T. Keith Fogg v. Internal Revenue Service

Background

T. Keith Fogg, described as a tax law professor, asked the Internal Revenue Service (IRS) under the Freedom of Information Act (FOIA) to disclose redacted portions of Internal Revenue Manual § 21.1.3.3.1. The IRS denied the request and denied Fogg’s administrative appeal. The caption also listed Nicholas Xanthopoulos as a plaintiff, but the opinion states that the parties agreed to file a stipulation removing him from the caption.

The district court previously granted the IRS summary judgment, concluding that FOIA Exemption 7(E), 5 U.S.C. § 552(b)(7)(E), allowed the IRS to withhold the requested information. The court also denied Fogg’s request for private judicial review of the withheld material. The Eighth Circuit reversed and sent the case back for that private review. It held that the IRS attorney’s affidavit was insufficient to establish the basis for withholding the information and identified a legal error in describing the IRS as only a law-enforcement agency. The appeals court found no evidence of bad faith.

The parties’ requests on remand

After a status conference, the IRS asked to submit a supplemental affidavit privately and for the judge to review it privately together with the unredacted manual. The IRS argued that a public affidavit could compromise the information it was trying to protect under Exemption 7(E), but offered to file a redacted public version.

Fogg opposed a private affidavit. He argued that allowing the IRS to submit another affidavit would give the prior declarant another opportunity to characterize the information, and that private submission would violate his due-process rights. Fogg also asked to file new briefs on the summary-judgment motions after the court reviewed the withheld material.

Rulings

The court stated that supplemental affidavits may be allowed when an earlier affidavit was found insufficient. But private, one-sided submissions and private judicial review are allowed only when they are “absolutely necessary”—that is, when the exemption cannot be evaluated from public affidavits and the records themselves, and public disclosure would compromise the secrecy being claimed.

Because the court had not yet reviewed the withheld records, it said it could not decide whether a private affidavit was absolutely necessary. It therefore granted the IRS’s request in part, allowing it to file a supplemental affidavit from an IRS affiant of its choosing other than Kilsy Barnes, provided the affidavit was publicly filed in unredacted form. The court denied the request in part to the extent the IRS sought to submit the affidavit privately and without the other side present at that time. The court reserved the right to reconsider that issue after conducting its private review of the records.

The court denied Fogg’s request to rebrief the summary-judgment motions. It reasoned that the appeals court directed a private inspection of the withheld material, not entirely new briefing based on questions asked during oral argument but not addressed in the appellate opinion.