United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For CAUSE OF ACTION, Plaintiff: Allan Blutstein , Daniel Zachary Epstein, LEAD ATTORNEYS, CAUSE OF ACTION, Washington, DC; Robyn N. Burrows PRO HAC VICE CAUSE OF ACTION Washington, DC.
For TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION, Defendant: Yonatan Gelblum, U.S. DEPARTMENT OF JUSTICE, Tax Division, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
This case arises out of an October 9, 2012 Freedom of Information Act (" FOIA" ) request submitted by plaintiff
Cause of Action, a non-profit organization, to the Internal Revenue Service (" IRS" ). Compl. [Dkt. # 1] ¶ 7; Pl.'s Resp. to Def.'s Statement of Undisp. Material Facts [Dkt. # 28] ¶ 1 (" Pl.'s SOF Resp." ). The IRS referred one portion of plaintiff's FOIA request to defendant, the Treasury Inspector General for Tax Administration (" TIGTA" ), and that part of the request is at issue here. Pl.'s SOF Resp. ¶ 2. TIGTA is a component of the U.S. Department of the Treasury (" Treasury" ), and its activities include the investigation of wrongdoing by IRS employees. Answer [Dkt. # 12] ¶ 4; Pl.'s SOF Resp. ¶ 8. The FOIA request referred to TIGTA sought " [a]ll documents . . . pertaining to any investigation by [TIGTA] into the unauthorized disclosure of [26 U.S.C.] § 6103 'return information' to anyone in the Executive Office of the President."  Ex. 1 to Compl. [Dkt. # 1-1] at 2.
On November 30, 2012, TIGTA issued what is commonly called a Glomar response and informed plaintiff that it could neither admit nor deny the existence of any responsive records. Pl.'s SOF Resp. ¶ 4; see also Wolf v. CIA, 473 F.3d 370, 374, 374 U.S.App.D.C. 230 (D.C. Cir. 2007). After unsuccessfully appealing defendant's response at the administrative level, plaintiff filed a complaint in this Court on August 9, 2013. Pl.'s SOF Resp. ¶ ¶ 5-8; Compl. Defendant answered the complaint on September 18, 2013, and moved for summary judgment on November 18, 2013. Answer; Def.'s Mot for Summ. J. [Dkt. # 17]. That same day, defendant also filed a motion for leave to file supplemental materials under seal, which plaintiff opposed on December 2, 2013. Def.'s Mot. to File Documents Under Seal [Dkt. # 18]; Pl.'s Mem. of P. & A. in Opp. to Def.'s Sealed Mot. [Dkt. # 21]. The Court granted defendant's motion for leave to file sealed materials on February 3, 2014, and it has considered those materials in connection with this memorandum opinion. See Feb. 3, 2014 Minute Order. Plaintiff cross-moved for summary judgment on December 23, 2013, arguing that defendant's Glomar response was improper. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 27]. Since the Court concludes that the Glomar response was inappropriate in this case, the Court will deny defendant's motion, grant plaintiff's motion, and remand the matter to the agency for the processing of the FOIA request.
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency's action de novo and " the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). " FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009).
On a motion for summary judgment, the Court " must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706, 383 U.S.App.D.C. 290
(D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But where a plaintiff has not provided evidence that an agency acted in bad faith, " a court may award summary judgment solely on the basis of information provided by the agency in declarations." Moore, 601 F.Supp.2d at 12.
FOIA requires government agencies to release records upon request in order to " ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). But because " legitimate governmental and private interests could be harmed by [the] release of certain types of information," Congress provided nine specific exemptions to the disclosure requirements. FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925, 356 U.S.App.D.C. 333 (D.C. Cir. 2003) (" FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." ). These nine FOIA exemptions are to be construed narrowly. Abramson, 456 U.S. at 630.
A Glomar response " is proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption." Wolf, 473 F.3d at 374. To justify this response, an agency must explain why it can neither confirm nor deny the existence of responsive records. See Phillippi v. CIA, 546 F.2d 1009, 1013, 178 U.S.App.D.C. 243 (D.C. Cir. 1976) (" Adapting these procedures to the present case would require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records." ). This inquiry is not based on the content of the documents, but on whether the potential harm caused by revealing the mere existence of the documents is protected by a FOIA exemption. See Wolf, 473 F.3d at 374 (" In determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exemption review standards established in non- Glomar cases." ).
In this case, defendant contends that it cannot confirm or deny the existence of any records responsive to the relevant portion of plaintiff's FOIA request because that bare acknowledgement would compromise interests protected by Exemptions 3, 6, and 7(C). Mem. in Supp. of Def.'s Mot. for Summ. J. [Dkt. 17-1] at 1 (" Def.'s Mem." ). But the Court finds that defendant's Glomar response is not justified by Exemption 3, and that defendant has waived its reliance on Exemptions 6 and 7(C) by officially acknowledging that records exist. Therefore, the case will be remanded to defendant for further action.
I. Exemption 3 does not justify defendant's Glomar response because the existence of an investigation is not " return ...