remained meaningful even after the district court’s in
camera

review

because

“the

district

court’s

ruling

from

the

bench . . . did not provide Solers with a detailed analysis and
rationale regarding its decision to sustain the [IRS’] claimed
exemption[s].”

In essence, Solers challenges the sufficiency of

the IRS’ Vaughn index.
Solers’ argument, however, fails to appreciate the role of
a Vaughn index.

A Vaughn index is “designed to enable the

district court to rule on a privilege without having to review
the document itself” and thus functions as “a surrogate for the
production of documents for in camera review.”

Ethyl Corp. v.

U.S. EPA, 25 F.3d 1241, 1249 (4th Cir. 1994) (emphasis added);
see also Rein, 553 F.3d at 366 (describing a proper Vaughn index
as a “substitute for in camera review”).
In

this

documents

in

“thorough[]

case,

because

camera,

it

review[]”

had

the

district

correctly

concluded

“completely

about an inadequate Vaughn Index.”

court

reviewed
that

eradicated”

its

“any

the
own

issue

Stated otherwise, the issue

of whether the IRS provided a Vaughn index sufficient to enable
the

district

became

court

irrelevant

district

court’s

to

evaluate

the

IRS’

claimed

and

moot

after

the

IRS

complied

order

to

produce

the

records

for

exemptions
with
in

camera

review and the court completed its own review of the records.

8

the

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 9 of 21

III
Turning next to the merits of Solers’ challenge to the IRS’
withholdings, FOIA requires generally that federal agencies make
their internal records available to the public upon request.
See 5 U.S.C. § 552(a)(3)(A).

The Act, however, exempts certain

categories of records from disclosure.

See id. § 552(b)(1)-(9)

(listing what are referred to as Exemptions 1 through 9).

If an

exemption applies only to a portion of a document, FOIA requires
that “[a]ny reasonably segregable portion of a record shall be
provided . . . after deletion of the portions which are exempt.”
Id. § 552(b).
In this case, the IRS relied on Exemptions 3, 5, 6, and
7(C) to withhold or redact the 10 pages at issue.

We address

the IRS’ claimed exemptions in the following four categories:
(1)

the

agent’s

handwritten

notes;

(2)

the

summary

report,

graph, and checksheet; (3) the activity record; and (4) the two
emails.
A.

The Agent’s Handwritten Notes

The first category consists of four pages of handwritten
notes made by Revenue Agent Arun Sharma during a conversation he
had

with

Solers’

withholding

the

accountant
notes,

the

on

April

IRS

25,

relied

2013.
on

To

justify

Exemption

5’s

incorporation of the deliberative process privilege, 5 U.S.C.
§ 552(b)(5),

maintaining

that

the
9

notes

“consist[]

of

[Agent

Appeal: 15-1608

Doc: 27

Sharma’s]

Filed: 06/30/2016

thoughts,

Pg: 10 of 21

impressions,

direction of the examination.”

and

[indicate

the]

possible

The IRS also took the position

that the notes “do not contain any segregable information.”
Upholding the IRS’ position, the district court observed
that, while the notes were very difficult to read, they were
nonetheless
“because

covered

they

do

by

the

deliberative

represent

the

[agent’s]

process

privilege

thought

process,”

adding that they “reflect the mental processes of the revenue
agent

and

[his]

thoughts

on

[the]

possible

direction

of

the

investigation.”
Solers contends that the information with which it has been
provided

about

the

notes

does

not

establish

the

notes’

“deliberative” nature, leaving unclear whether “the notes were
somehow related to the process by which any agency policy was
formulated” or “whether the notes played a role in reaching an
agency decision.”
provide

any

Solers also asserts that the IRS “did not

information

to

support

its

conclusion

that

the

documents were not segregable.”
Exemption

5

shields

“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 the agency.”

5

U.S.C.

5

§

encompasses

552(b)(5).
are

the

“Among

the

attorney-client

deliberative process privilege.”
10

privileges
privilege

.

Exemption
.

.

and

Rein, 553 F.3d at 371.

the
And

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 11 of 21

the deliberative process privilege, on which the IRS relies to
withhold

the

notes,

“rests

on

the

obvious

realization

that

officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news.”
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8-9 (2001).

The privilege thus “encourages free-ranging

discussion of alternatives; prevents public confusion that might
result

from

the

premature

release

of

such

nonbinding

deliberations; and insulates against the chilling effect likely
were officials to be judged not on the basis of their final
decisions,

but

their minds.”

for

matters

they

considered

before

making

up

City of Virginia Beach v. U.S. Dep’t of Commerce,

995 F.2d 1247, 1252-53 (4th Cir. 1993) (internal quotation marks
and citation omitted).
To

justify

application

of

the

deliberative

process

privilege, “the government must show that, in the context in
which

the

materials

[were]

used,

predecisional and deliberative.”

the

documents

[were]

both

City of Virginia Beach, 995

F.2d at 1253 (internal quotation marks and citation omitted).
Predecisional documents are those “prepared in order to assist
an

agency

decisionmaker

in

arriving

at

his

decision,”

Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168,
184 (1975), and deliberative documents are those that “reflect[]
the give-and-take of the consultative process by revealing the
11

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

in

the

manner

which

agency

Pg: 12 of 21

evaluates

possible

alternative

policies or outcomes,” City of Virginia Beach, 995 F.2d at 1253
(internal quotation marks and citation omitted).
thus

protects

“recommendations,

draft

The privilege

documents,

proposals,

suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency.”
citation

Id. (emphasis added) (internal quotation marks and
omitted).

But

the

privilege

“does

not

protect

a

document which is merely peripheral to actual policy formation;
the record must bear on the formulation or exercise of policyoriented judgment.”

Ethyl Corp., 25 F.3d at 1248.

In addition,

“since the prospect of disclosure is less likely to make an
advisor omit or fudge raw facts than opinions, purely factual
material

does

not

fall

within

the

exemption

unless

it

is

inextricably intertwined with policymaking processes such that
revelation of the factual material would simultaneously expose
protected deliberation.”

City of Virginia Beach, 995 F.2d at

1253 (internal quotation marks and citations omitted).
In this case, after the district court conducted its in
camera review and its review of the sworn statement of an IRS
employee, it concluded that the four pages of handwritten notes
“represent the key or salient points that that agent was writing
down” and “reflect the mental processes of the revenue agent and
[his]

thoughts

on

[the]

possible
12

direction

of

the

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

investigation.”

Pg: 13 of 21

The court also determined that the four pages

could be withheld in their entirety, effectively ruling that
there were no segregable portions that could be produced.
We

conclude

that

the

district

court’s

factual

findings

regarding the content of the notes are amply supported by the
record -- which includes the IRS representative’s statement that
the four pages of notes “consist[] of [Agent Sharma’s] thoughts,
impressions,

and

[indicate

the]

possible

direction

of

the

examination” -- and therefore are not clearly erroneous.
Ethyl

Corp.,

“factual

audit,

F.3d

conclusions

erroneous
agent’s

25

.

standard”).
preliminary

the

court

at

1246
.

.

(noting
are

did

not

err

because

in

FOIA

cases,

under

reviewed

Moreover,
evaluation

that,

See

a

clearly

the

of

issues

in

concluding

notes

were

the

by

the

implicated
that

they

were

predecisional and deliberative, thus satisfying the criteria for
withholding them under Exemption 5.

See Nat’l Whistleblower

Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 38
(D.D.C. 2012) (“Handwritten notes may be deliberative or part of
the

agency’s

deliberative

process

where

they

contain

the

author’s opinions, analysis, or impressions of the event he or
she describes”); Carter, Fullerton & Hayes LLC v. FTC, 520 F.
Supp. 2d 134, 144 (D.D.C. 2007) (upholding agency’s invocation
of

the

deliberative

handwritten

notes

process
of

a

privilege

senior
13

FTC

to

withhold

employee

“a

taken

set

of

during

Appeal: 15-1608

Doc: 27

meetings”

Filed: 06/30/2016

based

on

Pg: 14 of 21

agency’s

description

of

the

notes

as

“representing the employee’s ‘thoughts and impressions’ of the
meeting”); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13
(D.D.C.

1995)

(concluding

that

“handwritten

notes

reflecting

preliminary thoughts of agency personnel” were covered by the
deliberative process privilege).

We also affirm the district

court’s implicit ruling that there are no segregable portions of
the notes subject to production.
B.

The Summary Report, Graph, and Checksheet

The other two pages withheld in full are (1) a summary
report prepared by Agent Sharma on October 16, 2013, describing
the process and results of his review of tax returns for certain
individual

third-party

taxpayers,

which

he

conducted

in

connection with the Solers’ audit; and (2) a graph prepared by
Agent

Sharma

on

July

30,

2012,

which

he

generated

from

a

database that “stores information about which individuals and
entities

are

related

identity

of

third-party

returns

were

examination.”
Checksheet”

to

each

individuals

considered
The

form

IRS

with

taxpayer”

in

also
one

and

which

“shows

the

entities

whose

tax

conjunction

produced
line

and

on

a
the

with

“Closed

[Solers’]
Case

document

Review

redacted,

explaining that it had redacted that portion of the checksheet
because it reflected “the identity of a third party whose return
information

was

considered

in
14

conjunction

with

[Solers’]

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

examination.”

The

IRS

Pg: 15 of 21

contends

that

its

withholdings

with

respect to these three pages are justified by Exemption 3 and 26
U.S.C. § 6103(a).
Exemption 3 protects from disclosure information that is
“specifically

exempted

from

disclosure

by

[a]

statute”

“(i)

requir[ing] that the matters be withheld from the public in such
a

manner

as

to

no

discretion

particular

establish[ing]

leave

on

criteria

the

or

(ii)

withholding

for

issue;

or

refer[ring] to particular types of matters to be withheld.”
U.S.C.

§ 552(b)(3).

And

26

U.S.C.

contemplated by FOIA Exemption 3.”

§

6103

“is

a

5

statute

Tax Analysts v. IRS, 410

F.3d 715, 717 (D.C. Cir. 2005) (internal quotation marks and
citation omitted).

That statute prohibits the disclosure of

“[r]eturns and return information . . . except as authorized by
[Title

26],”

26

U.S.C.

§

6103(a),

and

it

defines

the

term

“return information” as including “a taxpayer’s identity . . .
[and] whether the taxpayer’s return was, is being, or will be
examined

or

subject

to

other

investigation

or

processing,”

although the term “does not include data in a form which cannot
be

associated

with,

or

otherwise

identify,

directly

or

indirectly, a particular taxpayer,” id. § 6103(b)(2).
We

conclude

that,

although

the

summary

report

does

not

specifically name third-party individuals whose tax returns were
considered in conjunction with Solers’ audit, the individuals’
15

Appeal: 15-1608

Doc: 27

identities
segregable

Filed: 06/30/2016

could

easily

portion

withheld.

of

Likewise,

be
it,

Pg: 16 of 21

discerned

from

therefore

because

the

the

report

justifying
graph

and

its

or

any

being

checksheet

specifically identified third-party individuals and entities, we
conclude that the IRS acted properly in withholding the graph
and redacting one line from the checksheet.
In an effort to avoid this conclusion, Solers asserted for
the first time during oral argument that four of its employees
had authorized the IRS to release their tax return information
to Solers, pursuant to 26 U.S.C. § 6103(c), and that the IRS was
therefore not entitled to rely on Exemption 3 and § 6103(a) to
withhold records insofar as they relate to those third parties.
It is well settled, however, “that contentions not raised in the
argument section of the opening brief are abandoned.”
States

v.

Al-Hamdi,

356

F.3d

564,

571

n.8

(4th

Cir.

United
2004)

(citing Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999)).

Moreover, the record reflects that after the IRS

noted to the district court that Solers’ employees had failed to
submit the proper authorization forms, Solers made no effort to
counter this representation.

In these circumstances, Solers’

efforts to obtain tax documents identifying third parties are
unavailing.

16

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

C.

Pg: 17 of 21

The Activity Record

The IRS produced the relevant portions of Agent Sharma’s
activity record, a document similar to a time sheet, with a
single entry on one page redacted.

The IRS explained that the

deleted entry reflected that Agent Sharma “communicated with the
IRS Office of Chief Counsel with respect to a specific issue in
the

examination,”

adding

that

“disclosure

of

[the

redacted

entry] would reveal an area of the exam for which the revenue
agent sought legal advice.”

The IRS relied on Exemption 5’s

incorporation of the attorney-client privilege to justify this
redaction, and the district court agreed with the IRS.
Solers contends mainly that the entry should not have been
redacted

because

“the

subject

matter

of

an

attorney-client

communication is not privileged.”
While, as Solers contends, “the general purpose of the work
performed

[by

disclosure
information

by

an

attorney]

the

[is]

usually

attorney-client

ordinarily

reveals

no

not

protected

from

because

such

privilege
confidential

professional

communications between attorney and client,” In re Grand Jury
Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (internal quotation
marks and citation omitted), the privilege nonetheless shields
from disclosure “the specific nature of the legal advice sought
by [the client],” In re Grand Jury Subpoena, 341 F.3d 331, 335
(4th Cir. 2003); see also id. (holding that, while the fact that
17

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 18 of 21

an attorney “provid[ed] advice regarding an immigration matter”
would

not

whether

be

privileged,

[the

client]

preparation

of

[a

information

we

question

consulted

protected

Accordingly,

a

particular
by

conclude

“specifically

with

Counsel

the

immigration

about

form]”

attorney-client

that

the

ask[ing]
the

sought

privilege).

attorney-client

privilege

justifies the IRS’ limited redaction of the activity report so
as to keep confidential the specific issues on which Revenue
Agent Sharma sought legal advice while working on the audit.
D.
Finally,
produced,

the

IRS

withholding

certain

IRS

personnel

Solers’

audit.

The

The Two Emails

made

redactions

the

names

who

were

IRS

and

to

two

contact

consulted

maintained

that

emails

that

it

information

of

in

connection

with

the

redactions

were

justified under Exemptions 6 and 7(C), and the district court
agreed.
Exemption

6

specifies

that

FOIA’s

disclosure

requirement

does not apply to “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).

The

Supreme Court has instructed that the phrase “similar files,” as
used in Exemption 6, should be given “a broad, rather than a
narrow,

meaning,”

explaining

that

“[w]hen

disclosure

of

information which applies to a particular individual is sought
18

Appeal: 15-1608

Doc: 27

Filed: 06/30/2016

Pg: 19 of 21

from Government records, courts must determine whether release
of

the

information

would

constitute

invasion of that person’s privacy.”

a

clearly

unwarranted

U.S. Dep’t of State v.

Washington Post Co., 456 U.S. 595, 600, 602 (1982).
determine

whether

an

invasion

of

privacy

would

And to

be

“clearly

unwarranted,” courts employ a balancing test that weighs the
individual’s privacy interests against the public interest in
disclosure.

The public interest is served to “the extent to

which disclosure of the information sought would ‘she[d] light
on an agency’s performance of its statutory duties’ or otherwise
let citizens know ‘what their government is up to.’”

U.S. Dep’t

of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497
(1994) (alteration in original) (quoting Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).
A similar analysis applies with respect to the application
of Exemption 7(C), which allows agencies to withhold “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute
an

unwarranted

invasion

of

personal

privacy.”

5

U.S.C.

§ 552(b)(7)(C).
In this case, Solers does not dispute that the redacted
information was contained in “personnel and medical files and
similar files,” within the meaning of Exemption 6, or that the
19

Appeal: 15-1608

Doc: 27

redacted

Filed: 06/30/2016

information

was

Pg: 20 of 21

“compiled

for

law

enforcement

purposes,” within the meaning of Exemption 7(C).

Rather, it

contends that the district court did not adequately consider
whether

the

release

of

the

names

and

contact

information

of

these IRS employees would constitute “even a general invasion of
privacy” and that it failed to “weigh Solers’ right to review
its tax documents against the asserted privacy interests.”
We conclude, however, that the district court struck the
right balance in permitting these email redactions.

On the one

side of the scale, IRS employees, as well as other government
employees, “have a substantial interest in the nondisclosure of
their

identities

and

their

connection

with

particular

investigations because of the potential for future harassment,
annoyance, or embarrassment.”

Neely v. FBI, 208 F.3d 461, 464-

65 (4th Cir. 2000); see also Judicial Watch, Inc. v. United
States,

84

F.

App’x

335,

339

(4th

Cir.

2004)

(unpublished)

(concluding that “the privacy interest protected by Exemption 6
encompasse[s] . . . the names of federal employees,” including
“lower-level I.R.S. employees”).
scale

in

disclosing

this
the

case,
names

the

record

and

But, on the other side of the
contains

contact

no

information

employees would serve the public interest.

indication
of

these

that
IRS

See Neely, 208 F.3d

at 464 (recognizing that the public interest in the names of
government

employees

alone

“would
20

appear

to

be

negligible”

Appeal: 15-1608

absent

Doc: 27

a

Filed: 06/30/2016

“compelling

illegality”).
did

not

err

Pg: 21 of 21

allegation

of

agency

corruption

or

Accordingly, we conclude that the district court
in

holding

that

the

IRS

employees’

interest

in

maintaining the privacy of their names and contact information
outweighed

the

public

interest

in

the

disclosure

of

this

information.
The judgment of the district court is accordingly
AFFIRMED.

21