Levin

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

MICHELLE A. LEVIN, )

)

Plaintiff, )

)

v. ) Case No. 5:24-cv-00582-HNJ

)

U.S. INTERNAL REVENUE )

SERVICE, )

)

Defendant. )

MEMORANDUM OPINION

This case proceeds pursuant to the Freedom of Information Act, 5 U.S.C. § 552

(FOIA). Plaintiff Michelle Levin, an attorney who represents taxpayers in disputes with

the United States Internal Revenue Service (IRS), seeks the IRS’s response to a FOIA

request for guidance issued to revenue agents charged with examining claims for the

Employee Retention Credit (ERC) made available through the Coronavirus Aid, Relief,

and Economic Security (CARES) Act. (Doc. 7, ¶¶ 3, 22, 31).

On July 8, 2025, the IRS filed a motion for summary judgment. (Doc. 35). As

discussed more fully herein, FOIA Exemptions 7(A) and 7(E) protect from disclosure

the information Levin seeks. Accordingly, the court will grant summary judgment in

favor of the IRS.

STANDARD OF REVIEW

“‘[U]sually, FOIA cases should be handled on motions for summary judgment,

once the documents in issue are properly identified and after the government has

supplied affidavits or other information describing the documents.’” Jimenez v. Dep’t of

Homeland Sec., 119 F.4th 892, 899 (11th Cir. 2024) (quoting Sikes v. U.S. Dep’t of Navy,

896 F.3d 1227, 1239 (11th Cir. 2018)) (alteration in original).

Pursuant to the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). See Karantsalis v. U.S. Dep’t of Just., 635 F.3d 497, 500 (11th Cir. 2011); Miccosukee

Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (applying Rule

56 to FOIA cases). The

“party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of material fact.”

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986)).

If the movant sustains its burden, a non-moving party demonstrates a genuine

issue of material fact by producing evidence by which a reasonable factfinder could

return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263

(11th Cir. 2007) (citation omitted). The non-movant sustains this burden by

demonstrating “that the record in fact contains supporting evidence, sufficient to

withstand a directed verdict motion.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116

(11th Cir. 1993). In the alternative, the non-movant may “come forward with additional

evidence sufficient to withstand a directed verdict motion at trial based on the alleged

evidentiary deficiency.” Id. at 1117; see also Doe v. Drummond Co., 782 F.3d 576, 603-04

(11th Cir. 2015), cert. denied, 577 U.S. 1139 (2016).

The “court must draw all reasonable inferences in favor of the nonmoving party,

and it may not make credibility determinations or weigh the evidence.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). “‘Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences

from the facts are [factfinding] functions, not those of a judge[ at the summary

judgment stage].’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

“Thus, although the court should review the record as a whole, it must disregard all

evidence favorable to the moving party that the [factfinder] is not required to believe.”

Id. at 151 (citation omitted). “That is, the court should give credence to the evidence

favoring the nonmovant as well as that ‘evidence supporting the moving party that is

uncontradicted and unimpeached, at least to the extent that that evidence comes from

disinterested witnesses.’” Id. (citation omitted).

Rule 56 “mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “In such a

situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure

of proof concerning an essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Id. at 322-23. In addition, a movant may prevail on

summary judgment by submitting evidence “negating [an] opponent’s claim,” that is, by

producing materials disproving an essential element of a non-movant’s claim or

defense. Id. at 323 (emphasis in original).

There exists no issue for trial unless the nonmoving party submits evidence

sufficient to merit a verdict in its favor; if the evidence is merely colorable or is not

significantly probative, the court may grant summary judgment. Anderson, 477 U.S. at

249-50. The movant merits summary judgment if the governing law on the claims or

defenses commands one reasonable conclusion, id. at 250, but the court should deny

summary judgment if reasonable factfinders “could return a verdict for the nonmoving

party.” Id. at 248. That is, a court should preserve a case for trial if there exists

“sufficient evidence favoring the nonmoving party for a [factfinder] to return a verdict

for that party.” Id. at 249.

SUMMARY OF FACTS

On October 13, 2023, Plaintiff Michelle Levin submitted a written request to the

IRS’s Central Processing Unit:

This letter is intended to formally request, under Freedom of

Information Act 5 U.S.C. § 552 (“FOIA”), and the regulations

promulgated thereunder, information readily available to revenue agents

and IRS Counsel, detailed below, which relates to employee retention

credits created by the CARES Act.

The requested information includes, but is not limited to:

Any and all guidance or other information provided to

revenue agents and IRS Counsel by any division, employee, or

contractor, of the IRS or Department of Treasury, from March

2020 to the present, which relates to examination or evaluation of

returns or other documents claiming the employee retention credits

found in section 3134 of the Internal Revenue Code, enacted under

section 2301 of the CARES Act, Pub. L. No. 116-136, and all

amended versions to the same. Not included in this request is

information made available to the public online such as the internal

revenue manual.

(Doc. 39-1, at 10; see also id. at 2-3, ¶¶ 2-3).

The IRS estimated it would respond to Levin’s FOIA request by May 10, 2024.

(Doc. 39-1, at 3, ¶ 4; see also Doc. 7-8, at 2). On May 8, 2024, the IRS had not provided

a complete response to Levin’s request, and Levin filed the Complaint in this action.

(Doc. 39-1, at 3, ¶¶ 4-5; see also Doc. 1). Later that day, the IRS produced documents

responsive to Levin’s request. (Doc. 39-1, at 3, ¶ 6). The IRS’s cover letter stated it

was producing 1,561 pages of documents and withholding one page in part. However,

the production encompassed only 1,276 pages. (Doc. 39-1, at 3, ¶¶ 7-8).

On June 25, 2024, Levin filed an Amended Complaint “to account for the partial

production of documents and to continue to seek to compel the disclosure of records

unlawfully withheld by the [IRS].” (Doc. 7, ¶ 25).

On January 22, 2025, after communications with the Department

of Justice, Plaintiff agreed to narrow the scope of the FOIA request to

reflect: “all readily available non-taxpayer specific guidance, including

templates and trainings, provided by IRS Counsel to IRS Revenue Agents

and Supervisory Revenue Agents related to examination or evaluation of

returns claiming the employee retention credits found in section 3134 of

the Internal Revenue Code, enacted under section 2301 of the CARES

Act, Pub. L. No. 116-136.

(Doc. 35-3, ¶ 12).

On January 31, 2025, the IRS produced 371 additional pages of documents,

which “allegedly included the Service’s attempted transmittal of its pre-suit release of

documents . . ., as well as additional documents . . . . Importantly, the IRS did not

withdraw any of its stated exemptions.” (Doc. 39-1, at 5-6, ¶ 18). Of those 371 pages,

the IRS released 351 pages in full, partially withheld 19 pages, and fully withheld one

page. (Doc. 35-3, ¶ 13). The IRS claimed the fully withheld page “falls within a FOIA

exemption, . . . for which the portions exempt from disclosure are so inextricably

intertwined with non-exempt material as to be non-segregable.” (Id. ¶ 15).

The IRS asserts the withheld documents fall under FOIA Exemption 5,

addressing the attorney work-product doctrine; FOIA Exemption 7(A), addressing

information relevant to pending civil investigations in law enforcement matters; and

FOIA Exemption 7(E), addressing techniques, procedures, and guidelines the IRS uses

to enforce revenue laws. (Id. ¶¶ 17-19).

DISCUSSION

The Eleventh Circuit recently described the framework for evaluating FOIA

claims:

Under FOIA, requesters can seek the release of records maintained

by a federal agency. 5 U.S.C. § 552(a). FOIA requires the federal agency,

upon a records request that reasonably describes documents held by that

agency, to make those documents promptly available to any person unless

a statute exempts the information from disclosure. Id. § 552(a)(3), (b)(3).

FOIA reflects a “strong public policy in favor of public access to

information in the possession of federal agencies.” News-Press v. U.S. Dep’t

of Homeland Sec., 489 F.3d 1173, 1190 (11th Cir. 2007) (quotation marks

omitted).

A plaintiff may sue in federal court upon a showing that a federal

agency has improperly withheld its records following a FOIA request. 5

U.S.C. § 552(a)(4)(B). The agency bears the burden to demonstrate that

its records search was adequate and it properly withheld information. Id.;

Miccosukee Tribe, 516 F.3d at 1248, 1258; Broward Bulldog, Inc. v. U.S. Dep’t

of Just., 939 F.3d 1164, 1175 (11th Cir. 2019).

An agency may rely on affidavits or declarations (collectively

“declarations”) to meet its burden “so long as they provide an adequate

factual basis for the district court to render a decision.” Miccosukee Tribe,

516 F.3d at 1258-59 (stating an adequate factual basis can be provided by

affidavits, a Vaughn index, in camera review, or a combination of these

methods).

An agency’s declarations are entitled to a presumption of good

faith. See Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994); Carney v. U.S. Dep’t

of Just., 19 F.3d 807, 812 (2nd Cir. 1994); Maynard v. CIA, 986 F.2d 547, 560

(1st Cir. 1993); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991). That presumption can be rebutted with evidence of bad faith on

the part of the agency. Jones, 41 F.3d at 242; Carney, 19 F.3d at 812;

Maynard, 986 F.2d at 556; SafeCard Servs., 926 F.2d at 1202. Mere

speculation, however, is not enough to rebut the presumption. Bartko v.

U.S. Dep’t of Just., 898 F.3d 51, 74 (D.C. Cir. 2018); SafeCard Servs., 926

F.2d at 1200.

Jimenez, 119 F.4th at 899-900.

Levin does not challenge the adequacy of the IRS’s search for records.1 Rather,

1 Levin twice represented to the court in status reports that she does not challenge the adequacy of

the IRS’s search. (See Doc. 31 (March 7, 2025, Joint Status Report), ¶ 7 (“On February 25, 2025,

Plaintiff sent the Service a letter outlining her specific challenges to the FOIA exemptions the Service

asserted. Plaintiff does not challenge the adequacy of the search; rather, she challenges all of the FOIA

exemptions invoked by the Service.”); Doc. 33 (April 9, 2025, Joint Status Report), ¶ 7 (same)). She

also did not assert any arguments challenging the adequacy of the search in her summary judgment

response brief, focusing instead on challenges to the exemptions the IRS asserted. (See Doc. 38, at

18-29).

she challenges the IRS’s withholding of records pursuant to Exemptions 5, 7(A), and

7(E). As Exemptions 7(A) and 7(E) protect the requested documents from disclosure,

the court need not assess whether Exemption 5 prevents the disclosure.

The IRS withheld documents under subdivisions (A) and (E) of FOIA

Exemption 7, both of which permit agencies to withhold “records or information

compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). Levin does not dispute

that the requested documents satisfy this threshold inquiry.

Indeed, though the Eleventh Circuit has not adopted a definitive standard for

assessing whether an agency has compiled records for a law enforcement purpose, see

Arenberg v. Drug Enf’t Admin., 849 F.2d 579, 580-81 (11th Cir. 1988), the former Fifth

Circuit has held that Exemption 7 “applies to civil and regulatory proceedings as well

as to criminal matters.” Pope v. United States, 599 F.2d 1383, 1386 (5th Cir. 1979) (citations

omitted).2 Moreover, district courts within the Eleventh Circuit have held that

“[r]ecords are considered to be ‘compiled for law enforcement purposes’ if they ‘focus

specifically on alleged acts that could result in civil or criminal sanctions.’” Scott v.

Treasury Inspector Gen. for Tax Admin., No. 18-80366-CIV, 2018 WL 7082718, at *11 (S.D.

Fla. Dec. 27, 2018) (quoting Cappabianca v. Comm’r, U.S. Customs Serv., 847 F. Supp. 1558,

1565 (M.D. Fla. 1994)), report and recommendation adopted, No. 18-80366-CIV, 2019 WL

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

286856 (S.D. Fla. Jan. 17, 2019), aff’d, 787 F. App’x 642 (11th Cir. 2019).

One district court maintained that the phrase “law enforcement purposes”

encompasses “the enforcement of civil, criminal, and administrative statutes and

regulations such as those promulgated and enforced by the IRS.” Rosenglick v. I.R.S.,

No. 97-747-CIV-ORL-18A, 1998 WL 773629, at *2 (M.D. Fla. Mar. 10, 1998) (citing

Cappabianca, 847 F. Supp. at 1565; Church of Scientology Int’l v. IRS, 995 F.2d 916, 919 (9th

Cir. 1993), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin.,

836 F.3d 987 (9th Cir. 2016)). Courts in other jurisdictions also consistently hold that

the “IRS constitutes a law enforcement agency within the meaning of Exemption 7.”

Shannahan v. I.R.S., 637 F. Supp. 2d 902, 918 (W.D. Wash. 2009) (first citing Church of

Scientology Int’l, 995 F.2d at 919; and then Lewis v. Internal Revenue Serv., 823 F.2d 375, 379

(9th Cir. 1987)). See also Berger v. I.R.S., 487 F. Supp. 2d 482, 500 (D.N.J. 2007), aff’d, 288

F. App’x 829 (3d Cir. 2008) (same); Tax Analysts v. I.R.S., 294 F.3d 71, 77 (D.C. Cir.

2002) (“[A]gencies like IRS, that combine administrative and law enforcement

functions, . . . may seek to avoid disclosure of records or information pursuant to

Exemption 7.”); Allnutt v. U.S. Dep’t of Just., No. CIV. Y-98-1722, 2000 WL 852455, at

*1 (D. Md. Oct. 23, 2000) (“The Internal Revenue Service has the law-enforcement

mandate required under the exemption.” (citing Lewis, 823 F.2d 375)), aff’d sub nom.

Allnut v. Handler, 8 F. App’x 225 (4th Cir. 2001).

More specifically, this court has stated that “[a] tax audit is certainly performed

in aid of enforcement of our tax laws, civil and criminal, and there should be no

distinction under [Exemption 7] between monitoring activities and prosecutorial

activities, both of which serve law enforcement purposes.” B & C Tire Co. v. Internal

Revenue Serv., Dep’t of Treasury, U. S., 376 F. Supp. 708, 713 n.11 (N.D. Ala. 1974); see also

EduCap Inc. v. I.R.S., No. CIV.A. 07-2106-RMC, 2009 WL 416428, at *4 (D.D.C. Feb.

18, 2009) (“An IRS audit is a ‘law enforcement’ activity for purposes of Exemption 7.”

(citing Faiella v. IRS, No. 05-238, 2006 WL 2040130, at *4 (D. N.H. July 20, 2006))).

And the Fourth Circuit recently held that “[t]raining officers how to enforce the law is

a ‘law enforcement purpose,’” as Exemption 7 “is not limited to records compiled for

law enforcement proceedings; it extends more broadly to records compiled for law

enforcement purposes.” Grey v. Alfonso-Royals, 140 F.4th 173, 178 (4th Cir. 2025)

(emphasis in original) (first citing Tax Analysts, 294 F.3d at 79; and then ACLU of Mass.

v. U.S. Dep’t of Homeland Sec., 707 F. Supp. 3d 77, 85-86 (D. Mass. 2023)).

Based upon the overwhelming weight of this persuasive authority, the court

agrees that the IRS generated the requested documents, which include guidance issued

to revenue agents for examining claims, for law enforcement purposes. Hence, the

enquiry ensues whether the requested documents meet the specific requirements of

Exemptions 7(A) and 7(E).

I. Exemption 7(A) Justifies the IRS’s Refusal to Fully Disclose the

Requested Documents.

FOIA Exemption 7(A) permits agencies to withhold “records or information

compiled for law enforcement purposes, but only to the extent that the production of

such law enforcement records or information (A) could reasonably be expected to

interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). As discussed in the

previous section, Levin concedes the IRS sustained its burden as to the threshold

requirement for FOIA Exemption 7(A), namely whether the documents excluded from

disclosure constituted “records or information compiled for law enforcement

purposes.” Therefore, the second prong of Exemption 7(A) requires an assessment

whether disclosure of the requested records “‘(1) could reasonably be expected to

interfere with (2) enforcement proceedings that are (3) pending or reasonably

anticipated.’” Off. of Fulton Cnty. Dist. Att’y v. United States Dep’t of Just., No. 1:18-CV-

5902-MLB, 2021 WL 4205666, at *3 (N.D. Ga. Sept. 16, 2021) (quoting Mapother v.

Dep’t of Just., 3 F.3d 1533, 1540 (D.C. Cir. 1993)).

The IRS relies upon Amy Mielke’s declaration to support the application of

Exemption 7(A) in this case. Mielke declares:

The pages listed in the subparagraph below are being withheld in

full or in part pursuant to FOIA Exemption 7A, 5 U.S.C. § 552(b)(7)(A),

because they contain information relevant to civil examinations – law

enforcement matters – which have not concluded. The release of this

information is reasonably expected to interfere with ongoing enforcement

proceedings. Disclosure of this information would harm the ongoing

examinations, as set forth below, by prematurely revealing the Service’s

evidence and strategy, revealing the nature, direction, scope, and focus of

the Service’s case, and giving premature insight into the strength of the

Service’s position and its reliance on certain evidence. As such, the

following pages are withheld pursuant to Exemption 7A:

b. Pages 312-313, 315-324, 326, 362-363, and 366-369 are

withheld in part, and page 314 is withheld in full, because they are

template documents used by IRS Examiners in civil tax

examinations of ERC claims. Pages 324, 326, 362-363, and 366-

369 contain information as to the Service’s interest in specific facts

and claims during examinations. The disclosure of this information

would interfere with enforcement proceedings by revealing the

nature, scope, and direction of such proceedings. Specifically,

disclosure of the redacted material would interfere with pending

and ongoing ERC examinations and refund litigation by revealing

IRS strategy and allowing taxpayers to avoid enforcement. Such

examinations can also lead to criminal investigations that give rise

to criminal charges if tax deficiencies that result from fraud are

discovered. See Internal Revenue Manual § 9.5.13.2.1(2024). Thus,

interference with the civil examinations could also hinder criminal

proceedings.

(Doc. 35-3, ¶ 18).

Hence, Mielke identifies civil examinations as the enforcement proceedings

warranting application of the exemption. She describes the examinations as “ongoing”

because they “have not concluded.” She explains that disclosure of the requested

documents would harm the ongoing examinations “by prematurely revealing the

Service’s evidence and strategy, revealing the nature, direction, scope, and focus of the

Service’s case, and giving premature insight into the strength of the Service’s position

and its reliance on certain evidence.” (Id.).

The court agrees that investigatory templates and documents disclosing the IRS’s

interest in particular facts could reasonably cause such consequences. The court also

agrees with Mielke’s assessment that disclosing the information could interfere not only

with pending examinations, but also with pending refund litigation, as it may enable

taxpayers to avoid enforcement, including avoiding civil examinations that may lead to

criminal charges.

In so holding, the court finds persuasive the decision of the Southern District of

Florida in Villanueva v. United States Department of Justice, No. 19-23452-CIV, 2021 WL

4342004 (S.D. Fla. Aug. 12, 2021). In that case, the plaintiff requested from the United

States Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) various

“administrative instructions,” or “investigative leads,” including “the setting out of

investigative guidelines and requests for specific investigative inquiries at various FBI

field offices and other government agencies.” Id. at *16. Though the record lacked

sufficient information to render an ultimate determination, the district court stated that

any such records would fall under Exemption 7(A) if their disclosure “to a

knowledgeable person would disclose specific investigative procedures and strategies

used in the investigation,” as “[d]isclosure would potentially enable subjects of the

investigation to alter or negate incriminating evidence which could be used in future

proceedings and/or investigative efforts.” Id. Similarly, Mielke declared that the

information Levin seeks in the present case would disclose investigative procedures and

strategies, which could enable taxpayers to avoid enforcement.

Levin objects that the IRS bases its withholding on a “broad enforcement

program,” rather than on a “concrete law enforcement proceeding.” (Doc. 38, at 19).

According to Levin, “exemption 7(A) is inapplicable to all redactions that are not

taxpayer specific or investigation specific – which means that it is not applicable to any

of the information withheld pursuant to this exemption in the present case.” (Id. at 21).

The weight of authority weighs against Levin’s contention.

As a general matter, the legislative history as to Exemption 7’s threshold

requirement — “records or information compiled for law enforcement purposes” —

militates against Levin’s contention:

Prior to 1986, Exemption 7 required a threshold showing that the

materials in question were “investigatory records compiled for law

enforcement purposes.” 5 U.S.C. § 552(b)(7) (1982). However, in 1986,

Congress amended the exemption to protect “records or information

compiled for law enforcement purposes,” deleting any requirement that

the information be “investigatory.” Anti-Drug Abuse Act of 1986, §

1802(a), Pub. L. No. 99-570, 100 Stat. 3207, 3207-48 (1986) (amending 5

U.S.C. § 552(b)(7)). See North v. Walsh, 881 F.2d 1088, 1098 n.14 (D.C. Cir.

1989) (stating that the 1986 amendment “changed the threshold

requirement for withholding information under exemption 7: the

exemption formerly covered ‘investigatory records compiled for law

enforcement purposes’; it now applies more broadly to ‘records or

information compiled for law enforcement purposes’”); Keys v. United

States Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (same). And the

legislative history makes it clear that Congress intended the amended

exemption to protect both investigatory and non-investigatory materials,

including law enforcement manuals and the like. See S. Rep. No. 98-221,

at 23 (1983) (expressing intent to protect “sensitive non-investigative law

enforcement materials” and to broaden the exemption to include records

“regardless of whether they may be investigatory or noninvestigatory”).

Congress also amended Exemption 7(E) to permit withholding of

“guidelines for law enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk circumvention of the law,”

thus giving further indication that the statutory threshold was not limited

to records or information addressing only individual violations of the law.

See 5 U.S.C. § 552(b)(7)(E) (emphasis added); S. Rep. No. 98221, at 24

(1983).

It is clear that, under the amended threshold of Exemption 7, an

agency may seek to block the disclosure of internal agency materials relating to guidelines,

techniques, sources, and procedures for law enforcement investigations and prosecutions,

even when the materials have not been compiled in the course of a specific investigation.

See, e.g., PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51 (D.C. Cir. 1993)

(holding that portions of a FBI manual describing patterns of violations,

investigative techniques, and sources of information available to

investigators were protected by Exemption 7(E)). The amended threshold

to Exemption 7 “resolve[s] any doubt that law enforcement manuals and

other non-investigatory materials can be withheld under (b)(7) if they were

compiled for law enforcement purposes and their disclosure would result

in one of the six recognized harms to law enforcement interests set forth

in the subparagraphs of the exemption.” S. Rep. No. 98-221, at 23 (1983).

Tax Analysts, 294 F.3d at 79 (emphasis added in final paragraph).3

A similar construal ensued in Am. C.L. Union of N. California v. Fed. Bureau of

Investigation, 881 F.3d 776 (9th Cir. 2018), a case in which the ACLU “requested

documents compiled for general law enforcement purposes and not linked to a

particular investigation.” Id. at 779. After favorably citing the foregoing analysis in Tax

Analysts, the court held that

when a FOIA request seeks guidelines and other generalized documents

compiled by a law enforcement agency not related to a particular

investigation, the government need not link the document to the

enforcement of a particular statute in order to claim the protection of

Exemption 7. Rather, the agency need only establish a rational nexus

between the withheld document and its authorized law enforcement

activities.

Id. at 781; see also id. at 780 (“[W]ere we to deny the application of Exemption 7 to

generalized law enforcement documents simply because the government could not link

them to enforcement of a specific law, the additional protections that Congress

provided to those very documents in Exemption 7(E) would be nullified.”).

3 The Second Circuit has “frequently noted the District of Columbia Circuit’s ‘particular FOIA

expertise’ and looked to its decisions for guidance in interpreting the FOIA.” Knight First Amend. Inst.

at Columbia Univ. v. United States Citizenship & Immigr. Servs., 30 F.4th 318, 324 (2d Cir. 2022) (citation

omitted).

Likewise, as countenanced previously the Fourth Circuit reached the same

conclusion:

Grey asserts that, to be “compiled for law enforcement purposes,” records

must originate from or be used in a law enforcement investigation, not

officer training. 5 U.S.C. § 552(b)(7). We disagree. The exemption is not

limited to records compiled for law enforcement proceedings; it extends

more broadly to records compiled for law enforcement purposes. Training

officers how to enforce the law is a “law enforcement purpose.” See Tax

Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (“[Exemption 7] protect[s]

both investigatory and non-investigatory materials, including law

enforcement manuals and the like.”); ACLU of Mass. v. U.S. Dep’t of

Homeland Sec., 707 F. Supp. 3d 77, 85-86 (D. Mass. 2023) (holding that

pages from a handbook instructing DHS agents how to determine

whether an individual is a gang member were properly redacted under

Exemption 7(E)). A record with otherwise exempt content does not

become subject to disclosure because it is used to train rather than to

enforce the law directly. After all, Exemption 7(E) protects records that

“would disclose techniques and procedures for law enforcement

investigations or prosecutions,” regardless of whether the agency uses

those records to guide active investigations or train officers how to

investigate. 5 U.S.C. § 522(b)(7)(E).

Grey, 140 F.4th at 178 (emphasis and alterations in original).

To the extent Levin contends the balance of Exemption 7(A)’s requirements

obligates delineation of a specific “enforcement proceeding” more detailed than the

IRS’s portrayal in this case, she also falters. Generally, the Supreme Court has rejected

the argument that an agency “must specifically demonstrate in each case that disclosure

of the [requested records] would interfere with a pending enforcement proceeding.”

National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). “An

investigation is ‘ongoing’ if there is . . . a ‘reasonable chance that an enforcement

proceeding will occur.’” Greenberger v. Internal Revenue Serv., 283 F. Supp. 3d 1354, 1374

(N.D. Ga. 2017) (quoting Dickerson v. U.S. Dep’t of Justice, 992 F.2d 1426, 1430 (6th Cir.

1993)). “So long as the investigation continues to gather evidence for a possible future

case, and that case would be jeopardized by the premature release of that evidence,

Exemption 7(A) applies.’” Id. (citing Manning v. U.S. Dep’t of Justice, 234 F. Supp. 3d 26,

33 (D.D.C. 2017)) (cleaned up). Exemption 7(A) also applies to “prospective” or

“reasonably anticipated” enforcement proceedings. See Mantilla v. U.S. Dep’t of State,

No. 12-21109-CIV, 2013 WL 424433, at *6 (S.D. Fla. Feb. 1, 2013) (citing Manna v.

Dep’t of Justice, 51 F.3d 1158, 1164 (3rd Cir. 1995) (in turn citing Robbins Tire & Rubber

Co., 437 U.S. at 224)); Moorefield v. United States Secret Serv., 611 F.2d 1021, 1024-26 (5th

Cir. 1980) (exemption 7(A) applies when “a law enforcement proceeding is pending or

prospective”)); Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 746

F.3d 1082, 1096 (D.C. Cir. 2014) (hereinafter “CREW”) (exemption applies to

“enforcement proceedings that are . . . pending or reasonably anticipated”) (citing

Mapother, 3 F.3d at 1540)).

The D.C. Circuit’s decision in Mapother v. Dep’t of Just., 3 F.3d 1533 (D.C. Cir.

1993) aptly portrays the applicability of Exemption 7(A) to Levin’s requested disclosure

vis-à-vis the requirement for, in this regard, a “reasonably anticipated enforcement

proceeding.” In Mapother, two private individuals filed FOIA requests seeking a report

and associated documents regarding an order issued by the Attorney General barring

Kurt Waldheim — whom the DOJ believed had participated in Nazi war crimes as an

officer in the German army — from entering the United States. Id. at 1535. The DOJ

withheld the material based upon Exemption 7(A), and the district court ordered

disclosure of most of the records. Id. at 1536.

On appeal, the D.C. Circuit addressed Exemption 7(A) as to certain items of the

contested information and recognized the exemption applies only

where enforcement proceedings are “pending or contemplated.” Coastal

States Gas Corp. v. Department of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980).

The word “contemplated,” as used in Coastal States, speaks to the

enforcing agency’s intentions. For this, we have substituted “reasonably

anticipated,” a phrase that may be applied equally to cases in which the

agency has the initiative in bringing an enforcement action and those, such

as this one, in which it must be prepared to respond to a third party’s

challenge.

Mapother, 3 F.3d at 1540.

Although the DOJ did not maintain any enforcement proceedings at the time of

the FOIA request, the Mapother court championed the foregoing “more general

standard” because there existed a “reasonable likelihood” that challenges would be

brought “in the run of cases involving persons excluded from the United States”

because of their alleged participation in Nazi war crimes. Id. at 1542. Indeed, the court

portrayed the breadth of the “reasonably anticipated enforcement proceeding”

requirement with its express holding:

The critical question facing us, then, is not whether Mr. Waldheim is likely

to appeal his listing [excluding him from entry into the United States], but

whether, in the run of cases involving persons excluded from the United

States . . ., there is a reasonable likelihood of a challenge. Although the

district court did not direct its attention to this issue, we think it plain that

the prospect of such a challenge is not so unreasonable as to permit us to

affirm the district court’s ruling. The desire of many tens of thousands of

aliens to enter the United States is too manifest, and the crimes committed

by the Nazis too heinous, to permit the assumption that an exclusion

order will not be challenged. We hold, then, that in such cases — and

therefore in this one — Exemption 7(A)’s requirement that enforcement

proceedings be reasonably anticipated is met.

Id.

The same result inheres in this case. One may readily ascertain the nature and

scope of the “run of cases” comprising the “reasonably anticipated proceedings”

subject to Exemption 7(A)’s purview: the reasonable likelihood there exists scores of

potential ERC examinations and refund litigation. Indeed, an attachment to Levin’s

Amended Complaint reasonably signals the scope of anticipated enforcement

proceedings because “the IRS has processed 3.6 million [ERC] claims with hundreds of

thousands still awaiting review and hundreds of thousands more filed since the

processing moratorium began in September 2023.” (Doc. 7-1, at 2). Some of those

claims have already generated enforcement proceedings. That multitude of claims

surely includes potential targets of ERC fraud enforcement that seek to avoid criminal

liability, and thus, would appreciate gaining access to the documents withheld from

disclosure by the IRS.

And in any event, the Mielke declaration expressly posits the existence of

pending and ongoing ERC examinations and litigation commanding application of

Exemption 7(A). Ample caselaw supports exclusion of such information from

disclosure under the exemption. For example, in Citizens for Resp. & Ethics in Washington

v. U.S. Dep’t of Just., 746 F.3d 1082 (D.C. Cir. 2014), the court acknowledged that “[i]n

the typical case, . . . the requested records relate to a specific individual or entity that is

the subject of the ongoing investigation, making the likelihood of interference readily

apparent.” Id. at 1098 (citations omitted). However, in the case before it the DOJ

claimed protection for records related to “a wide-ranging public corruption

investigation,” as “the release of the requested records could disclose to individuals

under investigation the identities of potential witnesses, the content of the

government’s evidence and trial strategy and the focus of the investigation.” Id. The

Court acknowledged it had “often found that similar concerns justify withholding under

Exemption 7(A),” as long as the agency sufficiently demonstrates the withholding

implicates an ongoing investigation. Id. at 1098-99. The Court remanded the case to

the district court for further factual findings as to “whether a related investigation is in

fact ongoing and, if so, how the disclosure of [the requested documents] would interfere

with it.” Id. at 1099. As previously discussed, the IRS has demonstrated ERC

examinations related to the requested documents remain ongoing, even though the IRS

did not identify the specific individuals under investigation.

Moreover, in Juarez v. Department of Justice, 518 F.3d 54 (D.C. Cir. 2008), the D.C.

Circuit reviewed the requirement that Exemption 7(A) only justifies withholding of

material related to a “‘concrete prospective law enforcement proceeding,’” and the

court declared the requirement did not represent “quite the formidable hurdle [the

plaintiff] would make it out to be.” Id. at 59 (quoting Robbins Tire & Rubber Co., 437

U.S. at 232). Though the Drug Enforcement Agency (DEA) had failed to follow up

with the plaintiff’s requests to act as an informant in a pending investigation, the DEA

presented sufficient evidence via affidavits that the investigation remained ongoing and

could eventually lead to a prosecution. Id. Again, the IRS has presented sufficient

evidence, in the form of Mielke’s declaration, that ERC examinations remain ongoing.

The other cases Levin cites do not persuade the court. Levin primarily relies on

the 1991 decision in the District of Columbia district court in Nat’l Sec. Archive v. F.B.I.,

759 F. Supp. 872 (D.D.C. 1991). In that case, the FBI invoked Exemption 7(A) for

“information concerning the FBI’s overall ongoing foreign counterintelligence program

directed at hostile intelligence services,” reasoning that “if hostile intelligence officers

had that information, they might be able to develop procedures to thwart our

intelligence methods by adjusting their practices or planting information.” Id. at 883

(cleaned up). The district court rejected that argument, as the FBI did not identify “a

concrete prospective law enforcement proceeding.” Id. (citing Bevis v. Dep’t of State, 801

F.2d 1386, 1389 (D.C. Cir. 1986)) (cleaned up). Nonetheless, the district court granted

the FBI the opportunity to submit “an affidavit asserting whether there are proceedings

currently pending or contemplated relating to each segment for which exemption 7(A) has

been invoked.” Id. (emphasis added).

The present case presents different circumstances. The IRS may satisfy its

Exemption 7(A) burden by identifying currently pending or contemplated proceedings

to which the exemption may apply. The IRS has done so via Mielke’s declaration, which

proclaims that “disclosure of the redacted material would interfere with pending and

ongoing ERC examinations and refund litigation.” In addition, as referenced previously

an attachment to Levin’s Amended Complaint acknowledges the prevalence of ERC

investigations by stating that as of March 5, 2024, “the IRS has processed 3.6 million

[ERC] claims with hundreds of thousands still awaiting review and hundreds of

thousands more filed since the processing moratorium began in September 2023.”

(Doc. 7-1, at 2). In the Report of Parties’ Planning Meeting, filed December 30, 2024,

Levin acknowledged “over fifty ERC refund cases filed in the last 12 months.” (Doc.

29, at 6). Nothing in the National Security Archive decision, or in any other authority the

court has located, supports Levin’s assertion that the IRS must identify a specific

taxpayer investigation to which the exemption applies.

Levin also cites Bevis v. Department of State, 801 F.2d 1386 (D.C. Cir. 1986), for the

general proposition that “[e]xemption 7(A) . . . cannot justify withholding unless the

material withheld relates to a ‘concrete prospective law enforcement proceeding.’” Id.

at 1389 (quoting Carson, 631 F.2d at 1018) (alterations in original); (see Doc. 38, at 20).

That decision does not advance Levin’s position, as the D.C. Circuit found the State

Department presented “a sufficient showing of ‘concrete prospective law enforcement

proceeding[s].’” Id. at 1389. Though charges had been dismissed against three of the

prime suspects in the investigation, the evidence sufficiently demonstrated the

possibility of other, future proceedings. Id.

Finally, Levin cites Badran v. U.S. Department of Justice, 652 F. Supp. 1437 (N.D.

Ill. 1987), in which the former Immigration and Naturalization Service (INS) withheld

a Report of Investigation “because it contains information that the INS could use

against a person who might some day violate immigration laws.” Id. at 1440. The

district court rejected that reasoning as “bewildering and indefensible,” because “[i]f an

agency could withhold information whenever it could imagine circumstances where the

information might have some bearing on some hypothetical enforcement proceeding,

the FOIA would be meaningless; all information could fall into that category.” Id.

However, the Badran decision does not apply here, as the IRS has identified pending

and ongoing ERC examinations and refund litigation with which the requested

information would interfere, rather than simply suggesting the mere possibility of a

hypothetical enforcement proceeding. Furthermore, the Mapong decision supports the

applicability of Exemption 7(A) to reasonably anticipated proceedings falling within the

court’s rationale.

In summary, the court finds the IRS properly invoked Exemption 7(A) to

withhold the redacted portions of the documents Levin requested.

II. Exemption 7(E) Justifies the IRS’s Refusal to Fully Disclose the

Requested Documents.

FOIA Exemption 7(E) permits agencies to withhold

records or information compiled for law enforcement purposes, but only

to the extent that the production of such law enforcement records or

information . . . (E) 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. § 552(b)(7)(E).

“IRS tax examinations constitute ‘law enforcement’ investigations” pursuant to

Exemption 7(E). Agrama v. Internal Revenue Serv., 282 F. Supp. 3d 264, 274 (D.D.C. 2017

(first citing Vento v. IRS, 714 F. Supp. 2d 137, 148 (D.D.C. 2010); and then EduCap,

2009 WL 416428 at *4)), aff’d, No. 17-5270, 2019 WL 2064505 (D.C. Cir. Apr. 19, 2019).

The exemption separately protects “guidelines” and “techniques and

procedures” for law enforcement proceedings. The term “guidelines” refers to “how

the agency prioritizes its investigative resources . . . .” Transgender L. Ctr. v. Immigr. &

Customs Enf’t, 46 F. 4th 771, 784 (9th Cir. 2022); see also Knight First Amend. Inst. at Columbia

Univ. v. United States Citizenship & Immigr. Servs., 30 F.4th 318, 329 (2d Cir. 2022)

(“[G]uidelines . . . generally refers in the context of Exemption 7(E) to resource

allocation.” (quoting Allard K. Lowenstein Int’l Hum. Rts. Project v. Dep’t of Homeland Sec.,

626 F.3d 678, 682 (2d Cir. 2010))). “For example, if a law enforcement agency

concerned with tax evasion directs its staff to bring charges only against those who

evade more than $100,000 in taxes, that direction constitutes a ‘guideline.’” Allard K.

Lowenstein Int’l Hum. Rts. Project, 626 F.3d at 682.

As for the other type of information covered

[u]nder Exemption 7(E), “[t]he phrase ‘techniques and procedures’

. . . refers to how law enforcement officials go about investigating a crime.”

Allard K. Lowenstein Int’l Human Rights Project[, 626 F.3d at 682]. The

purpose of this exemption is to shield sensitive law enforcement

techniques from disclosure to prevent criminals from “circumventing

future [law enforcement] investigations.” Blackwell v. Fed. Bureau of

Investigation, 680 F. Supp. 2d 79, 92 (D.D.C. 2010), aff’d, 646 F.3d 37 (D.C.

Cir. 2011) . . . .

Broward Bulldog, Inc., 939 F.3d at 1191 (first, second, and fourth alterations in original).

As such, the phrase “‘techniques and procedures’ includes both law enforcement

methods – the actions that law enforcement personnel take to identify and neutralize

bad actors – as well as the triggers for the application of methods.” Knight First Amend.

Inst. at Columbia Univ., 30 F.4th at 330 (quoting Allard K. Lowenstein Int’l Hum. Rts. Project,

626 F.3d at 682).4

“The bar for withholding information under exemption 7(E) is a ‘relatively low

bar.’” Am. Fed’n of Gov’t Emps. Loc. 527 v. United States Immigr. & Customs Enf’t, No. 1:21-

CV-21992-KMM, 2024 WL 1179971, at *9 (S.D. Fla. Feb. 14, 2024) (quoting Rojas-Vega

v. ICE, 302 F. Supp. 3d 300, 310 (D. D.C. 2018)), report and recommendation adopted, No.

1:21-CV-21992-KMM, 2024 WL 1174332 (S.D. Fla. Mar. 18, 2024).

“[S]uch information may be withheld ‘not just for circumvention of the

law, but for a risk of circumvention; not just for an actual or certain risk

of circumvention, but for an expected risk; not just for an undeniably or

universally expected risk, but for a reasonably expected risk; and not just

for certitude of a reasonably expected risk, but for the chance of a

reasonably expected risk.’”

Id. (quoting Parker v. ICE, 238 F. Supp. 3d 89, 100 (D.D.C. 2017) (in turn quoting Mayer

4 Exemption 7(E) definitely applies to guidelines for law enforcement investigations or prosecutions

only if disclosure “could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §

552(b)(7)(E). There exists a circuit split as to whether the reasonable expectation proviso applies to

the exemption’s techniques and procedures category of information. See Broward Bulldog, Inc. v. U.S. Dep’t

of Just., 939 F.3d 1164, 1194 (11th Cir. 2019) (noting the Circuit split). However, similar to the Broward

decision, this court “need not take a side” in the dispute, as the IRS can satisfy the “circumvention of

the law” standard with regard to guidelines, techniques, and procedures for law enforcement

investigations or prosecutions. Id. at 1194.

Brown LLP v. I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009))).

“‘Exemption 7(E) clearly protects information that would train potential

violators to evade the law or instruct them how to break the law.’” Id. at *11 (quoting

Mayer Brown LLP, 562 F.3d at 1193). But the exemption also protects “‘from disclosure

information that could increase the risks that a law will be violated or that past violators

will escape legal consequences.’” Id. (quoting Mayer Brown LLP, 562 F.3d at 1193); see

also Carpezzi v. United States Dep’t of Just., No. 2:21-CV-180-JLB-KCD, 2023 WL

2648166, at *9 (M.D. Fla. Mar. 27, 2023) (“‘An agency must demonstrate only that

release of a document might increase the risk that a law will be violated or that past

violators will escape legal consequences.’” (quoting Jeanty v. F.B.I., No. 13-20776-CIV,

2014 WL 4206700, at *7 (S.D. Fla. Aug. 25, 2014) (in turn citing Pub. Emps. For Envtl.

Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 2016 (D.C. Cir.

2014))).

The IRS relies upon Amy Mielke’s declaration to support the application of

Exemption 7(E) in this case. Mielke declares:

The pages listed in the subparagraph below are withheld in part

pursuant to FOIA Exemption 7E, 5 U.S.C. § 552(b)(7)(E), because they

contain information describing certain techniques, procedures, and

guidelines used by the Service to enforce revenue laws, and disclosure of

the use of such techniques, procedures and guidelines would risk

circumvention of the law.

a. Pages 312-313, 315-324, 326, 362-363, and 366-369 are

withheld in part, and page 314 is withheld in full. They comprise

portions of the Form 886-A Assisted Living Facilities, Form 886-

A, IDR, which consists of guidelines, techniques, and procedures

used by IRS examiners evaluating ERC claims. This information

reveals the methods that IRS examiners use to identify deficient

claims, including specific methods of questioning, and the triggers

for application of those methods. Pages 316-323 explicitly are

instructions for questions to ask and records to request under

specific certain circumstances during examinations. Pages 324,

326, 362-363, and 366-369 contain information as to the Service’s

interest in specific facts and claims. If such information is

disclosed, taxpayers would be able to anticipate application of IRS

guidelines and procedures for evaluating ERC claims and use that

knowledge to circumvent the law.

(Doc. 35-3, ¶ 19).

After reviewing Mielke’s declaration and the redacted documents, the court

agrees the redacted material represents guidelines, techniques, and procedures IRS

examiners may use in evaluating ERC claims, thereby satisfying the low bar for the

protection of Exemption 7(E). The documents reveal the agency’s priorities in

allocating investigative resources, the triggers for initiating an investigation, and the

methods used during the investigation. Disclosing any such material presents a

reasonable expectation of the risk of circumventing the law, as it may train potential

violators to evade the law, increase the risk of legal violations, and/or permit past

violators to escape legal consequences. See, e.g., Am. Fed’n of Gov’t Emps. Loc. 527, 2024

WL 1179971, at *10-11 (S.D. Fla. Feb. 14, 2024) (Exemption 7(E) protects from

disclosure “information ‘pertaining to the purpose and investigatory uses of interviews,

how interviews should be conducted, specific questions that should be asked,

investigatory considerations of how interviews should be conducted, tools to utilize,

and the evaluation of the truthfulness of witness statements,’” as well as “‘specific

guidance, investigatory processes, investigatory considerations, techniques, and steps

pertaining to the use of certain law enforcement databases and systems in furtherance

of OPR investigations,’” because disclosure “would compromise the tactics ICE OPR

Special Agents utilize in conducting investigations” and “‘could coach future witnesses

in similar cases on how to avoid providing incriminating information, hindering the

future use of these investigative techniques.’”) (citations omitted), report and

recommendation adopted, No. 1:21-CV-21992-KMM, 2024 WL 1174332 (S.D. Fla. Mar. 18,

2024); Luthmann v. Fed. Bureau of Investigation, No. 2:21-CV-716-JES-NPM, 2024 WL

2187699, at *13 (M.D. Fla. May 15, 2024) (Exemption 7(E) protected from disclosure

“FBI methods used to collect and analyze information for investigative purposes” and

“investigatory details about how the DOB justifies its pursuit of wiretap orders”); Am.

C.L. Union of Maine Found. v. United States Citizenship & Immigr. Servs., No. 2:20-CV-

00422-JAW, 2022 WL 2355502, at *1 (D. Me. June 30, 2022) (Exemption 7(E) protects

documents containing “instruction as to questions to ask and measures to implement

in response to certain documents or to an applicant’s assertions.” (citing Knight First

Amend. Inst. at Columbia Univ., 30 F.4th at 331-33)), report and recommendation adopted sub

nom. Am. C.L. Union of Maine Found. v. U.S. Citizenship & Immigr. Servs., No. 2:20-CV-

00422-JAW, 2022 WL 4298419 (D. Me. Sept. 19, 2022); Palmarini v. Internal Revenue Serv.,

No. CV 17-3430, 2019 WL 1429547, at *5 (E.D. Pa. Mar. 29, 2019) (citation omitted)

(Exemption 7(E) protected “a checklist form that indicates why Plaintiffs were selected

for examination and includes other grounds that the IRS uses to assess compliance,” as

“its disclosure may enable tax dodgers to avoid detection.”).

Levin lodges several objections to the application of Exemption 7(E). First, she

asserts Exemption 7(E) does not prevent disclosure of “a ‘secret body of law’ that could

help a taxpayer with compliance with the law, rather than its evasion.” (Doc. 38, at 22).

She cites Mayer Brown LLP v. I.R.S., 562 F.3d 1190 (D.C. Cir. 2009), for the proposition

Exemption 7(E) does not protect disclosure of “garden-variety legal analysis,” such as

“discussion and digests of useful caselaw.” Id. at 1194 n.1 (cleaned up) (citing PHE,

Inc., 983 F.2d at 251-52). However, there exists no indication the material sought here

contains garden-variety legal analysis or general discussion of case law.5

Levin asserts that some of the redacted documents “appear to be more general

legal analysis discussions, at least in part, because they follow a discussion of

government orders and guidance.” (Doc. 38, at 25). The record does not support that

assertion. The pages Levin references discuss various applications and ramifications of

IRS Notice 2021-20 in specific situations. (Doc. 39-1, at 167-79). That the IRS left

unredacted descriptions of the requirements of the Notice itself, rather than its

application to specific situations, undermines Levin’s argument. On one page, the IRS

even left unredacted a paragraph with the heading “Summary of Applicable Law.” (Id.

5 Despite the observation about general case law descriptions cited by Levin, the D.C. Circuit held in

Mayer Brown LLP v. I.R.S., 562 F.3d 1190 (D.C. Cir. 2009), that Exemption 7(E) exempts disclosure

of IRS settlement guidelines, as they may educate a potential tax evader “how to best structure an

evasion so as to avoid the maximum enforcement efforts of the IRS.” Id. at 1194. That holding

actually supports the IRS’s position.

at 179). Thus, it appears the IRS disclosed general discussions of the law, while

redacting more specific application strategies in certain situations.

Levin also cites Hawkes v. Internal Revenue Serv., 507 F.2d 481 (6th Cir. 1974)

(“Hawkes II”), which assessed the IRS’s obligation to disclose “guidelines which I.R.S.

agents are to follow in determining which tax returns should be audited and which items

on a return deserve special scrutiny.” Id. at 484. As an example:

one paragraph which has been made public, § 6.051 of the Return

Classifier’s Handbook, states, ‘exhibit E . . . lists the average ratio of

officers’ salaries to gross income in various types of businesses.’ The

I.R.S. seeks continued secrecy of Exhibit E, presumably on the ground

that knowledge of the table’s specific ratios would encourage corporations

not to report salaries in excess of the averages, with the hope of avoiding

an audit concerning the reasonableness of their deductions for officers’

salaries. The already disclosed portion of § 6.051 states, however, ‘the

Table is not to be used as an inflexible measure of the reasonableness of

compensation, but rather as a guide for testing the reasonableness of the

deduction. What constitutes reasonable compensation depends upon the

facts in each case.’

Id.

The Sixth Circuit held that disclosure of the ratios “would not significantly

hamper enforcement activities,” as the requested information “merely enables an

individual to conform his actions to an agency’s understanding of the law applied by

that agency . . .” Id. “Far from impeding the goals of law enforcement, in fact, the

disclosure of information clarifying an agency’s substantive or procedural law serves the

very goals of enforcement by encouraging knowledgeable and voluntary compliance

with the law.” Id. (citing Hawkes v. Internal Revenue Service, 467 F.2d 787, 795 (6th Cir.

1972) (“Hawkes I”). The Court further reasoned:

Disclosure of Exhibit E would give the public a rough notion of

what salaries may be unreasonable for corporate deduction purposes, in

the view of the enforcing agency – the I.R.S. The sole effect of disclosure

of this information would not be easier evasion of the tax laws. Rather,

companies taking unreasonable deductions would be encouraged to

reduce their officers’ salaries to within the ranges specified in Exhibit E,

and companies wishing substantially to exceed the average range would

be on notice that proof of the reasonableness of the higher salary

deductions would probably be required by an I.R.S. auditor.

Id. at 484.

However, as Levin acknowledges (see Doc. 38, at 23), Hawkes addressed

Exemption 2, not Exemption 7(E). Exemption 2 protects disclosure of matters

“related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. §

552(b)(2). That exemption “is . . . a very narrow one and is to be applied only where

the sole effect of disclosure would be to enable law violators to escape detection.”

Hawkes II, 507 F.2d at 483 (quoting Hawkes I, 467 F.2d at 795-97). That presents a

more exacting standard than Exemption 7(E), which requires only “the chance of a

reasonably expected risk” that disclosure would circumvent the law. Am. Fed’n of Gov’t

Emps. Loc. 527, 2024 WL 1179971, at *9. As such, Hawkes does not persuade the court

to forego application of Exemption 7(E) to the materials Levin requested in this case,

particularly considering the ample persuasive authority cited above to support applying

the exemption.

Levin also argues the exemption does not apply to the undisclosed material

because the requested documents “concern a credit that is no longer claimable. Instead,

the information is sought to evaluate whether already submitted ERC claims are valid.”

(Doc. 38, at 25). According to Levin, “[t]he redacted information is the information

that the IRS needs to see to determine whether or not the ERC claim is properly

substantiated”; thus, “[t]he IRS essentially is claiming that the public is not entitled to

know what it needs to substantiate an ERC claim until after they (the public) fail to

provide that information,” a position she claims “defies logic.” (Id. at 25-26).

For several reasons, this argument does not persuade the court. True, the ERC

applied only to “wages paid after June 30, 2021, and before October 1, 2021 (or, in the

case of wages paid by an eligible employer which is a recovery startup business, January

1, 2022),” 26 U.S.C. § 3134(n), and the CARES Act, which created the ERC, expired

on May 10, 2023. McGuire-Mollica v. Warden, FCI Marianna, No. 24-12517, 2025 WL

1860326, at *2 (11th Cir. July 7, 2025). Nevertheless, Levin acknowledges the IRS

continues to review already submitted ERC claims. Levin alleges in her Amended

Complaint that “‘thousands of audits’ [remain] in the IRS pipeline” related to the ERC.

(Doc. 7, ¶ 16). And all taxpayers have two years after the IRS disallows a claim to file

for a refund in federal court. 26 U.S.C. § 6532(a)(1). Taxpayers subject to pending

investigations or prosecutions, or who are considering refund claims, still could use the

techniques, procedures, or guidelines for law enforcement investigations contained

within the requested materials to circumvent the law. As previously discussed,

Exemption 7(E) applies not only to information that would train potential violators to

evade the law in the future, but also to information that could increase the risk of a past

violator escaping legal consequences. See Am. Fed’n of Gov’t Emps. Loc. 527, 2024 WL

1179971, at *8.

Furthermore, the court finds no incongruity between the IRS’s requirement that

taxpayers substantiate their ERC claims and the IRS’s withholding of the redacted

portions of the requested documents. Taxpayers do not lack guidance on how to

substantiate ERC claims, as the statute itself provides parameters for eligibility, and the

IRS website provides detailed information on the ERC, including an eligibility checklist.

https://www.irs.gov/coronavirus/employee-retention-credit, last visited January 13,

2026.

Levin argues the IRS’s publication of checklists for ERC claims and “audit

technique guides” undermine its assertion that the requested information falls under

Exemption 7(E). (Doc. 38, at 26). The Eleventh Circuit has held that “law enforcement

techniques or procedures that are universally known to the public cannot be shielded

from disclosure under” FOIA. Broward Bulldog, Inc., 939 F.3d at 1191 (first citing Rugiero

v. U.S. Dep’t of Justice, 257 F.3d 534, 551 (6th Cir. 2001); then Davin v. U.S. Dep’t of Justice,

60 F.3d 1043, 1064 (3d Cir. 1995); and then Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803,

815 (9th Cir. 1995)).

But even for well-known techniques or procedures, Exemption 7(E)

protects information that would reveal facts about such techniques or

their usefulness that are not generally known to the public, as well as other

information when disclosure could reduce the effectiveness of such

techniques. See, e.g., Vazquez v. U.S. Dep’t of Justice, 887 F. Supp. 2d 114,

116-17 (D.D.C. 2012) (observing that while the public is generally aware

of the Bureau’s National Crime Information Center databases, details of

their use and whether individuals are mentioned in them is not known to

the public). For example, when disclosure would expose specific

vulnerabilities in law-enforcement investigative techniques and

procedures, Exemption 7(E) applies. See, e.g., Blackwell v. Fed. Bureau of

Investigation, 646 F.3d 37, 42 (D.C. Cir. 2011) (holding that Exemption 7(E)

applied when disclosure would “expos[e] [the Bureau’s] computer forensic

vulnerabilities to potential criminals”).

Id. at 1191-92 (alterations in original).

The withheld documentation in the present cases includes information not

generally known to the public, such as guidelines, techniques, and procedures IRS

examiners use in processing ERC claims; methods used to identify deficient claims,

including questioning methods and the triggers for applying those methods; questions

to ask and records to request under specific examination scenarios; and the IRS’s

interest in specific facts and claims. Therefore, the IRS’s public disclosure of certain

information about processing ERC claims does not prevent its invocation of

Exemption 7(E) as to additional information not available to the public.

In summary, the court finds the IRS properly invoked Exemption 7(E) to

withhold the redacted portions of the documents Levin requested.

CONCLUSION

As explicated herein, FOIA Exemptions 7(A) and 7(E) protect from disclosure

the information Levin seeks from the IRS. Accordingly, the court GRANTS summary

judgment in favor of the IRS. The court will enter a separate final judgment.

DONE and ORDERED this 14" day of January, 2026.

Ht N. JOHNSON. JR.

UNITED STATES MAGISTRATE JUDGE

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