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TEXAS INDEP. PRODUCERS LEGAL ACTION ASSN. v. IRS

December 21, 1984

TEXAS INDEPENDENT PRODUCERS LEGAL ACTION ASSOCIATION, Plaintiff,
v.
INTERNAL REVENUE SERVICE, et al., Defendants



The opinion of the court was delivered by: GREEN

 JUNE L. GREEN, District Judge.

 This matter is before the Court on defendants' respective motions for summary judgment regarding plaintiff's request for documents under the Freedom of Information Act ("FOIA"), plaintiff's opposition thereto, defendants' mutual reply, and the parties' supplemental responses; plaintiff's motion for further limited discovery, and defendants' opposition thereto; plaintiff's motion to amend its complaint, defendant Department of the Treasury's ("Treasury") opposition thereto, and plaintiff's reply; and the entire record herein.

 For the reasons stated below, the Court grants defendants' motions for summary judgment, and denies plaintiff's motions for further limited discovery and to amend its complaint.

 I.

 Statement of Facts

 On March 7, 1983, plaintiff filed a written FOIA request with defendants Internal Revenue Service ("IRS") and Treasury, and five other federal agencies. Plaintiff requested access to agency documents pertaining to the development of two proposed Treasury regulations: (1) a proposed regulation defining oil from a stripper well property for purposes of the windfall profit tax, 48 Fed.Reg. 2552 (1983) (to be codified at 26 C.F.R. § 51); and (2) a proposed regulation defining "property" for purposes of the windfall profit tax, 47 Fed. Reg. 50,924 (1982) (to be codified at 26 C.F.R. § 51).

 The request was specifically for, inter alia, "all written documents of whatever type or kind, including, but not limited to, all correspondence, notes, position papers, reports and memoranda generated by, received by, or relied upon by any designated agencies in any manner whatsoever in connection with the consideration or promulgation of the proposed rule[s]." Plaintiff's Memorandum in Opposition to the Motions for Summary Judgment by the IRS and the Treasury, and in Support of Plaintiff's Motion for In Camera Inspection and Request for Further Limited Discovery ("Plaintiff's Opposition") at 2.

 Having received no response from the agencies, plaintiff filed the instant action on April 8, 1983, seeking injunctive and declaratory relief. Complaint for Injunctive and Declaratory Relief paras. 22-38. Concurrently, plaintiff filed a motion for preliminary injunction and thereafter a motion for a temporary restraining order to enjoin defendant IRS from conducting a public hearing on the proposed regulation defining oil from a stripper well. Plaintiff's Motion for Preliminary Injunction at 1-2.

 The Court denied the motions to enjoin, *fn1" but granted plaintiff's companion motion for a Vaughn index *fn2" and required defendants to prepare expeditiously a detailed justification, itemization, and index of the withheld documents.

 On May 9, 1983, defendants IRS and Treasury answered the complaint and claimed as affirmative defenses that the documents were withheld properly under the deliberative process privilege, 5 U.S.C. § 552(b)(5) (1977), and that five documents also were protected from disclosure as taxpayer return information, 26 U.S.C. § 6103 (1980). Answer of IRS at 4; Answer of Treasury at 3.

 Plaintiff thereafter filed a motion for in camera inspection of the withheld documents and requests for admissions and interrogatory against defendant IRS. Defendant admitted each request, claiming that it did not possess any documents relating to the proposed regulations that contained technical or scientific information, potential economic impact studies, cost/benefit analysis, potential revenue enhancement capacity studies, an intention to generate additional tax revenue, or ongoing or troublesome litigation of the June 1979 Energy Regulations. Responses to Requests for Admissions of Fact (filed July 8, 1983).

 Defendants IRS and Treasury then filed the instant motions for summary judgment. Subsequently, plaintiff filed a motion to amend its complaint and opposition to defendants' motions. To assist the Court in its consideration of the summary judgment motions, the Court granted plaintiff's motion for in camera inspection.

 Since the filing of the instant action, defendants have released several requested documents in whole or in part. Statement of IRS of Material Facts as to Which There is No Genuine Issue para. 40; Statement of Treasury of Material Facts as to Which There is No Genuine Issue para. 40. Another 156 documents or portions thereof remain withheld by defendants.

 In their motions, both defendants contend that the requested documents have been withheld properly pursuant to the deliberative process privilege, 5 U.S.C. § 552(b)(5) (1977) ("Exemption 5"). Additionally, defendant IRS claims that five of its documents are protected under the statutory exemption for taxpayer return information, 26 U.S.C. § 6103 (1980).

 Plaintiff, however, asserts that the adequacy of defendants' identification and search processes are genuinely in issue. Specifically, plaintiff argues that material questions are raised by: (1) inadequate Vaughn indices describing the documents; (2) inadequate proof of segregation and disclosure of purely factual information and expert names and opinions; (3) inadequate affidavits describing the retrieval process; (4) inconsistencies in the Vaughn indices and defendant IRS's answers to the requests for admissions; and (5) defendants' creation of "secret" working agency law to avoid compliance with Executive Order 12,291, 46 Fed.Reg. 13,193 (1981).

 Plaintiff contends that these FOIA violations preclude the Court from granting the motions for summary judgment and require further limited discovery by plaintiff.

 II.

 Conclusions of Law

 To meet this standard, the burden is on defendants to prove that all the requested documents either have been produced, are unidentifiable, or are wholly or partially exempt from disclosure. The Court must rely on government affidavits and Vaughn indices describing the withheld documents to determine the adequacy of agency identification and retrieval efforts. Accordingly, the affidavits and indices "'must be relatively detailed and non-conclusory and must be submitted in good faith. '" Perry v. Block, 684 F.2d at 126 (quoting Goland v. Central Intelligence Agency, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980)).

 "If the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Founding Church of Scientology of Washington, D.C. v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C.Cir.1979). Even if the agency submits sufficiently detailed affidavits and indices, the requester of documents may nonetheless produce countervailing evidence that places the agency's identification or retrieval process genuinely in issue. Id.

 The Court will consider whether defendants have met their burden of establishing proper nondisclosure under Exemption 5 and section 6103, and will address each of plaintiff's challenges to ...


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