The opinion of the court was delivered by: John D. Bates, United States District Judge
Plaintiff Billy Ray Dale ("Dale") brings this action against defendant
Internal Revenue Service ("IRS") under the Freedom of Information Act
("FOIA" or "the Act"), 5 U.S.C. § 552. Dale asserts that he was
subjected to retalitory audits by the IRS during President Clinton's
administration from January 20, 1993 through January 19, 2001, and seeks
access to any documents in the possession of the IRS that he believes
will establish the political nature of these actions. Compl. ¶ 6. The
IRS moves to dismiss Dale's complaint for lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), claiming that Dale failed
to comply with certain administrative requirements of FOIA and the
implementing IRS regulations.*fn1
This case is a prime example of how the unwillingness of the parties
and counsel to a lawsuit to work together in managing the case may lead
to an unnecessary expenditure of time and effort by the parties and hence
by the federal judiciary. In this case, the fault seems to lie
primarily, although perhaps not exclusively, with the plaintiff or more
accurately with Judicial Watch, the public interest legal organization
that represents plaintiff Had Judicial Watch responded timely to
defendant's communications and proposals, the issues now before the Court
likely would have been resolved long ago, without requiring briefing and
judicial attention, and perhaps plaintiffs FOIA request would already
have been processed and documents produced. Unfortunately, that was not
to be, and the Court must therefore deal with the parties' respective
positions as they now stand, even though modest compromise would appear to
have been much the preferable, and more efficient, option. Be that as it
may, for the reasons stated below, the motion of defendant IRS to dismiss
Dale filed his FOIA request with the IRS on July 13, 2000. Compl.
¶ 5; see Compl., Ex. 1 (letter from Dale to IRS dated July 13, 2000).
In his request, Dale sought access to "[a]ny and all documents, including
but not limited to files, that refer or relate in any way to Billy Ray
Dale." Id. Dale stated that his request included "all Internal Revenue
Service offices, departments, detachments, bureaus, operating locations,
field offices, agencies, divisions, directorates, center headquarters,
and/or other Internal Revenue Service organizations and entities." Id.
Dale requested that the documents be sent to his attorney, Larry
Klayman, General Counsel of Judicial Watch, a non-profit public interest
law firm. Compl., Ex. 1.
Dale did not commit to pay the fees incurred in searching for and
copying the responsive documents, nor did he request a waiver of those
fees. The IRS received Dale's request on July 18, 2000, and on August
27, 2000, the IRS wrote back, informing Dale of several problems that
needed to be corrected before the IRS could conduct a search. Compl.
¶ 7. The IRS letter stated in part:
Answer, Ex. A (letter from Summerlin to Dale dated August 27, 2000). The
IRS informed Dale that in order to bring his request into compliance with
FOIA and applicable IRS regulations, he would have to: 1) provide
specific authorization for the IRS to release his tax records to Judicial
Watch, 2) make his request for disclosure in a separate document
containing his identity information and the type of information to be
disclosed, 3) reasonably describe the information requested and its
location within IRS with more specificity, and 4) make a firm commitment
to pay the fees for search and duplication, or provide justification for
waiving or reducing such fees. Answer, Ex. App. 1-2. The IRS provided
Dale with Form 8821, a tax information authorization form that when
properly completed would authorize release of Dale's IRS documents to
Judicial Watch. Id. at p. 2.
Dale did not respond to the IRS letter. Eight months later, on April
24, 2001, claiming that he had "received no substantive response to his
FOIA request from the IRS," Dale brought suit against the IRS. Compl.
¶ 7. On May 9, 2001, Judicial Watch's Klayman held a conference call
with Department of Justice lawyers in an attempt to address the
deficiencies in Dale's FOIA request, and the parties apparently agreed to
take steps to avoid litigation. Id. As a result of the conference call,
Klayman agreed to provide — within one week — a properly
completed Form 8821, a request from Dale for a fee waiver and a firm
commitment to pay such fees if the waiver were denied, and clarifications
of Dale's search requests. The following day, counsel for the IRS
memorialized this agreement in a three-page letter to Klayman. See Def.
Reply, Ex. A (letter from Hubbert to Klayman dated May 10, 2001).
However, Judicial Watch did not supply the agreed-upon information by May
16, 2001, and on June 5, 2001, the IRS sent Judicial Watch another letter
seeking the information. See Def. Reply, Ex. B (letter from Hubbert to
Klayman dated June 5, 2001). On June 11, 2001, Judicial Watch submitted a
completed Form 8821 authorization and a lengthy justification of why
Judicial Watch, as opposed to Dale (the plaintiff and FOIA requester),
deserved a fee waiver. See Pl. Opp., Ex. 1 (letter from Farrell to Gibson
dated June 11, 2001). Notwithstanding this communication, the IRS
determined that this additional information still did not comply with IRS
and FOIA requirements or with the parties' May 9 agreement, and hence
sent another letter on July 24, 2001, detailing the deficiencies in the
information provided. See Def. Reply, Ex. C (letter from Gibson to
Klayman dated July 24, 2001). That letter proposed a specific settlement
of the case and stated that a motion to dismiss for lack of jurisdiction
would be filed if the IRS did not hear from Judicial Watch by July 27,
2001. Id. at pp. 3-4. Having received no response, on August 2, 2001, the
IRS filed its motion to dismiss, claiming that Dale had failed to comply
with the administrative requirements of FOIA and had failed to exhaust
his administrative remedies.
The Freedom of Information Act requires the requester to exhaust
administrative remedies before filing suit. Summers v. Dep't of Justice,
140 F.3d 1077, 1080 (D.C.Cir. 1998); Stebbins v. Nationwide Mutual Ins.
Co., 757 F.2d 364, 366 (D.C.Cir. 1985) ("[e]xhaustion of [administrative]
remedies is required under the Freedom of Information Act before a party
can seek judicial review"); Judicial Watch. Inc. v. United States Naval
Observatory, 160 F. Supp.2d 111, 112 (D.D.C. 2001) ("It is well settled
that full and timely exhaustion of administrative remedies is a
prerequisite to judicial review under FOIA."). Failure to exhaust
administrative remedies subjects a FOIA requester's suit to dismissal for
lack of subject matter jurisdiction. Dettmann v. Dep't of Justice,
802 F.2d 1472, 1477 (D.C. Cir. 1986); Trueblood v. Dep't of Treasury,
943 F. Supp. 64, 68-69 (D.D.C. 1996). Compliance with both FOIA and
agency requirements is necessary before the agency can release the
requested documents. 5 U.S.C. § 552(a)(3);
26 C.F.R. § 601.702(c)(5).
Failure to comply with agency FOIA
regulations amounts to a failure to exhaust administrative remedies,
which warrants dismissal. See Gillin v. IRS, 980 F.2d 819 (1St Cir.
1992); Voinche v. Dep't of Air Force, 983 F.2d 667, 669 n. 5 (5th Cir.
1993). An agency's obligations commence upon receipt of a valid request;
failure to file a perfected request therefore constitutes failure to
exhaust administrative remedies. See Crooker v. CIA, 577 F. Supp. 1225
(D.D.C. 1984); Lilienthal v. Parks, 574 F. Supp. 14, 17 (E.D. Ark.
The requirements under FOIA are minimal: a request need only (i)
"reasonably" describe the records sought and (ii) comply with any
"published rules stating the time, place, fees (if any), and procedures to
be followed." 5 U.S.C. § 552(a)(3)(A). Pursuant to the Act, the IRS
has promulgated regulations that detail the rules and procedures that
must be followed by persons requesting IRS records. See
5 U.S.C. § 552(a)(2). The IRS's obligation under FOIA begins only
upon receipt of a valid request — that is, one that complies with
all of the requirements set out in 26 C.F.R. § 601.702(c)(3)(i)
— (viii). See 26 C.F.R. § 601.702(c)(5); see also Brumley v.
Dep't of Labor, 767 F.2d 444, 445 (8th Cir. 1985) (response by an agency
is required when "any request . . . is made in accordance with such
rules") (quoting 5 U.S.C. § 552(a)(3)).
Here, the IRS claims that Dale has failed to exhaust his administrative
remedies because he has not filed a proper request. Dale responds that in
the May 9, 2001, conference call the parties agreed to "take steps to
avoid having to litigate serious procedural questions involving subject
matter jurisdiction." See Def. Reply, Ex. B (letter from Gibson to
Klayman dated June 5, 2001). Dale maintains that he complied with the
requirements outlined in this agreement when Judicial Watch submitted its
June 11, 2001, letter and Dale's Form 8821. Pl. Opp., Ex. A (letter from
Farrell to Gibson). The IRS counters that the June 11, 2001, letter still
failed in some respects to meet Dale's commitments in the agreement and
under IRS regulations. Def. Reply at 4. In particular, the IRS contends
that Dale did not "provide an adequate description of what records he
seeks, for what types of taxes, for what years, and where the records
might be located," and that he has failed to justify why he, as the
actual requester of agency records concerning his own taxes — and
not Judicial Watch — is entitled to a fee waiver. Id. at 5.*fn2
A. Failure to Reasonably Describe the Records Sought
Over the course of nearly a year, and after four letters from the IRS
explaining what information it needed in order to conduct Dale's FOIA
search, neither Dale nor Judicial Watch ever fully supplied to the IRS
the information it contends is needed to comply with FOIA and IRS
regulations. Under those regulations, the initial determination whether a
particular request is valid is made solely by the Director of the Office
of Disclosure or his delegate. 26 C.F.R. § 601.702(c)(7). The
agency's regulations require that FOIA requests must be reasonably
The request for records must describe the records in
reasonably sufficient detail to enable the Internal
Revenue Service employees who are familiar with the
subject area of the request to locate the records
without placing an unreasonable burden upon the
Internal Revenue Service. While no specific formula
reasonable description of a record can be
established, the requirement will generally be
satisfied if the requester gives the name, subject
matter, location, and years at issue, of the requested
26 C.F.R. § 601.702(c)(4)(i)(A).
Accordingly, the IRS is under no obligation to release records that
have not been reasonably described. The linchpin inquiry is whether "the
agency is able to determine precisely what records are being requested."
Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997) (quoting Yeager
v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982)). A description "would be
sufficient if it enabled a professional employee of the agency who was
familiar with the subject area of the request to locate the record with a
reasonable amount of effort." Marks v. United States, 578 F.2d 261, 263
(9th Cir. 1978). Broad, sweeping requests lacking specificity are not
sufficient. American Fed. of Gov't Employees v. Dep't of Commerce,
632 F. Supp. 1272, 1277 (D.D.C. 1986).
Consequently, courts have found that FOIA requests for all documents
concerning a requester are too broad. See Mason v. Callaway, 554 F.2d 129,
131 (4th Cir. 1977) (request for all correspondence, documents,
memoranda, tape recordings, notes, and any other material pertaining to
the atrocities committed against plaintiffs, . . . including, but not
limited to, the files of [various government offices] . . . typifies the
lack of specificity that Congress sought to preclude in the requirement
of 5 U.S.C. § 552(a)(3) that records sought be reasonably
described"); Hunt v. Commodity Futures Trading Comm'n, 484 F. Supp. 47,
51 (D.D.C. 1979) (request for all documents concerning requester too
broad); Keese v. United States, 632 F. Supp. 85, 91 (S.D.Tex. 1985)
("Requests for all documents containing a requester's name are not
reasonably specific as required by the FOIA."). "[T]he rationale for this
rule is that FOIA was not intended to reduce government agencies to
full-time investigators on behalf of requesters." Assassination Archives
& Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989).
Dale's FOIA request was for "any and all documents, including but not
limited to files, that refer or relate in any way to Billy Ray Dale."
Compl., Ex. 1 (letter from Dale to IRS dated July 13, 2000) (emphasis
added). Such a request does not describe the records sought with
reasonably sufficient detail" in light of both statutory guidance and
case law. Notwithstanding the IRS's initial August 27, 2000, letter
explaining the additional information needed, Dale did not provide the
necessary reasonably specific information to perfect his FOIA request.
See 26 C.F.R. § 601.702(c)(4)(i)(A). Nor did he direct his search
requests to specific regional offices from which he sought records.
Dale's broad request would not permit an IRS employee to locate the
records with a "reasonable amount of effort," since his FOIA request does
not specify what records he seeks, for what years, and located at which
office of the IRS. Absent some description of the actions the agency may
have taken against him (investigation, audit, revocation of tax exempt
status, etc.), the particular records sought, and any relevant dates and
locations, agency employees would not know where to begin searching.*fn3
face, then, Dale's request was deficient, and no effort was made
to cure the deficiencies.
Nonetheless, some semblance of common sense should prevail here. There
is little doubt that, at least during the course of post-lawsuit
negotiations with Dale and Judicial Watch, the IRS itself determined the
thrust of Dale's FOIA request and what responsive records the IRS
possessed. Indeed, in its July 24, 2001, letter, the IRS went so far as to
Please note that, according to a check of the IRS's
computerized database, Mr. Dale has not been the
subject of any audit, collection or other IRS activity
for any of the years 1988-2000, except for the two
years 1991 and 1992. The IRS records show that Mr.
Dale's 1991 and 1992 federal income tax returns were
audited, and that the audit resulted in no change to
the tax liabilities he reported.
Def. Reply, Ex. C at p. 3. On that basis, the IRS indicated it would
"view favorably" a settlement whereby non-exempt records of those audit
files, including the reasons for opening the audit, would be released to
Dale. Id. Granted, Judicial Watch and Dale never responded to this or
most other IRS communications, but the fact remains that at some point
there was little continuing mystery about the scope and focus of Dale's
request — i.e., the IRS itself supplied the necessary specificity
of description to enable location of responsive records.
Hence, concluding at this point that this action should be dismissed
because Dale did not reasonably describe the records sought in his
request would run the risk of elevating form over substance given the
history of this matter. On the other hand, to do otherwise might reward
Judicial Watch for its failure to engage in meaningful and reasonable
discussions with the IRS in an attempt to resolve issues concerning the
scope and specificity of Dale's request. And there is no doubt that the
request on its face fails to comply with the requirements of FOIA and
applicable IRS regulations, and that Dale and his counsel never undertook
to correct that failure despite repeated IRS requests to do so. Simply
put, Dale's search request amounted to an all-encompassing fishing
expedition of files at IRS offices across the country, at taxpayer
expense. Hence, Dale's FOIA request did not comply with IRS regulations
either before or after he filed suit, and certainly did not comply with
the parties' May 9, 2001, agreement. The complaint is thus fairly subject
to dismissal on that basis notwithstanding the later success of the IRS
search efforts, given that it remains uncertain to this date what
precisely the requester seeks and from what locations within the IRS.
There is, however, another independent basis upon which Dale's complaint
must be dismissed.
B. Failure to Commit to Pay Search and Duplication Fees or to Justify
In addition to failing to reasonably describe the records he sought,
Dale made no mention in his request of whether he intended to pay for the
searches and copies, or whether he was seeking a fee waiver. Pursuant to
IRS regulations, an initial FOIA request must:
State the firm agreement of the requester to pay the
fees for search and duplication ultimately determined
accordance with paragraph (f) of this section, or
request that such fees be reduced or waived and state
the justification for such request.
26 C.F.R. § 601.702(c)(3)(viii).
To obtain a fee waiver, a requester seeking access to records must
demonstrate that release of the information sought is in the public
interest. Oglesby v. Dep't of the Army, 920 F.2d 57, 66 n. 11, 71 (D.C.
Cir. 1990). "[D]isclosure of the information is in the public interest
[if] it is likely to contribute significantly to public understanding of
the operations or activities of the government and is not primarily in
the commercial interest of the requester."
5 U.S.C. § 552(a)(4)(A)(iii). Thus, as this Circuit has noted, there
is essentially a two-pronged test to determine whether a FOIA requester
is entitled to a fee waiver. First, the requester must not have a
commercial interest in the disclosure of the information sought. Larson
v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (citing MESS v. Carlucci,
835 F.2d 1282, 1285 (9th Cir. 1987)). Second, the disclosure of the
information must be "likely to contribute significantly to public
understanding of the operations or activities of the government."
Larson, 843 F.2d at 1483 (quoting 5 U.S.C. § 552(a)(4)(A)(iii)).
Courts should liberally apply the fee waiver provision of the FOIA.
MESS, 835 F.2d 1284.
In Dale's initial FOIA request filed on July 13, 2000, he made no
mention of any commitment — let alone a "firm commitment" —
to pay for searches and copies, and he did not seek a fee waiver. Now,
however, Dale contends that the June 11, 2001, letter to the IRS, which
included Dale's completed Form 8821, contained sufficient justification
to grant the fee waiver to Judicial Watch. Pl. Opp. at pp. 1-2. The IRS
responds that Dale must justify why he, as the FOIA requester — not
Judicial Watch — is entitled to a fee waiver. The statutory
language suggests that it is the requester, and not his or her legal
representative, who must either firmly commit to payment of the fees or
request a fee waiver. The applicable IRS FOIA regulation commands that
the initial request for records must "state the firm commitment of the
requester to pay the fees for search and duplication ultimately
determined in accordance with paragraph (f) of this section, or request
that such fees be reduced or waived and state the justification for such
request." 26 C.F.R. § 601.702(c)(3)(viii) (emphasis added).
Judicial Watch has developed a cottage industry of FOIA litigation, and
in fact has sought fee waivers in many cases (generally without success)
when it was the requester of records under FOIA. See, e.g. Judicial Watch
v. Dep't of Energy, 191 F. Supp.2d 138 (D.D.C. 2002); Judicial Watch v.
FBI, 190 F. Supp.2d 29 (D.D.C. 2002); Judicial Watch v. Dep't of
Justice, 185 F. Supp.2d 54 (D.D.C. 2002); Judicial Watch v. Rossotti,
2002 WL 535803 (D.D.C. 2002); Judicial Watch of Florida v. Dep't of
Justice, 159 F. Supp.2d 763 (D.D.C. 2001); Judicial Watch v. Dep't of
Justice, 133 F. Supp.2d 52 (D.D.C. 2000).
Here, however, the parties
do not dispute that Dale himself is the FOIA requester. The initial
request of July 13, 2000, although typed on Judicial Watch stationery,
was signed by Dale. Dale's completed Form 8821 — submitted June
11, 2001, roughly a year after his initial request — is signed by
Dale as the taxpayer. Indeed, the parties agreed in their May 9, 2001,
conference call that Judicial Watch would
This agreement was reiterated in letters from the
IRS to Judicial Watch on June 5, 2001 and July 24, 2001, with no apparent
objection from Judicial Watch. In its letter to Klayman on July 24,
2001, the IRS again explained that Dale, not Judicial Watch, must
personally seek the fee waiver: "Your letter did not explain why Mr.
Dale, as the requester, is entitled to a fee waiver." Def. Reply, Ex. C
at p. 2. Finally, this case was filed by Dale, not Judicial Watch, as
plaintiff, and asserts that Dale filed the FOIA request with the IRS. See
Compl. ¶ 5. Judicial Watch is identified only as "Attorney for
A party's counsel is not the "requester" for purposes of a fee waiver.
Judicial Watch has not cited, and this Court has not found, any authority
suggesting otherwise. Therefore, Judicial Watch cannot prevail on its
position that Dale is entitled to a fee waiver because his legal
representative, Judicial Watch, may be so entitled. The insistence of
Dale and Judicial Watch to seek a fee waiver only as to counsel in this
case, not as to the plaintiff and FOIA requester, limits the issue before
the Court. Accordingly, as there is no claim that Dale himself is
entitled to a fee waiver, nor any evidence to support such a claim, the
Court does not reach that question. The complaint is therefore subject to
dismissal for the failure to claim, or establish, that plaintiff Dale is
entitled to a fee waiver, or alternatively to commit to payment of search
and duplication fees.
Because Dale failed to comply with the administrative requirements of
the Freedom of Information Act, he did not exhaust his administrative
remedies. As the IRS repeatedly explained, he did not comply with the IRS
requirement that the records sought be "reasonably" described. Moreover,
as the actual requester of information, Dale did not make a "firm
commitment" to pay the fees associated with his FOIA search, nor did he
justify why the fees should be reduced or waived. For these reasons, the
Court is without jurisdiction over this action. Accordingly, the IRS's
motion to dismiss is granted.
Upon consideration of defendant's motion to dismiss for lack of subject
matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the memoranda and
supporting materials of the parties, and the entire record herein, it is
this 20th day of November, 2002, hereby
ORDERED that the defendant's motion to dismiss is hereby GRANTED; and
it is further
ORDERED that plaintiff Dale's action against the Internal Revenue
Service under the Freedom of Information Act, 5 U.S.C. § 552, is