who completed the examination, see Grisso Decl. ¶ 3; Def.'s
Mot. Summ. J. ¶ 28. Finally, upon reading Plaintiff's opposition
indicating that more examination documents existed, the Service
immediately searched for and found the additional responsive
documents that were stored in the large case files and used in
the Bivens case. See Def.'s Reply to Pl.'s. Opp. ¶ 7.
Plaintiff, however, disagrees. First, Plaintiff argues that the
Service's initial failure to turn over the additional responsive
documents used in the Bivens case demonstrates bad faith and
thus creates grounds for discovery. Nonetheless, this Circuit has
held that, under the FOIA, it is unreasonable to expect even the
most exhaustive search to uncover every responsive file; what is
expected of a law-abiding agency is that the agency admit and
correct error when error is revealed. See Meeropol, 790 F.2d at
943 n. 5. Here, the Service admitted and corrected the error by
turning over the additional documents when Plaintiff revealed it
to the Service.
Second, the Plaintiff contends that the audit was politically
inspired and, therefore, that the agency acted in bad faith by
initiating the audit. See Pl.'s Opp. to Def.'s 2d Mot. Summ. J.
at 3. Plaintiff predicates this assertion on Revenue Agent
Cederquist's alleged comments that the audit was political. See
id; see also Roux Decl. ¶¶ 9-11. The possibility that the
Service conducted a politically motivated audit, however, is not
the issue before the Court. This FOIA case is concerned solely
with whether the agency conducted an adequate search, and whether
the agency acted in good faith in so doing. See Steinberg, 23
F.3d at 551. Moreover, the disputed comment that Revenue Agent
Cederquist allegedly made is not material to this case. This
alleged comment goes to the motivation behind the audit, and not
to the adequacy of the search.
Third, Plaintiff presumes that the Service may be withholding
more documents pertaining to the examination of its case since
Plaintiff alleges that the Service intentionally withheld the
materials in the large storage file. This Circuit addressed a
similar issue in Nation Magazine v. Customs Service,
71 F.3d 885, 892 n. 7 (D.C.Cir. 1995), where it held that the "mere
speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable
search" for the requester. Id. Furthermore, "if the agency is
no longer in possession of the document, for a reason that is not
itself suspect, then the agency is not improperly withholding
that document and the court will not order the agency to take
further action in order to produce it." SafeCard, 926 F.2d at
1201. An agency must exercise reasonable diligence to uncover
relevant documents. See id. Indeed, even when a requested
document once existed, summary judgment will not be defeated by
an unsuccessful search for the document, so long as the search
was diligent. See Nation Magazine, 71 F.3d at 892 n. 7.
In this case, undisputed evidence supports a finding that the
Service conducted a diligent search. Although not obligated to do
so, the Service looked beyond the four corners of the request to
ensure that all of the materials requested had been turned over
to the requester. Cf. Kowalczyk v. Dep't of Justice,
73 F.3d 386, 388 (D.C.Cir. 1996) (holding that an agency is not required
to look beyond the four corners of a FOIA request to ensure that
all of the materials requested had been turned over to the
requestor). For example, in addition to the search that Ms. Hale
conducted. Ms. Gulas initiated an investigation into the
complaint when she realized that a different revenue agent began
the search from the revenue agent who completed the search. See
Hale Decl. ¶¶ 5-6; Gulas Decl. ¶¶ 3, 6. She contacted both agents
to ensure that the case file requested contained both agents'
work papers and case files. After receiving an affirmative
response, Ms. Gulas submitted an affidavit indicating that the
case file was complete. Because agency affidavits generally enjoy
a presumption of good faith, a mere allegation of agency bad
faith, without more tangible evidence supporting
that allegation, will not suffice to undermine the sufficiency of
agency submissions. See Carter v. Dep't of Commerce,
830 F.2d 388, 393 (D.C.Cir. 1987); see also SafeCard, 926 F.2d at
Fourth, Plaintiff argues that, since the Service possessed
these documents at the time of the FOIA request, the Service was
improperly withholding them. Though perhaps evidence of
inauspicious confusion on the Service's part, the Service has
offered plausible explanations of its early failure to uncover
these documents. In any event, since the documents in question
have been released to the Plaintiffs, the existence of these
documents now presents a moot issue.
Plaintiff's rationale for agency bad faith lacks validity.
Plaintiff has not presented evidence that additional documents
exist which might be released. See Ground Saucer Watch Inc. v.
CIA, 692 F.2d 770, 771 (D.C.Cir. 1981) (holding that the
Plaintiff bears the burden of presenting evidence that
additional, releasable documents existed in order to establish
agency bad faith). Moreover, mere speculative assertions that
more documents exist will not cast doubt on the agency's
affidavits and assertions. See SafeCard, 926 F.2d at 1201.
Therefore, on these facts, the Court finds that the Service's
searches were adequate, and were conducted in good faith.
C. The Service Properly Redacted Information under Exemptions
3 and 7(C).
1. The Service Properly Invoked Exemption 3.
The Service's affidavits demonstrate that it properly withheld
documents that fall within well-established FOIA Exemption 3,
which protects from disclosure information that is
[s]pecifically exempted from disclosure by statute
(other than section 552(b) of this title), 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) established
particular criteria for withholding or refers to
particular types of matters to be withheld.
5 U.S.C. § 552(b)(3). Here, the Service employed, in conjunction
with Exemption 3, a qualifying non-disclosure statute under
26 U.S.C. § 6103(a), which mandates that tax return information be
held confidential subject to a number of strictly construed
exemptions. See Church of Scientology, 484 U.S. at 10, 108
S.Ct. 271 (1987); Lehrfeld v. Richardson, 132 F.3d 1463, 1465
(D.C.Cir. 1998); Tax Analysts v. Internal Revenue Service,
117 F.3d 607, 611 (D.C.Cir. 1997). Return information includes: