No. 23-1620 ___________________________

T. Keith Fogg

Plaintiff - Appellant

v.

Internal Revenue Service

Defendant - Appellee ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: April 10, 2024 Filed: July 2, 2024 ____________ Before BENTON, GRASZ, and STRAS, Circuit Judges. ____________ 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 court 1 conducted an in camera inspection of the unredacted

1 The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota. 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) § 21.1.3.3 2 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). -2- 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)”; secon