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King v. Internal Revenue Service and Jerome Kurtz

decided: July 28, 1982.

SHARON L. KING, PLAINTIFF-APPELLEE,
v.
INTERNAL REVENUE SERVICE AND JEROME KURTZ, COMMISSIONER, INTERNAL REVENUE SERVICE, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 3006 -- Thomas R. McMillen, Judge.

Cummings, Chief Judge, Bauer, Circuit Judge, and Grant, Senior District Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

This appeal presents a question of first impression in this circuit: whether an Internal Revenue Service (IRS) document labeled "draft technical memorandum" is exempted from disclosure under the Freedom of Information Act, 5 U.S.C. § 552. The district court held that the document was not exempted from disclosure and ordered the IRS to disclose it to plaintiff-appellee Sharon L. King. We reverse.

I

King requested the district court to enjoin the IRS from refusing to disclose approximately one hundred documents from Revenue Ruling and Treasury Regulation files. She alleged that the requested documents were subject to release under the Freedom of Information Act. The IRS contended that some of the documents were exempted from disclosure under 5 U.S.C. § 552(b) (5) and that the other documents were protected from disclosure by 26 U.S.C. § 6103. The parties filed cross-motions for summary judgment, and the IRS submitted some of the documents for in camera inspection.

On July 2, 1981, the district court ordered the IRS to disclose thirty-four of the requested documents. On July 13, 1981, the IRS filed a timely motion for reconsideration concerning the document labeled "draft technical memorandum." It filed the document for in camera inspection on July 16, 1981. The district court denied the IRS' motion for reconsideration on October 27, 1981, but stayed enforcement of the disclosure order pending appeal.*fn1

The IRS contends on appeal that the draft technical memorandum is exempted from disclosure by the deliberative process privilege incorporated in 5 U.S.C. § 552(b) (5). We agree, and, accordingly, we reverse the judgment of the district court.

II

King sought discovery of the draft technical memorandum pursuant to subsections (a) (2) and (a) (3) of the Freedom of Information Act, which require government agencies to make final opinions and statements of policy available for public inspection unless the documents are exempted from disclosure by subsection (b) of the Act. 5 U.S.C. § 552(a) (2), (3). Subsection (b) lists nine exemptions. 5 U.S.C. § 552(b). Exemption 5, the only exemption at issue in this case, exempts from disclosure "interagency 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. § 552(b) (5). Courts have construed exemption 5 to exempt from disclosure documents which are protected from civil discovery under the attorney-client privilege. Mead Data Central, Inc. v. Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242 (D.C. Cir. 1977), the attorney work-product privilege, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975), and the executive, deliberative process privilege, EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). The IRS contends that the draft technical memorandum is exempted from disclosure under the deliberative process privilege.

The deliberative process privilege exempts "'all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.'" NLRB v. Sears, Roebuck & Co., 421 U.S. at 153, quoting Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967). The privilege

serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. DOE, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980). Documents written before a final agency decision on an issue are privileged, NLRB v. Sears, Roebuck & Co., 421 U.S. at 151-52, because they "reflect the agency 'give-and-take' leading up to a decision that is characteristic of the deliberative process." Taxation Without Representation Fund v. IRS, 207 U.S. App. D.C. 331, 646 F.2d 666, 677 (D.C. Cir. 1981). Generally, draft documents are considered predecisional and are exempted from disclosure if they are deliberative in nature. Coastal States Gas Corp. v. DOE, 199 U.S. App. D.C. 272, 617 F.2d at 866; see also Arthur Andersen & Co. v. IRS, 220 U.S. App. D.C. 77, 679 F.2d 254 (D.C. Cir. 1982). The government bears the burden of proving what deliberative process was involved and what role the document played in that process. 5 U.S.C. § 552(a) (4) (B); Coastal States Gas Corp. v. DOE, 617 F.2d at 868.

The 76-page document at issue in this appeal is labeled "draft technical memorandum." It is dated September 2, 1971, but does not indicate by whom it was authored. The document does indicate, however, that it was written at the request of a Deputy Assistant Secretary to the Acting IRS Commissioner. It was written to discuss the policy and administrative reasons for Treasury Regulation § 1.167(a)-11, ...


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