The opinion of the court was delivered by: JOHNSON
I. Plaintiff's FOIA Request
In its original request under FOIA submitted on May 16, 1980, plaintiff sought the release of virtually all materials contained in IRS files nationwide which pertained specifically to the California Church, and to Scientology, in general.
Included within the scope of plaintiff's request were documents sought by plaintiff in its First Request of Production of Documents in an ongoing action before the United States Tax Court entitled Church of Scientology of California v. Commissioner of IRS, 83 T.C. 381 (U.S.T.C.) (hereinafter referred to as Tax Court case). Plaintiff's FOIA request thereby included all materials received or generated by IRS in connection with the Tax Court case, as well as materials indexed, but adjudged exempt from disclosure, in a previous FOIA action entitled Church of Scientology of California v. IRS, Civil No. CV 74-3465-RJK (C.D. Cal. October 29, 1976), appeal dismissed, No. 77-1365 (9th Cir. 1978) (hereinafter referred to as a FOIA I).
In its May 16, 1980, request, plaintiff acknowledged that the volumes of materials involved would make it impossible for the IRS to respond within the statutory ten-day period, but asked that the California Church be apprised of an anticipated schedule for response. IRS wrote to plaintiff on July 22, 1980, to ask plaintiff to agree to a voluntary extension of defendant's time for response until August 29, 1980. Plaintiff filed an appeal with IRS on September 17, 1980, after no further response from IRS had been forthcoming. Plaintiff did not await defendant's response to the appeal, but instead commenced the instant action.
On June 18, 1982, the Court denied plaintiff's motion for a detailed justification, itemization and indexing by the defendant of the withheld materials as approved by the Court in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974), and granted defendant's motion to submit for in camera inspection certain documents located at the IRS National office. The Court also ordered, sua sponte, that all documents responsive to plaintiff's request and related to the Tax Court case be submitted for in camera review. Submission of the documents within the scope of the Court's June 18, 1982, Order has been accomplished, and defendant now urges the Court to find that the documents remaining at issue are properly exempt from disclosure.
II. Defendant's Motion for Summary Judgment
In moving for summary judgment, defendant first contends that plaintiff is barred by the operation of the doctrine of res judicata from relitigating its claim to access of the documents at issue in FOIA I. In opposition, plaintiff asserts that defendant must demonstrate that the res judicata effect of the final judgment in FOIA I has not been suspended by subsequent material changes in law or fact. Plaintiff has, however, cited no authority which supports its contention that the burden falls upon the defendant to prove that the absence of any material changes in circumstances leaves undisturbed the bar to relitigation erected by the prior judgment.
In Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 92 L. Ed. 898, 68 S. Ct. 715 (1948), the Court considered the applicability of res judicata and collateral estoppel doctrines to determinations of income tax liability in different tax years. The Court held that in the interest of justice, the operation of collateral estoppel "must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged." Id., at 600 (citations omitted). The instant case presents the very situation defined in Sunnen as one in which the operation of collateral estoppel is appropriately confined. There is no question that the documents at issue in both FOIA I and the instant case are identical, as are the parties. Further, defendant does not seek to assert claims of exemption different from those asserted in FOIA I, see Wolfe v. Froehlke, 358 F. Supp. 1318, 1319-20 (D.D.C. 1973), affirmed, 166 U.S. App. D.C. 274, 510 F.2d 654 (D.D.C. Cir 1974) (res judicata not a bar to relitigation of plaintiff's claim to access to document under FOIA when agency asserts new basis for exemption from disclosure). Plaintiff in the instant case correctly cites Sunnen for the proposition that the binding effect of a prior final judgment might be altered or even nullified by a "subsequent modification of the significant facts or a change or development in the controlling legal principles . . ." Id., at 599. Plaintiff, however, has not even alleged that any such modification in law or fact has occurred with regard to this action. Nothing in the legislative history of FOIA or the language of that Act suggests that a defendant in an action brought under FOIA who alleges res judicata as an affirmative defense bears a special burden of proving that documents already adjudged exempt remain exempt. See Church of Scientology of California v. U.S. Dep't of the Army, et al., 611 F.2d 738, 750 fn. 7 (D.C. Cir. 1979). Where the issues, documents, and plaintiffs are identical in both the prior and present FOIA litigation, "the issue of exemption cannot be relitigated." Id. at 751. The Court notes that defendant, in responding to plaintiff's FOIA request in the action sub judice, reviewed the 290 documents found to be exempt from disclosure in FOIA I and identified twenty of that total number which had been withheld in full or in part on the basis of 5 U.S.C. § 552(b)(7)(A).