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March 31, 2000


The opinion of the court was delivered by: Kollar-kotelly, District Judge.


In this case, Plaintiff challenges the adequacy and reasonableness of a series of searches that Defendant conducted pursuant to Plaintiff's request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Pending before the Court are Defendant's two motions for summary judgment, Defendant's motion to strike certain of Plaintiff's declarations, and Plaintiff's motion for leave to supplement its opposition to Defendant's first motion for summary judgment. In addition, each of these motions has precipitated oppositions and reply briefs. Because the Court finds that Defendant conducted a series of adequate searches that were reasonably calculated to uncover the requested documents, it shall grant Defendant's first motion for partial summary judgment, and its second motion for summary judgment. Moreover, the Court shall deny Defendant's motion to strike as moot, and shall grant Plaintiff's motion for leave to supplement, noting Defendant's objections thereto.


A. Administrative Proceedings

In July of 1997, Plaintiff Western Center for Journalism, a non-profit, tax exempt corporation, submitted a FOIA request to the Internal Revenue Service ("the Service") Disclosure Office in the Northern California District seeking access to 1994 and 1995 tax audit and examination documents. After conducting an audit of Plaintiff's tax-exempt status in 1996, the Service compiled and stored the materials both in the Los Angeles Service Center and in a large storage file in San Francisco. See Compl., Ex. 1. Shortly before the audit, Plaintiff had sponsored and published an investigation into the death of Deputy White House Counsel Vince Foster. See Pl.'s Opp. to Summ. J. at 1. Based on this investigation, Plaintiff asserted that the tax audit was politically inspired and was intentionally held to "severely curtail the Center's ability to exercise its First Amendment rights and [to] damage the organization." Id.

Within 10 days of receiving the request, the Service's Disclosure Specialist in the Los Angeles District Office, Ms. Hale, responded by conducting a search of the Integrated Data Retrieval System (IDRS), which is a mainframe database of all taxpayers' tax accounts maintained by the Service. See Hale Decl. ¶ 5. After finding Plaintiff's tax files in the IDRS, she placed an order with the Los Angeles Service Center, the repository for all of the closed tax accounts. Upon review of the files she received from the Service Center, Ms. Hale noted that two of the 114 pages found contained material to which FOIA exemption 5 U.S.C. § 552(b)(5) potentially applied. Id. ¶ 6 She proceeded by redacting the information on the two pages that contained the exempted material, and released the segregable portions of the two pages along with the remaining 112 pages in full.

On October 29, 1997, Plaintiff filed an administrative appeal with the Service and requested complete disclosure of the administrative files. See Compl. ¶ 7. The Service responded by letter acknowledging the request, see Gulas Decl. ¶ 4, and released in full the two pages of documents that had been partially withheld. Id. ¶ 5.

B. Judicial Proceedings

Despite the release of 114 documents in full following the administrative appeal, Plaintiff filed a complaint with this Court for declaratory and injunctive relief pursuant to 5 U.S.C. § 552(a)(3), claiming that the Service had failed to turn over all the documents encompassed by the initial request. The Service's Disclosure Litigation Division Attorney, Ms. Gulas, responded by initiating an official investigation into the allegations of the complaint. Ms. Gulas immediately noticed that, although the documents pertaining to the audit had been drafted by Revenue Agent Jonathan Grisso, the Plaintiff's FOIA request referred to Revenue Agent Tom Cederquist as the agent who had worked at the Sacramento Division Office on the audit. See Gulas Decl. ¶¶ 3, 6. For clarification, she contacted Mr. Grisso, who informed her that Mr. Cederquist had been assigned originally to the examination of the Plaintiff, but was removed due to an apparent conflict of interest. See id; see also Grisso Decl. ¶ 3. Mr. Grisso declared that he had personally traveled to Sacramento to acquire the files in question, see Grisso Decl. ¶ 3, and had incorporated all of Mr. Cederquist's material into his files. See Mot. Summ. J. ¶ 28. After concluding the examination, he forwarded all of his files and Mr. Cederquist's files to his manager to be closed. See Grisso Decl. ¶ 3.

1. Defendant's First Motion for Summary Judgment

As a result of the investigation into the allegations of Plaintiff's complaint, the Service filed a motion for summary judgment on the grounds that there were no genuine issues as to any material facts bearing on the case. In its first such motion, the Service argues that, because it conducted a search reasonably calculated to uncover and locate, identify, and release all records responsive to Plaintiff's FOIA request, it is entitled to a judgment as a matter of law. See Mot. Summ. J. at 7-8. At this time, the Service was not aware that the Hale and Grisso declarations actually referenced two different sets of audit and examination materials. Ms. Gulas assumed that both Hale and Grisso were referring to the same set of files. See 2d Gulas Decl. ¶ 10. In fact, the materials that Hale ordered and received from the Service Center comprised a pared-down version of a larger set of examination materials. See 2d Gulas Decl. ¶ 9. The Grisso files (the larger set of files) had been forwarded to and stored in a large case file storage area in San Francisco, where they were being used by the Department of Justice in a Bivens lawsuit which Plaintiff had initiated. See Pl.'s. Opp. to Mot. Summ. J. at 3. The Service would not realize this until after Plaintiff opposed its motion.

Plaintiff opposed summary judgment, alleging that the Service had failed to turn over a variety of documents including internal audit procedures, Congressional letters, inspection records, and other in-house memos that were being used in the Bivens case. See Pl.'s Opp. to Mot. Summ. J. at 9-10. In response, the Service indicated that the declarations on which the Plaintiff based its opposition were not authenticated and were based on hearsay. See Def.'s Reply ¶ 3. Pursuant to the federal rules, the Service moved to strike from the record of this proceeding the declarations attached to Plaintiff's opposition. See Fed. R.Civ.P. 56(e) and Fed.R.Evid. 802.*fn1 Further, the service maintained, because Plaintiff never requested access to the Service's inspection records, its internal audit procedures, or the Congressional correspondence, the Service was not obligated to search for and to turn over these documents. Id. ¶ 6.

Notwithstanding the professed adequacy and reasonableness of its initial search, the Service conducted another search for records and located them within the possession and control of the Department of Justice. Id. ¶ 7. Converting its original motion for summary judgment into one for partial summary judgment, the Service informed Plaintiff that, upon review and consideration, it would release the newly discovered documents, consisting of 658 pages. Id.

Plaintiff continues to maintain, however, that partial summary judgment is not possible when the reasonableness of the Service's search for responsive documents is at issue. Because documents such as those found in the TIGTA report were not turned over to the Plaintiff, Plaintiff contends that the Service has not acted in good faith, and that its first search was not legally sufficient. For these reasons, Plaintiff requests additional discovery into the reasons why all responsive documents were not produced after the initial search, the existence and location of other responsive documents, and other related items. See Pl.'s Reply to Def.'s Opp. to Mot. for Leave to File Supp. Opp. at 2-6.

2. Defendant's Second Motion for Summary Judgment

With its Second Motion for Summary Judgment, the Service seeks to cure the defects in the earlier motion, and to demonstrate its earnest efforts to comply with Plaintiff's request. First, the Service asks that its initial motion be converted to a partial motion for summary judgment. In addition to its earlier release of 114 pages, the Service claims that, because it conducted an additional search identifying 658 pages of documents — 655 of which it released in full, while redacting 3 pages pursuant to FOIA Exemptions 3 and 7(c) — it is entitled to judgment as a matter of law on all of Plaintiffs' claims. See 2d Mot. Summ. J. at 18-19. Explaining why it had not located the additional documents in the initial search, the Service concedes that Plaintiffs filed their Bivens case in 1998, one year after their FOIA request, and that therefore the original examination files had not been transferred to the Department of Justice at the time of the FOIA request. See 2d Gulas Decl. ¶ 5. Upon the Service's acknowledgment that these files might have been identifiable, it began another investigation to determine why the original examination file had not been available for the Los Angeles Disclosure Office to respond to the FOIA request. See id. Ms. Gulas determined that because the Grisso (original examination) files were so large, they were stored in the large case file storage area in San Francisco. Id. at ¶ 9. The Los Angeles Disclosure Office received a different set of files, the 1994 and 1995 materials filed with the Service after the examination had begun. Id.

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