To meet the summary judgment standard in FOIA cases, an agency's Vaughn index "must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir.1977).
In the instant case, each defendant submitted a Vaughn index describing the source and recipient, subject matter, and nature of each document. The index also identified the particular exemption claimed and the reasons that the exemption applied. See, e.g., Partial Index by IRS of Documents at Issue.
The Court agrees with plaintiff that the justifications for the exemptions in the Vaughn indices are generally "conclusory statements" consisting of "boilerplate" language. Plaintiff's Opposition at 25-26. The Court, however, need not rely solely on the indices. The affidavits filed with defendants' motions for summary judgment detail the decision-making process and identify how each document fits into that process. See supra text at 544.
In addition, in camera review of a sample of the withheld documents indicated that the index and affidavit assertions were "reasonably accurate and specific." Ash Grove Cement Company v. Federal Trade Commission, 167 U.S. App. D.C. 249, 511 F.2d 815, 817 (D.C.Cir. 1975). Each document contained the information asserted in the Vaughn indices and fell within the agencies' decision-making process.
The purpose of detailed identification of the documents is to provide plaintiff with sufficient information to argue effectively against the agencies' exemption claims. "Lack of access of the party seeking disclosure undercuts the traditional adversarial theory of judicial dispute resolution." Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d at 250 (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 824-25 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974)).
The Court finds that defendants' indices and affidavits together identify sufficiently the withheld documents. The agencies need not provide such a detailed justification that the potentially exempt material would be disclosed. Id. at 261.
Plaintiff also challenges defendants' proof of the nonsegregable nature of the withheld documents. Plaintiff does not allege, however, that any of the documents specifically contain segregable material. Plaintiff's Opposition at 18-23.
Exemption 5 is limited to information that would not be available to a private party in litigation with the agency. Purely factual material, therefore, generally would not be protected. Environmental Protection Agency v. Mink, 410 U.S. at 86-88, 93 S. Ct. at 835-836.
But the line between factual and advisory material is not always clear. Exemption 5 protects the deliberative process, not just deliberative material. "In some circumstances, . . . the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by Section 552(b)(5)." Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d at 256.
Thus, factual material intertwined with the deliberative process is protected. In Brockway v. Department of Air Force, the court upheld the withholding of statements by accident witnesses used to establish appropriate Air Force safety policies. 518 F.2d 1184, 1193-94 (8th Cir.1975). The court based its decision in part on the need to encourage the flow of factual material on which opinions and recommendations are based. Id. Similar reasoning was followed by the Court of Appeals of the District of Columbia in Montrose Chemical Corporation of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63, 67-68 (D.C.Cir.1974) cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 449 (1975) (factual summaries revealing internal selection and judgment process protected by Exemption 5).
In addition, technical or scientific material and expert names and opinions generally are not protected. Opinions of experts outside the agency must be disclosed "unless [they] somehow [reflect] the deliberative process of decision or policy making." Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir.1980). If the withheld documents are generated by outside parties at the agency's request, however, the information may be protected. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1078 n. 44 (D.C.Cir.1971).
Defendants claim that all portions of the withheld documents reflect the decision-making process and, therefore, are exempt. Plaintiff argues that "it is extremely unlikely that none of these pages contain any segregable factual material, technical or scientific information, or comments, opinions or names of expert consultants." Plaintiff's Opposition at 21.
Plaintiff's argument is based on pure speculation and assumptions. Plaintiff has presented no evidence other than titles and sources of documents listed in the Vaughn indices to support its argument. For example, plaintiff assumes a document from the Engineering and Valuation Branch of the IRS contains segregable scientific or technical material. Plaintiff's Opposition at 7. In contradiction, defendants filed affidavits denying the existence or reliance on scientific or technical information or expert opinions. Affidavit of John G. Schmalz paras. 6-7, 12-13, 15 (filed Apr. 18, 1983); see Exhibit A to Reply Brief of IRS and Treasury ("Reply Brief").
In addition, defendants have released factual background material contained in several documents, see, e.g., Documents P28, P38, P48, and in camera review supports defendants' assertion of nonsegregability.
3. Search Affidavits
Plaintiff's third contention involves the adequacy of defendants' search procedure. Plaintiff alleges that defendants failed to submit any affidavits detailing the scope of the search. Plaintiff's Opposition at 28.
This statement clearly is in error. Defendants submitted two affidavits in April 1983 describing the offices searched in response to plaintiff's FOIA request. Affidavit of David Mora (filed Apr. 18, 1983); affidavit of Mary Hevener (filed Apr. 18, 1983). Defendants submitted additional affidavits with their Reply Brief. These new affidavits describe in more detail the search procedure. Exhibits A-B to Reply Brief.
Agency affidavits detailing the method and scope of a search for documents must be sufficiently detailed for appropriate reliance by the Court. The standard, however, is not "meticulous documentation [of] the details of an epic search." Perry v. Block, 684 F.2d at 127. Rather, the agency need only provide affidavits explaining in "reasonable detail" the scope and method of the search, in absence of countervailing evidence. Id.
Defendants' affidavits reasonably describe the offices searched and the types of documents sought from each office. Plaintiff presents no countervailing evidence of an inadequate search, other than alleged inconsistencies between the Vaughn indices and IRS responses to requests for admissions. As outlined below, these allegations are either unsubstantiated assumptions or raise immaterial issues of fact.
Plaintiff contends lastly that defendants' motions for summary judgment should be denied because alleged inconsistencies between the Vaughn indices and IRS responses to requests for admissions raise substantive questions concerning the sufficiency of the identification and retrieval processes.
Defendant IRS specifically denied the existence of several types of documents in its answers to plaintiff's requests for admissions. Responses to Requests for Admissions of Fact (filed July 8, 1983); see supra text at 542. Plaintiff argues that the titles, sources, and description of certain documents listed in defendants' Vaughn indices indicate that the denials by the IRS are false. Although not clearly stated, plaintiff apparently concludes that other documents must exist which defendants failed to retrieve or identify. Therefore, summary judgment should be denied and further discovery permitted to determine the existence of additional documents. See Plaintiff's Opposition at 6-18.
Plaintiff's argument as to the existence of inconsistencies, however, is not based on facts, but rather on assumptions and speculation that the Vaughn indices contain documents which the IRS denied existed.
Defendants submitted affidavits that documents containing technical or scientific information or an agency intent to increase revenues do not exist. Affidavit of John G. Schmalz (filed Apr. 18, 1983); Declaration of Peter Karpoff (attached to Defendants' Response to Plaintiff's Supplemental Memorandum in Opposition to Motion for Summary Judgment). In camera review of the questioned documents further supports the inadequacy of plaintiff's allegation of inconsistencies. None of the documents reviewed contained information which the IRS denied existed.
Even if some or all of the denied documents existed, the inconsistencies would be insufficient to raise a genuine issue of material fact. Defendants identified the documents retrieved and claimed exemptions. The possible existence of other documents does not necessarily place the retrieval and identification processes in issue. "The issue [is] not whether any further documents might conceivably exist but whether [the agencies'] search for responsive documents was adequate." Goland v. Central Intelligence Agency, 197 U.S. App. D.C. 25, 607 F.2d 339, 369 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980) (emphasis omitted). An agency need only conduct a "reasonable" search for documents and is not responsible for "reorganiz[ing] its filing system in response to each FOIA request." Id. at 370; Founding Church of Scientology of Washington, D.C., Inc. v. National Security Agency, 610 F.2d at 837. The Court has found defendants' search affidavits to be sufficient proof of adequate retrieval procedures.
B. Section 6103
Defendant IRS also claims exemption of five documents pursuant to 26 U.S.C. § 6103 (1980). All but one of the documents is covered under the deliberative process privilege of Exemption 5. See Document P62.
Defendant IRS claims that the documents contain taxpayer return information, which is protected from disclosure under section 6103. Motion by IRS for Summary Judgment at 10.
Section 6103 prohibits the disclosure of tax returns and return information except as specifically authorized by the statute. 26 U.S.C. § 6103(a). Return information is defined as, inter alia, a taxpayer's identity, information that a particular return is being examined, and any other information received, gathered, or developed during an audit or investigation. Id. at § 6103(b)(2). The statute does not authorize disclosure to plaintiff. Id.
The proper statutory construction of section 6103 has been debated in the courts. Although the decisions are not uniform, this Court has held that release of tax return information does not fall under FOIA, but is governed exclusively by section 6103. Zale Corporation v. United States Internal Revenue Service, 481 F. Supp. 486, 490 (D.D.C.1979) (Gesell, J.); but c.f. Kanter v. Internal Revenue Service, 433 F. Supp. 812, 824 n. 21 (N.D.Ill.1977). Under the statute, the agency has the duty to determine what information falls under the exemption provisions. Thereafter, the requester of documents has the burden of showing that the agency's determination was arbitrary or capricious. Zale Corporation v. United States Internal Revenue Service, 481 F. Supp. at 490.
Plaintiff does not dispute the agency's determination that the five documents contain privileged tax return information. Plaintiff's challenges to the sufficiency of the identification and retrieval processes do not apply to section 6103.
The Court finds that defendants' have met their burden for summary judgment as to all requested documents. Plaintiff's arguments each standing alone fail to raise any substantive material questions of fact. Nor is the cumulative effect sufficient to deny defendants' motions for summary judgment.
The Court, therefore, grants the motions for summary judgment and denies the motions of plaintiff for further discovery and to amend the complaint.