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Jack W. Wade, Jr., et al v. Internal Revenue Service

March 23, 2011


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


Plaintiffs, Jack W. Wade, Jr., and National Tax Services, Inc., filed this lawsuit against Defendant Internal Revenue Service ("IRS") seeking "disclosure of agency records which have been improperly withheld from [Plaintiffs]," Compl. [Dkt. #1] at 1, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Specifically, Plaintiffs seek "a recently updated copy of the computer records of the list of Enrolled Agents who are listed with the Office of Professional Responsibility . . . [including] the entire database, with all database fields, excepting those that cannot be released due to FOIA restrictions, such as Social Security Numbers, etc." Compl. ¶ 5. After making such a request via letter to the IRS, the IRS requested an extension of time to respond, but also offered Plaintiffs the right to file suit immediately. Id. ¶ 7. Plaintiffs did so, filing suit on January 14, 2010. On March 30, 2010, the IRS released a record to Plaintiffs that the IRS determined was fully responsive to the FOIA request. See Status Report [Dkt. # 8] at 1. The IRS moves for summary judgment arguing that it (1) conducted an adequate search of its records in response to Plaintiffs' FOIA request;*fn1 and (2) that it properly withheld the home phone numbers of the Enrolled Agents pursuant to 5 U.S.C. § 552(b)(6), the personal privacy exemption of FOIA. Plaintiffs argue that the personal privacy exception is inapplicable to the "home" phone numbers. Because the personal privacy exception is not only applicable but appropriate, the IRS's motion for summary judgment will be granted.


Jack W. Wade, Jr., is the sole owner and president of National Tax Services, Inc. ("NTS"), which has been in business since 1986. See Opp'n, Ex. 2 ("Decl. of Jack W. Wade, Jr.") ¶ 3. "The principle activity of NTS is to provide a means for the marketing of tax, accounting, and financial related products and services to tax preparers, tax practitioners, and tax professionals, on IRS's mailing lists." Id. Since its inception, NTS has obtained several mailing lists from the IRS, and makes those lists available to tax, accounting, and financial vendors who wish to sell their products to the tax practitioners on the mailing lists. Id. ¶ 4. NTS also rents those IRS mailing lists to the same vendors so they can reach tax professionals with their own mailings. Id. ¶ 6. One of those mailing lists is the Enrolled Agents' listing,*fn2 which contains the contact information for all Enrolled Agents. Id. ¶ 10. From 1986 to 1990, this Enrolled Agents' listing was made available through the Office of Professional Responsibility of the Treasury Department. Id. ¶ 11. In 1990, this listing was no longer available administratively and was only available through the Department of Commerce's National Technical Information Service. Id. ¶ 12. NTS acquired this listing through the National Technical Information Service until 1995, at which point, until 2004, Plaintiffs acquired the Enrolled Agents' listing through FOIA requests to the Office of Professional Responsibility. Id. ¶¶ 13--14. For five years, Plaintiffs did not request a listing, id. ¶ 15, until August 5, 2009, when Plaintiffs sent a FOIA request to receive a copy of the Enrolled Agents' listing. Id. ¶ 15.

From August 2009 to August 2010, Plaintiffs frequently discussed with the IRS the scope of their request and the extent to which the IRS could comply. Id. ¶ 16. This was complicated by the introduction of a new database program, Entillitrak ("E-trak"), which requires conversion of data fields from IRS's previous database program, the Enrolled Practitioner Program System ("EPPS"). Plaintiffs filed suit on January 14, 2010. "On March 30, 2010, the IRS released an Excel spreadsheet consisting of 44,864 records that contained the Enrolled Agent's name, address, phone number, and e-mail address." Id. ¶ 17. The letter accompanying that spreadsheet noted that the IRS collects a "primary" phone number and a "secondary" phone number, and that the "secondary" phone number was not released to protect the privacy of those individuals' home phone numbers. Id. ¶ 17. Additional fields of information were released on July 23, 2010, after Plaintiffs clarified their request. Def.'s Mot for Summ J. ("Def.'s Mot.") [Dkt. # 15], Ex. 2 ("First Declaration of Carmen M. Banerjee") ¶¶ 4--8. At this point, the IRS has released all of the information Plaintiffs have sought, except for the home phone numbers of the Enrolled Agents. Id.


A. Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. FOIA cases are typically and appropriately decided on motions for summary judgment. Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).

B. Freedom of Information Act

FOIA "calls for broad disclosure of Government records." C.I.A. v. Sims, 471 U.S. 159, 166 (1985). However, Congress has recognized that "public disclosure is not always in the public interest," id. at 167, as "legitimate governmental and private interests could be harmed by release of certain types of information." FBI v. Abramson, 456 U.S. 615, 621 (1982). Recognizing this, Congress provided "nine specific exemptions under which disclosure could be refused." Id.; see 5 U.S.C. § 552(b). Because the mandate of FOIA calls for broad disclosure of Government records, these FOIA exemptions are narrowly construed. See U. S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988).

When an agency refuses to disclose requested records, it bears the burden of proving the applicability of any claimed exemptions. See 5 U.S.C. § 552(a)(4)(B). "An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit . . . ." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citing Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). These affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal citation and quotation omitted). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson, 565 F.3d at 862. "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982) & Hayden v. NSA, 608 F.2d 1381, 1388 (D.C. Cir. 1979)).

C. Segregability

FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. ยง 552(b). The D.C. Circuit has long recognized, however, that documents may be withheld in their entirety when nonexempt portions "are inextricably intertwined with exempt portions." Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). A court may also rely on government affidavits that show with reasonable specificity why documents ...

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