1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-81351-Civ-Middlebrooks/Matthewman

ALFRED S.K. TEO,

Plaintiff,

v.

INTERNAL REVENUE SERVICE,

Defendant.

______________________________/

MAGISTRATE JUDGE’S REPORT & RECOMMENDATION

ON THE IRS’S MOTION FOR SUMMARY JUDGMENT [DE 21]

Alfred S.K. Teo filed a request under the Freedom of Information Act (“FOIA”) seeking 

to obtain records relating to an audit of his 2016 tax return by the Internal Revenue Service (“IRS”). 

Following an alleged untimely and inadequate response to his request, Teo initiated this action

seeking to compel the IRS to produce the information to which he contends he is entitled under 

the FOIA.

Currently pending before the Court is the IRS’s Motion for Summary Judgment (“Motion”)

[DE 21]. Teo responded in opposition [DE 31] and the IRS replied [DE 33]. With the Court’s 

authorization, the IRS later supplemented its Motion [DE 38], and Teo sur-replied [DE 39]. The 

Motion has been referred to the undersigned U.S. Magistrate Judge by U.S. District Judge Donald 

M. Middlebrooks for a report and recommendation [DE 40, DE 43]. 

The Court held oral argument via Zoom videoconference on August 13, 2021 [DE 51]. 

Having duly considered the parties’ arguments, the record, and the applicable law, the Court 

recommends that the Motion [DE 21] be GRANTED for the following reasons.

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I. FACTUAL BACKGROUND

The following facts are drawn from the uncontested portions of the record together with 

the parties’ respective statements of material facts (“SMF”) [DE 21-3, DE 31-1, DE 38-2, DE 39-

1] and supporting affidavits [DE 21-4, DE 32-1, DE 32-2]. These facts are viewed in the light 

most favorable to the non-moving party, Teo.

On June 4, 2020, Teo’s power of attorney, Pasquale J. Fufolo, faxed a FOIA request to the 

IRS (the “FOIA Request”) seeking thirty-three (33) specifically enumerated categories of records 

“relating to the tax return of Alfred SK Teo and Annie Teo (the ‘Taxpayers’) for the taxable year 

ended 2016 and the audit conducted in connection therewith” [Compl. Ex. A, DE 1-2]. The FOIA 

request identified Revenue Agent Jamie Roberts as an IRS employee with knowledge of the 

records sought [Id.]. Upon receiving the FOIA request on June 4, 2020, the IRS gave it case 

number FX 2020-02377, assigned it to IRS Disclosure Specialist Alan W. Young for processing, 

and sent a copy via FedEx to Roberts in West Palm Beach, Florida [IRS SMF ¶¶ 7-8 (citing Neal

Dec. DE 21-4 ¶¶ 7-8) (undisputed)]. 

On June 30, 2020, Roberts sent the entire 2016 exam file to Young via email and Young 

copied the material provided to the document review platform used by the IRS Disclosure Office 

[Id. ¶¶ 10-11 (citing Neal Dec. DE 21-4 ¶¶ 10-11) (undisputed)]. From July 1 through September 

8, 2020, Young worked on Teo’s FOIA request; however, due to technical difficulties with the 

review platform, Young did not complete the review of the responsive records, and he released no 

records in response to the FOIA request [Id. ¶ 12 (citing Neal Dec. DE 21-4 ¶ 12) (undisputed)]. 

On August 19, 2020, Teo filed the instant complaint alleging that the IRS violated FOIA 

by failing to timely respond to his FOIA request or produce responsive documents [DE 1]. 

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Thereafter, on September 17, 2020, IRS Disclosure Manager Celeste Neal reassigned the FOIA 

request from Young to IRS Disclosure Analyst Mark Vees to assess the status of the records review 

and Vees confirmed that the 1,263 pages of the 2016 exam file records provided by Roberts on 

June 30, 2020 were already in the review platform [IRS SMF ¶ 13 (citing Neal Dec. DE 21-4 ¶ 13) 

(undisputed)]. 

On October 1, 2020, Neal had a conference call with Vees, Roberts, and IRS Chief Counsel 

attorneys Lowell Thomas and Vikramsing Barad to discuss Teo’s complaint and the status of 

processing his FOIA request [Id. ¶ 14 (citing Neal Dec. DE 21-4 ¶ 14) (undisputed)]. During the 

call, Roberts confirmed that no other Revenue Agents worked on Teo’s 2016 exam other than her, 

that she possessed the entire exam file, and that she had forwarded the entire exam file to Young 

on June 30, 2020 [Id. (undisputed)]. 

On October 28, 2020, Neal had a second conference call with Vees, Roberts, Thomas, and 

Barad, during which Vees stated that all the 2016 exam file records provided on June 30, 2020 

were in the review platform and that he was in the process of reviewing the records and applying 

any necessary redactions [Id. ¶ 15 (citing Neal Dec. DE 21-4 ¶ 15) (undisputed)]. During the 

October 28, 2020 call, Roberts mentioned having eight (8) additional pages of material reflecting 

that Teo’s 2016 tax case had been referred to the Department of Justice and reciting the procedures 

to be followed regarding the exam file [Id. ¶ 16 (citing Neal Dec. DE 21-4 ¶ 16) (undisputed)]. 

IRS Chief Counsel attorneys advised that these documents, which were not included in the June 

30, 2020 production to Young, should be included as responsive to the FOIA request [Id.

(undisputed)]. Roberts thus forwarded these documents to IRS’s Chief Counsel attorneys that 

same day [Id. (undisputed)].

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On November 9, 2020, Vees completed his review of the 2016 exam file records [Id. ¶ 18 

(citing Neal Dec. DE 21-4 ¶ 18) (undisputed)]. With the additional eight (8) pages identified on 

October 28, 2020, the exam records totaled 1,271 pages [Id. (undisputed)]. Of the 1,271 exam 

pages, the IRS claims it withheld in full 803 pages, withheld in part 124 pages, and released in full 

344 pages to Teo [Id. ¶ 19 (citing Neal Dec. DE 21-4 ¶ 19) (disputed in part by Teo on grounds 

that the IRS “has not produced any information or log that would allow the Court to assess the 

withheld material” [DE 31-1 ¶ 19])]. 

On November 25, 2020, at the request of IRS Chief Counsel attorneys and to ensure a 

complete FOIA response, Neal instructed Disclosure Specialist Jennifer Johnson to retrieve 

requested transcripts [IRS SMF ¶ 28 (citing Neal Dec. DE 21-4 ¶ 28) (undisputed)]. Johnson 

provided 95 pages of transcripts to Chief Counsel for review that same day [Id.]. Of the 95 pages 

of transcripts, the IRS released in full 22 pages and released in part 73 pages to Teo [Id.].

On December 18, 2020, the IRS commenced a supplemental search under the direction of 

IRS attorney Sarah Tate, during which 1,079 pages of responsive records were located [Id. ¶¶ 33-

34 (citing Barad Dec. DE 32-2 ¶¶ 4-5) (undisputed)]. As part of this supplemental search, Tate 

contacted Roberts to ask if she had any emails pertaining to Teo’s 2016 exam that were not 

previously provided in the exam file sent to Young in June 2020 [Id. ¶ 59 (citing Tate Dec. DE 32-

1 ¶ 5) (undisputed)]. Roberts said she did and sent 835 pages of responsive records to Tate on 

December 18, 2020 [Id. ¶¶ 60-61 (citing Tate Dec. DE 32-1 ¶¶ 6-7) (undisputed)]. After 

determining that Roberts’ supervisor, Supervisory Revenue Agent Marian Kenney, could have 

additional records relating to Teo’s 2016 exam, Tate directed Lowell Thomas of her office to 

contact Kenney and request all records and emails, with attachments, that Kenney had relating to 

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Teo’s 2016 exam on which Roberts was not included [Id. ¶ 62 (citing Tate Dec. DE 32-1 ¶ 8) 

(undisputed)]. 

On December 31, 2020, Kenney sent 244 pages of responsive records to Thomas [Id.

(undisputed)]. Some of the newly located records reflect the closure of Teo’s 2016 exam on 

instructions from IRS Criminal Investigation [Id. ¶ 63 (citing Tate Dec. DE 32-1 ¶ 9) (undisputed)]. 

While the new records refer to other IRS employees who provided technical assistance, the IRS 

asserts such employees did not handle Teo’s exam and they would have no records other than 

duplicates of those records already provided by Roberts and Kenney; thus, these employees were 

not asked to search for or provide responsive records [Id.].

IRS attorney Vikramsing Barad reviewed the 1,079 pages of supplemental responsive 

records to identify applicable FOIA exemptions [Id. ¶ 35 (citing Barad Dec. DE 32-2 ¶ 6) 

(undisputed)]. Of the 1,079 pages, none were withheld in full; rather, the IRS released in full 876 

pages and released in part 203 pages to Teo [Id.].

The IRS invoked FOIA Exemption 3 with I.R.C § 6103(a) to withhold in part 172 pages 

that contain return information of taxpayers other than Teo, including names, taxpayer 

identification numbers (SSN or EIN), and information regarding potential liability under the 

Internal Revenue Code. [Id. ¶ 36 (citing Barad Dec. DE 32-2 ¶ 7) (undisputed)]. 

The IRS invoked FOIA Exemption 3 with I.R.C § 6103(b)(2) and (e)(7) to withhold Teo’s 

Discriminant Index Function (“DIF”) score on one page and states that such scores are how the 

IRS primarily selects tax returns for examination based on assigned values or weights to line items

[Id. ¶¶ 37-38 (citing Barad Dec. DE 32-2 ¶¶ 8-9) (undisputed)]. Under his delegation authority, 

attorney Barad determined that any DIF scores or related examination criteria that are present in 

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the responsive records in this case may be withheld under § 6103(b)(2) and (e)(7) (in conjunction 

with FOIA Exemption 3) as it would seriously impair tax administration [Id. ¶¶ 42, 44 (citing 

Barad Dec. DE 32-2 ¶¶ 13, 15) (undisputed)]. 

The IRS invoked FOIA Exemptions 6 and 7(C) to withhold material on 31 pages 

encompassing personal information (names, telephone numbers, email addresses, and fax 

numbers) of IRS employees whose official duties are ministerial in nature and who do not interact 

with the public [Id. ¶¶ 50-52 (citing Barad Dec. DE 32-2 ¶¶ 21-23) (undisputed)]. In support, the 

IRS asserts that revealing this information may subject these employees to improper attempts to 

communicate with them, including by phishing, cyberstalking, and spam [Id. ¶¶ 51-52 (citing 

Barad Dec. DE 32-2 ¶¶ 22-23) (undisputed)].

As was confirmed at oral argument, consistent with the trio of declarations submitted by 

the IRS, its overall search turned up a grand total of 2,445 pages of records responsive to Teo’s 

request [Id. ¶ 34 n.1 (undisputed)]. Of these 2,445 pages, the IRS released in full 1,242 pages, 

released in part 400 pages, and withheld in full 803 pages [Id.].1

II. LAW

A. Summary Judgment Standard

A court may grant a motion for 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.” 

1 At oral argument, the IRS’s counsel confirmed that there were three separate productions to Teo. The first 

two occurred in November 2020, when Teo received 366 pages in full and 197 pages in part (the IRS withheld 

803 pages of the 1,366 pages of responsive records located during its initial search) [Neal Dec. DE 21-4 ¶¶ 19, 

28]. The third and final supplemental production occurred on January 7, 2021, when Teo received 876 pages 

in full and 203 pages in part (the IRS withheld none of the additional 1,079 pages of responsive records located 

in its supplemental search) [Barad Dec. DE 32-2 ¶ 6].

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Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record, including 

depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine 

if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe 

of Indians of Fla. v. U.S., 516 F. 3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of 

the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48). The court views 

the facts in the light most favorable to the non-moving party and draws all reasonable inferences 

in that party’s favor. Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018).

B. FOIA Standards

“FOIA mandates the disclosure of documents held by a federal agency unless the 

documents fall within one of nine enumerated exemptions.” U.S. Fish & Wildlife Serv. v. Sierra 

Club, Inc., 141 S. Ct. 777, 785, 209 L. Ed. 2d 78 (2021); 5 U.S.C. § 552(b)(1)-(9). “Congress 

enacted FOIA to ‘enable the public to have access to government information that is unnecessarily 

shielded from public view.’” Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235, 1244 

(11th Cir. 2008) (quoting Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1484 (11th Cir. 1992). 

Thus, records within FOIA’s scope, “are presumed to be subject to disclosure unless [the agency] 

affirmatively establishes that the requested records fall into one of FOIA’s exemptions.” Office 

of Capital Collateral Counsel, N. Region of Fla. ex rel. Mordenti v. Dep't of Justice, 331 F.3d 799, 

802 (11th Cir. 2003); see also Light v. Dep’t of Justice, 968 F. Supp. 2d 11, 26 (D.D.C. 2013) (“It 

is clear that ‘disclosure, not secrecy, is the dominant objective of the [FOIA].’”).

“A court reviews an agency’s response to a FOIA request de novo, 5 U.S.C. § 

552(a)(4)(B),” and FOIA cases are generally resolved on motions for summary judgment. Scott 

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v. IRS, 2021 WL 256417, at *4 (S.D. Fla. Jan. 26, 2021) (Marra, D.J.) (citing Kissinger v. Reporters 

Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980)). The FOIA “vests jurisdiction in 

federal district courts to enjoin an ‘agency from withholding agency records and to order the 

production of any agency records improperly withheld from the complainant.’” Kissinger, 445 

U.S. at 139 (quoting 5 U.S.C. § 552(a)(4)(B)).

In a FOIA action to compel production of agency records, the agency “is entitled to 

summary judgment if no material facts are in dispute and if it demonstrates ‘that each document 

that falls within the class requested either has been produced...or is wholly exempt from [FOIA’s] 

inspection requirements.’” Id. (citations omitted). “To successfully challenge an agency’s 

showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts’ 

demonstrating that there is a genuine issue with respect to whether the agency has improperly 

withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 

2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

In the FOIA context, summary judgment may be based solely on information provided in 

an agency’s supporting affidavits or declarations if they are “relatively detailed, nonconclusory, 

and submitted in good faith,” meaning they (1) describe the documents and the justifications for 

nondisclosure with reasonably specific detail, (2) demonstrate that the information withheld 

logically falls within the claimed exemption, and (3) are not controverted by contrary record 

evidence or evidence of agency bad faith. See Karantsalis v. U.S. Dep’t of Just., 635 F.3d 497, 

500 (11th Cir. 2011); Scott, 2021 WL 256417, at *4 (internal quotations and citations omitted). 

In evaluating if an agency has met its burden of non-production, “the underlying facts are 

viewed in the light most favorable to the [FOIA] requester.” Scott, 2021 WL 256417, at *4 (citing 

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Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In assessing the 

evidence, a court must determine if the agency establishes an “adequate factual basis” for invoking 

the exemptions, which “may be established, depending on the circumstances of the case, through 

affidavits, a Vaughn Index,2 in camera review, or through a combination of these methods.” 

Miccosukee Tribe, 516 F.3d at 1244, 1258.

III. THE PARTIES’ BRIEFING

A. The IRS’s Motion for Summary Judgment [DE 21]

In its Motion for Summary Judgment, filed on November 30, 2020, the IRS argues it 

adequately searched for records responsive to Teo’s FOIA request and properly withheld records, 

or portions thereof, under applicable FOIA exemptions. In support, the IRS relies on the affidavit 

of IRS Disclosure Manager Celeste Neal [DE 21-4], which explains how the search for records 

responsive to Teo’s FOIA request was conducted. In all, the IRS maintains that it performed an 

adequate search and disclosed to Teo those records to which he is entitled under FOIA.

The IRS invoked FOIA Exemption 3 with sections 6103(a) and 6103(e), arguing that it 

properly “withheld 803 pages in full and 120 pages in part” consisting of third-party tax return 

information—including taxpayer names, identification numbers, federal tax returns, and other 

information prepared by the IRS to determine tax liability—and “one page of certain revenue agent 

work papers and history notes pertaining to the 2016 civil exam of [Teo]” [DE 21-1 at 8-9]. As 

to the records withheld in part, the IRS asserts that it properly segregated the exempt and 

2 See, e.g., Scott v. IRS, Case No. 18-81742-Civ-Marra/Matthewman, 2019 WL 2064817 (S.D. Fla. May 10, 

2019) (Matthewman, M.J.) (order granting in part and denying in part motion to compel production of limited 

Vaughn index); Scott v. IRS, Case No. 18-81750-Civ-Marra/Matthewman, 2020 WL 2045693 (S.D. Fla. Apr. 

28, 2020 (Matthewman, M.J.) (order denying motion to compel production of a Vaughn index).

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nonexempt material contained in the documents disclosed to Teo.

The IRS also invoked FOIA Exemption 7(A) and 7(E), arguing that “the vast majority” of 

the responsive records relate to the IRS’s investigation and civil examination of Teo’s 2016 tax 

year which is the subject of an ongoing federal criminal case in New Jersey and that disclosure of 

these records could interfere with ongoing enforcement proceedings.3

Lastly, the IRS invoked FOIA Exemptions 6 and 7(C), arguing that it properly withheld 

“telephone numbers and fax numbers of IRS employees, as well as IRS employees whose official 

duties are ministerial in nature, and who do not interact with the public.” [Id. at 15].

B. Teo’s Response [DE 31]

In his response, filed on December 30, 2020, Teo argues that the IRS’s submissions in this 

case and the documents produced to Teo raise genuine questions regarding the adequacy of the

IRS’s search. For instance, Teo asserts that out of the roughly 600 pages of material he received, 

not one page contains correspondence, emails, or electronic files even though records produced 

have entries that reference the exchange of correspondence and emails among several IRS 

employees. 

In separate briefing related to Teo’s intervening motion to compel, the IRS indicated “there 

may be a small subset of documents that were not identified” which Teo cites as confirmation that 

there may still be additional responsive, non-exempt documents that have not been produced. [DE 

31 at 11 (citing DE 29 at n.4 (emphasis in original)]. As such, Teo argues that the most expedient 

3 See U.S. v. Teo, Case No. 20-cr-00690-KSH, (D.N.J.). A review of the record in the New Jersey criminal 

case shows that Teo was indicted on August 10, 2020 on three counts of tax evasion and six counts of 

making/subscribing false tax returns. [Id. at DE 10]. As of August 16, 2021, the case remains pending 

and the last activity of record is an order continuing the matter to September 1, 2021. [Id. at DE 26]. 

 

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and determinative path to resolving this FOIA case is to deny summary judgment and permit Teo 

to depose Agent Roberts as she is the only IRS employee that the IRS maintains has personal 

knowledge of what and where potentially responsive documents exist.4 

C. The IRS’s Reply [DE 33]

In its reply, filed January 6, 2021, the IRS argues that its searches from before and after it 

filed its summary judgment motion demonstrate that its overall search methodology was 

reasonable and adequate. The IRS asserts that its continued production of documents reflects its 

good faith search efforts to comply with FOIA. Furthermore, the IRS asserts that Teo did not 

contest any FOIA exemptions previously asserted over the documents produced to him in 

November 2020 and thus he waived any right to challenge those exemptions.

The IRS argues further that there is no reason for Teo to challenge the exemptions applied 

to a supplemental production of documents “that will occur in January 2021” [DE 33 at 2]. The 

IRS claims it properly invoked FOIA Exemptions 3, 5, 6, 7(C), and 7(E) for the supplemental 

production to protect (1) discriminant index function (“DIF”) scores used by the IRS to select tax 

returns for examination, (2) predecisional records protected under the deliberative process 

privilege, (3) third-party tax return information, and (4) IRS personnel information. Having met 

its burden to show its search was adequate and that it properly asserted exemptions, the IRS argues 

4 Shortly after the IRS filed its Motion for Summary Judgment, on December 9, 2020, Teo filed an expedited 

motion to compel the deposition of Agent Roberts, arguing that the deposition was necessary to assess the 

adequacy of the IRS’s search for responsive records [DE 22]. On December 23, 2020, before Teo filed his 

response to the IRS’s Motion for Summary Judgment, the previously assigned U.S. Magistrate Judge denied the 

intervening motion to compel on grounds that Teo’s challenges of the IRS’ chosen declarant did not justify the 

deposition [DE 30]. Teo appealed and, on July 6, 2021, the presiding U.S. District Judge affirmed the denial of 

the motion to compel deposition, finding that Teo’s arguments that the IRS’s search was inadequate could be 

raised in the summary judgment briefing without the need to depose Agent Roberts [DE 47].

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that the Court should award the IRS summary judgment and conclude this case.

D. The IRS’s Supplement [DE 38]

The same day the IRS filed its reply, on January 6, 2021, it filed a motion asking the Court 

to allow it to supplement its summary judgment briefing with the sworn declarations of two

attorneys from its Office of Chief Counsel—Senior Counsel Sarah Tate [DE 32-1] and Senior 

Technician Reviewer Vikramsing Barad [DE 32-2]. The Court granted the motion and also 

ordered the IRS to file supplemental briefing [DE 37].

In its supplemental briefing, filed February 2, 2021, the IRS argued it “provided Teo all of 

the records that FOIA entitles him to receive.” [DE 38-1 at 1]. The IRS relies upon the 

declarations of Neal, Tate, and Barad as establishing the reasonableness of its original and 

supplemental search methodology, which included proper segregability analysis and rightful

withholding of records under FOIA exemptions. The supplemental search was overseen by Tate 

and resulted in locating additional responsive records, of which Teo received the non-exempt 

portions. Among other things, the IRS claims it produced emails, electronic records, and the 

revenue agent report to Teo.

The IRS maintains it properly asserted FOIA Exemptions 3, 5, 6, and 7(C) to protect (1) 

DIF scores used by the IRS to select tax returns for examination, (2) predecisional records 

protected under the deliberative process privilege, (3) third-party tax return information, and (4) 

IRS personnel information. The IRS claims it reviewed all records at issue and confirmed that 

the withheld material comports with applicable FOIA exemptions. 

E. Teo’s Sur-Reply [DE 39]

In his sur-reply, filed February 10, 2021, Teo contends that the supplemental submissions 

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confirm that the IRS’s production remains incomplete and the only way to finally resolve the 

outstanding issues is to require the deposition of Agent Roberts. Teo points to the IRS’s delay 

and changing positions over several months regarding which IRS employees had documents 

responsive to his FOIA request. For example, according to Teo, the IRS first claimed that only 

Agent Roberts worked on Teo’s 2016 exam. However, when confronted with documents that 

referred to other IRS employees, the IRS offered contradictory explanations including falsely 

asserting that Teo never sought email communications while also indicating that the nonproduction of emails was because they had no substantive information beyond that which is 

already included in the exam file that had been produced. In addition, Teo points to the IRS’s

asserted lack of any emails between Roberts and Kenney predating March 2020 while IRS Agent 

Roberts worked on the matter is unsupported and unlikely.

Teo argues that the IRS’s “meritless and shifting explanations for its deficient production 

undermine any confidence in the adequacy of [the IRS’s] search and the accuracy of its secondhand declarations.” [DE 39 at 5]. According to Teo, the IRS’s refusal to search for records of 

other IRS employees who worked on the matter renders its search inadequate. Teo further asserts 

that any evaluation of the IRS’s claimed exemptions is premature until all responsive materials are 

produced.

IV. ANALYSIS

At the outset, the Court finds it important to note that Teo’s FOIA request and this entire

FOIA litigation has occurred amid a global pandemic that has disrupted all American life. It 

cannot seriously be questioned that the COVID-19 pandemic has caused unexpected and 

uncontrollable delays in the processing of various matters across all agencies, including the IRS. 

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Against the backdrop of these unprecedented circumstances and in accordance with governing law, 

the Court will first consider the adequacy of the IRS’s search and Teo’s related challenges. The 

Court will then consider the FOIA exemptions invoked by the IRS over withheld material, which 

Teo has not squarely challenged or addressed in his briefing or otherwise.

A. The IRS Conducted a Reasonable and Adequate Search

The IRS argues that it is entitled to summary judgment because it performed a reasonable 

search for the records requested by Teo. This Court agrees. “FOIA requires a federal agency, 

upon request for records that reasonably describes documents held by the agency, to make those 

documents promptly available unless the information within the records is protected from 

disclosure by a statutory exemption.” Lee v. U.S. Att’y for S. Dist. of Fla., 289 F. App’x 377, 380 

(11th Cir. 2008) (per curiam). “The adequacy of an agency’s search for documents requested 

under FOIA is judged by a reasonableness standard.” Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 

1558 (11th Cir. 1990), rev’d on other grounds, 502 U.S. 164 (1991). 

The agency need not perform an exhaustive search, but to be entitled to summary judgment, 

it must “show beyond material doubt . . . that it has conducted a search reasonably calculated to 

uncover all relevant documents.” Id. (alteration in original) (quoting Weisberg v. U.S. Dep’t of 

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency can meet this burden “by producing 

affidavits that are ‘relatively detailed, nonconclusory, and submitted in good faith.’” Id. (quoting 

Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985)). If the agency satisfies its 

burden in showing that its search was reasonable, “the burden shifts to the requester ‘to rebut the 

agency’s evidence by showing that the search was not reasonable or was not conducted in good 

faith.’” Id. (quoting Miller, 779 F.2d at 1383).

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The IRS asserts it reasonably searched for responsive documents and provided Teo all the 

records that FOIA entitles him to receive. To demonstrate the reasonableness of its search for 

responsive documents, the IRS submitted affidavits from an IRS disclosure manager and two IRS

attorneys overseeing the process of compiling and reviewing the documents Teo received in 

response to his FOIA request. It is undisputed that the IRS immediately acted on the FOIA 

request by assigning it a case number and a disclosure specialist on the day it was received [Neal. 

Dec. ¶¶ 7-8]. It is further undisputed that later that same month, the IRS revenue agent in West 

Palm Beach who worked on Teo’s 2016 exam file sent responsive material via email to the 

assigned disclosure specialist [Id. ¶ 11]. Neal’s sworn declaration explains that the IRS’s

response was initially delayed because disclosure specialist Alan Young, the first assigned analyst, 

had “technical difficulties with the review platform” rendering him “unable to complete the review 

of the responsive records” [Id. ¶ 12]. Neal’s declaration explained that after Teo filed the instant 

complaint, his FOIA request was reassigned to a new disclosure analyst, Mark Vees [Id. ¶ 13]. 

Neal thereafter participated in two internal conference calls with Vees, the revenue agent, and IRS

attorneys to discuss the status of Teo’s FOIA request, during which eight additional pages were 

discovered [Id. ¶¶ 14-16]. Vees then completed his review on November 9, 2020, and material 

deemed responsive was disclosed to Teo [Id. ¶¶ 18-19].

The IRS thereafter engaged in two supplemental searches—one for requested transcripts 

and a second one under the direction of and with the assistance of IRS attorneys [Neal Dec. ¶ 28; 

Barad Dec. ¶¶ 4-5; Tate Dec. ¶¶ 5-9]. Additional responsive documents were found and material 

deemed responsive was disclosed to Teo in supplemental productions [Neal Dec. ¶ 28; Barad Dec. 

¶¶ 4-6; Tate Dec. ¶¶ 5-9]. Out of a total universe of 2,445 pages of responsive records located by

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the IRS, Teo received 1,242 full pages and 400 partial pages, while 803 pages were withheld in 

full [Barad Dec. ¶ 5 n. 1].

Teo’s challenges to the reasonableness of the IRS’s search are without merit. His chief 

argument is what he describes as the IRS’s delayed response, shifting positions, and multiple 

supplemental productions that, according to Teo, “undermine any confidence in the adequacy of 

the IRS’s search and the accuracy of its second-hand declarations” [DE 39 at 5]. Throughout the 

history of this case, Teo has consistently argued that the only way to confirm the accuracy of the 

IRS’s search is to question IRS Agent Roberts as she is the one who primarily worked on his 2016 

exam file. Not so. The Court sees no need for a deposition of IRS Agent Roberts in this case. 

As for Teo’s suggestion that the IRS’s supporting declarations are insufficient “secondhand declarations,” FOIA law holds otherwise. In the FOIA context, government declarants who 

do not physically perform searches for responsive records “satisfy the requirement of personal 

knowledge and qualify as competent witnesses.” Brophy v. U.S. Dept. of Def., 2006 WL 571901, 

at *4-5 (D.D.C. Mar. 8, 2006) (citing cases and recognizing that “our circuit court long ago 

recognized the validity of the affidavit of an individual who supervised a search for records even 

though the affiant had not conducted the search himself”).

Here, Neal bears formal responsibility for supervising the processing of FOIA requests for 

the IRS [Neal Dec. ¶ 2]. Her declaration outlines in reasonable detail the initial search process 

for documents responsive to Teo’s FOIA request and the exemptions asserted by the IRS to 

withhold certain material. Neal avers that she personally reviewed the FOIA request, the case 

history notes, and the responsive records [Id. ¶ 3]. 

After Teo filed the instant complaint, the IRS’s Office of Chief Counsel got involved and 

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the declarations of IRS attorneys Tate and Barad offer details about the supplemental search

process. In her declaration, attorney Tate avers that based on Teo’s assertions in response to an 

IRS motion for protective order, she “re-reviewed the FOIA request and the search that had been 

conducted” and found a supplemental search necessary [Tate Dec. ¶ 4]. Roberts and Roberts’ 

supervisor, Kenney, were instructed to send to Tate all email messages pertaining to Teo’s 2016 

exam from the opening of the exam through the FOIA request date of June 4, 2020 [Id. ¶¶ 5-8]. 

Like Neal, attorney Barad avers that he personally reviewed the FOIA request, the 

responsive records, and the case history notes—which he describes as a chronological record of 

the actions taken to process a FOIA request, including notes of communication with the requester, 

search effort/status, communication with other IRS employees, and document review status [Barad 

Dec. ¶ 3, n. 1]. Barad’s declaration describes the exemptions asserted by the IRS over responsive 

records discovered in the supplemental search began on December 18, 2020 [Id. ¶¶ 4, 6-25]. 

Teo suggests that inconsistences regarding the IRS’s search methodology within the trio of

declarations renders them unreliable. For instance, Teo points to Neal’s declaration statements 

that there was “no reason to search” records from anyone other than Roberts because “no other 

Revenue Agents worked on [Teo’s] exam other than [Roberts].” [DE 39 at 3 (citing Neal Dec. ¶¶

14, 17)]. According to Teo, it was not until he confronted the IRS with responsive documents 

that referenced responsive emails and other communications between Roberts and other IRS 

employees that had not been produced that the IRS decided to conduct supplemental searches 

which turned up additional responsive documents. While it is fair to say that Neal’s declaration 

turned out to be inaccurate on this point, it is unfair to suggest the declaration was false when 

made. The Court is not convinced that this inaccuracy is evidence of bad faith on the part of the 

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IRS. 

On the contrary, the chronology of the declarations and their respective descriptions of the 

IRS’s overall search efforts reflect a consistent ongoing good faith effort by the IRS to thoroughly 

comply with Teo’s FOIA request. And these good faith search efforts occurred in the midst of 

the COVID-19 pandemic. Chronologically, Neal was the first declarant. Her declaration is 

dated November 29, 2020 and makes clear that it is based on the information she knew at the time 

based on her work overseeing what turned out to be the initial phase of compliance with Teo’s 

FOIA request. The inaccuracy regarding the universe of emails involving Roberts was the product 

of an evolving situation and what ended up being a rolling production of responsive documents. 

The later supplemental declarations of attorneys Tate and Barad delved deeper by explaining

subsequent searches for responsive records which turned up additional records that the IRS 

reviewed and disclosed to Teo. Notably, no documents were withheld in full as part of the last 

supplemental production in January 2021 [Barad Dec. DE 32-2 ¶ 6] (averring that attorney Barad 

reviewed the responsive records as part of the final supplemental production that occurred on 

January 7, 2021, when Teo received 876 pages in full and 203 pages in part, and that no pages 

were withheld in full out of the 1,079 pages of additional responsive records located).

Teo also argues that the IRS contends without any evidentiary support that there are no 

emails between Roberts and Kenney predating March 12, 2020 but that Teo believes otherwise 

based on the supplemental production of material covering a three-month period postdating March 

12, 2020. However, Teo points to no specific facts creating a genuine dispute on this point. Span 

v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (to defeat summary judgment in 

a FOIA case, the requesting party must come forward with specific facts demonstrating a genuine 

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issue regarding whether an agency has improperly withheld records). Teo’s argument is 

conclusory and unsupported by evidence. What Teo may or may not believe regarding the 

potential existence of more responsive documents is unimportant to the fundamental inquiry 

regarding the adequacy of the IRS’s search for those documents—that is, the singular focus on 

whether the search itself was adequate and not whether there might exist other responsive 

documents. See Scott, 2021 WL 256417, at *10 (S.D. Fla. Jan. 26, 2021) (Marra, D.J.) (quoting 

Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (the fundamental question in 

the adequacy of the search analysis is not “whether there might exist any other documents possibly 

responsive to the request, but rather whether the search for those documents was adequate. The 

adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not 

surprisingly, upon the facts of each case.”).

Under FOIA, an agency’s search need not be perfect or exhaustive. Lee v. U.S. Atty of 

S.D. Fla., 289 F. App’x 377, 380 (11th Cir. 2008). Rather, the agency’s search must be 

“reasonably calculated to uncover all relevant documents.” Ray, 908 F.2d at 1558. In addition, 

post-litigation searches can remedy and supplement pre-litigation searches. See People for the 

Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F. Supp. 2d 173, 179 (D.D.C. 

2011) (noting well settled principle “that the subsequent production of responsive documents can 

remedy inadequate searches.”). Here, the IRS met its FOIA obligations by reasonably performing 

original and supplemental searches for the material sought by Teo in his FOIA request. The IRS

has submitted detailed, nonconclusory affidavits which adequately explain the search procedures 

it used and the reasons for the delayed response to Teo’s request. The burden, then, shifted to 

Teo to rebut the IRS’s evidence by demonstrating that the IRS did not conduct a reasonable search 

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or did not conduct the search in good faith.5 Teo has failed to demonstrate by citation to any 

material evidence that the search was not reasonable or not conducted in good faith. Thus, the 

Court finds that the IRS satisfied its burden under FOIA to perform a reasonable search for the 

requested records. The IRS is therefore entitled to final summary judgment in its favor as to 

whether it conducted a reasonable search because it did, in fact, conduct a reasonable search.

B. The IRS’s Asserted FOIA Exemptions

The IRS has made clear through the declarations of Neal and Barad that its redactions and 

withholdings of certain material in its original and supplemental productions to Teo are justified 

under FOIA Exemptions 3, 5, 6, 7(A), 7(C), and 7(E). Throughout his briefing, Teo opted not to 

squarely address any of these asserted exemptions. Instead, Teo argued that “any evaluation of 

the [the IRS’s] claimed exemptions is premature” and sought for “the Court to defer adjudication 

of claimed exemptions until all responsive materials have been produced.” [DE 39 at 2]. 

At oral argument, the IRS’s counsel claimed that the asserted exemptions are not at issue 

and need not be addressed by the Court based on Teo’s failure to challenge any of them. In 

response, Teo’s counsel claimed that Teo preserved his right to challenge the exemptions. Even 

so, Teo’s counsel also candidly admitted that he was “not concerned about the exemptions” and 

was “not sure” Teo would ever object to any exemption. 

The IRS has cited persuasive authority for its position, while Teo has cited none. The 

Court is unaware of any authority that would permit Teo to “preserve” his right to challenge FOIA 

5 Teo seems to focus all his efforts in this case on the ultimate goal of being allowed to take a deposition of IRS 

Agent Roberts. This makes the Court somewhat skeptical of Teo’s arguments in this case. In light of the fact 

that Teo is indicted for tax evasion and related charges in the District of New Jersey, see n.2, supra, it appears 

to the Court that Teo’s real goal in this case is to obtain a discovery deposition which he can then attempt to use 

in the criminal case. This is not the purpose of a FOIA lawsuit.

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exemptions. This is especially true considering the timeline of events in this case. On January 

7, 2021, the IRS fully completed its FOIA disclosure to Teo. Out of 2,445 total pages of

responsive records located, the IRS released in full 1,242 pages, released in part 400 pages, and 

withheld in full 803 pages. In the seven-month period following this completed production, there 

is no evidence that Teo took any issue with the IRS’s invocation of exemptions or sought 

permission from the Court to do so. In addition, summary judgment briefing closed over six 

months ago on February 10, 2021, when Teo had the final word via his sur-reply. Teo’s solitary 

focus throughout this litigation has consistently been on challenging the adequacy of the IRS’s 

search, and seeking to obtain a deposition of IRS Agent Roberts, see n.5, supra, which issues have

been addressed by the Court above. Teo never squarely challenged any asserted exemption and 

his time to do so has now passed. 

A “motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston 

& Strawn, LLP v. McClean, 843 F.3d 503, 505 (D.C. Cir. 2016). However, in a FOIA case, the 

Court is not required to “assess the legal sufficiency of each and every exemption invoked by the 

government in a FOIA case, regardless of whether the requester contests the government’s 

invocation of that exemption.” Shapiro v. Dep’t of Justice, 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 

2017). Instead, when a FOIA requester responds to an agency’s motion for summary judgment 

“without taking issue with the government’s decision to withhold or to redact documents, the Court 

can reasonably infer that the FOIA requester does not seek those specific records or information 

and that, as to those records or information, there is no case or controversy sufficient to sustain the 

Court’s jurisdiction.” Id.; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

In the absence of any timely argument challenging the IRS’s decision to withhold or redact 

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responsive materials, the Court thus infers that Teo does not seek those specific records or 

information. Nonetheless, in the interest of completeness, the Court has independently reviewed 

the declarations of Neal and Tate regarding the asserted FOIA exemptions and finds that they 

clearly appear to be properly asserted. Each declarant describes the withheld documents in 

reasonably specific detail together with facts sufficient to justify each exemption. See Larson v. 

Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted) (under FOIA, summary 

judgment is justified if affidavits describe the documents and “the justifications for nondisclosure 

with reasonably specific detail, demonstrate that the information withheld logically falls within the 

claimed exemption, and are not controverted by either contrary evidence in the record nor by 

evidence of agency bad faith”); Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993) (“we hold that 

in certain cases, affidavits can be sufficient for summary judgment purposes in an FOIA case if 

they provide as accurate a basis for decision as would sanitized indexing, random or representative 

sampling, in camera review, or oral testimony”); Miccosukee Tribe of Indians of Florida, 516 F.3d 

at 1257-58 (noting that a trial court may utilize various methods depending on the circumstances 

of the case, including, agency affidavits to determine whether an adequate factual basis exists for 

the agency’s disclosure of information in response to a FOIA request).

According to the declarations of Neal and Bard, the IRS has asserted FOIA Exemptions 3, 

5, 6, 7(A), 7(C), and 7(E) to withhold the following categories of material: (1) third-party tax return 

information, including taxpayer(s) names, identification numbers (SSN or EIN) and discussion of 

potential tax liability; (2) a DIF score located on one page and related examination criteria; (3)

internal IRS work papers/history notes pertaining to Teo’s 2016 exam for potential violations of 

the Internal Revenue Code; (4) four pages containing the names and contact information for IRS 

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employees who do not interact with the public; (5) one page of “internal-agency-use-only email 

addresses;” and (6) deliberative process privileged communications consisting of an internal 

preliminary and pre-decisional recommendation [Neal Dec. ¶¶ 20-28; Barad Dec. ¶¶ 7-24]. Upon 

careful review, the Court is satisfied that the IRS has sufficiently justified its claimed exemptions 

by offering reasonably specific detail about the withheld information and that such information

logically falls within the claimed statutory exemptions. 

The Court also finds that the IRS has fulfilled its obligations to disclose non-exempt 

portions of responsive documents. FOIA mandates that “[a]ny reasonably segregable portion of 

a record shall be provided to any person requesting such record after deletion of the portions which 

are exempt.” 5 U.S.C. § 552(b). Even when parts of a document are protected by a FOIA 

exemption, “non-exempt portions of a document must be disclosed unless they are inextricably 

intertwined with exempt portions.” Mead Data Cent. v. U.S. Dep’t of the Air Force, 566 F.2d 

242, 260 (D.C. Cir. 1977). Agencies are entitled to a presumption that they complied with the 

obligation to disclose reasonably segregable material, Boyd v. Crim. Div. of the U.S. Dep’t of 

Justice, 475 F.3d 381, 382 (D.C. Cir. 2007), and the Court may rely on agency affidavits that show 

with reasonable specificity why documents withheld pursuant to a valid exemption cannot be 

further segregated, see Armstrong v. Exec. Off. of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). 

Here, through the declarations of Neal and Barad, the IRS has provided adequate reasoning 

for its withholdings. Neal and Barad affirmatively represent that they are familiar with the 

FOIA’s segregation requirement and that they reviewed the responsive records at issue to confirm

that the withheld material meets the criteria of the asserted FOIA exemptions [Neal Dec. ¶ 29; 

Barad Dec. ¶ 25]. For records withheld in their entirety, Neal avers that she confirmed that such 

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records either fall entirely within a FOIA exemption or “are records wherein the portions exempt 

from disclosure under the FOIA are so inextricably intertwined with nonexempt material as to be 

non-segregable.” [Neal Dec. ¶ 29]. As for material withheld in part, Neal avers that she 

confirmed that the withheld material is limited to FOIA exempt material [Id.]. 

Similarly, Barad avers that he reviewed the additional emails and attachments located by 

Agent Roberts and confirmed that the withheld material meets the criteria of applicable FOIA 

exemptions, as explained in his declaration. Barad further avers that the material withheld in part 

is limited to information that meets the criteria of the exemption(s) cited [Barad Dec. ¶ 25]. The 

Court finds that Neal and Barad’s declarations demonstrate that the IRS has complied with its 

obligations to produce any non-exempt information that may reasonably be segregated for release

[Id.].

V. CONCLUSION AND RECOMMENDATION

Evidentiary submissions of record confirm that the IRS has conducted an adequate search 

that was reasonably calculated to uncover records responsive to Teo’s FOIA request. 

Furthermore, Teo has not squarely challenged the asserted FOIA exemptions and the IRS has 

provided reasonably detailed justifications for its withholdings and production of non-exempt 

information that may reasonably be segregated. There are no material facts in genuine dispute. 

Thus, the undersigned respectfully RECOMMENDS that the IRS’s Motion for Summary

Judgment [DE 21] be GRANTED.

VI. NOTICE OF RIGHT TO OBJECT

The parties shall have fourteen (14) days from the date of being served with a copy of this 

Report and Recommendation within which to file written objections, if any, with U.S. District 

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Judge Donald M. Middlebrooks. Failure to file objections timely shall bar the parties from a de 

novo determination by the District Judge of an issue covered in the Report and Recommendation 

and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions 

contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 

U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 

(2016).

RESPECTFULLY SUBMITTED in Chambers at West Palm Beach, Palm Beach 

County, Florida, this 19th day of August, 2021.

WILLIAM MATTHEWMAN 

U.S. MAGISTRATE JUDGE

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