Plaintiff's "Request for Discovery: Production of Documents and Things for Inspection and Other Purposes" at 1. Plaintiff's second motion seeks an order allowing him to take "oral depositions via telephone."
Although discovery may be permitted in FOIA cases, "to develop more fully the basis for nondisclosure or the lack of it, " Founding Church of Scientology v. NSA, 197 U.S. App. D.C. 305, 610 F.2d 824, 833 (D.C. Cir. 1979) (footnote omitted), the Court "has discretion to forgo [sic] discovery and award summary judgment on the basis of affidavits." Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980) (footnote omitted). In the instant case, there is no need to develop more fully the IRS' basis for nondisclosure of portions of the nine pages of documents at issue because the Elias Affidavit describes in sufficient detail the basis for the withholdings. See discussion infra pp. 10-11.
Accordingly, the Court denies plaintiff's "request for discovery: production of documents and things for inspection and other purposes" and plaintiff's motion for an order allowing him to take "oral depositions via telephone."
Defendant's Motion for Summary Judgment
Defendant seeks a motion for summary judgment asserting that all responsive documents originating in the Criminal Division and Marshal's Service have been released in their entirety and that, with respect to the documents originating in the IRS, all segregable portions of the documents have been released. Defendant also asserts that the deletions made by the IRS, pursuant to the FOIA provisions, are proper. Plaintiff contends, however, that the Criminal Division "has not released all responsive documents to [him] and has not given [him] access to . . . all portions of documents that [he is] allowed in accordance with the FOIA." Plaintiff's Affidavit in Support of Response to Motion for Summary Judgment.
The record indicates that plaintiff received all records pertaining to him that originated in the Criminal Division. Exhibit 1 attached to Defendant's Motion for Summary Judgment. Although the Criminal Division also informed plaintiff that it located court records pertaining to two cases in which plaintiff was a defendant, the Criminal Division indicated that these records were not "agency records" of the Criminal Division for the purposes of the FOIA. To obtain these records, plaintiff was instructed to write to the appropriate clerk of the court.
Plaintiff fails to provide the Court with any specific evidence that additional records may be found in the Criminal Division. The Court notes that "the issue [in FOIA cases] is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original). In the instant case, the Court finds that the Criminal Division's search for documents pertaining to plaintiff was adequate.
As indicated earlier, "once the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made." Crooker v. U.S. State Department, 628 F.2d at 10 (case citation omitted). Because all responsive documents originating in the Criminal Division and Marshal's Service were released to plaintiff, a controversy no longer exists. Accordingly, the Court grants defendant's motion for summary judgment with respect to the documents originating in the Criminal Division and Marshal's Service.
The remaining documents at issue originated in the IRS. Portions of these documents were deleted, pursuant to FOIA Exemption 3, 5 U.S.C. § 552(b)(3), and 26 U.S.C. § 6103. See Elias Affidavit.
FOIA Exemption 3 authorizes the government to withhold records or portions of records that are:
(3) specifically exempted from disclosure by statute. . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. . . .