1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ARGLYE SYSTEMS INC, 

Plaintiff, 

v. 

INTERNAL REVENUE SERVICE, 

Defendant. 

Civ. Action No. 21-16 

(EGS) 

MEMORANDUM OPINION 

This case arises out of Freedom of Information Act 

(“FOIA”), 5 U.S.C. § 552, requests Plaintiff Argyle Systems, 

Inc. (“Argyle”) made to the Internal Revenue Service (“IRS”). 

See generally Compl., ECF No. 1. 

Pending before the Court are the IRS’s Motion for Summary 

Judgment and Argyle’s Cross-Motion for Summary Judgment. Upon 

careful consideration of the motions, the oppositions and 

replies thereto, the applicable law, the entire record, and for 

the reasons stated below, the Court GRANTS the IRS’s Motion for 

Summary Judgment, ECF No. 16, and DENIES Argyle’s Cross-Motion 

for Summary Judgment, ECF No. 18. 

I. Factual Background 

 The following facts are not in dispute. On or about October 

9, 2020, Argyle submitted a FOIA request in which it sought 

“[a]ny and all correspondence, communications, files, documents, 
2 

and records in any form, including hard copies and 

electronically stored information, evidencing, reflecting or 

pertaining to agency records” for nine categories of agency 

records: 

(1) Reporting Agent Authorization forms, set 

forth in IRS form 8655, and submitted to IRS 

between January, 2020 and the present. 

(2) Reporting Agent’s Lists (“RAL”), as 

described in Internal Revenue Manual (“IRM”) 

Part 21, Section 21.3.9.3.1, created between 

January 1, 2020 and the present. 

(3) RAF0940I – RAF Snapshot Reports generated 

between January 1, 2020 and the present. 

(4) RAF41 listings, reports, and output files, 

as described in IRM Part 21, Section 

21.3.9.10.3, generated between January 1, 2020 

and the present. 

(5) RAFREPT AGTFIL01 – Agent File(s), as 

described in IRM Part 21, Section 21.3.9.10.3, 

generated between January 1, 2020 and the 

present. 

(6) RAFREPT AGTRPT01 – Agent File Report(s), 

as described in IRM Part 21, Section 

21.3.9.10.3, generated between January 1, 2020 

and the present. 

(7) Any and all RAF26 output files, as 

described in IRM Part 21, Section 21.3.9.10.4, 

generated between January 1, 2020 and the 

present. 

(8) Any and all RAF70 listings, reports, and 

output files, as described in IRM Part 21, 

Section 21.3.9.10.5, generated between 

January 1, 2020 and the present 

(9) Any and all RAF08 output files and 

reports, as described in IRM Part 21, Section 
3 

21.3.9.10.6, generated between January 1, 2020 

and the present. 

Compl., ECF No. 1 ¶ 14. The request stated that it “specifically 

does not include documents or information evidencing, reflecting 

or pertaining to Taxpayer returns, income or payments of tax 

liabilities.” Id. 

In response, the IRS provided records responsive to Item 3. 

Def.’s Brief in Support of the IRS’s Mot. for Summ. J. (“Def.’s 

Mot.”), ECF No. 16-2 at 1.1 The IRS contends that the records 

sought in the remaining Items are categorically exempt from 

disclosure pursuant to FOIA Exemption 3 in conjunction with 26 

U.S.C. § 1603(a), and partially exempt based on FOIA exemption 

6. See id. 

The parties do not dispute that the remaining items in 

Argyle’s FOIA request can be categorized as follows: (1) 

Reporting Agent (“RA”) Authorization, Form 8655; and (2) Reports 

generated from an IRS database—the Reporting Agents File 

(“RAF”)—containing information derived from the Form 8655. Pl.’s 

Counter-Statement of Disputed Facts, ECF No. 18-1 ¶ 40. Revenue 

Procedure 2012-32 defines a RA as “an accounting service, 

franchiser, bank, service bureau, or other entity authorized to 

perform on behalf of a taxpayer one or more of the acts 

1 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document 
4 

described in this revenue procedure.” I.R.S. Tax Form and 

Instructions, Rev. Proc. 2012-13. 

II. Standard of Review 

FOIA cases are typically and appropriately decided on 

motions for summary judgment. Gold Anti–Trust Action Comm., Inc. 

v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 

130 (D.D.C 2011) (citations omitted). Summary judgment is 

warranted “if the movant shows [by affidavit or other admissible 

evidence] 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). A party opposing a summary judgment 

motion must show that a genuine factual issue exists by “(A) 

citing to particular parts of materials in the record . . . or 

(B) showing that the materials cited do not establish the 

absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c). 

Any factual assertions in the moving party's affidavits will be 

accepted as true unless the opposing party submits his own 

affidavits or other documentary evidence contradicting the 

assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 

1992). However, “the inferences to be drawn from the underlying 

facts . . . must be viewed in the light most favorable to the 

party opposing the motion.” Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation 

marks omitted). 
5 

An agency has the burden of demonstrating that “each 

document that falls within the class requested either has been 

produced, is unidentifiable, or is wholly [or partially] exempt 

from the Act's inspection requirements.” Goland v. CIA, 607 F.2d 

339, 352 (D.C. Cir. 1978) (internal citation and quotation 

omitted). In reviewing a summary judgment motion in the FOIA 

context, the court must conduct a de novo review of the record, 

see 5 U.S.C. § 552(a)(4)(B); but may rely on agency 

declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 

(D.C. Cir. 1991). Agency affidavits or declarations that are 

“relatively detailed and non-conclusory” are accorded “a 

presumption of good faith, which cannot be rebutted by purely 

speculative claims about the existence and discoverability of 

other documents.” Id. (internal citation and quotation omitted). 

“[T]he Court may award summary judgment solely on the basis of 

information provided by the department or agency in declarations 

when the declarations 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 

(D.C. Cir. 1981) (internal quotation marks and citation 

omitted). 
6 

A. FOIA Exemptions 

Congress enacted FOIA to “open up the workings of 

government to public scrutiny through the disclosure of 

government records.” Judicial Watch, Inc. 375 F. Supp. 3d at 97 

(quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) 

(internal quotation marks and alterations omitted)). Although 

the legislation is aimed toward “open[ness] . . . of 

government,” id.; Congress acknowledged that “legitimate 

governmental and private interests could be harmed by release of 

certain types of information,” Critical Mass Energy Project v. 

Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) 

(internal quotation marks and citations omitted). As such, 

pursuant to FOIA's nine exemptions, an agency may withhold 

requested information. 5 U.S.C. § 552(b)(1)-(9). However, 

because FOIA established a strong presumption in favor of 

disclosure, requested material must be disclosed unless it falls 

squarely within one of the exemptions. See Burka v. U.S. Dep't 

of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996). 

The agency bears the burden of justifying any withholding. 

See Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74 

(D.D.C. 2007). “Ultimately, an agency’s justification for 

invoking a FOIA exemption is sufficient if it appears logical or 

plausible.” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 

937, 941 (D.C. Cir. 2013) (internal quotation marks omitted). 
7 

III. Analysis 

A. The IRS Conducted an Adequate Search as to Item 3 of the 

FOIA Request 

The IRS moves for summary judgment as to Item 3 of the FOIA 

request on the ground that it conducted an adequate search for 

this item and did not withhold any records. Def.’s Mot. for 

Summ. J. (“Def.’s Mot.”), ECF No. 16-2 at 5. Argyle does not 

challenge the adequacy of the search for the records sought in 

Item 3 of the FOIA request. See generally Pl.’s Cross-Motion for 

Summ. J. (“Pl.’s Mot.”), ECF No. 18. Accordingly, the IRS’s 

Motion for Summary Judgment is GRANTED as to Item 3 of the FOIA 

request. 

B. The IRS Properly Categorically Withheld Return 

Information Under Exemption 3 in Conjunction with 26 

U.S.C. § 6103(a) 

The IRS invokes Exemption 3 in conjunction with 26 U.S.C. § 

6103(a) to categorically withhold the remaining items in the 

FOIA request. Def.’s Mot., ECF No. 61-2 at 6. 

Exemption 3 allows an agency to withhold or redact records 

that are “specifically exempted from disclosure by statute ... 

provided that such statute (A) requires that the matters be 

withheld from the public in such a manner as to leave no 

discretion on the issue, or (B) establishes particular criteria 

for withholding or refers to particular types of matters to be 

withheld.” 5 U.S.C. § 552(b)(3). “To invoke Exemption 3, the 
8 

government ‘need only show . . . that the material falls 

within’ a statute meeting the exemption’s conditions.” DiBacco 

v. Dep’t of the Army, 926 F.3d 827, 835 (D.C. Cir. 2019) 

(quoting Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 

20009). “‘If an agency’s statements supporting exemption contain 

reasonable specificity of detail as to demonstrate that the 

withheld information logically falls within the claimed 

exemption and evidence in the record does not suggest otherwise, 

. . . the court should not conduct a more detailed inquiry to 

test the agency’s judgment and expertise or to evaluate whether 

the court agrees with the agency’s opinions.’” Id. (quoting 

Larson, 565 at 865). 

It is well-settled that “Section 6103(a) is an exemption 3 

provision.” Electronic Privacy Information Center v. I.R.S., 910 

F. 3d 1232, 1237 (D.C. Cir. 2018). Section 6103 provides that 

“[r]eturns and return information shall be confidential . . . 

except as authorized by this title.”2 26 U.S.C. § 6103(a). It 

further provides that no United States employee “shall disclose 

any return or return information obtained by him in any manner 

in connection with his service.” 26 U.S.C. § 6103(a). 

Section 6103(b) broadly defines “return information” to 

include 

2 There is no dispute that the exceptions are inapplicable here. 
9 

a taxpayer’s identity, the nature, source, or 

amount of his income, payments, receipts, 

deductions, exemptions, credits, assets, 

liabilities, net worth, tax liability, tax 

withheld, deficiencies, overassessments, or 

tax payments, whether the 

taxpayer’s return was, is being, or will be 

examined or subject to other investigation or 

processing, or any other data, received by, 

recorded by, prepared by, furnished to, or 

collected by the Secretary with respect to 

a return or with respect to the determination 

of the existence, or possible existence, of 

liability (or the amount thereof) of any 

person under this title for any tax, penalty, 

interest, fine, forfeiture, or other 

imposition, or offense. 

26 U.S.C. § 6103(b)(2)(A). The phrase “with respect to” in 

Section 6103(b)(2)(A) has an “extremely general character.” 

Landmark Legal Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 

2001). 

 At dispute is whether the submitted Forms 8655 and the 

reports are “return information.” Argyle contends that the 

requested records are not return information because “by IRS’s 

admission, none of the requested records constitutes a return or 

a document derived from a return.” Pl.’s Mot., ECF No. 18 at 13. 

However, in Landmark, the Court of Appeals for the District of 

Columbia Circuit (“D.C. Circuit”) rejected this same argument 

when it rejected the “argument that [§6103(b)(2)(A)] protects 

only ‘return information,’ and thus can cover only information 

that relates to an actual tax return,” Landmark, 267 F. 3d at 

1138; observing that the plaintiff’s “rather wistful point 
10 

disregards the actual statutory definition, which plainly 

reaches far beyond what the phrase ‘return information’ would 

normally conjure up,” id. 

Landmark arose out of a “public controversy over claims 

that the [IRS] had selectively audited conservative non-profit 

organizations in response to requests from outside parties.” Id. 

at 1133. To investigate the allegations, the plaintiff submitted 

a FOIA request for records of external requests to the IRS for 

audits or investigations of 501(c)(3) tax-exempt organizations 

including the names of the entities/individuals requesting the 

audits or investigations, and the names of the 501(c)(3) taxexempt organizations for which audits or investigations were 

requested. See id. at 1134. In concluding that the requested 

records constituted “return information,” the D.C. Circuit 

observed that “§ 6103 seems deliberately sweeping . . . reaching 

data ‘received by, recorded by, prepared by, furnished to, or 

collected by’ the Secretary. It appears to take no interest in 

the Secretary’s actual use of the material.” Id. at 1136. The 

court further concluded that “the term ‘data’ is correctly 

understood to cover the identity of third parties who urge the 

IRS to withdraw or reexamine an entity’s tax-exempt status.” Id. 

at 1137. 

Argyle argues that Landmark does not help the IRS here. As 

an initial matter, in its Opposition to Defendant’s Motion for 
11 

Summary Judgment, and Cross-Motion for Summary Judgment, Argyle 

failed to address the IRS’s arguments based on Landmark. See 

generally Pl.’s Cross-Mot., ECF No. 18. After the IRS pointed 

this out, see Def.’s Reply, ECF No. 20 at 7; Argyle argued that 

“the Landmark Court determined only that the documents requested 

in that case were exempt because they were submitted ‘with 

respect to the determination of the existence, or possible 

existence of liability . . . .” Pl.’s Reply, ECF No. 21 at 10. 

However, Argyle’s argument is unpersuasive because it entirely 

fails to address the D.C. Circuit’s reasoning in Landmark. See 

generally Pl.’s Reply, ECF No. 21. 

Argyle would have this Court disregard Circuit authority 

and instead adopt the reasoning of the Court of Appeals for the 

6th Circuit (“6th Circuit”) in In re United States v. NorCal Tea 

Party Patriots (“NorCal”) 817 F.3d 953 (6th Cir. 2016). In 

NorCal, the 6th Circuit held that the names, addresses, and 

taxpayer-identification numbers of applicants for tax-exempt 

status are not “return information.” 817 F. 3d at 965. In so 

holding, the 6th Circuit recognized that the D.C. Circuit had 

held that the names of applicants for tax exempt status are 

“return information.” Id. at 964 (citing Landmark, 267 F. 3d at 

1135). The 6th Circuit found the D.C. Circuit’s holding 

unpersuasive because in their view the D.C. Circuit had so held 

based on its understanding that “return information” 
12 

specifically covers ‘a taxpayer’s identity’ without taking into 

consideration that the statute defines “taxpayer identity” as, 

inter alia, “the name of the person with respect to whom a 

return is filed.” Id. (citing § 6103(b)(2)(A)). However, as the 

IRS points out, “the court in NorCal incorrectly assumed that a 

‘taxpayer’s identity includes only names on a return, not on an 

application.’” Def.’s Reply, ECF No. 20 at 8 (internal quotation 

marks omitted). The Court concludes that NorCal is unpersuasive 

in view of the D.C. Circuit authority in Landmark. 

Argyle also argues that the plain language of section 

6103(b)(2)(A) “limits ‘return information’ to information 

prepared or received by the IRS ‘with respect to a return or 

with respect to the determination of the existence, or possible 

existence, of liability (or the amount thereof) . . .” Pl.’s 

Reply, ECF No. 21 at 9 (emphasis added). Argyle argues that 

since “[n]either of these conditions are present with respect to 

the requested records” they are not exempt from disclosure. 

However, this plain language argument ignores the D.C. Circuit 

precedent in Landmark. 

Argyle also points to authority from other circuits to 

support its argument that the remaining items are not “return 

information.” Under that authority, for information to 

constitute “return information,” the immediate source of the 

information must be a return or an internal IRS document based 
13 

on a return. In Thomas v. U.S., 890 F.2d 18 (7th Cir. 1989), the 

question for the Court was “whether the issuance by the [IRS] of 

a press release that contains information about a taxpayer’s 

liability drawn from a Tax Court opinion is an unauthorized 

disclosure of tax-return information, exposing the government to 

liability . . .” 890 F. 2d at 19. The Court found that the 

direct source of the information was not Mr. Thomas’s tax 

return, but rather the Tax Court’s opinion. Id. at 20. 

Accordingly, the Court stated its “belie[f] that the definition 

of return information comes into play only when the immediate 

source of the information is a return, or some internal document 

based on a return, as these terms are defined in § 6103(b).” Id.

at 21; see also Rice v. U.S., 166 F.3d 1088, 1091 (1999) 

(“whether information about a taxpayer may be classified as 

‘return information’ invoking the application of § 6103 turns on 

the immediate source of the information”). In view of Landmark, 

however, the Court finds these non-binding opinions 

unpersuasive. 

Pursuant to Landmark, and its direction to broadly construe 

“return information,” the Court concludes that the information 

in Form 8655 falls within the definition of “return 

information.” Item 1 of the FOIA request—Form 8655—as submitted 

to the IRS, contains: (1) identifying information about the 

taxpayer filing the form—the taxpayer’s name, EIN, address and 
14 

telephone number; (2) information that identifies taxpayer’s RA—

the RA’s name, EIN, address, and telephone number; (3) which 

types of returns the RA is authorized to sign and file on behalf 

of the taxpayer; (4) which types of tax returns for which the RA 

is authorized to make deposits and payments; and (5) whether the 

RA is authorized to receive information about the taxpayer on 

Forms Series W-2, 1099, or 3921/3922. Blank IRS Form 8655, ECF 

No. 16-1 at 1. The taxpayer signs and dates the Form 8655 and 

provides their title. Id. This data is “return information” 

because it is provided to the IRS “with respect to the 

determination of the existence, or possible existence, of 

liability.” 26 U.S.C. § 6103(b)(2)(A). 

Item 2 of the FOIA request is for RA’s Lists (“RAL”). The 

RAL is submitted by an RA and, among other things, identifies 

taxpayers for whom an RA will perform authorized services.3

Argyle, relying on Ryan v. Bureau of A.T.F., 715 F.2d 644 (D.C. 

Cir. 1983), argues that because an RAL is submitted by an RA 

rather than a taxpayer, it is not exempt from disclosure. Pl.’s 

3 Argyle disputes this statement only insofar as it includes the 

word “taxpayer.” Pl.’s Counter-Statement of Disputes Facts, ECF 

No. 18-1 ¶ 24. However, there can be no genuine dispute that the 

Form 8655 solicits the name, identifying information, and 

signature and title of the “Taxpayer.” See Blank IRS Form 8655, 

ECF No. 16-6. Nor do the parties dispute that “[a]n RAL 

typically contains or is accompanied by the Forms 8655 of a 

[RA]. Pl.’s Counter-Statement of Disputes Facts, ECF No. 18-1 ¶ 

25. 
15 

Mot., ECF No. 18 at 15. The IRS responds—and the Court agrees—

that Argyle is mistaken in its reliance on Ryan, because in that 

case, the D.C. Circuit was interpreting the flush language that 

follows § 6103(b)(2)(A)’s definition of “return information”—the 

“Haskell Amendment.” Def.’s Reply, ECF No. 20 at 13. The Haskell 

Amendment “allows the IRS to ‘release for research purposes 

statistical studies and compilations of data, such as the tax 

model, which do not identify individual taxpayers.’ . . . and 

does not apply to information that an agency simply transfers 

from one document to another.” Judicial Watch v. S.S.A., 799 F. 

Supp. 2d 91, 94 (D.D.C. 2011) (citing Church of Scientology, 484 

U.S. at 16)(emphasis added). This is not the case with the RAL 

as it identifies taxpayers for whom an RA will perform 

authorized services. Argyle failed to respond to this argument 

in its Reply briefing. See generally Pl.’s Reply, ECF No. 21.

The Court concludes that RALs are “return information” because 

they provided to the IRS “with respect to the determination of 

the existence, or possible existence, of liability.” 26 U.S.C. § 

6103(b)(2)(A).

The parties do not dispute that the remaining items in the 

FOIA request are reports generated from the RAF database, which 

contains information derived from the Form 8655. Pl.’s CounterStatement of Disputed Facts, ECF No. 18-1 ¶ 40. Item 4 contains 
16 

lists of taxpayer EINs associated with particular RAs.4 Id. ¶ 28. 

Items 5 and 6 also contain taxpayer EINs.5 Id. ¶ 31. Item 7 

contains information found on the Form 8655. Id. ¶ 35. Item 8 

contains “listings and reports of the additions or deletions of 

taxpayer/client information to the RAF database.”6 Id. ¶ 35. Item 

9 contains “a report for each RA whose clients (taxpayers) have 

revoked the RA’s authorization.”7 Id. ¶ 37. As with the Form 8655 

and the RAL, the Court concludes Items 4 through 9 of the FOIA 

request are “return information” because they are provided to 

the IRS “with respect to the determination of the existence, or 

possible existence, of liability.” 26 U.S.C. § 6103(b)(2)(A).

4 Argyle disputes this statement only insofar as it includes the 

word “taxpayer.” Pl.’s Counter-Statement of Disputes Facts, ECF 

No. 18-1 ¶ 28. However, there can be no genuine dispute that the 

Form 8655 solicits the EIN of the “Taxpayer.” See Blank IRS Form 

8655, ECF No. 16-6.

5 Argyle disputes this statement only insofar as it includes the 

word “taxpayer.” Pl.’s Counter-Statement of Disputes Facts, ECF 

No. 18-1 ¶ 31. However, there can be no genuine dispute that the 

Form 8655 solicits the EIN of the “Taxpayer.” See Blank IRS Form 

8655, ECF No. 16-6.

6 Argyle disputes this statement only insofar as it includes the 

word “taxpayer.” Pl.’s Counter-Statement of Disputes Facts, ECF 

No. 18-1 ¶ 31. However, there can be no genuine dispute that the 

Form 8655 solicits the “Taxpayer” information described supra. 

See Blank IRS Form 8655, ECF No. 16-6. 7 Argyle disputes this statement only insofar as it includes the 

word “taxpayer.” Pl.’s Counter-Statement of Disputes Facts, ECF 

No. 18-1 ¶ 31. However, there can be no genuine dispute that the 

Form 8655 solicits the “Taxpayer” information described supra. 

See Blank IRS Form 8655, ECF No. 16-6.
17 

For all these reasons, the IRS’s Motion for Summary 

Judgment is GRANTED as to Items 1-2 and 4-9 of the FOIA request. 

The Court need not reach the IRS’s argument that Argyle’s FOIA 

request is unduly burdensome and overly broad on its face 

because it would result in millions of pages of responsive 

records, see Def.’s Mot., ECF No. 16-2 at 14; nor whether Argyle 

conceded that argument, see Def.’s Reply, ECF No. 20 at 4. 

Additionally, the Court need not address whether the records are 

also exempt under FOIA exemption 6. See Landmark Legal 

Foundation (“Landmark”) v. I.R.S., 267 F. 3d 1132, 1134 (D.C. 

Cir. 2001)(noting that the Court need not reach whether the 

records were properly withheld under Exemption 6 after 

determining that Exemption 3 was applicable to the records). 

C. The Foreseeable Harm Standard Does Not Apply 

In 2016, Congress passed the FOIA Improvement Act (“FIA”), 

Pub. L. No. 114-185, 130 Stat. 538, which, among other things, 

codified the “foreseeable harm” standard established by the 

Department of Justice in 2009 and used to defend an agency's 

decision to withhold information. See S. Rep. No. 114-4, at 3 & 

n.8 (2015) (citing Office of Att'y Gen., Memorandum for Heads of 

Executive Departments and Agencies, Subject: Freedom of 

Information Act (Mar. 19, 2009)); S. Rep. No. 114-4, at 7–8. 

Accordingly, as amended by the FIA, the statutory text now 

provides that: “An agency shall ... withhold information under 
18 

this section only if ... (I) the agency reasonably foresees that 

disclosure would harm an interest protected by [a FOIA] 

exemption; or (II) disclosure is prohibited by law[.]” 5 U.S.C. 

§ 552(a)(8)(A). Stated differently, “pursuant to the [FIA], an 

agency must release a record—even if it falls within a FOIA 

exemption—if releasing the record would not reasonably harm an 

exemption—protected interest” or if the law does not prohibit 

the disclosure. Rosenberg v. U.S. Dep't of Def., 342 F. Supp. 3d 

62, 72 (D.D.C. 2018) (citation omitted). 

Argyle argues that the IRS has failed to comply with the 

foreseeable harm standard. See Pl.’s Mot., ECF No. 18 at 7. 

Argyle is mistaken. “‘[T]he foreseeable harm standard only 

applies to those FOIA exemptions under which discretionary 

disclosures can be made.’” Rosenberg v. U.S. Department of 

Defense, 342 F. Supp. 3d 62, 73 n.1 (D.D.C. 2018)(quoting S. 

Rep. No. 114-4, at 8). “Information that is prohibited from 

disclosure or exempt from disclosure by law ‘is not subject to 

discretionary disclosure and is therefore not subject to the 

foreseeable harm standard.’” Id. (quoting S. Rep. No. 114-4, at 

8). Here, as explained supra, disclosure is prohibited by law. 

Accordingly, the IRS was not required to comply with the 

foreseeable harm standard. 
19 

D. Segregability 

Argyle contends that the IRS has failed to segregate nondisclosable portions of the information. Pl.’s Mot., ECF No. 18 

at 15-17. Under FOIA, “even if [the] agency establishes an 

exemption, it must nonetheless disclose all reasonably 

segregable, nonexempt portions of the requested record(s).” Roth 

v. U.S. Dept. of Justice, 642 F. 3d 1161, 1167 (D.C. Cir. 2001) 

(internal quotation marks and citation omitted). “[I]t has long 

been the rule in this Circuit that non-exempt portions of a 

document must be disclosed unless they are inextricably 

intertwined with exempt portions.” Wilderness Soc'y v. U.S. 

Dep't of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting 

Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F. 2d 242, 

260 (D.C. Cir. 1977)). However, where return information is 

exempt from disclosure under Section 6103(b), the IRS has no 

duty under FOIA to undertake redactions. See Church of 

Scientology of California v. I.R.S., 484 U.S. 9 (1987). 

Accordingly, there are no segregable portions of the records. 
20 

IV. Conclusion

For the reasons set forth above, the IRS’s Motion for 

Summary Judgment, ECF No. 16 is GRANTED and Argyle’s CrossMotion for Summary Judgment, ECF No. 18, is DENIED. An 

appropriate order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 September 25, 2022