The opinion of the court was delivered by: John D. Bates, United States District Judge
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:
A request for "all records pertaining to you" is too
broad to meet the FOIA requirement to adequately
describe the records sought. Please provide some
additional guidance on what information you are
seeking, what Internal Revenue Service function might
have documents responsive to your request, what types
of issues are involved, what year or time frame might
be appropriate to help us focus the search.
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, ...