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March 9, 2000


The opinion of the court was delivered by: Kennedy, District Judge.


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 public."*fn3

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

A. Exemption 3

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 written correspondence.
4. Internal memoranda, including drafts, from the Exempt Organizations office referring a complaint for action.
5. Responses, including drafts, from the Service responding to complaints that an organization is not complying with the laws governing tax exempt organizations.
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 responses.
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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