United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 12, 2022 Decided February 21, 2023 No. 21-5258 BRADLEY S. WATERMAN, APPELLANT v. INTERNAL REVENUE SERVICE, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01823) David C. Vladeck argued the cause and filed the briefs for appellant. Julie Ciamporcero Avetta, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Jennifer M. Rubin, Attorney. Before: WALKER, Circuit Judge, and ROGERS and TATEL, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge ROGERS. 2 Opinion concurring in part and dissenting in part filed by Circuit Judge WALKER. ROGERS, Senior Circuit Judge: The Secretary of the Treasury is empowered to “regulate the practice of representatives of persons before the Department of the Treasury.” 31 U.S.C. § 330. Pursuant to this authority, the Office of Professional Responsibility (“OPR”) investigates allegations of practitioner misconduct before the Internal Revenue Service (“IRS”). 31 C.F.R. § 10.1. Bradley Waterman sued the IRS under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of documents relating to the OPR’s investigation of a misconduct report on him. The district court ruled that the four documents were protected from disclosure by FOIA Exemption 5’s deliberative process privilege and granted summary judgment to the IRS. Waterman contends that the withheld documents are nondeliberative and therefore unprotected by Exemption 5. For the following reasons, we affirm in part and reverse in part. I. “The fundamental principle animating FOIA is public access to government documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). FOIA requires federal agencies, “upon any request for records,” to “make the records promptly available to any person.” 5 U.S.C. § 552(a)(3). While the Act “reflects a general philosophy of full agency disclosure,” Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (internal quotation marks omitted), Congress also realized that “legitimate governmental and private interests could be harmed by release of certain types of information,” AquAlliance v. U.S. Bureau of Reclamation, 856 F.3d 101, 102 (D.C. Cir. 2017) (quoting Dep’t of Just. v. Julian, 486 U.S. 1, 8 (1988)). Consequently, 3 FOIA exempts nine categories of documents from “the government’s otherwise broad duty of disclosure.” Id. at 103. Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The exemption incorporates the deliberative process privilege, which protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks omitted). To properly invoke Exemption 5, an agency must show that withheld documents are “both predecisional and deliberative.” U.S. Fish & Wildlife Serv. v. Sierra Club, 141 S. Ct. 777, 788 (2021). A …
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