Arden Row Assets, LLC v. U.S. Internal Revenue Service

• Court: District Court, District of Columbia
• Decided: August 20, 2025
• Docket: Civil Action No. 2023-2696
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARDEN ROW ASSETS, LLC et al.,

Plaintiffs,

v. Civil Action No. 23-2696 (JDB) U.S. INTERNAL REVENUE SERVICE,

Defendant.

MEMORANDUM OPINION

In 2023, plaintiffs Arden Row Assets, LLC, Basswood Aggregates, LLC, and Delwood

Resources, LLC, requested through the Freedom of Information Act (“FOIA”) Internal Revenue

Service records related to audits of plaintiffs’ 2018 tax returns. But the IRS’s response did not

satisfy them. As relevant here, plaintiffs contend that the IRS improperly withheld or redacted

some of those records without justification. The IRS denies as much and has moved for summary

judgment on the basis that its withholdings were proper under FOIA Exemptions 3, 5, and 7. In

response, plaintiffs have cross-moved for summary judgment on the same issues. Because the IRS

has demonstrated that each FOIA exemption applies, the Court grants the IRS’s motion for

summary judgment and denies plaintiffs’ cross-motion.

BACKGROUND

Plaintiffs each claimed a charitable deduction for conservation contributions on their 2018

tax returns. Compl. [ECF No. 1] ¶ 14; see 26 U.S.C. § 170. But after auditing those returns, the

IRS disallowed the deductions and proposed penalties against plaintiffs for (1) negligence or

disregard, 26 U.S.C. § 6662(b)(1); (2) substantial understatement of income tax, 26 U.S.C.

1 § 6662(b)(2); (3) substantial valuation misstatement, 26 U.S.C. § 6662(b)(3); (4) gross valuation

misstatement, 26 U.S.C. § 6662(h); and (5) reportable transaction understatement, 26 U.S.C.

§ 6662A(a). Pl.’s Statement of Undisputed Material Facts [ECF No. 25-1] ¶ 16. In response,

plaintiffs challenged the penalties in United States Tax Court.1 Plaintiffs Basswood Aggregates

and Delwood Resources have since settled their Tax Court cases; Arden Row has not. Pl.’s Mem.

Opp’n to Mot. for Summ. J. & Supp. Cross-Mot. for Summ. J. (“Opp’n”) [ECF No. 25] at 7.

In order for the IRS to assess a tax penalty, “the initial determination of such assessment”

must be “personally approved (in writing) by the immediate supervisor of the individual making

such determination or” another applicable higher-level official. 26 U.S.C. § 6751(b)(1). Yet

documents plaintiffs obtained during the Tax Court litigation indicated that the IRS had backdated

this approval. Opp’n at 6–7. To find out more about the approval process that followed their audit,

plaintiffs submitted a FOIA request to the IRS. Compl. ¶ 13. Plaintiffs requested records related

to the penalty lead sheets prepared in connection with the audit, records related to the evaluation

of plaintiffs’ tax penalties, and records pertaining to the collection and production of the IRS

administrative file provided to plaintiffs in connection with their Tax Court litigation. Compl. at

¶ 33.

After the IRS failed to respond to plaintiffs’ FOIA request in a timely manner, plaintiffs

filed this action to compel the IRS to respond to their request and disclose relevant documents.

Compl. ¶ 12. This Court set a schedule for the IRS to process responsive records on December

18, 2023, see Minute Order of Dec. 18, 2023, and production was completed on November 22,

1 See Arden Row Assets, LLC, Nat. Aggregates Partners, LLC, P’ship Representative v. Comm’r, Tax Court Docket No. 3817-23; Basswood Aggregates, LLC, Basswood Partners, LLC, P’ship Representative v. Comm’r, Tax Court Docket No. 3820-23; Delwood Res., LLC, Delwood Partners, LLC, P’ship Representative v. Comm’r, Tax Court Docket No. 3821-23.

2 2024, see Joint Status Report [ECF No. 19]. The IRS identified 3,342 pages of responsive records

and released 1,216 pages in full, while withholding 1,942 pages in full and 164 pages in part under

various FOIA Exemptions. Mot. for Summ. J. (“Mot.”) [ECF No. 21-1] at 8–9. The IRS has now

moved for summary judgment, contending that their search was adequate, that the withheld records

fell within FOIA exemptions, and that they properly segregated the exempt and non-exempt

materials. Id. at 3. Plaintiffs oppose the IRS’s motion and have cross-moved for summary

judgment, arguing that the withheld records did not fall within any FOIA exemption. Opp’n at 1–

2.

STANDARD OF REVIEW

To prevail on summary judgment, the moving party must show that “there is no genuine

dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Where parties file cross-motions for summary judgment, “neither party waives the

right to a full trial on the merits by filing its own motion; each side concedes that no material facts

are at issue only for the purposes of its own motion.” McKenzie v. Sawyer, 684 F.2d 62, 68 n.3

(D.C. Cir. 1982).

In the FOIA context, the Court may grant an agency summary judgment if the agency

supplies evidence that “requested material falls within a FOIA exemption.” Petroleum Info. Corp.

v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992). The Court may award summary

judgment based on information provided by the agency in affidavits or declarations that, in

“reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

However, if, “even on the agency’s version of facts,” the material “falls outside the proffered

3 exception,” the Court must grant the FOIA plaintiff summary judgment. Petroleum Info. Corp.,

976 F.2d at 1433.

ANALYSIS

FOIA generally requires that federal agencies provide members of the public with records

unless those records fall within one of nine exemptions. This case turns on Exemptions 3, 5, and

7. Exemption 5 incorporates privileges available to federal agencies in civil litigation, including,

as relevant here, the deliberative process privilege and attorney-client privilege. 5 U.S.C.

§ 552(b)(5). Exemption 3 is an umbrella provision that protects material that other statutes exempt

from disclosure. Id. § 552(b)(3). Exemption 7 shields “records or information compiled for law

enforcement purposes.” Id. § 552(b)(7). Here, the IRS’s invocation of each exemption is proper.

I. Exemption 5

A. Deliberative Process Privilege

FOIA Exemption 5 provides that federal agencies need not disclose “inter-agency or intra-

agency memorandums or letters that would not be available by law to a party other than an agency

in litigation with the agency.” 5 U.S.C. § 552(b)(5). This protection includes a “deliberative

process” privilege that shields “documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)

(internal quotation marks omitted). The deliberative process privilege serves to “encourage

candor, which improves agency decisionmaking,” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,

592 U.S. 261, 687 (2021), because “officials will not communicate candidly among themselves if

each remark is a potential item of discovery,” Klamath, 532 U.S. at 8–9; see also Tax Analysts v.

IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (“Exemption 5, and the deliberative process privilege,

4 reflect the legislative judgment that the quality of administrative decision-making would be

seriously undermined if agencies were forced to operate in a fishbowl.” (internal quotation marks

omitted)). To invoke the privilege, an agency must show that the withheld documents are both

“predecisional” and “deliberative.” Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d

854, 868 (D.C. Cir. 1980).

Here, plaintiffs do not contest that the deliberative process privilege applies to the withheld

documents in the first instance. See Opp’n at 15–22. Instead, they contend that alleged IRS

misconduct—the backdating of required approval for the proposed penalties—“vitiates the FOIA

exemption,” id. at 3, under the so-called “government misconduct exception” to the deliberative

process privilege, see id. at 16.

The Court is unpersuaded. This Court takes no position on whether such an exception

exists, but there are good reasons to be skeptical—and the arguments against the exception

illustrate why there must be a high bar to invoke it. The D.C. Circuit has never endorsed a

government misconduct exception to the deliberative process privilege for FOIA requests. See

Protect Democracy Project, Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 888–89 (D.C. Cir. 2021)

(“There is no precedent binding on this court that recognizes the misconduct exception . . . under

Exemption 5.”). Judges in this district are divided on the issue. Compare Nat’l Whistleblower

Ctr. v. HHS, 903 F. Supp. 2d 59, 67 (D.D.C. 2012) (“[T]he government-misconduct exception

may be invoked to overcome the deliberative-process privilege in a FOIA suit.”) with Jud. Watch,

Inc. v. U.S. Dep’t of State, 241 F. Supp. 3d 174, 183 (D.D.C. 2017) (“[T]he only applicable Circuit

authority militates against recognizing a government misconduct exception in a FOIA case.”).

Plaintiffs mainly rely on In re Sealed Case (“In re Sealed Case III”), where the D.C. Circuit

held that the common-law deliberative process privilege in the context of a grand jury subpoena

5 could be overcome by a sufficient “showing of need” to “shed light on government misconduct.”

121 F.3d 729, 737–38 (D.C. Cir. 1997). But the D.C. Circuit expressly declined to extend that

reasoning to the FOIA context because “the particular purpose for which a FOIA plaintiff seeks

information,” i.e., uncovering misconduct, “is not relevant in determining whether FOIA requires

disclosure.” Id. at 737 n.5; see Protect Democracy Project, 10 F.4th at 888–89. More generally,

FOIA Exemption 5’s protection of privileged materials “is not subject to the same exceptions to

which the common law privilege is susceptible.” Wright v. Admin. for Child. & Fams., Civ. A.

No. 15-218 (BAH), 2016 WL 5922293, at *11 (D.D.C. Oct. 11, 2016) (rejecting a government

misconduct exception to the FOIA deliberative process privilege). This is because Exemption 5

protects material that “would not normally be discoverable in civil litigation against an agency,”

thus shielding some materials that might be disclosed in civil litigation because of abnormal “case-

specific exceptions.” Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009) (emphasis added)

(quoting Ryan v. U.S. Dep’t of Just., 617 F.2d 781, 790 (D.C. Cir. 1980)). Finally, a government

misconduct exception would cut against the purpose of the deliberative process privilege, which

stems from the notion that shielding deliberations encourages candor, thereby reducing the risk of

misconduct.

But if a government misconduct exception exists, it would be narrow and would apply only

in cases of “extreme government wrongdoing.” See Nat’l Whistleblower Ctr., 903 F. Supp. 2d at

68–69 (internal quotation marks omitted). The judges in this District that have recognized the

exception have required plaintiffs to show unambiguous “egregious” misconduct and “nefarious

motives.” Jud. Watch, Inc. v. U.S. Dep’t of State, 285 F. Supp. 3d 249, 254–55 (D.D.C. 2018).

Moreover, it cannot simply be that the records reveal some sort of underlying misconduct; the

records themselves must constitute egregious misconduct. See ICM Registry, LLC v. U.S. Dep’t

6 of Com., 538 F. Supp. 2d 130, 133 (D.D.C. 2008) (finding that courts only applied the exception

in cases where “[t]he very discussion . . . was an act of government misconduct” and “evidence

of a serious breach of the responsibilities of representative government”). Hence, plaintiffs may

not leverage a single instance of employee misconduct to compel broad disclosures of related, but

non-culpable, agency operations. Otherwise, the government misconduct exception would chill

efforts to analyze and correct prior wrongdoing.

Plaintiffs’ allegations do not clear this high bar. To begin, plaintiffs do not allege that the

IRS violated any law. While they accuse the IRS of improperly backdating the required

supervisory approval for the penalties assessed against them, Opp’n at 5, they acknowledge that

the backdating was legally harmless because the actual date when the IRS agents secured

supervisory approval for their penalties was still within the statutory window for approval. See

Reply Supp. Cross-Mot. Summ. J. [ECF No. 30] (“Pls.’ Reply”) at 8. As two courts of appeal

have held (and as plaintiffs do not contest), an IRS agent’s initial determination need only be

approved by the time the supervisor either assesses the penalties or otherwise loses discretion over

the penalty assessment. Kroner v. Comm’r, 48 F.4th 1272, 1276 (11th Cir. 2022); Laidlaw’s

Harley Davidson Sales, Inc. v. Comm’r, 29 F.4th 1066, 1071 (9th Cir. 2022). Neither of those

triggering events occurred here because the IRS secured supervisory approval before distributing

the Notice of Proposed Partnership Adjustment (i.e., before the supervisor assessed the penalties).

See Compl. ¶¶ 28–31. This, alone, may doom plaintiffs’ claim because it is unclear that the

government misconduct exception could ever be invoked when the underlying conduct is not

illegal.

Acknowledging that the IRS obtained sufficient approval, plaintiffs argue that the

government misconduct exception applies because the IRS agent had a nefarious state of mind.

7 Plaintiffs claim that the IRS “believed that they needed” earlier supervisory approval because

since-overturned Tax Court cases held that supervisory approval was required at the time of the

IRS’s initial penalty determination. Pls.’ Reply at 8 (emphasis in original); see also Laidlaw’s, 29

F.4th at 1070 (explaining Tax Court precedent). They further suggest that the IRS agent’s request

that his supervisor backdate the penalty approvals could only have been animated by duplicitous

intent. Opp’n at 18–21.

The IRS, meanwhile, argues that the agents’ behavior is more easily ascribed to

“incompetence” than a desire to “perpetrate a fraud scheme.” Opp’n Cross-Mot. Summ J. & Reply

Supp. Mot. Summ. J. (“Def.’s Reply”) [ECF No. 27] at 1. The Court agrees. The agent asked

their supervisor to backdate the approval to a date when the supervisor had sent a cursory email

saying “I approve penalties.” Id. at 5. Although this email was not actually sufficient to confer

approval at the earlier date, it evinces an attempt to comply with the law. Further, the IRS

disagreed with the aforementioned Tax Court rulings, appealed them, and prevailed. Id. at 3.

Finally, longstanding IRS guidance and litigation positions are consistent with the idea that

supervisory approval is not required until the final penalty assessment. Id. at 3–4.

In sum, the legally harmless act of backdating records here, especially where there are

innocuous alternative reasons for doing so, does not rise to the level of egregious misconduct

required to satisfy the government misconduct exception (to the extent any such exception exists).

Accordingly, the IRS properly applied the deliberative process privilege.

Even if the backdating was sufficient to trigger the government misconduct exception, the

IRS would still not have to disclose the withheld records. Plaintiffs do not contest that “the vast

majority of the records withheld under the deliberative process privilege have no connection to the

misapplied date whatsoever.” Def.’s Reply at 11. And even for those records related to the

8 backdating, the government misconduct exception only applies to records where the

communications themselves display the government’s egregious behavior. See ICM Registry, 538

F. Supp. 2d at 134. Hence, even if the exception applied here, plaintiffs would not be entitled to

wide-ranging information about their audit.

B. Attorney-Client Privilege

Exemption 5 also incorporates the attorney-client privilege, which covers “confidential

communications between an attorney and his client relating to a legal matter for which the client

has sought professional advice.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,

252 (D.C. Cir. 1977). As with the deliberative process privilege, plaintiffs do not argue that the

IRS improperly applied the attorney-client privilege in the first instance but instead claim that the

IRS’s backdating satisfies an exception to the privilege. In this instance, plaintiffs invoke the

crime-fraud exception. But once again, plaintiffs are wrong.

The crime-fraud exception prevents agencies from claiming attorney-client privilege over

documents that are “made in furtherance of a crime, fraud, or other misconduct.” In re Grand Jury,

475 F.3d 1299, 1305 (D.C. Cir. 2007) (internal quotation marks omitted). To invoke the exception,

the plaintiff must make a prima facie showing that the “client made or received the otherwise

privileged communication with the intent to further an unlawful or fraudulent act,” and “that the

client actually carried out the crime or fraud.” In re Sealed Case (“In re Sealed Case IV”), 223

F.3d 775, 778 (D.C. Cir. 2000) (internal quotation marks omitted).

Without a crime or fraud, plaintiffs cannot invoke the crime-fraud exception. As described

above, plaintiffs have not alleged that the IRS agent’s backdating was illegal. The IRS supervisor

provided timely approval of the agent’s penalty assessments within the statutory window and the

9 plaintiffs have not demonstrated that the IRS intended to “perpetrate a fraud scheme.” Opp’n

at 13. Accordingly, the IRS properly applied the attorney-client privilege.

C. Waiver

Lastly, plaintiffs argue that the IRS waived both attorney-client privilege and deliberative

process privilege as to certain records because it disclosed those records during plaintiffs’ audit

and Tax Court cases. The IRS has since released previously disclosed records without asserting

Exemption 5. Def.’s Reply at 11–12. As a result, plaintiffs’ waiver argument regarding these

particular records is moot.

Newly in their reply brief, plaintiffs argue that the IRS committed subject-matter waiver of

attorney-client privilege by discussing the audit settlement process in Tax Court. Pls.’ Reply at

12–14. “As the D.C. Circuit has consistently held,” district courts “should not address arguments

raised for the first time in a party’s reply.” Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1,

37 (D.D.C. 2010) (quoting Jones v. Mukasey, 565 F.Supp.2d 68, 81 (D.D.C. 2008)). Although

plaintiffs briefly raised waiver in their cross-motion for summary judgment, Opp’n at 22, subject

matter waiver, a distinct argument with its own doctrine and considerations, is raised for the first

time in plaintiffs’ reply. See Pls.’ Reply at 12–14; cf. Steele v. United States, Civ. A. No. 14-1523

(RCL), 2023 WL 6215790, at *11 (D.D.C. Sept. 25, 2023) (“[A] summary assertion in the initial

brief, made without argument or citations, does not suffice to preserve the more fine-grained

argument.”). Accordingly, plaintiff’s arguments are forfeit. Nevertheless, because subject-matter

waiver is connected to plaintiffs’ other waiver arguments, the Court considers plaintiffs’ subject-

matter waiver claim and finds it meritless.

Subject-matter waiver is the doctrine by which a party who discloses privileged attorney-

client communications may waive the privilege for those communications and all communications

10 relating to the same subject matter. In re Sealed Case (“In re Sealed Case I”), 676 F.2d 793, 809

& n.54 (D.C. Cir. 1982). This doctrine is based on the understanding that a party should not be

able to wield privileged information as a sword in one context only to then hide behind privilege

as a shield in another. See Gen. Elec. Co. v. Johnson, Civ. A. No. 00-2855 (JDB), 2006 WL

2616187, at *18 (D.D.C. Sept. 12, 2006).

To preserve attorney-client privilege, parties must “jealously guard[]” their privileged

communications. In re Sealed Case (“In re Sealed Case II”), 877 F.2d 976, 980 (D.C. Cir. 1989).

Disclosure of those communications, even inadvertently, may result in a waiver of privilege. Id.

However, disclosures that merely incidentally mention the existence of an attorney-client

communication do not vitiate the privilege. In particular, an “averment that lawyers have looked

into a matter does not imply an intent to reveal the substance of the lawyers’ advice.” United

States v. White, 887 F.2d 267, 271 (D.C. Cir. 1989). That is because when a party “neither reveals

substantive information, nor prejudices [their opponent’s] case, nor misleads a court by relying on

an incomplete disclosure, fairness and consistency do not require the inference of waiver.” Id.

Plaintiffs claim that “IRS attorneys testified about their internal discussions regarding the

backdating,” thereby waiving attorney-client privilege as to all relevant records. Pls.’ Reply at 13.

That is incorrect. Plaintiffs merely cite portions of the Tax Court transcript where IRS attorneys

mentioned conversations about the audit and/or backdating. But these amount to general assertions

“lacking substantive content” that an attorney examined a “certain matter,” which is not sufficient

to waive privilege. White, 887 F.2d at 271. The cited communications are devoid of the type of

confidential legal advice necessary to waive privilege. See Tax Ct. Tr. I [ECF No. 30-2] at 55–56

(describing the mere existence of settlement discussions); Tax Ct. Tr. II [ECF No. 30-3] at 82–86

(describing the attorney’s lack of surprise that certain penalties were conceded); Tax Ct. Tr. III

11 [ECF No. 30-4] at 553 (describing that attorney worked on “proposed settlement offers”); Tax Ct.

Tr. IV [ECF No. 30-5] at 575 (describing general subject matter of communications with IRS

personnel); Tax Ct. Tr. V [ECF No. 30-6] at 600 (describing a general desire to “promptly resolve

the case because of 6751(b) concerns”). Notably, plaintiffs cite several passages where the

questioner expressly caveats that the IRS attorney should answer “[w]ithout getting into the

discussions themselves.” See Tax Ct. Tr. I at 55; Tax Ct. Tr. III at 553; Tax Ct. Tr. VI at 573.

And the transcripts certainly do not reflect the IRS leveraging the contents of confidential

communications as a sword by which to make arguments that disadvantage plaintiffs.

Consequently, the IRS properly invoked attorney-client privilege and plaintiffs have not

demonstrated that subject-matter waiver applies to any of the records at issue.

Even if plaintiffs could show that attorney-client privilege was waived, it would not result

in the disclosure of the records they seek. Waiver results in disclosure only when the records at

issue are “not covered by other protections,” such as deliberative process privilege. Gen. Elec.,

2006 WL 2616187, at *19. And “[t]he concept of subject-matter waiver is almost uniquely a

function of the attorney-client relationship”; it does not apply to “deliberative process privilege.”

Id. at *17. The second Vaughn index submitted by the IRS indicates that every document where

attorney-client privilege is asserted is also protected by deliberative process privilege. See Second

Vaughn Index [ECF No. 27-3]. Accordingly, because both attorney-client privilege and

deliberative process privilege apply to these records, Exemption 5 protects them from disclosure.

II. Exemption 3

FOIA Exemption 3 shields documents that are “specifically exempted from disclosure by

statute.” 5 U.S.C. § 552(b)(3). Under that exemption, the government must identify a statute that

authorizes them to withhold records and demonstrate that the records at issue fall within that

12 statute. See Larson v. Dep’t of State, 565 F.3d 857, 861 (D.C. Cir. 2009). Here, the IRS identified

26 U.S.C. § 6103(e)(7), which provides that the IRS may withhold tax return information if the

Secretary of the Treasury “determines that disclosure would seriously impair Federal tax

administration.” 26 U.S.C. § 6103(e)(7). Then, the IRS provided a declaration from an authorized

delegate of the Secretary, Teresa Trissell, stating that disclosure of certain records would

“seriously impair the ability of the government to ensure the assessment and collection of the

proper tax and penalties” from plaintiff Arden Row. Decl. of Teresa Trissell [ECF No. 21-7]

(“Trissell Decl.”) ¶¶ 2, 8–11.

In plaintiffs’ view, § 6103(e)(7) does not apply here because, while it permits withholding

tax records from third parties, it “does not prevent taxpayers and their representatives from

accessing the taxpayers’ own tax information.” Opp’n at 28 (emphasis in original). The general

statutory permission for members of partnerships to access the tax information of that partnership,

plaintiffs posit, entitles them to their tax return information regardless of Secretarial approval. Id.;

see 26 U.S.C. § 6103(e)(1)(C).

Not so. The general statutory permission to access one’s own tax information in

§ 6103(e)(1)(C) is eclipsed by the specific prohibition in § 6103(e)(7) providing for withholding

tax return information subject to Secretarial disapproval. See RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 645 (2012) (“It is a commonplace of statutory construction that

the specific governs the general.” (citation modified)); Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 183 (2012). Plaintiffs do not cite a single case for the

proposition that parties are entitled to the disclosure of their own returns, regardless of Secretarial

disapproval. That is likely because caselaw shows the opposite. See, e.g., Nosal v. IRS, 523 F.

Supp. 3d 72, 78–81 (D.D.C. 2021) (finding § 6103(e)(7) applicable to potential whistleblower

13 records in a taxpayer’s file); Sea Shepherd Conservation Soc’y v. IRS, 208 F. Supp. 3d 58, 87–88

(D.D.C. 2016). And plaintiffs’ reading is inconsistent with the statutory scheme that establishes

the role of Secretarial disapproval as a backstop to otherwise permissible disclosures that would

impair the tax system. Indeed, there may be many circumstances where allowing parties to see

information about themselves could hamper tax administration. See Sea Shepherd, 208 F. Supp.

3d at 87–88 (finding Secretarial disapproval justified to protect confidential informants).

Plaintiffs next contend that Trissell’s declaration is too conclusory to constitute a bona fide

Secretarial determination. Opp’n at 25–26. That is incorrect as well. Trissell’s declaration is

comprehensive and provides multiple reasons why disclosure of the requested materials could

impair tax administration. For one, Arden Row is engaged in Tax Court litigation against the IRS

related to their “civil examinations, and this litigation involves issues addressed in records

responsive to plaintiffs’ FOIA requests.” Trissel Decl. ¶ 9. Disclosing the records would allow

Arden Row to “craft explanations or defenses” based on its knowledge of the IRS’s “strategy,

theories, methods, and points of focus.” Id. ¶ 9; cf. Georgia v. U.S. Dep’t of Just., No. 23-5083,

2025 WL 2314892, at *2 (D.C. Cir. Aug. 12, 2025) (expressing concern that “parties opposed to

the government” would use FOIA to “disclose the government’s strategy and impressions about

an ongoing case”).

Because § 6103(e)(7) permits the IRS to withhold the relevant records, the IRS

appropriately invoked Exemption 3.

III. Exemption 7

FOIA Exemption 7(A) protects records or information compiled for law enforcement

purposes when disclosure “could reasonably be expected to interfere with enforcement

proceedings.” 5 U.S.C. § 552(b)(7)(A). This includes protecting documents that would shed light

14 upon the government’s “cases in courts, its evidence and strategies, or the nature, scope, and focus

of investigations.” Agrama v. IRS, 282 F. Supp. 3d 264, 273 (D.D.C. 2017) (internal quotation

marks omitted). The IRS is a “law enforcement” agency for the purpose of Exemption 7(A). Tax

Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002).

To justify withholding materials, the IRS must “demonstrate that disclosure (1) could

reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or

reasonably anticipated.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d

1082, 1096 (D.C. Cir. 2014) (internal quotation marks omitted). To carry its burden, the agency

must show that releasing the “investigatory records while [the] case is pending would generally

interfere” with the proceeding, but the agency need not make “specific factual showing[s] with

respect to each withheld document that disclosure would actually interfere with a particular

enforcement proceeding.” Agrama, 282 F. Supp. 3d at 273–74 (internal quotation marks omitted).

Here, each document withheld under Exemption 7(A) “relates to proposed partnership tax

adjustments and proposed penalties related to Arden Row,” with whom the IRS is engaged in

active Tax Court proceedings. Def.’s Reply at 14. The documents include materials used in Arden

Row’s civil examination and email attachments reflecting IRS attorney discussions about the case.

Id. Plaintiffs acknowledge as much but argue that the IRS has not provided a sufficient explanation

of why the documents would interfere with the ongoing proceedings. See Opp’n at 26. But the

IRS has explained that divulging those records would “give premature insight into the strength of

the IRS’s position; elucidate which evidence the IRS’s positions were based on; and reveal the

nature, direction, scope and focus of the Service’s case.” Def.’s Reply at 14 (citing Trissel Decl.

¶¶ 9, 10, 12). That is enough.

15 The nature of the withheld records and the IRS’s explanation for shielding them are

sufficient to suggest that disclosure would threaten pending law enforcement proceedings.

Accordingly, the IRS’s invocation of Exemption 7(A) is proper.

CONCLUSION

For these reasons, the Court grants IRS’s motion for summary judgment and denies

plaintiffs’ cross-motion. A separate Order has been issued on this date.

/s/ JOHN D. BATES United States District Judge

Dated: August 20, 2025