                                               Filed:   January 8, 2004

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 03-1160
                           (CA-01-2672-WMN)


JUDICIAL WATCH, INCORPORATED,

                                                Plaintiff - Appellant,

           versus

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE
TREASURY; INTERNAL REVENUE SERVICE

                                               Defendants - Appellees,

           and

CHARLES O. ROSSOTTI; DONNA DORSEY; M. PETER BRESLAN; WAYNE
HAMPEL; STEVEN T. MILLER

                                                            Defendants.


                              O R D E R


     The court amends its opinion filed January 6, 2004, as

follows:

     On page 2, Counsel section, line 1 -- the firm “BOPP,

COLESON & BOSTROM, Terre Haute, Indiana,” is deleted and replaced

with “JUDICIAL WATCH, INC., Washington, D.C.”



                                          For the Court - By Direction



                                          ____________________________
                                                      Clerk
                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JUDICIAL WATCH, INCORPORATED,           
                 Plaintiff-Appellant,
                 v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
TREASURY; INTERNAL REVENUE
SERVICE,                                          No. 03-1160
              Defendants-Appellees,
                and
CHARLES O. ROSSOTTI; DONNA
DORSEY; M. PETER BRESLAN; WAYNE
HAMPEL; STEVEN T. MILLER,
                       Defendants.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
           William M. Nickerson, Senior District Judge.
                       (CA-01-2672-WMN)

                      Argued: September 26, 2003

                       Decided: January 6, 2004

    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.



Affirmed by unpublished opinion. Judge Motz wrote the majority
opinion, in which Judge Niemeyer joined. Judge Luttig wrote an opin-
ion dissenting in part.
2               JUDICIAL WATCH, INC. v. UNITED STATES
                             COUNSEL

ARGUED: Dale L. Wilcox, JUDICIAL WATCH, INC.,
Washington, D.C., for Appellant. Gretchen M. Wolfinger, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Larry Klayman, Paul J. Orfanedes,
JUDICIAL WATCH, INC., Washington, D.C., for Appellant. Eileen
J. O’Connor, Assistant Attorney General, Thomas M. DiBiagio,
United States Attorney, Jonathan S. Cohen, Tax Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   Judicial Watch, Inc. submitted a series of requests under the Free-
dom of Information Act (FOIA) to the Internal Revenue Service
(I.R.S.). In response, the I.R.S. released 785 of 807 pages in full and
redacted portions of 125 more pages. The I.R.S. claimed the protec-
tion of various FOIA exemptions for the withheld material. Judicial
Watch then initiated this action, asserting inter alia, that the I.R.S.
had unlawfully withheld information from responsive documents, and
seeking to compel release of this information. The district court
granted summary judgment to the I.R.S. We affirm.

                                  I.

  Judicial Watch, a non-profit public interest law firm, describes its
purpose as "uncovering government corruption and then educating the
public about its findings." Judicial Watch submitted four requests
under FOIA to eleven offices of the I.R.S., including the Baltimore
Office, in letters dated October 14, 1998; April 14, 2000; January 13,
                JUDICIAL WATCH, INC. v. UNITED STATES                 3
2001; and July 27, 2001. The requests sought all records referring or
relating to Judicial Watch and/or its founder, Larry Klayman.

   The I.R.S. responded to the 1998 request in 1999 by releasing in
full to Judicial Watch 317 of 382 pages of responsive documents. It
responded to the January 13, 2001 request later that year by releasing
in full to Judicial Watch 70 of 73 pages of responsive documents.
Finally, on June 11, 2002, the I.R.S. released in full to Judicial Watch
an additional 498 pages of documents responsive to the 2000 and July
27, 2001 requests.

   In all, the I.R.S. continues to withhold twenty-two pages of respon-
sive documents in full and portions of 125 pages. Those documents
consist of: (1) redacted "return information" of taxpayers other than
Judicial Watch in the form of memoranda, document transmittals,
FAX cover sheets, and reports; (2) identifying information concerning
lower-level I.R.S. employees; (3) the redacted names, addresses, and
postal bar codes of private individuals who wrote to the I.R.S., either
directly or through their elected representatives, expressing concerns
about Judicial Watch; (4) a recommended list of issues to be pursued
in the still-ongoing audit of Judicial Watch and a discussion of the
I.R.S.’s ability to support its position on those issues on one page of
a revenue agent’s case history sheet; (5) internal e-mails among attor-
neys in the I.R.S. Office of Chief Counsel containing information pro-
vided to I.R.S. attorneys regarding the audit of Judicial Watch, the
opinions of those I.R.S. attorneys, and drafts of those attorneys’
advice; and (6) draft legal opinions and advice from the Assistant Dis-
trict Counsel for the Delaware-Maryland District to the Delaware-
Maryland District Director of the I.R.S.

                                  II.

   The parties filed cross motions for summary judgment. Judicial
Watch argued that the I.R.S. had unlawfully withheld responsive doc-
uments and inappropriately redacted certain information from the par-
tially released documents. Specifically, it contended that the I.R.S.
had failed to perform an adequate search, had failed to submit an ade-
quate index of withheld documents, and had improperly withheld doc-
uments under various FOIA exemptions, including FOIA Exemptions
5, 6, and 7(C). 5 U.S.C. § 552(b)(5), (6), 7(C) (2000).
4               JUDICIAL WATCH, INC. v. UNITED STATES
   The district court denied Judicial Watch’s motion for summary
judgment and granted the I.R.S. summary judgment. Judicial Watch,
Inc. v. Rossotti, No. WMN-01-2672, 2002 WL 31962775 (D. Md.
Dec. 16, 2002). Based on the affidavit of an I.R.S. disclosure
employee, the court concluded that the I.R.S. had "met its burden of
showing that it conducted an adequate search." The court further con-
cluded that the declaration of an I.R.S. attorney constituted an index
that "describes the withheld material in sufficient detail to enable the
Court to determine whether the pages fall within the claimed exemp-
tion."

   As for the I.R.S.’s invocation of the various FOIA exemptions, the
court found that the I.R.S. properly redacted lower-level clerical
employees’ names from five pages of responsive documents pursuant
to 5 U.S.C. § 552(b)(6). The court reasoned that "federal employees
do have a privacy interest in the non-disclosure of their names" and
Judicial Watch would "suffer[ ] no prejudice by the redaction of these
names." The court explained that although Judicial Watch had "ar-
gue[d] that disclosure of the[se] employees’ names is necessary to
vindicate its rights," it had not explained "how knowledge of the
names will help in that vindication."

   Similarly, the court found that the I.R.S. properly invoked 5 U.S.C.
§ 552(b)(7)(C) to redact from eighty-eight pages the names and
addresses of people who wrote to the I.R.S. expressing concerns
about Judicial Watch because these individuals had a recognized pri-
vacy interest in their names and addresses and the disclosure of this
information would contribute nothing to the public understanding of
the operations or activities of the I.R.S. Finally, the court found that
the I.R.S. had properly withheld two draft legal opinions and redacted
information from another fifteen pages under 5 U.S.C. § 552(b)(5)
because "[t]hese types of documents are the type traditionally pro-
tected by the government deliberative process privilege."

                                  III.

   After carefully considering the record, the briefs, and the applica-
ble law, and having the benefit of oral argument from the parties, we
conclude that the district court properly granted the I.R.S. summary
judgment. Accordingly, we affirm for the reasons stated in the district
                JUDICIAL WATCH, INC. v. UNITED STATES                   5
court’s opinion and engage in further discussion only to provide clar-
ity on two issues.

                                   A.

   Before the district court, Judicial Watch argued that the I.R.S.
failed to perform an adequate search because it "failed to produce or
even reference . . . numerous documents known to Judicial Watch,
which are without question in the possession of Defendants," includ-
ing documents relating to Judicial Watch’s criminal conflict of inter-
est complaints against the I.R.S. Commissioner, its written request to
meet with the Commissioner, and the two meetings that Judicial
Watch had with the I.R.S. in 1999. Judicial Watch argued that the fact
that these documents were contained in the I.R.S.’s document submis-
sion to the United States District Court for the District of Columbia
in the pending I.R.S. summons enforcement action against Judicial
Watch evidenced the I.R.S.’s bad faith conduct in its search for
responsive documents.

   On appeal, however, Judicial Watch challenges the adequacy of the
I.R.S.’s search on entirely different grounds. Namely, Judicial Watch
argues that the I.R.S. did not search for documents relating to Judicial
Watch founder and chairman, Larry Klayman, as Judicial Watch had
requested; did not formally declare in its affidavit that "the search per-
formed included all files that would likely contain responsive docu-
ments"; and improperly limited its search to the I.R.S.’s Baltimore
District Office and Tax Exempt and Government Entities (TEGE)
function.

   Though Judicial Watch contends these new arguments are simply
a "further articulation" of its district court arguments, in fact these
arguments would require us to address issues of law and fact not con-
sidered in the court below. We will not address issues, unless raised
in the district court, absent exceptional circumstances. See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993); United States v. One
1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir. 1976). No such
exceptional circumstances exist in the present case, and hence we
affirm the district court’s finding "that the I.R.S. has met its burden
of showing that it conducted an adequate search" without addressing
Judicial Watch’s new arguments.
6               JUDICIAL WATCH, INC. v. UNITED STATES
                                    B.

   Our final point involves the district court’s rejection of Judicial
Watch’s challenge to the IRS redaction of the names of "lower-level
employees . . . contained in correspondence or a correspondence con-
trol log" under Exemption 6.

    This exemption protects information contained in an agency’s "per-
sonnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6) (emphasis added). The Supreme Court has
directed that the phrase "similar files" has a "broad, rather than a nar-
row, meaning," and expressly rejected the contention that such files
must contain "highly personal" or "intimate" information to fall
within the exemption. United States Dep’t of State v. Washington Post
Co., 456 U.S. 595, 598, 600 (1982). Rather, under Supreme Court
precedent Exemption 6 extends to "[a]ll information which ‘applies
to a particular individual’ . . . regardless of the type of file in which
it is contained." Washington Post Co. v. United States Dep’t of Health
& Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (emphasis
added) (citing Washington Post, 456 U.S. at 602). Thus, this exemp-
tion clearly applies to the employee names in the correspondence at
issue here if the disclosure of such names "would amount to a clearly
unwarranted invasion of the privacy of any person." Washington Post,
456 U.S. at 602 n.3 (emphasis added) (internal quotations and citation
omitted).

   In United States Dep’t of Def. v. Fed. Labor Relations Auth.
(FLRA), 510 U.S. 487, 489 (1994), the Supreme Court expressly held
that the disclosure of employee addresses would constitute such a
"clearly unwarranted" invasion of privacy. In doing so, the Court
explained that whether an invasion of privacy was "clearly unwar-
ranted" should be determined by balancing the asserted privacy inter-
ests against the "only relevant public interest . . . the extent to which
disclosure of the information would she[d] light on an agency’s per-
formance of its statutory duties or otherwise let citizens know what
their government is up to." Id. at 497 (internal quotations and citation
omitted). Applying this standard, the Court found that the privacy
interests of federal employees in their home addresses was "non-
trivial" and "not insubstantial," id. at 500, 501, that the public interest
                JUDICIAL WATCH, INC. v. UNITED STATES                  7
in disclosure was "virtually non-existent," id. at 500, and therefore the
disclosure of the addresses "would constitute a ‘clearly unwarranted
invasion’ of the employees’ personal privacy within the meaning" of
Exemption 6. Id. at 489.

   Accordingly, in conducting the Exemption 6 analysis here we must
weigh the privacy interest of lower level federal employees in the
nondisclosure of their names "against . . . the extent to which disclo-
sure of the information sought would she[d] light on an agency’s per-
formance of its statutory duties or otherwise let citizens know what
their government is up to." Id. at 497 (internal quotations and citation
omitted). Although the privacy interest of employees in the nondisclo-
sure of their names was not at issue in Dep’t of Def., the Court’s
determination that the privacy interest protected by Exemption 6
encompasses the right of employees not to be "disturbed at home by
work-related matters" and to "control . . . information concerning his
or her person," and that these interests do "not dissolve simply
because that information may be available to the public in some
form," id. at 500-01, persuades us that the Court’s rationale applies
to names as well as addresses. See also Sheet Metal Workers Int’l.
Ass’n, Local No. 9 v. United States Air Force, 63 F.3d 994 (10th Cir.
1995). This is so particularly given that, in ruling on the addresses,
the Dep’t of Def. Court resolved a conflict among the circuits, 510
U.S. at 492, siding with the majority of courts which had found that
the privacy interest protected by Exemption 6 encompassed not only
the addresses, but also the names of federal employees. See, e.g.,
United States Dep’t. of Navy v. FLRA, 975 F.2d 348, 353 (7th Cir.
1992) (citing other cases for this proposition).

   With respect to the public interest in disclosure, Judicial Watch has
offered no explanation as to how the names of lower-level I.R.S.
employees would reveal information about the government’s opera-
tions. Moreover, we have previously recognized that the public inter-
est in the names of government employees alone "would appear to be
negligible" absent a "compelling allegation of agency corruption or
illegality," Neely v. FBI, 208 F.3d 461, 464 (4th Cir. 2000),* which,

 *We reached this conclusion in the context of an Exemption 7(C) case.
However, the Supreme Court, although recognizing that the magnitude
8               JUDICIAL WATCH, INC. v. UNITED STATES
in an earlier chapter in this case, we determined did not exist. See
Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 406 (4th Cir. 2003)
(noting that Judicial Watch’s allegation regarding an illegal retaliatory
audit "finds little support in the record"). Thus in this case, as in Dept.
of Def., there is a "virtually nonexistent FOIA-related public interest
in disclosure," which would be outweighed by even a "very slight pri-
vacy interest," let alone the "not insubstantial" privacy interest at
issue here. Id. at 500. Accordingly, the district court did not err in
holding that the federal employees’ privacy interest in their names
outweighed the public interest in the disclosure.

                                                             AFFIRMED

LUTTIG, Circuit Judge, dissenting in part:

   I concur in the majority’s opinion except to the extent that it
affirms the district court’s judgment that the Internal Revenue Service
lawfully withheld from production under 5 U.S.C. § 552(b)(6) the
names of lower-level I.R.S. employees that appeared on documents
that were responsive to Judicial Watch’s Freedom of Information Act
request.

   Section 552(b)(6) exempts agencies from any obligation to produce
under FOIA "personnel and medical files and similar files the disclo-
sure of which would constitute a clearly unwarranted invasion of per-
sonal privacy." While never specifying how the deleted I.R.S.
employee names qualify as personnel files, medical files, or similar
files, the district court upheld the I.R.S.’ redactions, stating merely
that "federal employees do have a privacy interest in the non-
disclosure of their names and that Plaintiff suffers no prejudice by the
redaction of these names." J.A. 50-51.

   I would reverse the district court and require the I.R.S. to disclose
the redacted names. The lone name of an I.R.S. employee appearing

of the public interest necessary to outweigh the privacy interest in an
Exemption 6 case is less than that necessary in an Exemption 7(C) case,
has found the relevant public interest to be weighed when determining
whether disclosure is required is the same with respect to both Exemp-
tion 6 and Exemption 7(C). See Dep’t of Def., 510 U.S. at 496 n.6.
                JUDICIAL WATCH, INC. v. UNITED STATES                   9
on a document related to a tax audit performed by the Service is not
even arguably a "personnel . . . medical . . . [or] similar file[ ][,]"
under even the most expansive definitions of those terms imaginable.
As the Supreme Court held in Department of the Air Force v. Rose,
425 U.S. 352 (1976), a personnel file is a file containing "vast
amounts of personal data" which constitute a "profile of an individual
. . . showing, for example, where [a person] was born, the names of
his parents, where he has lived from time to time, his high school or
other school records, results of examination, evaluations of his work
performance." Id. at 377. It is obvious that the redacted I.R.S.
employee names are not "personnel files" as so defined in Rose, and,
to its credit, the government does not even attempt to argue otherwise.
See Appellee’s Br. at 61-63.

   But it is just as clear (with respect to the claim that the government
does make) that these names are not "similar files" to personnel and
medical files, within the meaning of the section 552(b)(6) exemption.
The Supreme Court in Department of State v. The Washington Post
Co., 456 U.S. 595 (1982), held that files "similar" to personnel and
medical files are files that contain, as do the type of personnel file
described in Rose, "detailed Government records on an individual
which can be identified as applying to that individual." Id. at 602. The
lone name of an I.R.S. employee that appears in an agency document
relating to a tax audit of a private citizen is simply not a detailed gov-
ernment record on that I.R.S. employee. Compare, e.g., Rose, 425
U.S. at 355, 376-77 (holding that detailed case summaries of cadet
disciplinary proceedings were files similar to personnel files); Wash-
ington Post, 456 U.S. at 600-01 (holding that files containing the
details of a passport application were similar files); Dept. of State v.
Ray, 502 U.S. 164, 173 (1991) (holding that detailed post-repatriation
interviews with unsuccessful Haitian asylum seekers were similar
files).

   The majority never even addresses whether the I.R.S. employee
names constitute personnel or similar files within the meaning of the
(b)(6) exemption, that is, whether each employee name alone consti-
tutes a detailed government record about that employee. It simply
maintains that each I.R.S. employee name is "information which
‘applies to a particular individual’," see supra at 6 (citing Washington
Post Co. v. United States Department of Health & Human Services,
10              JUDICIAL WATCH, INC. v. UNITED STATES
690 F.2d 252, 260 (D.C. Cir. 1982) (quoting Washington Post, 456
U.S. at 598, 600), and for this reason is a "personnel or similar file"
within the meaning of section 552(b)(6). Of course, that a name is
information relevant to a particular individual (which undoubtedly it
is) says nothing at all about whether that name constitutes a detailed
government record about that individual (which most assuredly it is
not).

   Finally, although it is not even plausible to maintain that the names
of the I.R.S. employees at issue are personnel or similar files of these
employees, it would be open to argument, based upon existing
Supreme Court precedent, that the audit-related documents from
which these employee names were redacted do constitute detailed
government records, and therefore "similar files" under (b)(6), of
Judicial Watch. Under this argument, however, only Judicial Watch’s
privacy would be relevant to determining whether disclosure of the
I.R.S. employee names "would constitute a clearly unwarranted inva-
sion of personal privacy." 5 U.S.C. § 552(b)(6). And thus the I.R.S.
employees’ privacy interests in the nondisclosure of their names
would be irrelevant and could not serve to justify the withholding at
issue here.

   Because I do not believe that the mere names of I.R.S. employees
at issue in this litigation may be withheld as "personnel and medical
files and similar files" under section 552(b)(6), I dissent from the
court’s affirmance of the district court’s judgment that the exemption
from disclosure in section 552(b)(6) is properly invoked to withhold
these names.

   The courts have long construed the Freedom of Information Act’s
exemptions so as to effectuate their own view of the proper balance
between information that must be produced and information that may
permissibly be withheld, typically reading the disclosure provisions of
the Act narrowly and its exemptions from disclosure broadly. If the
Freedom of Information Act’s provisions governing production and
exemption are to be contracted and expanded, those contractions and
expansions should be effected not by the judiciary under the guise of
interpretation, but by the Congress through legislative amendment.
