1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 BILLIE MERTES, CASE NO. 1:19-CV-1218 AWI SKO
8 Plaintiff ORDER ON DEFENDANT’S MOTION 9 v. FOR IN CAMERA REVIEW
10 INTERNAL REVENUE SERVICE, (Doc. No. 18) 11 Defendant 12
13 This is a 5 U.S.C. § 552 Freedom of Information Act (“FOIA”) case brought by Plaintiff 14 Billie Mertes against the United States Internal Revenue Service (“IRS”). Mertes seeks a copy of 15 a United States Gift (and Generation-Skipping Transfer) Tax Form that was used to assess gift 16 taxes against Mertes for the tax year 2012 (the “Mertes Form 709”). The assessed tax was later 17 reversed by the IRS. The IRS acknowledges that the Mertes From 709 exists but claims that a 18 FOIA exception applies and that disclosure is improper. Currently pending before the Court is 19 IRS’s motion to submit documents for in camera inspection. 20 Background 21 The Court ordered the IRS to submit this motion in connection with the IRS’s motion for 22 summary judgment. See Doc. No. 17. The IRS’s motion for summary judgment was 23 significantly redacted, to the point that the motion was clearly insufficient to meet the IRS’s 24 burden of establishing that a FOIA exception to disclosure applied. See Doc. Nos. 14, 17. 25 However, the IRS also requested that it be permitted to submit a copy of the Mertes Form 709, as 26 well as unredacted copies of the motion for summary judgment, supporting affidavits, and an 27 additional declaration for in camera consideration. See Doc. No. 15. 28 1 Mertes strenuously opposed the motion for in camera inspection. See Doc. No. 16. 2 Following receipt of Mertes’s opposition, the Court administratively denied the pending 3 summary judgment motion, ordered the IRS to file a supplemental motion for in camera review, 4 and gave Mertes the opportunity to file a response to the supplemental motion. See Doc. No. 17. 5 The parties have now submitted their supplemental briefing regarding in camera review. 6 IRS’s Argument 7 The IRS explains that it has publicly filed all the information that it can. Although there is 8 no dispute that the Court may view the Mertes From 709 in camera, the IRS argues that the 9 document alone is insufficient to establish FOIA Exemption 7, the “records or information 10 compiled for law enforcement purposes” exception, and that the unredacted motion and supporting 11 affidavits are necessary. But if unredacted versions of the motion for summary judgment and the 12 supporting declarations are publicly filed, the information contained within those filings would 13 undermine and defeat the purpose of FOIA Exemption 7. The IRS argues that courts have 14 permitted the filing of various documents in camera where a failure to do so would undermine the 15 claimed exemption and other alternatives fail to provide a sufficient basis for decision. 16 Mertes’s Opposition 17 Mertes argues that she does not oppose the submission of the Mertes Form 709 for in 18 camera review. However, there is no legal authority that convincingly supports the submission of 19 the unredacted motion and supporting declarations for in camera inspection. If the IRS submits its 20 “undisputed facts” and reasoning in camera, the Court will not know if those facts are truly 21 undisputed or if contrary legal authority exists. Mertes argues that she will have to guess at what 22 legal arguments she should posit in opposition and that this amounts to a violation of due process 23 and a gross miscarriage of justice. The IRS, without more, should not be able to keep secret the 24 facts it relies on, some of the case law it relies on, and the justification and reasoning for relying 25 on the secret cases. 26 Legal Standard 27 “The FOIA mandates a policy of broad disclosure of government documents when 28 production is properly requested.” Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995). A United 1 States agency may withhold a properly requested document only if it falls within one of nine 2 statutory exemptions to the disclosure requirement. Civil Beat Law Ctr. for the Pub. Interest, Inc. 3 v. CDC & Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019); Kamman, 56 F.3d at 48. The nine 4 statutory exemptions are exclusive and construed narrowly. Civil Beat, 929 F.3d at 1084; see 5 Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012); Kamman, 56 F.3d at 48. There is a 6 strong presumption in favor of disclosing a requested document. Civil Beat, 929 F.3d at 1084; 7 Hamdan v. DOJ, 797 F.3d 759, 772 (9th Cir. 2015). Therefore, the United States bears the burden 8 of demonstrating that an exemption applies. Civil Beat, 929 F.3d at 1084; Hamdan, 797 F.3d at 9 772; Shannahan, 672 F.3d at 1148; Kamman, 56 F.3d at 48. To justify withholding, the United 10 States must provide tailored reasons that reasonably describe the documents and the reasons and 11 facts that establish an exemption; boilerplate and conclusory assertions are insufficient. 12 Shannahan, 672 F.3d at 1148; Kamman, 56 F.3d at 48. However, the United States need not 13 specify in such detail as to compromise the secrecy of the information or undermine the very 14 purpose of withholding. See Lion Raisins, Inc. v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004); 15 Church of Scientology v. United States Dep’t of the Army, 611 F.2d 728, 742 (9th Cir. 1979). 16 The evidence submitted must enable the district court to make an independent assessment of the 17 government’s claim of exemption. Lion Raisins, 354 F.3d at 1079; Church of Scientology, 611 18 F.2d at 742. 19 In FOIA cases, courts may grant summary judgment solely on the basis of government 20 affidavits. Lion Raisins, 354 F.3d at 1082; see Kamman, 56 F.3d at 48. “Ordinarily, the 21 government must submit detailed public affidavits identifying the documents withheld, the FOIA 22 exemptions claimed, and a particularized explanation of why each document falls within the 23 claimed exemption.” Lion Raisins, 354 F.3d at 1082. Because only the opposing party has access 24 to all the facts, providing this information (known as a “Vaughn Index”) partially restores the 25 normal adversarial process that is otherwise impossible in FOIA cases. Wiener v. FBI, 943 F.2d 26 972, 977-78 (9th Cir. 1991). Nevertheless, there may be cases when a “public description of a 27 document and the reasons for exemption may reveal the very information that the government 28 claims is exempt from disclosure.” Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983). In such 1 exceptional circumstances, a court may permit the United States to submit contested documents 2 and explanations that justify withholding those documents to the court for in camera review. Lion 3 Raisins, 354 F.3d at 1082-83; Doyle, 722 F.2d at 556-57. However, a district court “must require 4 the government to justify FOIA withholdings in as much detail as possible on the public record 5 before resorting to in camera review.” Lion Raisins, 354 F.3d at 1084; see Doyle, 722 F.2d at 556. 6 Discussion 7 Initially, there is no objection to the IRS submitting the Mertes Form 709 to the Court for 8 in camera review. Thus, the Court will permit the in camera submission of that document.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 BILLIE MERTES, CASE NO. 1:19-CV-1218 AWI SKO
8 Plaintiff ORDER ON DEFENDANT’S MOTION 9 v. FOR IN CAMERA REVIEW
10 INTERNAL REVENUE SERVICE, (Doc. No. 18) 11 Defendant 12
13 This is a 5 U.S.C. § 552 Freedom of Information Act (“FOIA”) case brought by Plaintiff 14 Billie Mertes against the United States Internal Revenue Service (“IRS”). Mertes seeks a copy of 15 a United States Gift (and Generation-Skipping Transfer) Tax Form that was used to assess gift 16 taxes against Mertes for the tax year 2012 (the “Mertes Form 709”). The assessed tax was later 17 reversed by the IRS. The IRS acknowledges that the Mertes From 709 exists but claims that a 18 FOIA exception applies and that disclosure is improper. Currently pending before the Court is 19 IRS’s motion to submit documents for in camera inspection. 20 Background 21 The Court ordered the IRS to submit this motion in connection with the IRS’s motion for 22 summary judgment. See Doc. No. 17. The IRS’s motion for summary judgment was 23 significantly redacted, to the point that the motion was clearly insufficient to meet the IRS’s 24 burden of establishing that a FOIA exception to disclosure applied. See Doc. Nos. 14, 17. 25 However, the IRS also requested that it be permitted to submit a copy of the Mertes Form 709, as 26 well as unredacted copies of the motion for summary judgment, supporting affidavits, and an 27 additional declaration for in camera consideration. See Doc. No. 15. 28 1 Mertes strenuously opposed the motion for in camera inspection. See Doc. No. 16. 2 Following receipt of Mertes’s opposition, the Court administratively denied the pending 3 summary judgment motion, ordered the IRS to file a supplemental motion for in camera review, 4 and gave Mertes the opportunity to file a response to the supplemental motion. See Doc. No. 17. 5 The parties have now submitted their supplemental briefing regarding in camera review. 6 IRS’s Argument 7 The IRS explains that it has publicly filed all the information that it can. Although there is 8 no dispute that the Court may view the Mertes From 709 in camera, the IRS argues that the 9 document alone is insufficient to establish FOIA Exemption 7, the “records or information 10 compiled for law enforcement purposes” exception, and that the unredacted motion and supporting 11 affidavits are necessary. But if unredacted versions of the motion for summary judgment and the 12 supporting declarations are publicly filed, the information contained within those filings would 13 undermine and defeat the purpose of FOIA Exemption 7. The IRS argues that courts have 14 permitted the filing of various documents in camera where a failure to do so would undermine the 15 claimed exemption and other alternatives fail to provide a sufficient basis for decision. 16 Mertes’s Opposition 17 Mertes argues that she does not oppose the submission of the Mertes Form 709 for in 18 camera review. However, there is no legal authority that convincingly supports the submission of 19 the unredacted motion and supporting declarations for in camera inspection. If the IRS submits its 20 “undisputed facts” and reasoning in camera, the Court will not know if those facts are truly 21 undisputed or if contrary legal authority exists. Mertes argues that she will have to guess at what 22 legal arguments she should posit in opposition and that this amounts to a violation of due process 23 and a gross miscarriage of justice. The IRS, without more, should not be able to keep secret the 24 facts it relies on, some of the case law it relies on, and the justification and reasoning for relying 25 on the secret cases. 26 Legal Standard 27 “The FOIA mandates a policy of broad disclosure of government documents when 28 production is properly requested.” Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995). A United 1 States agency may withhold a properly requested document only if it falls within one of nine 2 statutory exemptions to the disclosure requirement. Civil Beat Law Ctr. for the Pub. Interest, Inc. 3 v. CDC & Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019); Kamman, 56 F.3d at 48. The nine 4 statutory exemptions are exclusive and construed narrowly. Civil Beat, 929 F.3d at 1084; see 5 Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012); Kamman, 56 F.3d at 48. There is a 6 strong presumption in favor of disclosing a requested document. Civil Beat, 929 F.3d at 1084; 7 Hamdan v. DOJ, 797 F.3d 759, 772 (9th Cir. 2015). Therefore, the United States bears the burden 8 of demonstrating that an exemption applies. Civil Beat, 929 F.3d at 1084; Hamdan, 797 F.3d at 9 772; Shannahan, 672 F.3d at 1148; Kamman, 56 F.3d at 48. To justify withholding, the United 10 States must provide tailored reasons that reasonably describe the documents and the reasons and 11 facts that establish an exemption; boilerplate and conclusory assertions are insufficient. 12 Shannahan, 672 F.3d at 1148; Kamman, 56 F.3d at 48. However, the United States need not 13 specify in such detail as to compromise the secrecy of the information or undermine the very 14 purpose of withholding. See Lion Raisins, Inc. v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004); 15 Church of Scientology v. United States Dep’t of the Army, 611 F.2d 728, 742 (9th Cir. 1979). 16 The evidence submitted must enable the district court to make an independent assessment of the 17 government’s claim of exemption. Lion Raisins, 354 F.3d at 1079; Church of Scientology, 611 18 F.2d at 742. 19 In FOIA cases, courts may grant summary judgment solely on the basis of government 20 affidavits. Lion Raisins, 354 F.3d at 1082; see Kamman, 56 F.3d at 48. “Ordinarily, the 21 government must submit detailed public affidavits identifying the documents withheld, the FOIA 22 exemptions claimed, and a particularized explanation of why each document falls within the 23 claimed exemption.” Lion Raisins, 354 F.3d at 1082. Because only the opposing party has access 24 to all the facts, providing this information (known as a “Vaughn Index”) partially restores the 25 normal adversarial process that is otherwise impossible in FOIA cases. Wiener v. FBI, 943 F.2d 26 972, 977-78 (9th Cir. 1991). Nevertheless, there may be cases when a “public description of a 27 document and the reasons for exemption may reveal the very information that the government 28 claims is exempt from disclosure.” Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983). In such 1 exceptional circumstances, a court may permit the United States to submit contested documents 2 and explanations that justify withholding those documents to the court for in camera review. Lion 3 Raisins, 354 F.3d at 1082-83; Doyle, 722 F.2d at 556-57. However, a district court “must require 4 the government to justify FOIA withholdings in as much detail as possible on the public record 5 before resorting to in camera review.” Lion Raisins, 354 F.3d at 1084; see Doyle, 722 F.2d at 556. 6 Discussion 7 Initially, there is no objection to the IRS submitting the Mertes Form 709 to the Court for 8 in camera review. Thus, the Court will permit the in camera submission of that document. 9 Apart from the Mertes Form 709 itself, the IRS’s request for in camera inspection is broad. 10 The IRS wishes to submit the unredacted motion for summary judgment, the unredacted 11 supporting affidavit, the unredacted statement of facts, and an additional non-publicly filed 12 declaration that further explains the basis for the claimed exemption. Mertes makes a valid point 13 that the IRS has submitted no cases that have permitted the in camera submission of such a broad 14 range of documents. The Court is particularly troubled by the fact that publicly filed documents 15 simply indicate that the IRS is claiming that Exemption 7 (5 U.S.C. § 552(b)(7)) applies. 16 Exemption 7 contains a total of six “sub-exemptions,” (A) through (F), any one of which may 17 justify withholding the Mertes From 609. See 5 U.S.C. § 552(7)(b); Prudential Locations, LLC v. 18 United States HUD, 739 F.3d 424, 434 (9th Cir. 2013). By simply publicly citing Exemption 7, 19 the IRS is making Mertes guess as to six, not one, possible reasons for exemption. The IRS is 20 essentially making a general and conclusory public assertion of exemption. 21 Despite the above, the IRS has now represented through two motions that it cannot provide 22 any further details without compromising the basis for withholding the Mertes Form 709. When a 23 court is satisfied that as much public information has been provided as possible, the Court may 24 order an in camera inspection of both a withheld document and supporting declarations. See Lion 25 Raisins, 354 F.3d at 1082-84; Doyle, 722 F.2d at 556-57. If supporting declarations cannot be 26 publicly submitted without undermining a claimed exemption, then it seems a publicly filed 27 summary judgment motion that relies on and quotes from or cites to that declaration would also 28 likely undermine the claimed exemption. 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1 Given the IRS’s representations in two motions that no further information can be provided 2 | publicly, the Court will permit the IRS to attempt to demonstrate that this is an “exceptional case” 3 Lion Raisins and to submit the requested documents for in camera review. No other 4 | procedure is apparent that does not risk disclosure of information that could otherwise be lawfully 5 | withheld. Once the Court receives the documents, the Court will issue any further orders that it 6 | decides are appropriate. This may include, as recognized in the IRS’s reply, requiring additional 7 information to be publicly disclosed.' See Montgomery v. IRS, 356 F.Supp.3d 74, 80 (D. D.C. 8 |2019) (“By reviewing such in camera materials, conversely, the Court can closely evaluate the 9 | Government’s reasoning and then order as much of the materials released as is consistent with the 10 | exemption the agency has invoked.”). The Court will not immediately rule on the summary 11 judgment motion without providing the parties notice and an additional opportunity to be heard. 12 ORDER 13 Accordingly, IT IS HEREBY ORDERED that: 14/1. Defendant’s motion to submit documents for in camera inspection (Doc. No. 18) is 15 GRANTED; 16 Within twenty-one (21) days of service of this order, the IRS shall submit the unredacted 17 copies of the documents identified in its motion for in camera inspection; 18 Once the Court has reviewed the documents in camera, it will issue additional orders as 19 discussed above. 20 IT IS SO ORDERED. 22 Dated: _June 25, 2020 _ : _-SENIOR DISTRICT JUDGE 23 24 |——__—_—_ ' The Court is highly skeptical of the IRS’s failure to publicly identify which “sub-exemption(s)” of Exemption 7 that 26 | it contends applies to this case. There are published cases that address each of the six “sub-exemptions,” meaning that the United States publicly relied on the sub-exemption. See, e.g., Hamdan, 797 F.3d at 768 (addressing a claim for 97 | exemptions 7(C), 7(D), and 7(E)); Shannahan, 672 F.3d at 1145 (addressing a claim for exemption 7(A)); Fiduccia v. DOJ, 185 F.3d 1035, 1043 (9th Cir. 1999) (addressing a claim for exemptions 7(C) and 7(F)); Washington Post Co. v. 28 DOJ, 863 F.2d 96, 98 (D.C. Cir. 1988) (addressing a claim for exemptions 7(B) and 7(C)); Dow Jones Co. v. FERC, 219 F.R.D. 167, 174 (C.D. Cal. 2002) (addressing a claim for exemptions 7(A), 7(B), and 7(C)).