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Rectification Requests: If you have filed rectification requests or corrections for TDS-related issues with the tax department, it may take some time for the changes to reflect in your Form 26AS. During this period, there can be a temporary mismatch between the two documents.
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Determining the applicability of this Exemption 7 subsection thus requires a two-step analysis focusing on (1) whether a law enforcement proceeding is pending or prospective, and (2) whether release of information about it could reasonably be expected to cause some articulable harm. (4) The courts have held that the mere pendency of enforcement proceedings is an inadequate basis for the invocation of Exemption 7(A); the government must also establish that some distinct harm could reasonably be expected to result if the record or information requested were disclosed. (5) For example, the Court of Appeals for the District of Columbia Circuit has held that the fact that a judge in a criminal trial specifically delayed disclosure of certain documents until the end of the trial is alone insufficient to establish interference with that ongoing proceeding. (6)
Another circumstance in which the continued use of Exemption 7(A) has been held proper involves post-conviction motions, i.e., those instances in which the requester has filed a motion for a new trial or has otherwise appealed the court's action. (17) The extent of protection in such a circumstance, however, varies; some courts have limited Exemption 7(A) protection to only the material not used at the first trial, (18) while other courts in some cases have extended Exemption 7(A) protection to all of the information compiled during all of the law enforcement proceedings. (19)
Furthermore, Exemption 7(A) ordinarily will not afford protection when the target of the investigation has possession of or submitted the information in question. (69) Nevertheless, it is increasingly clear that agencies can properly withhold information if they can demonstrate that its "selectivity of recording" information provided by the target would suggest the nature and scope of the investigation, (70) or if it can articulate with specificity how each category of documents, if disclosed, would cause interference. (71) Indeed, in a case in which two clients requested statements that their attorney made to the SEC and argued that the "information their attorney conveyed to the [agency] must be treated as coming from them," it was held that the "harm in releasing this information flows mainly from the fact that it reflects the [agency] staff's selective recording . . . and thereby reveals the scope and focus of the investigation." (72)
In so doing, the D.C. Circuit disregarded the import of its own prior rulings, (78) ignored prior rulings of the D.C. District Court and other circuit courts, (79) and unexpectedly refused to recognize the full import of the temporal nature of the exemption. (80) The D.C. Circuit in Maydak v. United States Department of Justice further ruled that the nature of the burden of proof under Exemption 7(A) does not relieve an agency from having to prove its case with respect to other, underlying exemptions in the original district court proceedings. (81) Indeed, the Court rebuffed the agency's reliance on longstanding Exemption 7(A) practice and supporting case law by declaring that "nothing" in existing case law "should be construed as supporting the proposition that, when the government withdraws its reliance on Exemption 7(A) after the district court has reached a final decision and an appeal has been filed, the appropriate course of action is necessarily remand to the agency for reprocessing of the FOIA request in question." (82) In fact, in Maydak, the court went so far as to declare that "merely stating that 'for example' an exemption might apply is inadequate to raise a FOIA exemption," even when underlying a uniquely temporal one such as Exemption 7(A). (83)
Prior to the Maydak decision, when agencies found themselves in litigation in which "changed circumstances" (i.e., the end of underlying law enforcement proceedings) had placed into question the continuing viability of Exemption 7(A), they either voluntarily "reprocessed" the requested records using all other appropriate exemptions or were ordered to do so by the court. (84) Now, however, whenever invoking Exemption 7(A) in litigation, agencies may choose to seek and receive permission from the district court to invoke Exemption 7(A) alone (thereby reserving all other potentially invokable exemptions) (85) or undertake the time-consuming process of invoking Exemption 7(A) together with all other, underlying, exemptions in their ini-tial Vaughn declarations. (86)
What's more, the D.C. Circuit likewise did not apply Maydak rigidly in two other very recent cases in which the agencies did not invoke all applicable exemptions at the district court level. (95) In LaCedra v. Executive Office for United States Attorneys, the agency, due to its misreading of a FOIA request, conducted a limited search and processed only a portion of the requested records. (96) But stating that "[n]othing in Maydak requires an agency to invoke any exemption applicable to a record that the agency in good faith believes has not been requested," the D.C. Circuit specifically permitted the agency to invoke all applicable exemptions on remand. (97)
And in the second such additional recent case (the fourth in succession to undermine Maydak), United We Stand America v. IRS, the request concerned a document that the IRS prepared at the direction of a congressional committee and which the agency maintained was not an "agency record" subject to the FOIA. (98) The agency simply stated to the district court that "'[s]hould the Court determine that the documents in question constitute agency records for purposes of the FOIA . . . the defendant reserves the right, pursuant to the statute, to assert any applicable exemption claim(s), prior to disclosure, and to litigate further any such exemption claims.'" (99) Yet after the D.C. Circuit concluded that "only those portions of the IRS response that would reveal the congressional request are not subject to FOIA," it specifically remanded "with instructions" for the agency "to release [only] any segregable portions that are not otherwise protected by one of FOIA's nine exemptions" -- i.e., without any regard at all for the course to the contrary (not to mention contrary to Senate of Puerto Rico) that it had appeared to have embarked on in Maydak three years earlier. (100)
3. See Robinson v. Dep't of Justice, No. 00-11182, slip op. at 8 n.5 (11th Cir. Mar. 15, 2001) (noting that 1986 FOIA amendments changed the standard from "would" interfere to "could reasonably be expected to" interfere); Manna v. United States Dep't of Justice, 51 F.3d 1158, 1164 n.5 (3d Cir. 1995) (stating that Congress amended the statute to "relax significantly the standard for demonstrating interference"); Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 311 n.18 (D.C. Cir. 1988) (treating the lower court's improper reliance on the pre-amendment version of Exemption 7(A) as irrelevant as it simply "required EPA to meet a higher standard than FOIA now demands"); Wright v. OSHA, 822 F.2d 642, 647 (7th Cir. 1987) (explaining that amended language creates broad protection); Curran v. Dep't of Justice, 813 F.2d 473, 474 n.1 (1st Cir. 1987) ("[T]he drift of the changes is to ease -- rather than to increase -- the government's burden in respect to Exemption 7(A)."); In Def. of Animals v. HHS, No. 99-3024, slip op. at 6 (D.D.C. Sept. 28, 2001) (reiterating that "'could reasonably' . . . represents a relaxed standard; before 1986, the government had to show that disclosure 'would' interfere with law enforcement"); Gould Inc. v. GSA, 688 F. Supp. 689, 703 n.33 (D.D.C. 1988) (The "1986 amendments relaxed the standard of demonstrating interference with enforcement proceedings."); see also Spannaus v. United States Dep't of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987) (explaining that an "agency's showing under the amended statute, which in part replaces 'would' with 'could reasonably be expected to,' is to be measured by a standard of reasonableness, which takes into account the 'lack of certainty in attempting to predict harm'" (quoting S. Rep. No. 98-221, at 24 (1983)); cf. John Doe Agency v. John Doe Corp., 493 U.S. 146, 157 (1989) (taking "practical approach" when confronted with interpretation of FOIA and applying "workable balance" between interests of public in greater access and needs of government to protect certain kinds of information); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 777-78 n.22 (1989) (declaring that Congress intended the identical modification of the language of Exemption 7(C) to provide greater "flexibility in responding to FOIA requests for law enforcement records" and that it replaced "a focus on the effect of a particular disclosure" with a "standard of reasonableness" that supports a "categorical" approach to records of similar character).
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