The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff, David Whitfield, brings this action pro se against the United States Department of the Treasury ("DOT"), the Internal Revenue Service ("IRS"), and numerous individual Defendants*fn1 under the Freedom of Information Act, 5 U.S.C. § 552 (2000) ("FOIA"), and the Privacy Act, 5 U.S.C. § 552(a) (2000) ("PA").
This matter is now before the Court on Defendants' Motion for Summary Judgment, [#17]. Upon consideration of the Motion, Opposition, Reply, Supplement to the Reply, Surreply and the entire record herein, and for the reasons discussed below, Defendants' Motion is granted.
Plaintiff filed four FOIA/PA requests with the IRS. On August 26, 2002, he submitted his first request, seeking all information and documents relating to him that were created, maintained, obtained, and disseminated by IRS Special Agent Frank P. DeRosa, the IRS's Criminal Investigation Division ("CID") and the DOT, as well as DeRosa's appointment affidavit and verification of employment. Compl. ¶ 36. By letter dated September 26, 2002, the IRS informed Plaintiff that there were no documents responsive to his request. Defs.' Mat. Facts ¶ 4. Plaintiff did not appeal this determination. Defs.' Mat. Facts ¶ 5.
On August 27, 2002, Plaintiff filed a second FOIA/PA request, which was the same as his first request, but with respect to IRS Special Agent Angelo Troncoso. Compl. ¶ 37. By letter dated November 22, 2002, the IRS informed Plaintiff that there were no documents responsive to his second request. Defs.' Mat. Facts ¶ 34. Plaintiff filed an appeal of this determination on December 19, 2003. Id. ¶ 35.
On May 20, 2003, Plaintiff sent a letter to Special Agent Troncoso requesting the status of purported bank accounts in Mexico and records to support claims Troncoso allegedly made in court against Plaintiff.*fn3 Compl. ¶ 39. By letter dated June 16, 2003, the IRS informed Plaintiff that there were no documents responsive to this third request. Defs.' Mat. Facts ¶ 43. Plaintiff appealed this decision on July 2, 2003. Id. ¶ 44.
On May 21, 2003, Plaintiff filed a fourth request for documents referencing his name for certain tax years. Compl. ¶ 40. Again, the IRS informed him that there were no responsive documents, and Plaintiff appealed on July 2, 2003. Defs.' Mat. Facts ¶¶ 48-49.
After exhausting his administrative remedies, Plaintiff filed this action on April 26, 2004, seeking to compel all documents responsive to his requests. On October 1, 2004, Defendants released Special Agent DeRosa's and Special Agent Troncoso's appointment affidavits in full. Defs.' Mat. Facts ¶¶ 23-24, 37-38; Defs.' Mot., O'Leary Decl. ¶¶ 16-20, Genis Decl. ¶ 3. They subsequently filed this Motion for Summary Judgment.
When Defendants filed the instant Motion, they had released only the appointment affidavits, which at that time were the only responsive documents they had located. During the course of this lawsuit, however, Plaintiff received notice from the Executive Office of the United States Attorneys ("EOUSA") regarding responsive documents maintained in its files. See Pl.'s Opp'n, Ex. 13. The EOUSA released some documents, withheld others pursuant to FOIA exemptions, and informed Plaintiff that 60 pages were being referred to the IRS, which would then direct a response to him. Id.
Defendants initially asserted in their Reply to Plaintiff's Opposition to the Motion that they were not obligated to release these 60 pages to Plaintiff because they were created and maintained by the United States Attorney's Office ("USAO"). They stated that Special Agents DeRosa and Troncoso had been assigned to assist the USAO in a criminal investigation of Plaintiff involving alleged wire and mail fraud and money laundering activities under Titles 28 and 31 of the United States Code. Defs.' Reply at 2. Defendants explained that unless an investigation arises under Title 26 of the Internal Revenue Code, "the [IRS's] case files are sent to the [USAO] and maintained in their office and not by the [IRS]." Defs.' Mot., Thornton Decl. ¶ 6; see also Defs.' Reply at 2; Defs.' Mot., DeRosa Decl. ¶ 4, Troncoso Decl. ¶ 4. Accordingly, Defendants sent the documents back to the EOUSA for processing when they received them. Defs.' Reply at 2-3 & n.2; Defs.' Mot., Genis Decl. Ex. A.
Defendants later determined that they had, in fact, generated the USAO documents. Supplement to Reply at 1. Upon so learning, they released 47 pages to Plaintiff and withheld the remaining 13 pages under FOIA Exemptions 7(C) and 7(E) as documents compiled for law enforcement purposes.*fn4
FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fit within one or more of nine categories of exempt material." Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. § 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Information Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and where necessary, must submit an index of all materials withheld. Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).
In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations submitted by the government when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail"; (2) "demonstrate that the information withheld logically falls within the claimed exemption"; and (3) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987).
The district court reviews de novo the government's withholding of a requested document under any of FOIA's exemptions. 5 U.S.C. § 552(a)(4)(B).
A. Defendants Conducted an Adequate Search for Documents Responsive to Plaintiff's FOIA/PA Requests
Defendants argue summary judgment should be granted because they have conducted a reasonable search for responsive documents in the main IRS databases and in Special Agents DeRosa and Troncoso's own files and that they have released all non-exempt responsive documents to Plaintiff. Defs.' Mot. at 8-9. Plaintiff argues in response that the ...