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Judicial Watch, Inc. v. Rossotti

September 30, 2003

JUDICIAL WATCH, INC., ET AL., PLAINTIFFS,
v.
CHARLES O. ROSSOTTI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This is a Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), action brought by Judicial Watch, Inc., a public interest organization, and its former chairman and general counsel, Larry E. Klayman (collectively "Judicial Watch"), against the Internal Revenue Service ("IRS"), its former Commissioner, Charles O. Rossotti, the Treasury Inspector General for Tax Administration ("TIGTA"), and the United States Department of Justice ("DOJ") (collectively, "Government").*fn1 This case presents the questions of whether the IRS, TIGTA, and DOJ conducted adequate searches under FOIA and whether those entities properly relied upon various statutory exemptions to withhold documents in whole or in part. Underlying this case is Judicial Watch's belief that it has been subjected to a politically-inspired IRS audit and investigation in retaliation for criticism the organization directed towards, and legal action it took against, former President Bill Clinton and his administration.*fn2

Pending before the Court are the parties' cross motions for summary judgment, which have been fully briefed. For the reasons stated below, the Court will grant both motions in part and deny them in part.

I. BACKGROUND*fn3

On October 14, 1998, Judicial Watch submitted a FOIA request to the IRS, including regional agency offices in Washington, D.C.,*fn4 Philadelphia, Pennsylvania, Detroit, Michigan, Ogden, Utah, and Chamblee and Atlanta, Georgia. In an attempt to discover who had prompted the IRS audit of Judicial Watch and investigation of its non-profit tax status, this request sought "all correspondence, memoranda, documents, records, lists of names, applications, diskettes, letters, expense logs and receipts, calendar or diary logs, facsimile logs, telephone records, tape recordings, notes and other documents and things that refer or related to the following in any way: 1. Larry Klayman [and] 2. Judicial Watch, Inc." Affidavit of Melissa D. Stuart ("Stuart Aff.") ¶ 4.*fn5 The IRS released to Judicial Watch approximately 128 pages of documents in August of 1999; however, the agency redacted all information identifying the individual(s) who requested the audit. The IRS did not include a privilege log or a Vaughn index with its document production. See Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) (requiring "a relatively detailed analysis [of alleged exempt status] in manageable segments" to allow a court to ensure that claimed exemptions "are adequately justified[.]").

This practice essentially repeated itself over the course of a three-year period – beginning with the October 1998 request – with Judicial Watch ultimately submitting eight FOIA requests to thirteen different offices of the IRS, TIGTA, and DOJ. In six of these requests, Judicial Watch sought documents that "refer or relate" to both plaintiffs; in the other two, it asked IRS Headquarters for information about specific IRS employees.*fn6 The Government states that it located a total of 3,952 responsive pages of documents, of which it released 3,111 in full, released 471 in part and withheld 316. An additional 54 pages, the Government contends, were not relevant. Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and In Support of Defendants' Cross Motion for Summary Judgment ("Defs. Mot.") at 7. Eight IRS offices did not find any materials related to Judicial Watch's FOIA requests: Detroit, Atlanta District and Campus, IRS Director of Practice, IRS International, Ogden, Philadelphia, and Dallas.

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not a "disfavored legal shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the Court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). To be "material" and "genuine," a factual dispute must be capable of affecting the substantive outcome of the case. Anderson, 477 U.S. at 247-48; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

B. FOIA

FOIA provides an avenue for the public to obtain records from a federal administrative agency.*fn7 Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) ("The fundamental principle animating FOIA is public access to government documents."). Under this statute, "an agency is obligated to make 'promptly available' records that are 'reasonably described' in a written request therefor and are not exempt from disclosure." Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996). An agency's search must be "reasonably calculated to uncover all relevant documents." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

Upon receipt of a FOIA request, an agency must determine within 20 days whether it will comply and "immediately notify the person making such request of such determination and the reasons therefor...." 5 U.S.C. § 552(a)(6)(A)(i). "If the agency has not responded within the statutory time limit[], then, under 5 U.S.C. § 552(a)(6)(C), the requester may bring suit." Oglesby v. Dep't of the Army, 920 F.2d 57, 62 (D.C. Cir. 1990). Once the agency has responded, however, even if late, the requester must appeal any dispute through the administrative process prior to filing a lawsuit. Id. at 61.

While FOIA represents a strong congressional commitment to the disclosure of government information, see Dep't of the Air Force v. Rose, 425 U.S. 352 (1976), it also contains a number of exemptions that allow an agency to withhold all or part of a document. 5 U.S.C. § 552(b)(1)-(9). "These exemptions are specifically made exclusive... and must be narrowly construed.'" Rose, 425 U.S. at 361 (internal citations omitted). A court reviews an agency's exemption claims de novo. 5 U.S.C. § 552(a)(4)(B). "The 'burden is on the agency' to show that requested material falls within a FOIA exemption." Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).

At issue in this lawsuit are FOIA Exemptions 3, 5, 6 and 7, which are briefly discussed as follows.

1. Exemption 3

Under Exemption 3, an agency may withhold documents that have been specifically exempted from disclosure by another statute, "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) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). "A statute qualifies as a withholding statute under Exemption 3... where 'Congress has itself made the basic decision, and has left to the administrator only the task of administration.'" Wis. Project on Nuclear Arms Control v. Dep't of Commerce, 317 F.3d 275, 280 (D.C. Cir. 2003) (quoting Am. Jewish Cong. v. Kreps, 574 F.2d 624, 630 (D.C. Cir. 1978)). "[T]he sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978).

2. Exemption 5

FOIA Exemption 5 protects information contained in "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5). This exemption has been construed by the Supreme Court to encompass all documents "normally privileged in the civil discovery context[,]" including attorney work product and attorney-client communications. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Documents covered by the deliberative process privilege – i.e., "documents 'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated[,]'" id. at 150 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.C. 1966)) – are also protected under Exemption 5, in order "to enhance 'the quality of agency decisions[]' by protecting open and frank discussion among those who make them within the Government." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 9 (2001).

3. Exemption 6

Exemption 6 exempts an agency from producing under FOIA "personnel and medical files and similar files," when the release of such records would "constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In balancing privacy and public interests, a court should "consider whether disclosure of the requested information would result in an invasion of privacy, and if so, the extent and seriousness of that invasion, as well as the extent to which disclosure would serve the public interest." Dep't of Defense v. FLRA, 964 F.2d 26, 29 (D.C. Cir. 1992). "The only relevant 'public interest in disclosure' to be weighed in this balance is the extent to which disclosure would serve the 'core purpose of the FOIA,' which is 'contributing significantly to public understanding of the operations or activities of the government.'" Dep't of Defense v. FLRA, 510 U.S. 487, 495 (1994) (quoting Dept' of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 775 (1989)) (emphasis in original).

4. Exemption 7

Under Exemption 7 of FOIA, records and information compiled for law enforcement purposes are exempt from disclosure to the extent that they

(A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual[.]

5 U.S.C. §552(b)(7)(A)-(F). Records are considered "compiled for law enforcement purposes" if "the investigatory activity that gave rise to the documents is 'related to the enforcement of federal laws,' and there is a rational nexus between the investigation at issue and the agency's law enforcement duties." Jefferson v. Dep't of Justice, 284 F.3d 172 (D.C. Cir. 2002) (quoting Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982)). The term "law enforcement purposes" includes civil and criminal matters. Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002). In fact, the Third Circuit has held ...


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