UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
July 30, 1980
Walter C. CLIFF, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant
The opinion of the court was delivered by: CARTER
Plaintiff Walter C. Cliff brought this action pursuant to the Freedom of Information Act ("Act" or "FOIA"), 5 U.S.C. § 552, to compel the Internal Revenue Service ("IRS") to disclose certain documents. On May 11, 1979, Cliff, a tax attorney, requested that the IRS release those documents for his use in advising a client. The IRS withheld various documents, claiming they were exempt from FOIA disclosure. 5 U.S.C. § 552(b). On March 11, 1980, after exhausting all administrative appeals, Cliff commenced this action under paragraph (a)(4)(B) of the Act, 5 U.S.C. § 552(a)(4)(B).
The parties have resolved their disputes over the disclosability of all but nine documents or portions thereof, each of which is responsive to Cliff's FOIA request for "(a)ll documents (including but not limited to all written communications as well as memoranda of meetings or telephone conversations) dated or prepared between 1960 and the present containing background material . . . relating to the application of Rev.Proc. 65-17 ...." Each party now moves for summary judgment as to these documents.
For the reasons given below, I find that these documents are exempt from FOIA disclosure, and grant the IRS's motion for summary judgment.
The documents in question have been identified and described in detail in an affidavit of Ewan D. Purkiss, an attorney in the Disclosure Litigation Division of the IRS Office of Chief Counsel ("Purkiss Affidavit"). They are referred to in the affidavit and by the parties as documents "b" through "j," and will be so denominated here. For the purposes of the instant motions, the nine documents may be divided into three groups: documents d and e relate to the tax situations of specific taxpayers; document j is an IRS General Counsel Memorandum ("GCM"); and the remaining documents (b-c, f-i) are memoranda written by various IRS and Treasury Department personnel pertaining to the subject of Cliff's request. Each group is discussed separately in Part II below.
The Act is "broadly conceived," EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119 (1973), "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965); N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S. Ct. 1504, 1509, 44 L. Ed. 2d 29 (1975); EPA v. Mink, supra, 410 U.S. at 80 n.6, 93 S. Ct. at 832. Specifically, all agency records not otherwise required to be published or available for public inspection must be made available on demand to any member of the public
who reasonably describes the records sought, 5 U.S.C. § 552(a)(3);
see NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 137, 95 S. Ct. at 1510, unless they fall into one or more of nine specific and exclusive categories of records exempted from disclosure. 5 U.S.C. § 552(b), (c); EPA v. Mink, supra, 410 U.S. at 79, 93 S. Ct. at 832.
There is no dispute that the documents Cliff seeks are covered by the comprehensive disclosure requirements of the Act. The issues in this case relate solely to the applicability to the disputed records of the exceptions to the general rule of disclosure. The IRS claims that documents d and e are covered by exemption 3, 5 U.S.C. § 552(b)(3),
and that the remaining seven documents fall under exemption 5, 5 U.S.C. § 552(b)(5).
Cliff argues that the exemptions do not apply to these documents; alternatively, as to the third group of documents (b-c, f-i), he claims that the IRS has not provided sufficient information to determine whether exemption 5 applies, and seeks additional discovery.
Documents d and e
Documents d and e are memoranda prepared by IRS staff discussing the effects of various IRS Revenue Procedures on the potential or actual tax liability of several specific taxpayers.
The IRS contends that these documents constitute "return information" under the Internal Revenue Code ("I.R.C."), which forbids the disclosure of such information, and that FOIA exemption 3 therefore permits the IRS to withhold them.
Exemption 3, 5 U.S.C. § 552(b)(3), provides that the Act's disclosure requirements do not apply to material specifically exempted from disclosure by another statute, provided the statute meets certain criteria.
The statute relied upon by the IRS here, I.R.C. § 6103, 26 U.S.C. § 6103, is such a statute. Breuhaus v. IRS, 609 F.2d 80, 82 (2d Cir. 1979); Chamberlain v. Kurtz, 589 F.2d 827, 838-39 n.33 (5th Cir.), cert. denied, 444 U.S. 842, 100 S. Ct. 82, 62 L. Ed. 2d 54 (1979); Moody v. IRS, 80-1 U.S.T.C. P 9254 at 83,494 (D.D.C.1980). Therefore, if section 6103 exempts documents d and e from disclosure under the Internal Revenue Code as the IRS contends, then FOIA exemption 3 does the same under the Act.
Section 6103 prohibits disclosure of "returns" and "return information" to third parties such as Cliff. 26 U.S.C. § 6103(a); Fruehauf Corp. v. IRS, 566 F.2d 574, 578 n.6 (6th Cir. 1977); Moody v. IRS, supra, 80-1 U.S.T.C. at 83,495; see also Chamberlain v. Kurtz, supra, 589 F.2d at 838-39 n.33. "Return information" is defined as
(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense . . . .
but such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.
26 U.S.C. § 6103(b)(2). It is clear from the descriptions of documents d and e in the Purkiss Affidavit
that both are documents "prepared by, furnished to, or collected by the Secretary with respect to . . . the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax," and thus are covered by the statute.
See Breuhaus v. IRS, supra, 609 F.2d at 83.
Cliff contends, however, that even if documents d and e are return information, the IRS should be required to delete any material from them that identifies the taxpayers involved and release them in this sanitized form. He relies for this argument upon the Act's requirement that "(a)ny reasonably segregable portion of a record shall be (released) . . . after deletion of the portions which are exempt," 5 U.S.C. § 552(b), and the proviso in the definition of return information, the so-called Haskell amendment, Long v. IRS, 596 F.2d 362, 365 (9th Cir. 1979), cert. denied, 446 U.S. 917, 100 S. Ct. 1851, 64 L. Ed. 2d 271 (1980), that excludes "data in a form which cannot be associated with, or otherwise identify . . . a particular taxpayer." 26 U.S.C. § 6103(b)(2), supra. The IRS contends that documents d and e consist solely of return information, so that there are no non-exempt portions to segregate, and that the Haskell amendment does not apply.
As indicated above, these two documents fit squarely within the statutory definition of return information, and thus are exempt in their entirety; the IRS is correct in its assertion that they contain no segregable portions under the Act. See Zale Corp. v. IRS, 481 F. Supp. 486, 489 (D.D.C.1979). The Haskell amendment argument presents greater difficulty, as research reveals no case that has decided the precise question presented here of whether the IRS must delete material that may identify taxpayers from records otherwise exempt as return information.
Cliff cites three cases involving material exempt from disclosure under FOIA exemption 3 and I.R.C. § 6103 in which the IRS was required to delete certain exempt material from documents and release the remainder. Those decisions, however, are not dispositive of the issue raised here. In Long v. IRS, supra, 596 F.2d 362, the court held that the Haskell amendment applied to a series of IRS statistical studies
based on return information and that the IRS was required to disclose the studies and underlying source material with identifying data deleted, provided the district court determined on remand that such release did not "entail a significant risk of indirect identification." Id. at 367. See also Common Cause v. IRS, 80-1 U.S.T.C. P 9208 at 83,325 (D.D.C.1979). The question of whether the same obligation would arise in a case involving return information related to an individual taxpayer's situation, rather than that generated in the production of statistical data, was not raised in Long.
Conway v. IRS, 447 F. Supp. 1128 (D.D.C.1978), considered the question of whether the IRS could withhold documents in their entirety because they contained some material exempt under I.R.C. § 6103. Without explicitly ruling on the applicability of the Haskell amendment,
the court held that section 6103 "prohibits disclosure of return information, not all documents that may contain some such information," id. at 1133, and required the IRS to release the portions of the records in question that were not return information. Nothing in Conway supports the position that return information itself must be released after the excision of material identifying individual taxpayers.
Finally, in Taxation With Representation Fund v. IRS, 485 F. Supp. 263 (D.D.C.1980), the court initially ruled that certain records as to which the IRS claimed FOIA exemption 5 applied were not exempt from disclosure, and ordered them released. Thereafter, apparently on a motion for reargument, this holding was amplified to state that the IRS was not required to release those portions of the documents in question that were exempt from disclosure under FOIA exemption 3 and I.R.C. § 6103. Taxation With Representation Fund v. IRS, 485 F. Supp. 263 (D.D.C.1980). As in Conway, only segments of documents that clearly contained no exempt material were ordered released; no question of an IRS duty to sanitize and release return information was involved.
The IRS contends that the Haskell amendment speaks only to data compilations and statistical surveys, such as those involved in Long, rather than information related to particular taxpayers. This view finds support in the scanty legislative history of the amendment: its author explained during the Senate's consideration of the provision that its purpose was "to insure that statistical studies and other compilations of data . . . will continue to the subject to disclosure . . . ." 122 Cong.Rec. 24012 (1976).
The IRS's interpretation is also more consistent with the language of the statute than is Cliff's: the use of the narrow term "data" in the amendment, rather than a broader one such as "records" or "material," when read with the legislative history, is somewhat persuasive; and it is difficult to understand why Congress would have forbidden disclosure of all of the many components of return information, 26 U.S.C. § 6103(b)(2)(A), supra, if the simple elimination of the taxpayer's identity would allow such information to be released.
These latter arguments carry the day for the government. Statutory interpretation must begin with analysis of the language adopted by Congress, Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479, 2485, 61 L. Ed. 2d 82 (1979), and the language here suggests both that the Haskell amendment was intended to reach only statistical studies and that Congress did not intend the IRS to have to delete taxpayer identifications from pure return information relating to individual taxpayers. To give the Haskell amendment the interpretation Cliff urges would nullify much of the effect of section 6103 as it relates to return information, the clear purpose of which was to prohibit dissemination of all the types of such information listed in section 6103(b)(2) (A), supra. See Zale Corp. v. IRS, supra, 481 F. Supp. at 489. This the court cannot do. See Marsano v. Laird, 412 F.2d 65, 70 (2d Cir. 1969); United States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968), cert. dismissed, 393 U.S. 1008, 89 S. Ct. 615, 21 L. Ed. 2d 557 (1969); International Telephone and Telegraph Co. v. American Telephone and Telegraph Co., 444 F. Supp. 1148, 1155 (S.D.N.Y.1978) (Goettel, J.). Rather, to give effect to Congress' purpose, see Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S. Ct. 1905, 1911, 60 L. Ed. 2d 508 (1979); Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975), the various parts of the statute must be read together to produce a "sensible and workable whole." United States v. Mejias, 417 F. Supp. 579, 583 (S.D.N.Y.) (Carter, J.), aff'd sub nom. United States v. Martinez, 538 F.2d 921 (2d Cir. 1976).
Reading the Haskell amendment together with the definition of return information that precedes it in the statute compels the conclusion that the IRS is correct in its contention that it need not delete identifying material from documents d and e. If Congress had intended to impose such a duty, it simply would have defined return information as information revealing a taxpayer's identity, and required the IRS to delete such information from requested documents whenever feasible. Cliff's interpretation must be rejected as contrary to the purpose of Congress in enacting section 6103, the relevant legislative history, and the plain meaning of the language of the statute.
Therefore, the court concludes that I.R.C. § 6103 prohibits disclosure of documents d and e, which are thus exempt from disclosure under the Act pursuant to exemption 3. The IRS need not release any portion of these documents to Cliff.
Document j is a GCM written in response to an internal IRS request for an evaluation of a proposed revenue procedure. After an analysis of the proposal, the GCM concludes by recommending that the problem it addressed be resolved by means other than a revenue procedure.
The IRS contends that document j is exempted from disclosure by exemption 5
as an "intra-agency memorandum( ): . . . not . . . available by law to a party . . . in litigation with the agency."
Cliff responds that prior cases have held GCM's not exempt under this provision, and that the IRS is bound by those decisions.
FOIA exemption 5 essentially embodies the privileges against discovery that have developed in modern agency civil litigation:
(i) the "generally . . . recognized" privilege for "confidential intra-agency advisory opinions. . . .," Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939, 946 (Ct.Cl.1958), disclosure of which "would be "injurious to the consultative functions of government . . .' Kaiser Aluminum & Chemical Corp., supra 157 F. Supp., at 946, . . ." EPA v. Mink, supra, 410 U.S., at 86-87 (93 S. Ct., at 835-836) . . . (sometimes referred to as "executive privilege"), and (ii) the attorney-client and attorney work-product privileges generally available to all litigants.
NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 149, 95 S. Ct. at 1516. In this case, the IRS relies on the first of these privileges, which is intended to protect the " "decision making processes of government agencies' . . ., and focus on documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " Id. at 150, 95 S. Ct. at 1516 (citations omitted).
To qualify for exemption 5, a record must be both "predecisional," in that it relates to a decision not yet reached rather than explains one already determined, and "deliberative," in that it represents part of the actual decision-making process rather than interprets existing decisions or policies or describes purely factual matters. Coastal States Gas Corp. v. Dep't of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980); Lead Industries Ass'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979); Jordan v. Dep't of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc); Falcone v. IRS, 479 F. Supp. 985, 988 (E.D.Mich.1979), appeal pending, No. 80-1105 (6th Cir.); see also NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 151-52, 95 S. Ct. at 1516-1517. In sum, this exemption,
properly construed, calls for "disclosure of all "opinions and interpretations' which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 797 (1967). . . .
Id. at 153, 95 S. Ct. at 1517.
The IRS argues that document j is clearly predecisional and deliberative, relying on the description in the Purkiss Affidavit.
It emphasizes that this GCM merely gives advice about whether or not to proceed with the proposed revenue procedure at all, rather than about the substantive content of the proposal, and that it neither interprets nor relies on prior law or IRS policy. Thus, the IRS concludes, document j "is purely advisory, not interpretive. In short, (it) constitutes a recommendation to continue the deliberative process." Def't Memorandum 24.
Cliff relies principally on three decisions holding that IRS GCM's are not exempt from disclosure under the governmental process privilege: Taxation With Representation Fund v. IRS, supra, 485 F. Supp. 263; Caspe v. United States, 80-1 U.S.T.C. P 9201 (S.D. Iowa 1980); and Falcone v. IRS, supra, 479 F. Supp. 985. Citing Church of Scientology v. Dep't of Army, 611 F.2d 738, 750-51 (9th Cir. 1979), and Common Cause v. IRS, supra, 80-1 U.S.T.C. P 9208, he argues that the IRS is collaterally estopped from relitigating the applicability of FOIA exemption 5 to the GCM at issue in this case.
Under the modern doctrine of collateral estoppel, a party who has had a full and fair opportunity to litigate an issue and lost in prior litigation may be foreclosed from relitigating that issue in subsequent cases, even where the opposing party is different in each case. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971). Where, as here, a plaintiff seeks to use the doctrine "offensively" to estop a defendant from defending a position that failed in a prior case, courts have broad discretion to determine whether the doctrine should be applied, and should generally reject it where the plaintiff easily could have joined in the earlier action or where its application would be unfair to the defendant. Parklane Hosiery Co., Inc. v. Shore, supra, 439 U.S. at 331, 99 S. Ct. at 651.
There is no question that Cliff could not easily have joined in any of the prior FOIA cases involving GCM's, and thus the questions here are whether the IRS had a complete opportunity to argue the applicability of exemption 5 to document j in earlier cases and, if so, whether it would be unfair to preclude it from rearguing the issue now.
Two of the cases Cliff relies upon, Falcone and Caspe, did not present the same issues as the instant case, and therefore cannot operate as an estoppel here. Kaplan v. Bennett, 465 F. Supp. 555, 559-60 (S.D.N.Y.1979) (Tenney, J.); see also Lead Industries Ass'n v. OSHA, supra, 610 F.2d at 78. Falcone and Caspe, which relied exclusively on Falcone, each involved individual GCM's very different from document j. The documents at issue in those cases were generated during the process leading to the promulgation of revenue rulings, and were explicitly characterized as "statement(s) of policy and interpretation adopted by the agency," as "not deliberative," and as the agency's "secret law." 479 F. Supp. at 988; 80-1 U.S.T.C. at 83,312-13. In contrast, document j deals with whether or not a proposed revenue procedure should be pursued at all, rather than with its substantive characteristics. Because it takes no position on the underlying tax policy issues, it cannot be characterized as stating policy or interpretation or as "secret law," and is much more clearly deliberative than the GCM's in Falcone and Caspe.
Taxation With Representation Fund presents a more difficult question, as it purported to deal with the applicability of FOIA exemption 5 to all IRS GCM's, including document j. The court there concluded that "GCM's contain the reasons behind the adoption of revenue rulings, private letter rulings, and technical advice memoranda .... are indexed and have important precedential value in determining future tax questions," and that "(the) differences between (a) GCM and (the) ruling (it discusses) are resolved before the GCM is considered complete and before it becomes available for future reference." 485 F. Supp. at 266. The court therefore held that GCM's were expressions of agency policy rather than deliberative documents and were not protected from disclosure by FOIA exemption 5. Ibid.
The IRS cannot claim that the issue here of the applicability of exemption 5 to document j was not decided in Taxation With Representation Fund, or that it had less than a full and fair opportunity to litigate this issue there. However, it remains to be determined, by consideration of all the relevant circumstances of that case and this one, whether holding the judgment there conclusive as to document j would be unfair to the IRS.
Because the plaintiff in that case sought access to all GCM's, the IRS of necessity relied on a general summary description of the nature and functions of such documents. Thus the court was forced to rule on the applicability of exemption 5 to a class of documents without attention to the particular characteristics of individual members of that class. Relying on an IRS affidavit, the court described the GCM's as follows:
GCM's are legal memoranda from the Office of Chief Counsel . . . prepared in response to a formal request for legal advice from the Assistant Commissioner (Technical). . . . in connection with the review of proposed private letter rulings, proposed technical advice memoranda, and proposed revenue rulings. . . . (They) set forth the issues presented . . ., the conclusions reached and a brief factual summary. . . . (and) a lengthy analysis of the substantive issues, and the recommendations and opinions of the Office of Chief Counsel. . . .
. . . The Office of Assistant Commissioner (Technical) will use the GCM as a guide as to what positions will be taken in the proposed revenue ruling, proposed private letter ruling, or proposed technical advice memorandum. . . . (O)n occasion, differences may arise between the positions of the Office of Assistant Commissioner (Technical) and . . . the Office of Chief Counsel. These differences are generally reconciled on an informal basis before the adoption of the revenue ruling, private letter ruling, or technical advice memorandum in question. Then a copy of the completed GCM is distributed and placed in the (IRS) digest system to enable future reference.
Id. at 265-66.
Virtually none of this description applies to document j: it relates to a proposed revenue procedure, rather than a letter ruling, revenue ruling or technical advice memorandum; the substantive issues raised by the proposal are barely touched upon and the final recommendation is not related to them; this GCM, by its very nature, could not have guided the Assistant Commissioner in formulating the proposed revenue procedure; and, finally, because document j did not make affirmative suggestions as to the content of the proposal, there could be no "reconciliation" of differences to reflect the revenue procedure eventually adopted. Nor does the conclusion of the court in Taxation With Representation Fund that "GCM's contain the reasons behind the adoption" of various IRS rulings, 485 F. Supp. at 266, have any application to document j.
It is thus apparent that Taxation With Representation Fund is not addressed to GCM's such as document j, though on its face it applies to all IRS GCM's. The IRS could not reasonably have been expected in that case to isolate and discuss individually each GCM that might not fall within the normal GCM pattern. It would be patently unfair to bind the IRS now by a ruling in a case in which it failed, in good faith, to put the issues now disputed before the court, and upon which the court therefore did not pass. The IRS is not estopped from contesting the disclosability of document j.
Turning to the merits of the IRS's exemption argument, it is obvious from the above comparison of document j with the GCM's considered in Falcone, Caspe, and Taxation With Representation Fund that document j is not an explanation or interpretation of agency policy, as were the GCM's described in Taxation With Representation Fund that are specifically revised to reflect accurately the final agency action. Rather, it represents a part of the predecisional, deliberative process of considering whether the proposed revenue procedure should be adopted, of "working out (the agency's) policy and determining what its law shall be," NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 153, 95 S. Ct. at 1518, that exemption 5 was intended to exclude from the disclosure requirements of the Act. The IRS is not required to release document j.
Documents b, c, f, g, h and i
The remaining documents in dispute are a series of unrelated internal IRS memoranda discussing the subject covered by Cliff's FOIA request. Documents c and i simply memorialize staff meetings at which this topic was discussed;
the other four, none of which has been adopted or incorporated by reference in a subsequent IRS final action,
contain staff opinions or recommendations regarding proposed modifications of various revenue procedures.
The IRS contends that these documents are, on their faces, both predecisional and deliberative, and are entitled to the protection of exemption 5, discussed above.
Cliff does not take issue with this contention directly. Instead, he argues that before relying on exemption 5, the IRS must demonstrate by exhaustive recitation of all subsequent agency uses of the documents in question that these records have not somehow become part of the agency's internal working law, and that the IRS's failure to meet this burden entitles him to summary judgment as to these documents, or, at the very least, to discovery on the question of their subsequent use by the IRS.
He relies for this argument on brief excerpts from two important FOIA cases: NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 138, 95 S. Ct. at 1510 ("Crucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them."), and Lead Industries Ass'n v. OSHA, supra, 610 F.2d at 80 ("Whether a particular document is exempt under (exemption 5) depends not only on the intrinsic character of the document itself, but also on the role it played in the administrative process.").
These cases do not support Cliff's position. Rather, they state the principle, discussed generally above, that in order to qualify for FOIA exemption as predecisional, deliberative records, documents must be shown not to constitute final agency opinions or statements of policy, and not to have been adopted or incorporated in such opinions or statements at some time subsequent to their creation. See NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 153-54, 161, 95 S. Ct. at 1517-1518, 1521; Lead Industries Ass'n v. OSHA, supra, 610 F.2d at 86. In Sears, the Court explicitly held that "if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5." 421 U.S. at 161, 95 S. Ct. at 1521 (emphasis in original). No other means of making an exempt document non-exempt by subsequent use is mentioned.
In fact, several courts have ruled that subsequent use in an agency's decision-making process of a predecisional, deliberative document, short of adoption or incorporation in a final opinion, does not divest the document of its exemption from disclosure. "The argument that all documents (subsequently) relied upon (by the agency) are disclosable turns Exemption 5 on its head; the more a document was part of the predecisional deliberative process, the more likely it would be subject to disclosure. This was not the intent of the Congress." United States v. J. B. Williams Co., Inc., 402 F. Supp. 796, 803 (S.D.N.Y.1975) (Pierce, J.). See, e.g., Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184-85, 95 S. Ct. 1491, 1500-1501, 44 L. Ed. 2d 57 (1975); Shermco Industries, Inc. v. Secretary of Air Force, 613 F.2d 1314, 1319-20 (5th Cir. 1980); Sterling Drug, Inc. v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698, 705-08 (D.C.Cir. 1971); Bast v. IRS, 78-1 U.S.T.C. P 9418 at 84,103 (D.Colo.1978); American Federation of Government Employees v. Dep't of Army, 441 F. Supp. 1308, 1311 (D.D.C.1977). But cf. Pies v. IRS, 484 F. Supp. 930, 932-33 (D.D.C.1979), appeal pending, No. 79-2303 (D.C.Cir.).
The IRS has met its burden of demonstrating that these documents, which on their faces are encompassed by exemption 5, have not been adopted or incorporated in subsequent final agency action, and retain their predecisional and deliberative character. No additional information regarding the agency's internal use of the documents is necessary for a determination of their disclosability under the Act. Therefore, Cliff's request for discovery is denied, and the IRS is entitled to withhold documents b, c, f, g, h, and i.
Accordingly, the IRS is not required by the Act to release any of the nine disputed documents to Cliff, because each is covered by an explicit statutory exemption to the Act's disclosure requirements. Therefore, Cliff's motion for summary judgment is denied, the IRS's motion is granted and the complaint is dismissed.
IT IS SO ORDERED.