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LANDMARK LEGAL FOUNDATION v. I.R.S.
March 9, 2000
LANDMARK LEGAL FOUNDATION, PLAINTIFF,
INTERNAL REVENUE SERVICE, DEFENDANT.
The opinion of the court was delivered by: Kennedy, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is plaintiff Landmark Legal Foundation's
(hereinafter Landmark) Motion to Compel Release of Information
and defendant Internal Revenue Service's (hereinafter IRS) Motion
for Summary Judgment. Landmark seeks to compel the IRS to produce
certain documents requested under the Freedom of Information Act
(hereinafter FOIA).*fn1 The IRS has stated as its basis for
withholding the documents FOIA Exemptions 3 and 6.*fn2 Having
considered the motions, the responses thereto, and the entire
case record, the court shall: (1) grant in part and deny in part
the IRS's motion for summary judgment, and (2) deny Landmark's
motion to compel production of documents.
On January 28, 1997, Landmark filed a FOIA request with the IRS
seeking agency records described as follows:
[C]opies of any and all documentation (including, but
not limited to, paper correspondence, telephonic
inquiries and/or electronic communications) evincing
requests since January 1, 1992[,] by individuals
and/or entities external to the [IRS] for audits or
investigations of 501(c)(3) tax-exempt organizations.
Please include the names of the individuals and/or
entities requesting the audits or investigations and
the names of the 501(c)(3) tax-exempt organizations
for which audits or investigations were requested. We
wish to make clear that we are not asking the IRS to
provide information revealing whether, in fact, any
of these entities are actually being audited.
Landmark also requested that the IRS waive the standard search,
review, and duplication fees. On September 22, 1998, this court
granted Landmark's fee-waiver request pursuant to
5 U.S.C. § 552(a)(4)(A), finding that "the records requested by Landmark
will likely reveal information about the operations or activities
of the IRS" and that "Landmark's various methods of dissemination
are adequate to convey the information it seeks to the general
The IRS subsequently released to Landmark a set of full and
partial documents responsive to Landmark's request, together with
a 9253-page Vaughn index.*fn4 On July 26, 1999, the IRS moved
for summary judgment, attaching the affidavits of Elissa Sissman,
Harold N. Toppall and Thomas Miller. The IRS asserts that any
redaction or withholding of information from the release was
authorized by FOIA exemptions 3 and 6.
Summary judgment should be granted to the government in a FOIA
case on the basis of agency affidavits "when the affidavits
describe `the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record or by
evidence of agency bad faith.'"*fn5 The government carries the
burden of demonstrating that the documents requested are exempt
from disclosure under the FOIA.*fn6
The IRS seeks to withhold twenty categories of documents under
Exemption 3. As described by the IRS*fn7, these categories are:
1. Correspondence (including enclosures) sent
directly to the Service, or forwarded to the
Service by third parties, complaining about
activities undertaken by a tax exempt
organization and requesting some action by the
Service, or requesting that an organization not
be granted tax exempt status.
2. Correspondence from a member of Congress or the
White House that served only as a cover letter
for 1 above.
3. Letters from member[s] of Congress either written
on their own behalf or that reflecting [sic]
complaints received by telephone without any
4. Internal memoranda, including drafts, from the
Exempt Organizations office referring a complaint
6. Letters from members of the public or from members
of Congress on their own behalf or on behalf of
their constituents, regarding specific audits of
tax exempt organizations and the Service's
7. Correspondence (including enclosures in some
instances) sent directly to the Service by third
parties (e.g. by Members of Congress) regarding
the activities of an organization believed by the
constituents to be tax exempt but determined by
the Service not to have been granted tax exempt
status and the Service's responses.
8. Correspondence from a Member of Congress, or other
third party, that served only as a cover ...
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