OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




                     CHURCH OF SCIENTOLOGY INT'L, Plaintiff,
                                       v.
                      INTERNAL REVENUE SERVICE, Defendant.
                            No. CV 91-1025 RSWL (Sx).
                          United States District Court,
                                C.D. California.
                                 Aug. 26, 1993.
  Church made Freedom of Information Act (FOIA) request, seeking access to
 records held by Internal Revenue Service (IRS).  After IRS responded to request
 but withheld 468 pages in full and 76 in part, court ordered IRS to produce
 Vaughn  Index of all withheld records, and parties stipulated that IRS would
 conduct second search.  IRS filed results of that second search and
 accompanying Vaughn  Index, and IRS moved for summary judgment on ground
 that church had received all documents to which it was entitled.  The District
 Court, Lew, J., held that:  (1) all withheld documents were exempted from FOIA
 disclosure, and (2) IRS demonstrated that it reasonably segregated all
 nonexempt information from documents withheld in full.
  Motion granted.

 [1] RECORDS
 To prevail in Freedom of Information Act (FOIA) suit, defendant agency must
 prove, inter alia, that its search satisfied its duty to conduct "reasonable"
 search for responsive records.  5 U.S.C.A. s 552.

 [2] RECORDS
 Where agency withholds records responsive to Freedom of Information Act (FOIA)
 request, agency bears burden of justifying its withholdings;  this burden may
 be sustained by submitting affidavits that provide detailed analysis of
 requested documents and reasons for invoking exemption.  5 U.S.C.A. s
 552(a)(4)(B).

 [3] FEDERAL CIVIL PROCEDURE
 If agency affidavits providing detailed analysis of requested documents and
 reasons for invoking exemption from disclosure under Freedom of Information
 Act (FOIA) are clear, specific, and reasonably detailed, and describe withheld
 information in factual and nonconclusory manner, summary judgment may be
 granted solely on basis of those affidavits.  5 U.S.C.A. s 552(a)(4)(B).

 [4] RECORDS
 Under Freedom of Information Act (FOIA) Exemption 3, which permits agency to
 withhold documents specifically exempted from disclosure by statute, and
 Internal Revenue Service (IRS) code provision mandating that tax return
 information for third parties be held confidential, IRS properly withheld tax
 return information concerning six entities that, according to taxpayer who
 sought that information, submitted tax return information release
 authorizations permitting taxpayer access to those records;  those
 authorizations, which made no specific reference to this particular FOIA
 action, did not satisfy terms of taxpayer's stipulation with IRS, even though
 that stipulation did not expressly require reference to instant action.  5
 U.S.C.A. s 552(b)(3);  26 U.S.C.A. s 6103(a).

 [5] RECORDS
 Under statute that exempts documents from Freedom of Information Act (FOIA)
 disclosure when such disclosure would "seriously impair federal tax
 administration," district court's review of Internal Revenue Service's (IRS)
 determination of impairment is de novo;  court must satisfy itself, on basis of
 detailed and nonconclusory affidavits, that IRS is correct in finding that
 disclosure would impair collection, assessment, or enforcement of tax laws.
 26 U.S.C.A. s 6103(e)(7).

 [6] RECORDS
 Under Freedom of Information Act (FOIA) Exemption 3, which permits agency to
 withhold documents that are specifically exempted from disclosure by statute,
 evidence supported Internal Revenue Service's (IRS) withholding of several
 documents as exempt under statute that exempts documents when their disclosure
 would "seriously impair federal tax administration";  IRS offered four
 affidavits in support of withholding documents, and each of those declarants
 provided detailed and nonconclusory statements in support of their findings
 that release of documents would impair federal tax administration.  5
 U.S.C.A. s 552(b)(3);  26 U.S.C.A. s 6103(e)(7).

 [7] RECORDS
 For purposes of Freedom of Information Act (FOIA) Exemption 7(A), which allows
 for nondisclosure of records or information compiled for law enforcement
 purposes where disclosure could reasonably be expected to interfere with
 enforcement proceedings, documentation of work done by Internal Revenue
 Service (IRS) in preparation for investigation of church (which sought
 disclosure of records) and related entities under Church Audit Procedures Act
 (CAPA) constituted "investigatory records compiled for law enforcement
 purposes."  5 U.S.C.A. s 552(b)(7)(A);  26 U.S.C.A. s 7611.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [8] RECORDS
 Internal Revenue Service (IRS) met its burden to prove withheld documents were
 exempt from disclosure under Freedom of Information Act (FOIA) as documents
 compiled during ongoing Church Audit Procedures Act (CAPA) investigation of
 plaintiff church (which sought disclosure of those documents), and during IRS'
 determination of tax exempt status of organizations related to church;  Vaughn
 Indices and supporting affidavits established required nexus between withheld
 documents and IRS' inquiry, and that requested production would interfere with
 that process.  5 U.S.C.A. s 552(b)(7)(A);  26 U.S.C.A. s 7611.

 [9] RECORDS
 In evaluating claim under Freedom of Information Act (FOIA) Exemption 7(C),
 which allows for nondisclosure of documents compiled for law enforcement
 purposes where disclosure could reasonably be expected to constitute
 unwarranted invasion of personal privacy, court must balance privacy interests
 at stake against public interest in disclosure;  government agency bears burden
 of establishing privacy interest, and balance tilts in favor of disclosure.
 5 U.S.C.A. s 552(b)(7)(C).

 [9] RECORDS
 In evaluating claim under Freedom of Information Act (FOIA) Exemption 7(C),
 which allows for nondisclosure of documents compiled for law enforcement
 purposes where disclosure could reasonably be expected to constitute
 unwarranted invasion of personal privacy, court must balance privacy interests
 at stake against public interest in disclosure;  government agency bears burden
 of establishing privacy interest, and balance tilts in favor of disclosure.
 5 U.S.C.A. s 552(b)(7)(C).

 [10] RECORDS
 Internal Revenue Service (IRS) properly withheld documents pursuant to Freedom
 of Information Act (FOIA) Exemption 7(C), which allows for nondisclosure of
 documents compiled for law enforcement purposes where nondisclosure could
 reasonably be expected to constitute unwarranted invasion of personal property,
 despite plaintiff's claim that it had knowledge of identities of personnel that
 IRS sought to protect;  those individuals did not lose their privacy interest
 merely because their identities may be discovered through other means, and IRS
 disclosure litigation attorney testified that IRS did not assert Exemption 7(C)
 where document on its face suggested that plaintiff was aware of employee in
 context of referenced activity.  5 U.S.C.A. s 552(b)(7)(C).

 [11] RECORDS
 Fact that individual's identity may be discovered through other means does not
 mean that individual loses his privacy interest under Freedom of Information
 Act (FOIA) Exemption 7(C), which allows for nondisclosure of documents
 compiled for law enforcement purposes where disclosure could reasonably be
 expected to constitute unwarranted invasion of personal privacy.  5
 U.S.C.A. s 552(b)(7)(C).

 [12] RECORDS
 Internal Revenue Service (IRS) established that disclosure of requested
 documents could reasonably be expected to reveal identities of confidential
 information sources and, thus, IRS properly withheld documents from disclosure
 under Freedom of Information Act (FOIA);  IRS affidavit stated that withheld
 pages were obtained from third party, that information was received during IRS'
 investigation of possible harassment of IRS employees, that IRS employees
 involved in procurement of information indicated that disclosure of source's
 identity could put someone in jeopardy, and that release of information would
 identify cooperating foreign law enforcement agencies.  5 U.S.C.A. s
 552(b)(7)(D).

 [13] RECORDS
 Internal Revenue Service (IRS) properly withheld from disclosure to church
 under Freedom of Information Act (FOIA) two pages of IRS Law Enforcement
 Manual (LEM) concerning procedures for handling applications for tax exemption
 and examination of church entities, and agency memorandum discussing
 application of LEM techniques and procedures;  these documents were compiled
 for purposes of ongoing examination of church.  5 U.S.C.A. s 552(b)(2),
 (b)(7)(E).

 [14] RECORDS
 Freedom of Information Act (FOIA) Exemption 5, which allows nondisclosure of
 interagency or intra-agency memoranda or letters that would not be available by
 law to party other than agency in litigation with agency, includes those
 documents normally privileged in civil discovery context.  5 U.S.C.A. s
 552(b)(5).

 [15] RECORDS
 Freedom of Information Act (FOIA) Exemption 5, which allows nondisclosure of
 interagency or intra-agency memoranda or letters that would not be available by
 law to party other than agency in litigation with agency, encompasses
 governmental deliberative privilege, attorney-client privilege, and attorney
 work-product doctrine.  5 U.S.C.A. s 552(b)(5).

 [16] RECORDS
 Government met its burden of showing that requested documents contained
 material that fell within governmental deliberative privilege, and that
 documents were thus exempted from disclosure under Freedom of Information Act
 (FOIA);  Internal Revenue Service's (IRS) employee's declaration established
 that withheld documents were generated in five specified courses of action, and
 that only predecisional deliberative material was withheld, and, whenever
 possible, IRS identified related final decision in Vaughn Indices.  5
 U.S.C.A. s 552(b)(5).

 [17] RECORDS
 In reviewing claim that record falls within governmental deliberative
 privilege, and is thus exempt from disclosure under Freedom of Information Act
 (FOIA), courts in Ninth Circuit focus on function of document as part of
 deliberative process, rather than on contents of document.  5 U.S.C.A. s
 552(b)(5).

 [18] RECORDS
 Internal Revenue Service (IRS) presented sufficient evidence to justify its
 withholding records, based on attorney-client privilege and work product
 doctrine, from disclosure under Freedom of Information Act (FOIA);  IRS' Vaughn
 Indices and IRS' employee's declaration established that documents were
 attorney work product generated in preparation for litigation between
 plaintiff (who sought disclosure) and IRS in four specified matters.  5
 U.S.C.A. s 552(b)(5).

 [19] RECORDS
 For purposes of Freedom of Information Act (FOIA) Exemption 6, which permits
 agency to withhold information in personnel and medical files and similar
 files, disclosure of which would constitute clearly unwarranted invasion of
 personal privacy, all information that applies to particular individual meets
 threshold requirement of protection, regardless of class of file;  court must
 then determine whether release of information would constitute clearly
 unwarranted invasion of that person's privacy.  5 U.S.C.A. s 552(b)(6).

 [20] RECORDS
 Internal Revenue Service (IRS) had legal justification for withholding from
 disclosure under Freedom of Information Act (FOIA) information including
 employee handwriting and other identifying information of third parties and IRS
 employees;  Vaughn Indices and IRS' employee's declaration established that
 release of information contained therein would constitute invasion of personal
 privacy of referenced individuals, and that information included references to
 third parties' involvement in possible criminal conspiracy, third-party
 correspondence critical of plaintiff who sought disclosure, and personnel
 matters including performance evaluations and information about employees'
 personal lives.  5 U.S.C.A. s 552(b)(6).

 [21] RECORDS
 Internal Revenue Service (IRS) demonstrated that it reasonably segregated all
 information that was not exempt from disclosure under Freedom of Information
 Act (FOIA) from documents withheld in full;  IRS' Vaughn Indices and supporting
 declarations provided detailed descriptions of contents of withheld documents
 and specific pages affected by each exemption claim, and plaintiff did not
 challenge withholding of any specified document in full.  5 U.S.C.A. s
 552(b).

 [22] RECORDS
 Under Freedom of Information Act (FOIA), government agency bears burden to
 demonstrate that nonexempt portions of documents are not "reasonably
 segregable."  5 U.S.C.A. s 552(b).

 [23] RECORDS
 For purposes of Freedom of Information Act (FOIA) section providing that any
 reasonable segregable portion of record shall be provided to any person
 requesting such record after deletion of portions that are exempt, question of
 segregability is completely dependent on content of documents themselves.  5
 U.S.C.A. s 552(b).

 [24] RECORDS
 District courts need not and should not make in camera inspections of requested
 documents where government has sustained its burden of proof on claimed
 exemption under Freedom of Information Act (FOIA).
  *717 Kendrick L. Moxon, Bowles & Moxon, Hollywood, CA, for plaintiff.
  Terree A. Bowers, U.S. Atty., Mason Lewis, Asst. U.S. Atty., Chief, Tax Div.,
 Los Angeles, CA, Carol C. Priest, Trial Atty., Tax Div., U.S. Dept. of Justice,
 Washington, DC, for defendant.
                                      ORDER

  LEW, District Judge.
  The Internal Revenue Service, Defendant in the above-captioned action,
 has filed a motion for summary judgment.  Plaintiff Church of Scientology
 International has opposed the motion.  The matter was set for hearing on the
 Court's law and motion calendar, but was removed for disposition on the
 submitted papers pursuant to Federal Rule of Civil Procedure 78.
  Now, having carefully considered all the papers filed in support of and in
 opposition to the motion, the Court hereby issues the following order:
  Defendant's motion for summary judgment is GRANTED.
                                  I. BACKGROUND
  On September 16, 1990, Plaintiff Church of Scientology International ("CSI")
 made a Freedom of Information Act request, pursuant to 5 U.S.C. s 552,
 seeking access to records held by the Defendant Internal Revenue Service
 ("IRS").  In its initial search, the IRS found 692 documents responsive to
 Plaintiff's request and released 224 pages in full and 76 pages in part.  The
 IRS withheld 468 pages in full.
  On November 14, 1991, this Court ordered the IRS to produce a Vaughn Index of
 all withheld records describing the records and providing statutory
 justification for each *718 withholding.  The IRS filed its first Vaughn
 Index on January 15, 1992.  The IRS later determined that the initial searches
 were too restrictive.  Thereafter, the parties stipulated that the IRS would
 conduct a second search using additional search terms and extending the
 temporal scope of the search.  This stipulation was entered as a Court Order
 dated February 13, 1992.  On April 8, 1992, the Court denied the IRS's motion
 for relief from the stipulation.
  The IRS filed a partial Vaughn Index on March 13, 1992, and requested relief
 from the stipulation which this Court denied.  On July 27, 1992, this Court
 held the IRS in contempt of the February 13, 1992, Order, imposed sanctions,
 and ordered the IRS to comply with the terms of the stipulation by producing
 the Vaughn Index and non-exempt documents.
  On September 14, 1992, the IRS filed the results of its second search and the
 accompanying Vaughn Index.  An additional 11,988 pages were found to be
 responsive to the Plaintiff's request.  While the IRS released several boxes of
 documents in full, the Vaughn Indices describe thousands of pages of withheld
 documents.  These results are the subject of the current motion.
  The IRS now moves for summary judgment on the grounds that Plaintiff has
 received all IRS documents which it is entitled to receive under law, and no
 documents have been improperly withheld from Plaintiff by the IRS.  Plaintiff
 asserts that the IRS has failed to support its exemption claims and has
 unjustifiably refused to release "tax return information" of third parties
 which have submitted waivers permitting such release.  Plaintiff requests that
 the Court allow for in camera inspection of certain records and adjudication of
 the remaining individual documents.
                                 II. DISCUSSION
  A. Standard on Summary Judgment
  [1] In order to prevail in a Freedom of Information Act ("FOIA") suit,
 a defendant agency must prove that "each document that falls within the class
 requested either has been produced, is unidentifiable, or is wholly exempt from
 the Act's inspection requirements."  Zemansky v. Environmental Protection
 Agency, 767 F.2d 569, 571 (9th Cir.1985).  The agency must also prove that its
 search satisfied its duty to conduct a "reasonable" search for responsive
 records.  Id.
  [2][3] The adequacy of the IRS search is not at issue here.  Rather, the
 parties dispute the question of whether the IRS has established as a matter of
 law that all withheld documents are exempt from the FOIA inspection
 requirements.  Where responsive records are withheld, the agency bears the
 burden of justifying its withholdings, and the district court must review the
 agency's exemption claims de novo.  5 U.S.C. s 552(a)(4)(B).  The agency's
 burden may be sustained by submitting affidavits which provide a detailed
 analysis of the requested documents and the reasons for invoking the
 exemption.  Johnson v. U.S. Dept. of Justice, 739 F.2d 1514, 1516.  Summary
 judgment may be granted solely on the basis of these agency affidavits if they
 are clear, specific, and reasonably detailed, and describe the withheld
 information in a factual and nonconclusory manner.  DiViaio v. Kelley, 571
 F.2d 538, 543 (10th Cir.1978).
  B. Defendant's "Categorical Approach"
  As a preliminary matter, this Court must address the process of adjudicating
 the more than 12,000 pages of documents at issue in this case.  Plaintiff has
 challenged the IRS's approach as a "categorical adjudication" of withheld
 documents.  Such a volume of documents demands a manageable approach to
 exemption description and justification.  This Court condones the IRS's
 approach which has allowed for efficient arguments of law while providing
 sufficiently detailed information in the Vaughn Indices [FN1] and in the
 supporting factual bases provided by declarations.  The IRS's briefs may
 categorize the documents by legal claims to exemption, but *719 each
 undisclosed document has been catalogued on a page-by-page basis in a
 methodical and exhaustive manner in the twenty-seven volume, 2,683-page Vaughn
 Indices.

      FN1. On January 13, 1992, the IRS filed its original Vaughn Index.  A
     Supplemental Vaughn Index was filed on March 12, 1992.  An additional
     Supplemental Vaughn Index was filed on August 31, 1992.  A revised Vaughn
     Index was filed on September 23, 1992.  All references herein to the
     submitted Vaughn Indices rely on these documents as a whole.

  C. Defendant's Exemption 3 Claims Pursuant to 26 U.S.C. s 6103(a)
  Under 5 U.S.C. s 552(b)(3), an agency may withhold documents where they are
 specifically exempted from disclosure by statute.  Defendant IRS claims
 Exemption 3 in conjunction with 26 U.S.C. s 6103(a), an IRS code provision
 governing tax return information for third-parties.  Section 6103(a)
 mandates that tax return information be held confidential subject to a number
 of strictly construed exemptions.  Church of Scientology v. I.R.S., 484 U.S.
 9, 10, 108 S.Ct. 271, 271, 98 L.Ed.2d 228 (1987).
  Plaintiff does not contest the withholding of tax return information for
 specified third parties.  However, CSI asserts that this exemption would not
 apply to six entities who have submitted tax return information release
 authorizations to the IRS permitting Plaintiff access to such records.
  [4] 1. Third party tax return information release authorizations:  The
 parties dispute whether any tax return information release authorizations have
 been submitted in this case in compliance with the stipulation provision.  The
 IRS argues that no such waivers were filed on or before February 24, 1992, as
 required by the stipulation.  CSI asserts that it submitted waivers to the IRS
 on behalf of six entities by letter dated February 21, 1993 [sic].
  The February 11, 1992, Stipulation and Order at paragraph two states:  "The
 Church, no later than February 24, 1992, will provide the IRS with various
 third party tax return information authorizations.  Upon completion of the new
 search, the IRS will newly process all of the records now in issue and will not
 assert any Exemption 3 tax return information claims pursuant to s 6103(a)
 with respect to the individuals and/or entities for which such authorizations
 have been furnished."  Plaintiff has submitted a copy of a letter dated
 February 21, 1992, from CSI attorney Kendrick L. Moxon to Department of Justice
 attorney, Michael J. Martineau, which represents the enclosure of executed
 third party tax return information release authorizations for the following
 Church entities:  Church of Spiritual Technology, Religious Technology Center,
 Church of Scientology of California, Celebrity Centre International,
 International Hubbard Ecclesiastical League of Pastors and Scientology Missions
 International.  CSI submitted these waivers in a separate case being handled by
 Mr. Martineau, Church of Scientology Int'l v. I.R.S., CV 91-0431 CBM
 (C.D.Cal.).
  This Court finds that the third party tax return information release
 authorizations submitted to Mr. Martineau on February 21, 1992, do not satisfy
 the terms of paragraph two of the stipulation.  This provision does not
 expressly require that the authorizations be submitted to the I.R.S. with
 specific reference to this particular FOIA action.  However, any other
 interpretation would place an unmanageable burden on the I.R.S. and on the
 courts.  There are currently twelve pending FOIA cases that involve requests
 for several tens of thousands of records.  The interpretation urged by
 Plaintiff would extend the scope of these cases to an unprecedented degree.
 [FN2]

      FN2. Plaintiff asserts that this Court found that Plaintiff had submitted
     the authorizations at issue in its ruling on Defendant's Motion for Relief
     from Stipulation.  See Order, April 9, 1992.  The Court rejects this
     characterization of its prior Order.  In a footnote in the April 9 Order,
     the Court recognized the existence of a question of fact regarding whether
     authorizations had been filed in compliance with the stipulation.  Id.
     at 4 n. 2.  The Court merely found Plaintiff's evidence sufficient to
     preclude a finding that the disputed provision was moot.  This Court did
     not decide the issue of whether the submitted authorizations satisfied the
     requirements of the stipulation.

  For these reasons, this Court finds that Plaintiff has failed to present
 evidence that waivers from third parties were received from Plaintiff in this
 case on or before February 24, 1992.  The Government's Vaughn Indices and
 supporting declarations establish that these documents contain confidential
 third party tax information.  This Court finds that the I.R.S. has properly
 withheld these documents pursuant to Exemption 3 in conjunction with
 s 6103(a).
  *720 2. Plaintiff's request for sanctions:  Plaintiff has requested that
 the Court sanction the IRS for refusal to comply with the February 11, 1992,
 Stipulation and Order.  Based on the above-ruling, the IRS's assertion of
 Exemption 3 to withhold these documents does not constitute failure to comply
 with the Court's Order.  Plaintiff's request for sanctions is denied.
  D. Defendant's Exemption 3 Claims Pursuant to 26 U.S.C. s 6103(e)(7)
  [5] The IRS has withheld several documents as exempt under the
 provisions of 26 U.S.C. s 6103(e)(7).  Section 6103(e)(7) exempts
 documents when their disclosure would "seriously impair federal tax
 administration."  The district court's review of an IRS determination of
 impairment is de novo.  Long v. I.R.S., 742 F.2d 1173, 1183 (9th Cir.1984).
 The court must satisfy itself, on the basis of detailed and nonconclusory
 affidavits, that the IRS is correct in finding that disclosure would impair the
 collection, assessment, or enforcement of the tax laws.  Id.
  [6] Defendant IRS offers four affidavits in support of withholding documents
 based on Exemption 3 in conjunction with 26 U.S.C. s 6103(e)(7). [FN3]  Each
 of these declarants provides detailed and nonconclusory statements in support
 of their findings that release of the documents withheld pursuant to
 s 6103(e)(7) would impair federal tax administration.  This Court rejects
 Plaintiff's conclusory statement that the IRS assertions of impairment consist
 only of generalities and opinions.  The Court does not find that the
 declarations contradict the Vaughn Indices.  Furthermore, the Court does not
 find reason to question the integrity of the Defendant's sworn testimony based
 only on the alleged "history of IRS discrimination" against CSI. [FN4]

      FN3. The Court here relies on the second declaration of Thomas J. Miller,
     the first and second declaration of Steven D. Harris, and the declaration
     of Paul Austin.

      FN4. Plaintiff makes no attempt to impeach specific statements in the
     affidavits of the four declarants offered in support of Defendant's motion
     in this particular case.  Plaintiff's generalized attack on "declarations
     of IRS officials" is unpersuasive.

  With regard to the documents withheld pursuant to tax treaty secrecy clauses,
 this Court finds that this is an instance where deference is especially
 appropriate.  See Long, 742 F.2d at 1182 (according special deference to
 agency's detailed affidavits in sensitive areas such as national security
 cases).  Declarant Paul Austin, the Internal Revenue Commissioner's delegate,
 is likely to have unique insights into the concerns regarding the cooperation
 of foreign governments and tax treaty partners.  Based on Mr. Austin's detailed
 affidavit, this Court finds that these documents are properly withheld under
 Exemption 3 in conjunction with s 6103(e)(7).
  In sum, Defendant has presented evidence that documents withheld pursuant to
 Exemption 3 in conjunction with s 6103(e)(7) are totally exempt from
 disclosure.  Plaintiff has not pointed to any specific facts that create a
 triable issue regarding the withholding of these documents.  Therefore,
 Defendant has met its burden to establish that disclosure of these documents
 would seriously impair federal tax administration.
  E. Defendant's Exemption 7(A) Claims
  The IRS has withheld certain documents or portions thereof pursuant to
 Exemption 7(A).  The IRS asserts that these documents are records compiled in
 connection with the investigation of Plaintiff CSI and related entities under
 the Church Audit Procedures Act (CAPA), 26 U.S.C. s 7611, and for
 determinations of the tax exempt status of various Scientology organizations.
  Exemption 7(A) allows for nondisclosure of records or information compiled for
 law enforcement purposes where disclosure could reasonably be expected to
 interfere with enforcement proceedings.  5 U.S.C. s 552(b)(7)(A).  In order
 to sustain its burden of proof under Exemption 7(A), the IRS must establish
 that it is a law enforcement agency, that the withheld documents were
 investigatory records compiled for law enforcement purposes, and that
 disclosure of those documents would interfere with pending *721 enforcement
 proceedings.  Lewis v. I.R.S., 823 F.2d 375, 379 (9th Cir.1987).
  [7] 1. Documents compiled for CAPA investigation:  Plaintiff does not
 dispute that 26 U.S.C. s 7611 proceedings constitute a law enforcement
 proceeding as that term is used in the FOIA, nor does Plaintiff dispute that
 the IRS has the requisite law enforcement mandate.  However, Plaintiff argues
 that the "law enforcement purpose" started on April 28, 1989, when IRS made its
 first document request for the s 7611 examination, and all documents created
 prior to that date would fall outside such purpose.
  This Court rejects Plaintiff's premise.  Documentation of work done by the
 agency in preparation for the s 7611 examination would also constitute
 investigatory records compiled for law enforcement purposes.  See 26
 U.S.C. s 7611 (IRS must have "reasonable belief" that entity is not tax exempt
 before formally beginning church tax inquiry).
  This Court finds that the Vaughn Indices and supporting affidavits establish a
 rational nexus between the IRS s 7611 examination of Plaintiff and related
 third party entities and the documents for which Exemption 7(A) is claimed.
 The affidavits also adequately reveal that release of these documents is likely
 to interfere with the IRS's ability to perform the s 7611 examination.
 Plaintiff points to no specific facts that dispute the Defendant's evidence.
  [8] 2. Documents compiled for determination of tax exempt status:  In light
 of the recent Ninth Circuit ruling in Church of Scientology Int'l v. I.R.S.,
 995 F.2d 916, 919 (9th Cir.1993), that IRS determinations of tax exempt status
 constitute law enforcement purposes under Exemption 7(A).  This Court finds
 that the Vaughn Indices and supporting affidavits provide the required nexus
 between the withheld documents and the agency's inquiry regarding the tax
 exempt status of various Scientology organizations.  The IRS has also
 established that production would interfere with that process.
  In sum, Defendant has met its burden to prove the withheld documents are
 totally exempt under Exemption 7(A) as documents compiled during the on-going
 CAPA investigation of Plaintiff CSI and the agency's determination of the tax
 exempt status of related organizations. [FN5]

      FN5. Plaintiff points to Vaughn index page 2553 as an improper withholding
     because the IRS does not put forth a law enforcement purpose.  However, the
     IRS did not assert Exemption 7(A) to justify withholding pages 12271-
     12275.  Rather, it relied on Exemption 7(C) and Exemption 5.

  F. Defendant's Exemption 7(C) Claims
  The IRS has withheld documents pursuant to provisions of exemption 7(C).  The
 Government has asserted Exemption 7(C) to withhold two types of documents:  (1)
 those containing the names, addresses, or other identifying information of IRS
 contacts or government employees, and (2) those revealing the handwriting of
 IRS personnel or third parties.  The Government asserts that disclosure of IRS
 employees' handwriting and the identities of IRS employees could conceivably
 subject them to harassment and annoyance in their private lives and in the
 performance of their official duties.
  [9][10][11] Exemption 7(C) allows for nondisclosure of documents compiled
 for law enforcement purposes where disclosure could reasonably be expected to
 constitute an unwarranted invasion of personal privacy.  5 U.S.C. s
 552(b)(7)(C).  In evaluating an Exemption 7(C) claim, the Court must balance
 the privacy interests at stake against the public interest in disclosure.  The
 government agency bears the burden of establishing a privacy interest, and the
 balance tilts in favor of disclosure.  Congressional News Syndicate v.
 Department of Justice, 438 F.Supp. 538, 542 (D.C.Cir.1977).
  The parties do not dispute that the withheld documents were compiled for
 law enforcement purposes.  Nor does Plaintiff argue that a countervailing
 public interest outweighs the asserted privacy concern.  Rather, Plaintiff
 challenges the Defendant's showing of a privacy interest on two grounds.
 First, Plaintiff has knowledge of the identities of personnel the IRS seeks to
 protect.  An individual does not lose his privacy interest under 7(C) because
 his identity may be *722 discovered through other means.  See L & C
 Marine Transport, Ltd. v. United States, 740 F.2d 919, 922 (11th
 Cir.1984) (noting that even where names of agency employee witnesses are known
 disclosure would tie witness to particular statements and reveal nature of each
 employee witness' comments).  In addition, Steven D. Harris, an IRS disclosure
 litigation attorney, has testified that the IRS did not assert Exemption 7(C)
 where the document on its face suggested that Plaintiff was aware of the
 employee in the context of the referenced activity.  For these reasons, this
 Court finds that Plaintiff's assertion of prior knowledge cannot rebut the
 Government's showing of a privacy interest under 7(C).
  Second, Plaintiff asserts that the IRS has withheld handwritten information
 that is otherwise non-exempt.  CSI argues that this basis to withhold documents
 is moot because Plaintiff will bear the costs of re-typing any documents
 withheld solely on the basis of handwritten contents.  Plaintiff has not
 pointed to any facts in the record sufficient to establish that the IRS has
 withheld documents solely to prevent disclosure of handwriting where the
 substance of the information is not exempt.  The fact that the IRS has
 willingly re-typed handwritten text in hundreds of documents for release in
 this case allows for the inference that the agency has not withheld non-exempt
 information solely on the basis of its handwritten format.  Finally, this
 Court's review of the Vaughn Indices reveals that most handwriting has been
 withheld through redaction.
  For these reasons, this Court finds that Plaintiff has not raised a triable
 issue regarding the privacy interests asserted by the IRS to establish its
 Exemption 7(C) claims.
  G. Defendant's Exemption 7(D) Claims
  [12] The IRS has withheld documents pursuant to Exemption 7(D).  The
 Government asserts that disclosure of these documents would reveal sources who
 were given implied promises of confidentiality by the IRS.
  Exemption 7(D) allows for nondisclosure of documents compiled for law
 enforcement purposes which could reasonably be expected to reveal the
 identities of confidential sources.  5 U.S.C. s 552(b)(7)(D).  "Where
 implied promises of confidentiality are at issue, the index must state the
 circumstances surrounding the receipt of information which led the [agency] to
 conclude the informant would not have given the information without an implicit
 assurance of confidentiality."  Wiener v. F.B.I., 943 F.2d 972, 986-87 (9th
 Cir.), reh'g denied, 951 F.2d 1073 (9th Cir.1991), and cert. denied, 505
 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992). [FN6]

      FN6. The Supreme Court has recently adopted a test embodying the approach
     taken by the Ninth Circuit in Wiener.  See Department of Justice v.
     Landano, --- U.S. ----, ----, 113 S.Ct. 2014, 2023, 124 L.Ed.2d 84
     (1993) (requiring government agency to establish narrowly defined
     circumstances that allow for inference of implied confidentiality).

  Plaintiff asserts that the IRS has failed to establish an implicit
 assurance of confidentiality.  However, Defendant has submitted a detailed
 affidavit which supports such a finding.  Steven D. Harris has testified to the
 following material facts:  (1) the withheld pages were obtained from a third
 party;  (2) the information was received during the IRS's investigation of
 possible harassment of Service employees;  (3) the IRS employees involved in
 the procurement of the information have indicated that disclosure of the
 source's identity could put someone in jeopardy;  and (4) release of the
 information would identify cooperating foreign law enforcement agencies.
  Plaintiff points to no facts in the record which controvert this evidence.
 For these reasons, the Court finds that the IRS has met its burden to establish
 that disclosure could reasonably be expected to reveal the identities of
 confidential information sources.
  H. Defendant's Exemption 7(E) and Exemption 2 Claims
  [13] The IRS has withheld two pages from the IRS Law Enforcement Manual
 ("LEM") and an internal agency memorandum pursuant to both Exemptions 7(E) and
 Exemption 2.  Exemption 7(E) allows for nondisclosure of records or information
 compiled *723 for law enforcement purposes when production would disclose
 techniques and procedures for law enforcement investigations or prosecutions or
 would disclose guidelines for law enforcement investigations or prosecutions if
 such disclosure could reasonably be expected to risk circumvention of the
 law.  5 U.S.C. s 552(b)(7)(E).
  The Vaughn Indices and the Harris declarations establish that the LEM pages
 withheld concern procedures for handling applications for tax exemption and
 examinations of Scientology entities.  The agency memorandum discusses
 application of the LEM techniques and procedures.  These documents were
 compiled for the purposes of the ongoing examination of CSI for tax years 1981
 through 1987 pursuant to CAPA, 26 U.S.C. s 7611.  Plaintiff has not pointed
 to any facts to controvert Defendant's showing.
  Exemption 2 exempts from disclosure records related solely to the internal
 personnel rules and practices of an agency.  5 U.S.C. s 552(b)(2).  Based on
 the Vaughn Indices and the Harris declaration, these documents contain
 information about internal law enforcement techniques, practices, and
 procedures used by the IRS to coordinate the flow of information regarding
 Scientology.  Plaintiff has not controverted this evidence.  In sum, this Court
 finds as a matter of law that these documents were properly withheld pursuant
 to Exemption 7(E) and Exemption 2.
  I. Defendant's Exemption 5 Claims
  The IRS has withheld documents pursuant to Exemption 5 on two grounds:  (1)
 these documents contain material that falls within the governmental
 deliberative privilege, and (2) these documents contain material that falls
 within the attorney-client privilege.
  [14][15] Exemption 5 allows nondisclosure of inter-agency or intra-agency
 memoranda 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. s 552(b)(5).  This
 exemption includes those documents normally privileged in the civil discovery
 context.  N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct.
 1504, 1515, 44 L.Ed.2d 29 (1975).  Exemption 5 encompasses the governmental
 deliberative privilege, the attorney-client privilege, and the attorney work
 product doctrine.  Id. at 150-55, 95 S.Ct. at 1516-18.
  [16][17] 1. Deliberative process privilege:  The IRS asserts Exemption
 5 to withhold documents that reflect the agency's deliberative process.  The
 Ninth Circuit test focuses on the function of a document as part of the
 deliberative process rather than on the contents of the document.  National
 Wildlife Fed'n v. United States Forest Service, 861 F.2d 1114, 1118-19 (9th
 Cir.1988).  The deliberative process privilege has been held to cover all
 "recommendations, draft documents, proposals, suggestions, and other subjective
 documents which reflect the personal opinions of the writer rather than the
 policy of the agency," as well as documents which would "inaccurately reflect
 or prematurely disclose the views of the agency."  Id. at 1118.
  Defendant submits the declaration of Steven D. Harris who provides the
 agency's factual bases and justifications for withholding information pursuant
 to Exemption 5.  The Harris declaration establishes that the withheld documents
 were generated in five specified courses of action.  This affidavit also
 establishes that only pre-decisional deliberative material was withheld.
 Whenever possible, the IRS has identified the related final decision in the
 Vaughn Indices.  Based on this evidence in conjunction with the submitted
 Vaughn Indices, this Court finds that the Government has met its burden of
 establishing the existence of a genuine deliberative process.
  Plaintiff has challenged the Government's assertion of the deliberative
 process privilege because the Vaughn Indices describe only vague, general
 decisions in relation to the withheld documents.  However, this Court's review
 of the examples from the Vaughn Indices that Plaintiff specifically disputes
 shows that the IRS's description of the nature and purpose of the withheld
 documents establish that they fall within the deliberative process category
 described in National Wildlife Fed'n, 861 F.2d at 1118.  Therefore, this
 Court finds that Plaintiff has not raised a triable issue regarding the IRS
 withholdings *724 pursuant to the deliberative process privilege.
  [18] 2. Attorney-client privilege and work product doctrine:  The IRS
 asserts Exemption 5 to withhold documents based on attorney-client privilege
 and the work product doctrine.  The Vaughn Indices and the Harris declaration
 establish that these documents concern confidential communications of legal
 advice given by IRS and Department of Justice attorneys to IRS administrative
 personnel.
  Plaintiff has not challenged the agency's assertion of attorney-client
 privilege in these instances.  However, Plaintiff asserts that the IRS has not
 established that documents withheld under the work product doctrine were
 prepared in contemplation of litigation.  Defendant's Vaughn Indices and the
 Harris declaration establish that these documents are attorney work product
 generated in preparation for litigation between Plaintiff and the IRS in four
 specified matters.  The descriptions of the documents at issue provided by the
 index in conjunction with the specified ongoing litigation and enforcement
 matters between the IRS and Plaintiff provide more than a bare assertion of the
 privilege.  See Senate of Puerto Rico v. Department of Justice, 823 F.2d
 574, 586 (D.C.Cir.1987) (rejecting agency's affidavit as bare assertion where
 declaration state only that withheld documents "were prepared by [agency]
 attorneys in anticipation of litigation").  The informality or settlement
 posture of these actions does not raise questions as to the accuracy of the
 IRS's assertion of the work product doctrine.  For these reasons, this Court
 finds that the IRS has submitted uncontroverted evidence of the privileged
 nature of these documents that supports its Exemption 5 claim.
  J. Defendant's Exemption 6 Claims
  The IRS has asserted Exemption 6 as the legal justification for
 withholding information including employee handwriting and other identifying
 information of third parties and IRS employees.  Exemption 6 permits an agency
 to withhold information in "personnel and medical files and similar files
 disclosure of which would constitute a clearly unwarranted invasion of personal
 privacy."  5 U.S.C. s 552(b)(6).  As a threshold matter, the IRS must
 establish that the material is contained in personnel, medical, or similar
 files.  Department of State v. Washington Post Co., 456 U.S. 595, 601-02,
 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982).  Second, the IRS must show that
 disclosure of the withheld information would violate a viable privacy interest
 of the individual who is the subject of the information.  See Schell v.
 Department of Health & Human Serv., 843 F.2d 933, 937-38 (6th Cir.1988).
  [19] Plaintiff argues that the IRS has not established that the documents at
 issue constitute "personnel, medical, or similar files."  However, the Supreme
 Court has adopted a broad view of Exemption 6.  Washington Post Co., 456
 U.S. at 602, 102 S.Ct. at 1961.  All information that applies to a particular
 individual meets the threshold requirement of Exemption 6 protection regardless
 of the class of file.  Id.  When disclosure of information which applies to
 a particular individual is sought from Government records, courts must
 determine whether release of the information would constitute a clearly
 unwarranted invasion of that person's privacy.  Id.
  [20] The Vaughn Indices and the Harris declaration establish that the
 information withheld meets this standard.  Furthermore, the descriptions
 therein establish that release of these documents would constitute an invasion
 of the personal privacy of the referenced individual.  The information includes
 references to the third parties' involvement in possible criminal conspiracy;
 third-party correspondence critical of Scientology;  personnel matters
 including performance evaluations and information about employees' personal
 lives;  and names, addresses, phone numbers, and other indirect identifiers of
 IRS employees.
  Plaintiff has also challenged the agency's Exemption 6 withholdings on the
 same grounds asserted against the Exemption 7(C) claims.  Plaintiff's mootness
 argument against the IRS's Exemption 6 claims is rejected here for the reasons
 discussed above.
  In sum, the IRS has established that the documents withheld under Exemption 6
 contain *725 information about particular individuals and its release would
 constitute an unwarranted invasion of their personal privacy.  Plaintiff has
 not pointed to any facts that controvert the IRS's showing or raise a triable
 issue regarding the public interest value of these documents.
  K. Segregation of Non-Exempt Information
  [21] Pursuant to the above-discussed exemptions, the IRS has withheld some
 documents in full asserting that the documents cannot be segregated for partial
 release.  Plaintiff argues that the IRS has failed to demonstrate that it has
 reasonably segregated all non-exempt information from the documents withheld in
 full.
  [22] The FOIA provides that "[a]ny reasonably segregable portion of a
 record shall be provided to any person requesting such record after deletion of
 the portions which are exempt under this subsection."  5 U.S.C. s 552(b).
 The IRS bears the burden to demonstrate that the nonexempt portions of the
 documents are not "reasonably segregable."  Williamette Indus., Inc. v.
 United States, 689 F.2d 865, 868 (9th Cir.1982), cert. denied, 460 U.S.
 1052, 103 S.Ct. 1500, 75 L.Ed.2d 931 (1983).  The question of segregability is
 completely dependent on the content of the documents themselves.  Mead Data
 Cent., Inc. v. Department of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977).
  [23] This Court finds that Defendant's Vaughn Indices and supporting
 declarations provide detailed descriptions of the contents of withheld
 documents and the specific pages affected by each exemption claim.  This
 showing may be sufficient to allow the Court to determine the segregability of
 non-exempt information in any particular document.  However, Plaintiff does not
 challenge the withholding of any specified document in full.  As such, it is
 impossible for this Court to evaluate the Defendant's showing of non-
 segregability.  For these reasons, this Court finds that Plaintiff has not
 raised a triable issue of segregability.
  L. Plaintiff's request for in camera inspection:
  [24] Plaintiff has requested in camera review of documents withheld pursuant
 to Exemption 5, Exemption 7(A), and Exemption 3 in conjunction with 26
 U.S.C. s 6103(e)(7).  District courts need not and should not make in camera
 inspections where the government has sustained its burden of proof on the
 claimed exemption.  Lewis v. I.R.S., 823 F.2d 375, 378 (9th Cir.1987).  For
 the reasons discussed above, the IRS has met its burden to prove that the
 withheld documents are totally exempt.  Therefore, this Court has an adequate
 factual basis to make its determination and need not examine the disputed
 documents in order to determine their exempt status.
  IT IS SO ORDERED.

End of file...