T. Keith Fogg v. Internal Revenue Service

United States Court of Appeals
For the Eighth Circuit
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No. 23-1620
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T. Keith Fogg
Plaintiff - Appellant
v.
Internal Revenue Service
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 10, 2024
Filed: July 2, 2024
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
T. Keith Fogg sought disclosure of certain redacted contents of the Internal
Revenue Manual under the Freedom of Information Act (FOIA). See 5 U.S.C.
§ 552. The district court1 conducted an in camera inspection of the unredacted
1 The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

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manual per this court’s mandate. See Xanthopoulos v. I.R.S., 35 F.4th 1135, 1139
(8th Cir. 2022). The district court then granted summary judgment to the Internal
Revenue Service (IRS), concluding the redacted contents were exempt from
disclosure under the FOIA because they are techniques and procedures for law
enforcement investigations and their disclosure could reasonably be expected to risk
circumvention of the law. After conducting our own in camera inspection of the
redacted contents, we affirm.
I. Background
Internal Revenue Manual (IRM) § 21.1.3.32 deals with third-party
authentication. See Xanthopoulos, 35 F.4th at 1137. Its purpose is to “confirm the
identification of the person calling prior to releasing sensitive information” to
“enhance protections for tax professionals and their clients.” IRM § 21.1.3.3(3).
Much of § 21.1.3.3 is available to the public, but the IRS redacted some portions of
the IRM “relating to ‘specialty situations’ in which the IRS uses ‘unique’
authentication procedures to combat unauthorized disclosure of sensitive taxpayer
information, identity theft, and criminal fraud.” Xanthopoulos, 35 F.4th at 1137.
In June 2019, Fogg and former co-plaintiff Nicholas Xanthopoulos submitted
a FOIA request for the redacted contents of IRM § 21.1.3.3 so they could
“understand how the IRS used or retained tax professionals’ data collected under the
new procedures.” Id. The IRS claimed the redacted contents are exempt from FOIA
disclosure under the FOIA’s Exemption 7(E) because the redacted contents are
“records or information compiled for law enforcement purposes” and “techniques
and procedures for law enforcement investigations.” See 5 U.S.C. § 552(b)(7)(E).
Fogg and Xanthopoulos then sued the IRS in federal court, seeking court-ordered
disclosure. See id. § 552(a)(4)(B). The district court originally denied their request
to review the redacted contents in camera. On the parties’ cross-motions for
summary judgment, the district court granted summary judgment to the IRS, holding
2 Available at https://perma.cc/BDH9-ZD73 (April 16, 2024).

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Exemption 7(E) applied to the redacted contents. See Xanthopoulos, 35 F.4th at
1137–38. After Fogg appealed to this court,3 we reversed both the grant of summary
judgment to the IRS and the denial of Fogg’s request for in camera inspection,
remanding to the district court to conduct the in camera inspection. Id. at 1139.
By the time the district court conducted its in camera inspection, the IRS had
revised the IRM and voluntarily released some of its previously redacted portions.
Thus, the district court reviewed the five remaining redactions in IRM § 21.1.3.3:
first, “a ‘note’ under § 21.1.3.3(3)”; second, “an ‘exception’ under § 21.1.3.3(3)”;
third, “all of § 21.1.3.3(4)”; fourth, “all of § 21.1.3.3(5)”; and fifth, “approximately
two lines of text under § 21.1.3.3(8).” The district court also allowed the IRS to
publicly file a declaration from King Donaghy, a Supervisory Tax Analyst for the
IRS’s Customer Account Services. Donaghy’s declaration explained that the five
redactions “set forth the techniques and procedures IRS employees are to follow to
authenticate the identity of the purported [third-party tax preparers] in various non-
standard situations.”
Based on its in camera inspection and Donaghy’s declaration, the district court
concluded Exemption 7(E) applied to the redacted contents of IRM § 21.1.3.3. The
district court determined the redactions serve a law enforcement purpose because
they “specifically address exceptions to the[] standard procedures” and involve
“exceptional situations [of] a heightened risk of fraud or identity theft.” It next
concluded the redactions were “techniques and procedures for law enforcement
investigations,” whose disclosure “could reasonably be expected to risk
circumvention of the law.” See 5 U.S.C. § 552(b)(7)(E). Because it determined
Exemption 7(E) applied to the redactions, the district court again granted summary
judgment to the IRS. Fogg appeals once more, arguing Exemption 7(E) does not
apply to the redacted contents.
3 Xanthopolous elected not to pursue an appeal following the district court’s
first grant of summary judgment, and he is no longer a party in this case.

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II. Analysis
We review de novo the district court’s grant of summary judgment.
Xanthopoulos, 35 F.4th at 1138. “In the FOIA context, summary judgment is
available to the agency where it ‘proves that it has fully discharged its obligations
under FOIA, after the underlying facts and inferences to be drawn from them are
construed in the light most favorable to the FOIA requester.’” Id. (quoting Mo. Coal.
for Env’t Found. v. U.S. Army Corps of Eng’rs, 542 F.3d 1204, 1209 (8th Cir. 2008)).
“[D]isclosure, not secrecy, is the dominant objective of the [FOIA].” Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976). The FOIA is intended to give the public
access to government documents unless an enumerated exemption to disclosure
applies. See Mo. Coal., 542 F.3d at 1208. There are nine limited exemptions to
disclosure—which we narrowly construe—and the government bears the burden of
showing an exemption applies. Xanthopoulos, 35 F.4th at 1138.
In this case, the IRS claims the redacted contents of IRM § 21.1.3.3 are
exempted from disclosure under Exemption 7(E). Under that exemption, the IRS
may withhold from disclosing:
(7) 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) (emphasis added). The district court determined—and
neither party contests—that the redacted contents are compiled for “law enforcement
purposes”; they protect taxpayer information from fraudulent attempts to access it.
Thus, the IRS satisfied Exemption 7(E)’s threshold requirement that the redacted
contents be for “law enforcement purposes.”

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The IRS only asserts the IRM’s redacted contents are “techniques and
procedures” for law enforcement investigations; it does not contend the redacted
contents are “guidelines.” Thus, we first need to determine whether the redacted
contents are “techniques and procedures for law enforcement investigations” under
Exemption 7(E)’s plain language. If they are, we then must determine whether
disclosure is nevertheless compelled by some other FOIA provision.
A. Techniques and Procedures for Law Enforcement Investigations
Whether the redacted contents qualify as “techniques and procedures for law
enforcement investigations” depends on the “‘ordinary, contemporary, common
meaning’ of those terms when FOIA was enacted,” Xanthopoulos, 35 F.4th at 1138
(quoting Food Mktg. Institute v. Argus Leader Media, 588 U.S. 427, 433–34 (2019)).
“A court cannot expand or constrict the exemption beyond what its terms permit.”
Id. Because Congress enacted the current iteration of Exemption 7(E) in a 1986
amendment to the FOIA, see Freedom of Information Reform Act of 1986, H.R.
5484, 99th Cong. § 1802 (1986), we look to the meaning of exempting “techniques
and procedures for law enforcement investigations or prosecutions” as it would have
meant in 1986.
The individual terms comprising Exemption 7(E) are broad. A “technique” is
“a technical method of accomplishing a desired aim,” while a “procedure” is “a
particular way of doing or going about the accomplishment of something.” Allard
K. Lowenstein Int’l Hum. Rts. Project v. Dep’t of Homeland Sec., 626 F.3d 678, 682
(2d Cir. 2010) (hereinafter, Lowenstein Project) (quoting Technique, Webster’s
Third New Int’l Dictionary 2348 (1986), and Procedure, Webster’s Third New Int’l
Dictionary 1807 (1986)). Under those terms’ plain meaning, practically any way of
doing something is a “technique” or a “procedure.” But Exemption 7(E) narrows
the terms’ otherwise broad meanings by cabining the exemption to only those

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“techniques” and “procedures” that are used in “law enforcement investigations.”4
“Law enforcement” refers to “the act of enforcing the law, both civil and criminal,”
Pub. Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-
Mex., 740 F.3d 195, 203 (D.C. Cir. 2014) (hereinafter, PEER) (citing Law
enforcement, Black’s Law Dictionary 964 (9th ed. 2009)), while an “investigation”
is a “detailed examination” or a “searching inquiry,” Investigation, Webster’s Third
New Int’l Dictionary 1189 (1986).
Even though “law enforcement investigations” may cover a wide swath of
activities, the whole of Exemption 7(E)’s plain language imparts some limits. After
all, a technique or procedure that serves a law enforcement purpose may not be a
technique or procedure that serves a law enforcement investigation, as “‘law
enforcement purposes’ involve more than just investigation and prosecution.”
Milner v. Dep’t of Navy, 562 U.S. 562, 583 (2011) (Alito, J., concurring) (emphasis
added). “Congress’ decision to use different language to trigger Exemption 7
confirms that the concept of ‘law enforcement purposes’ sweeps in activities beyond
investigation and prosecution.” Id. at 584.
It is especially important to scrutinize an agency’s assertion of Exemption
7(E) when that agency is not solely a law enforcement agency, but instead serves
“mixed law enforcement and administrative functions,” as the IRS does.
Xanthopoulos, 35 F.4th at 1139 (emphasis added). Those parts of the IRM relating
solely to “administrative matters” fall outside Exemption 7(E)’s scope, such as the
parts dealing with organizational hierarchy and internal human resources. See id.
Accordingly, Fogg argues the redacted contents of IRM § 21.1.3.3 pertain to the
IRS’s routine, administrative functions and are not employed in “law enforcement
investigations.” The IRS asserts the redacted contents are used for special, non-
routine scenarios “and are preventative in nature, and therefore are part of the IRS’s
4 The IRS does not contend the redacted contents of IRM § 21.1.3.3 pertain to
law enforcement “prosecutions” or have any prosecutorial component.

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law enforcement investigation efforts,” likening the redacted contents to techniques
and procedures for conducting background checks.
Courts have concluded “law enforcement investigations” may include agency
background checks into individuals seeking to obtain some government benefit. For
example, the Second Circuit held the questions that U.S. Customs and Immigration
Services “instructs its employees to ask visa applicants to detect ties to terrorism”
are techniques and procedures for law enforcement investigations because they
“identify potential terrorists and keep them from entering the United States . . . .”
Knight First Amend. Inst. at Columbia Univ. v. U.S. Citizenship & Immigr. Servs.,
30 F.4th 318, 331–32 (2d Cir. 2022). Likewise, the D.C. Circuit noted the C.I.A.’s
“security clearance procedures” can be procedures for law enforcement
investigations because they “uncover[] background information on potential [C.I.A.
officer] candidates.” Morley v. C.I.A., 508 F.3d 1108, 1129 (D.C. Cir. 2007). See
also 100Reporters v. U.S. Dep’t of State, 602 F. Supp. 3d 41, 80–81 (D.D.C. 2022)
(holding Exemption 7(E) applied to State Department’s vetting techniques and
procedures for preventing the furnishing of assistance to foreign security forces
believed to have committed human rights violations). These cases reveal that
Exemption 7(E)’s definition of “law enforcement investigations” includes
background checks. Thus, Exemption 7(E) applies to background check techniques
and procedures “even when the [redacted] materials have not been compiled in the
course of a specific investigation” or ongoing criminal investigation. See Tax
Analysts v. I.R.S., 294 F.3d 71, 79 (D.C. Cir. 2002). Our task is to determine whether
the redacted contents are techniques and procedures to help the IRS conduct
background checks—a type of law enforcement investigation—into third-party
callers, or if the redacted contents merely pertain to administrative authentication, as
Fogg claims they do.
Based on our review of Donaghy’s declaration and the redacted contents of
IRM § 21.1.3.3, we conclude Exemption 7(E) applies; the redacted contents all
involve techniques and procedures the IRS uses for law enforcement investigations.
They are akin to background checks because they help the IRS to authenticate a

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caller’s identity in special scenarios in which the caller raises a suspicion of fraud.
These techniques and procedures are not “routine” and “already well known to the
public,” such that any public domain exception should apply. See Cox v. U.S. Dep’t
of Just., 576 F.2d 1302, 1310 (8th Cir. 1978); Knight, 30 F.4th at 332. Even if the
concept of authenticating a caller’s identity is publicly known, Exemption 7(E) still
“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 Broward
Bulldog, Inc. v. U.S. Dep’t of Just., 939 F.3d 1164, 1191 (11th Cir. 2019). As
evidenced by our in camera inspection and Donaghy’s declaration, the IRM’s
redacted contents apply in non-standard scenarios, not involving every third-party
caller. The techniques and procedures help the IRS conduct its law enforcement
investigation into callers’ identities, thus preventing tax fraud.
This is not a case where the agency’s techniques and procedures only have a
vague or tenuous connection to “law enforcement investigations.” In PEER, the
D.C. Circuit determined a dam-managing agency could withhold “emergency action
plans” taken by emergency personnel in case of a dam failure because those plans
constituted “guidelines for law enforcement investigations.” See PEER, 740 F.3d at
204–05. “Those guidelines describe[d] the surveillance and detection of the cause
of an emergency dam failure as well as the process for evaluating the dam failure
when the emergency subsides.” Id. at 205. The agency argued, and the court agreed,
Exemption 7(E) applied to the emergency plans because they could constitute
guidelines pertaining to “law enforcement investigations”—rather than constituting
emergency-management plans—if a subsequent investigation into the dam failure
eventually revealed “a suspicion of criminal sabotage or terrorism.” Id. If PEER
toed the line on what should qualify as a “law enforcement investigation,” the IRS
demonstrates IRM § 21.1.3.3 stands at least a few steps on the safe side of it.
For whatever reason an agency invokes Exemption 7(E), whether it seeks to
withhold “techniques and procedures” or “guidelines,” the agency must show the
redactions are for “law enforcement investigations or prosecutions.” The IRS has

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carried its burden here. After all, the IRS did not invent its duty to prevent
unauthorized third-party access to tax-payer information. Rather, Congress
mandated the IRS conduct such investigations into the identities of third parties who
attempt to access taxpayer information. For example, 26 U.S.C. § 6103(a) forbids
the IRS from disclosing tax return information to unauthorized third parties, while
26 U.S.C. § 7431 awards taxpayers damages if the IRS even negligently discloses
their taxpayer information. See Snider v. United States, 468 F.3d 500, 512 (8th Cir.
2006) (affirming such an award). That Congress imposed these duties—and awards
taxpayers when the IRS fails in its duties—reveals the techniques and procedures
are for “law enforcement investigations.”
B. Circumvention of the Law
Even if the redacted contents are techniques and procedures for law
enforcement investigations, Fogg argues the IRS should still disclose the redacted
contents because their disclosure would not “reasonably be expected to risk
circumvention of the law.” See 5 U.S.C. § 552(b)(7)(E). He invokes Exemption
7(E)’s “circumvention clause,” which appears immediately after the “guidelines”
clause. The circumvention clause provides another way for a party to obtain
otherwise exempted contents under the guidelines clause. Our court has yet to
determine whether the circumvention clause also applies to the “techniques and
procedures” clause. We can confidently say it does not. As the Second Circuit
explained, “basic rules of grammar and punctuation dictate that the qualifying phrase
modifies only the immediately antecedent ‘guidelines’ clause and not the more
remote ‘techniques and procedures’ clause.” Lowenstein Project, 626 F.3d at 681.
Thus, under Exemption 7(E)’s plain language, Congress deemed that disclosure of
“techniques or procedures for law enforcement investigations” presumptively risks
circumvention of the law. Exemption 7(E), on its own, does not provide a party any
other way of forcing an agency to disclose “techniques and procedures for law
enforcement investigations.”

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Even though the circumvention clause does not apply to the techniques and
procedures clause, the IRS must still satisfy the standard set by 5 U.S.C.
§ 552(a)(8)(A)(i), which Congress added to the FOIA in 2016 to curtail agency
overuse of FOIA exemptions. See Leopold v. Dep’t of Just., 94 F.4th 33, 37 (D.C.
Cir. 2024). That subsection requires an agency to disclose redacted information—
even if an exemption otherwise applies—unless “the agency reasonably foresees that
disclosure would harm an interest protected by an exemption described in subsection
(b)” or “disclosure is prohibited by law[.]” 5 U.S.C. § 552(a)(8)(A)(i)(I)–(II). This
“foreseeable harm” requirement is an independent burden on the agency. See Reps.
Comm. for Freedom of the Press v. F.B.I., 3 F.4th 350, 369 (D.C. Cir. 2021); Seife
v. U.S. Food & Drug Admin., 43 F.4th 231, 235 (2d Cir. 2022). Under this
amendment, “[a]pplicability of a FOIA exemption is still necessary—but no longer
sufficient—for an agency to withhold the requested information.” Seife, 43 F.4th at
235.
Neither the Supreme Court nor our sister circuits have addressed how the
foreseeable harm requirement applies to Exemption 7(E), so we must begin by
ascertaining what interests Congress intended Exemption 7(E) to protect before
proceeding to examine whether disclosure would result in foreseeable harm to those
interests. See id. at 239. One obvious interest is preventing “circumvention of the
law.”
At first blush, it could seem 5 U.S.C. § 552(a)(8)(A)(i) merely extends
Exemption 7(E)’s circumvention clause to the techniques and procedures clause.
But whereas Exemption 7(E)’s circumvention clause only requires the IRS to show
how disclosing otherwise-exempted guidelines “could be reasonably expected to
risk circumvention of the law,” see 5 U.S.C. § 552(b)(7)(E) (emphasis added), the
foreseeable harm requirement requires the IRS to show how disclosure would
foreseeably harm the IRS’s interest in preventing circumvention of the law, 5 U.S.C.
§ 552(a)(8)(A)(i).

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There is a material difference between speaking of a foreseeable risk of harm
on the one hand, and foreseeable harm on the other. As written, the circumvention
clause allows an agency to withhold information if it can show a mere risk of harm,
a minimal burden, requiring only the agency demonstrate “an expectation” of a risk.
Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009). This is in contrast
with § 552(a)(8)(A)(i), which demands the IRS show foreseeable harm stemming
from disclosure. This showing requires more than just an expectation of a risk, but
an actual expectation of harm. As the D.C. Circuit explained, “the foreseeability
requirement means that agencies must concretely explain how disclosure ‘would’—
not ‘could’—adversely impair [an exemption’s protected interest].” See Reps.
Comm., 3 F.4th at 369–70. Congress’s addition of the foreseeable harm requirement
may mean that Exemption 7(E)’s circumvention clause is left with little independent
effect, even in guidelines cases. But such an interpretation is consistent with
Congress’s “concern” that the exemptions’ built-in restrictions had proved
insufficient to prevent “overus[e].” Leopold, 94 F.4th at 37.
Even though the district court did not analyze the redacted contents under the
heightened foreseeable harm requirement—only analyzing whether the IRS cleared
the “low bar” of Exemption 7(E)’s circumvention clause—the record still supports
the IRS’s withholding under the heightened standard. First, Donaghy’s declaration
specifically references the IRS’s determination that lax authentication procedures
allowed wrongdoers to access taxpayer information in the past. The IRS adopted
the redacted techniques and procedures of IRM § 21.1.3.3 to improve its third-party
authentication procedures and prevent ongoing circumvention of the law. Thus, the
IRS can reasonably foresee harm stemming from disclosing the redacted contents
because the harm preceded the adoption of the techniques and procedures. Indeed,
the IRS adopted those techniques and procedures in response to ongoing
unauthorized third-party access to taxpayer information.5
5 That is not to say a withholding agency satisfies its burden under the
foreseeable harm requirement simply by showing it adopted techniques or
procedures in response to past harm. Mere demonstration of past harm is no
guarantee that disclosing the adopted techniques or procedures inevitably leads to

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Second, Donaghy explains, to the greatest extent possible, how disclosure of
the redacted contents leads to circumvention of the law. See Cox, 576 F.2d at 1311
(A withholding agency “must articulate its reasoning with specificity, to the degree
that it can do so without revealing . . . the content of the material in question.”). As
to Redaction 1, Donaghy states this redacted material “explains the identity
authentication elements required of a third-party purportedly holding the taxpayer’s
[power of attorney] or [tax information authorization] as modified for certain non-
standard circumstances.” She explains that disclosing these techniques would
inform wrongdoers “of the modified authentication elements that satisfy the IRS’s
investigation or the non-standard circumstances for which they are modified,” which
would enable those wrongdoers to circumvent those procedures, and thus
circumvent the law.
As to the other four redactions, Donaghy likewise describes the techniques
and procedures to the greatest extent she can without revealing the content of the
redacted material. Redaction 2 “describes alternative identity authentication
procedures for a particular group of purported [power of attorney] and/or [tax
information authorization] holders”; Redactions 3 and 4 “describe[] certain
procedures IRS employees are instructed to follow with respect to callers who
present another specific non-standard circumstance”; and Redaction 5 “describes
alternative identity authentication procedures for certain purported [power of
attorney] and/or [tax information authorization] holders under certain other non-
standard circumstances.” She also explains that disclosing these procedures could
reduce their “effectiveness in accurately identifying callers and distinguishing those
with taxpayer-authorized access from those attempting to obtain return information
fraudulently or without a taxpayer’s authorization.”
Granted, Donaghy references how disclosure would lead to a foreseeable
“risk” of circumvention of the law, invoking the language of Exemption 7(E)’s
that harm repeating. The agency must still justify its withholding by explaining how
disclosure of the withheld techniques or procedures leads to foreseeable harm.

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circumvention clause. But even though she does not specifically invoke the
foreseeable harm requirement, her affidavit and accompanying materials
nevertheless establish that disclosure would lead to foreseeable harm. This is not
the case when an agency attempts to withhold information based only on overly
broad generalizations. See Reps. Comm., 3 F.4th at 370 (holding the agency’s
“assertion of harm in [two] umbrella paragraphs” of its declaration did not address
foreseeable harm when those paragraphs were “scanty,” “wholly generalized and
conclusory,” and “just mouthing the generic rationale for the [exemption] itself”).
Even though Fogg accuses Donaghy’s declaration of containing some conclusory
language as to why the IRS expects greater circumvention of the law, the declaration
also contains enough redaction-by-redaction specifics to meet the heightened burden
for withholding.
III. Conclusion
We affirm the district court.
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