IRS Wins and Loses on Decison on Deliberative Process Privilege

In a detailed decision that really explains what the deliberative process privilege is for, United States District Court for the District of Columbia Judge Rosemary M. Collyer has ordered the IRS to release certain documents that she did not consider exempt under the deliberative process privilege.  The detail about where documents were or were not involved in agency policymaking will likely make it an oft cited decision in the future.

The case revolved around the law firm Mayer, Brown, Rowe and Maw, LLP's attempt to get documents from the IRS about Lease-in/Lease-out transactions.  The case originally dealt with 30,000 documents but at the time of the opinion had been narrowed to only 27.

Two major issues were addressed in the opinion.  The first was the plaintiff's contention that the government must establish evidence that alleged predecisional documents were not incorporated into a final document or were not part of internal agency secret or working law.  While the IRS claimed they didn't have to claim this, the Judge was able to sidestep the issue by finding that the IRS statements on the issue established that there was"an absence proof that these documents had been adopted, directly or indirectly, as secret or working law."  Thus, the judge granted summary judgment for the IRS on the issue.

Next, the court looked at individual documents to determine if they were protected pursuant to the deliberative process privilege.  The court found that a draft press release as well as a slide meant for briefing a wide IRS audience once a revenue ruling was issued were not protected by the deliberative process privilege because they were not associated with any agency policy formulation.  Further, draft letters to the Norman Mineta, then Secretary of the Department of Transportation were held not deliberative because "interagency politics is not the stuff of agency policymaking."

Documents where no author could be identified as well as handwritten notes where the author was unknown were also held to not be protected pursuant to the privilege.  It was not established that these documents were used in the agency's decision making process and therefore were not protectible.

The IRS was allowed to withhold some documents.  Task force recommendations were protected as well as handwritten notes of a known author that were used in the decision making process were held to be exempt.