United States District Court, D. Columbia.
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CAUSE OF ACTION, Plaintiff: Daniel Zachary Epstein, LEAD
ATTORNEY, CAUSE OF ACTION, Washington, DC; Erica L. Marshall,
PRO HAC VICE, CAUSE OF ACTION, Washington, DC.
INTERNAL REVENUE SERVICE, Defendant: Stephanie Ann Sasarak,
Yonatan Gelblum, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE,
Tax Division, Washington, DC.
BERMAN JACKSON, United States District Judge.
case arises out of a Freedom of Information Act request by
plaintiff Cause of Action for records related to possible
disclosures of confidential " return information"
by the Internal Revenue Service (" IRS" ). Compl.
[Dkt. # 1] ¶ 7. The confidentiality of that information
is governed by 26 U.S.C. § 6103, and that provision of
the Internal Revenue Code lies at the heart of this action.
" Return information" is defined in section
6103(b)(2), and section 6103(g) governs disclosures to the
President and certain other Executive Branch employees.
October 9, 2012, plaintiff requested eight categories of
records from defendant, the first six of which are at issue
in this lawsuit. Ex. 1 to Compl. [Dkt. # 1-3] ("
FOIA Req." ); Pl.'s Mem. of P. & A. in Opp. to
Def.'s Mot. for Summ. J. & in Supp. of its Cross-Mot. for
Summ. J. [Dkt. # 21-1] (" Pl.'s Mem." ) at 3.
Specifically, plaintiff sought:
1) All documents, including but not limited to emails,
letters, and telephone logs or other telephone records,
constituting communications to and/or from any employee of
the IRS concerning any FOIA request or lawsuit that relates
to [26 U.S.C.] § 6103(g);
2) All documents, including notes and emails, referring or
relating to any communication described in request #1;
3) Any communications by or from anyone in the Executive
Office of the President constituting requests for taxpayer or
" return information" within the meaning of §
6103(a) that were not made pursuant to § 6103(g);
4) All documents, including notes and emails, referring or
relating to any communication described in request #3;
5) All requests for disclosure by any agency pursuant to [26
U.S.C. § ] 6103(i)(1), (i)(2), and (i)(3)(A); [and]
6) All documents, including communications not limited to
notes, emails, letters, memoranda and telephone logs or other
telephone records, referring or relating to records described
in request #5[.]
FOIA Req. at 2. Plaintiff requested records from the time
period of January 1, 2009, through the date of its FOIA
request, October 9, 2012. Id. at 1.
released 793 pages responsive to categories one and two of
plaintiff's request with some redactions, citing FOIA
Exemptions 5 and 6. Br. in Reply to Pl.'s Opp. to
Def.'s Mot. for Summ. J. & in Opp. to Pl.'s Mot. for
Summ. J. [Dkt. # 26] (" Def.'s Reply" ) at 1.
Defendant did not release any records in response to items
three through six of plaintiff's FOIA request on the
grounds that any records related to requests for "
return information" would themselves constitute "
return information" that is exempt from disclosure under
FOIA Exemption 3 in conjunction with section 6103.
Id. ; Br. in Supp. of Def.'s Mot. for Summ. J.
[Dkt. # 16-1] (" Def.'s Mem." ) at 1. The IRS
also took the position that records responsive to items three
through six would be shielded from disclosure by Exemption 6,
and that records responsive to items five and six could also
be withheld under Exemption 7(C). Def.'s Mem. at 1;
Def.'s Reply at 1. Nevertheless, defendant conducted a
search for records responsive to items three and four,
although it did not search
for records responsive to items five and six. Decl. of Denise
Higley in Supp. of Def.'s Mot. [Dkt. # 16-3] ("
Higley Decl." ) ¶ ¶ 17-24.
exhausting its administrative remedies, plaintiff filed a
complaint in this Court on June 19, 2013. Compl. Defendant
moved for summary judgment on April 14, 2014, Def.'s Mot.
for Summ. J. [Dkt. # 16], and plaintiff filed a cross-motion
combined with its opposition to defendant's motion on
June 9, 2014. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 21]
(" Pl.'s Mot." ); Pl.'s Mem. Plaintiff
claims that defendant failed to conduct an adequate search
for responsive records and that its reliance on most of the
FOIA exemptions it claims is improper. Pl.'s Mem. The IRS
filed a cross-opposition combined with a reply on July 28,
2014, Def.'s Reply, and plaintiff filed a cross-reply on
August 22, 2014. Reply in Supp. of Pl.'s Mot. [Dkt. # 30]
(" Pl.'s Reply" ).
Court finds that defendant's search for records
responsive to items one and two of the FOIA request was
adequate, and that its withholdings under Exemption 5 were
proper. But defendant has not described an adequate search
for records responsive to items three and four of the
request, and it will therefore be ordered to do more.
response to items three and four also raises the question of
whether Executive Branch requests for " return
information" are themselves " return
information" that cannot be disclosed. The Court finds
that defendant properly deemed the " tax check"
records it identified as potentially responsive to items
three and four to be " return information" that
should be withheld under FOIA Exemption 3 and section 6103,
but the Court does not agree that any other records
responsive to these requests would necessarily be exempt from
disclosure. In other words, it is not at all clear that all
Executive Branch requests for " return information"
can be characterized as " return information" that
is factual in nature and shielded from disclosure by the
taxpayer confidentiality statute.
the Court finds that the failure to search for records
responsive to items five and six was not justified by any
FOIA exemption. Therefore, the Court will grant both
parties' motions in part and deny them in part, and it
will remand the case to the IRS to conduct an adequate search
for records responsive to items three through six of
plaintiff's FOIA request, and to release any reasonably
segregable, non-exempt information to plaintiff.
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).
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, 255, 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.
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.
prevail in a FOIA action, an agency must, first, demonstrate
that it has made " a good faith effort to conduct a
search for the requested records, using methods which can be
reasonably expected to produce the information
requested." Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 68, 287 U.S. App.D.C. 126 (D.C. Cir. 1990). And,
second, the agency must show that " materials that are
withheld . . . fall within a FOIA statutory exemption."
Leadership Conference on Civil Rights v. Gonzales,
404 F.Supp.2d 246, 252 (D.D.C. 2005), citing Weisberg v.
DOJ, 705 F.2d 1344, 1351, 227 U.S. App.D.C. 253 (D.C.
FOIA requests in this case all reference 26 U.S.C. §
6103, the provision of the Internal Revenue Code that was
enacted to preserve taxpayer privacy. See Tax
Analysts v. IRS, 117 F.3d 607, 611, 326 U.S. App.D.C. 53
(D.C. Cir. 1997). Subsection (a) sets forth the general
proposition that returns and return information shall be
confidential, and subsection (b) defines the key terms in the
statute. 26 U.S.C. § 6103(a)--(b). The provisions that
follow delineate the exceptions to the confidentiality rule,
including the disclosure of returns and return information to
the designee of the taxpayer, 26 U.S.C. § 6103(c),
certain disclosures to state government officials,
id. § 6103(d), certain disclosures " to
persons having a material interest," id. §
6103(e), disclosures pursuant to written requests by certain
members of Congress, id. § 6103(f), and
disclosures to the President, to executive officials, or to
the heads of federal agencies. Id. §
Defendant describes an adequate search for records responsive
to items one and two of plaintiff's FOIA request, but not
for records responsive to items three and
An agency fulfills its obligations under FOIA if it can
demonstrate beyond material doubt that its search was
'reasonably calculated to uncover all relevant
documents.'" Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325, 336 U.S. App.D.C. 386 (D.C.
Cir. 1999), quoting Truitt v. Dep't of State,
897 F.2d 540, 542, 283 U.S. App.D.C. 86 (D.C. Cir. 1990);
see also Oglesby, 920 F.2d at 68;
Weisberg, 705 F.2d at 1351. To demonstrate that it
has performed an adequate search for records responsive to a
FOIA request, an agency must submit a reasonably detailed
affidavit describing the search. Oglesby, 920 F.2d
at 68 (finding summary judgment improper where agency's
affidavit lacked sufficient detail); see also
Defenders of Wildlife v. U.S. Border Patrol (
Defenders II ), 623 F.Supp.2d 83, 91-92 (D.D.C.
2009) (same). A declaration is " reasonably
detailed" if it " set[s] forth the search terms and
the type of search performed, and aver[s] that all files
likely to contain responsive materials (if such records
exist) were searched." Oglesby, 920 F.2d at 68;
see also Defenders II, 623 F.Supp.2d at
91-92 (finding declaration deficient where it failed to
detail the types of files searched, the filing methods, and
the search terms used). In addition, an affidavit should
include the " rationale for searching certain locations
and not others." Defenders II, 623 F.Supp.2d at
92; see also Nat'l Sec. Counselors v.
CIA, 849 F.Supp.2d 6, 11 (D.D.C. 2012) (holding
affidavit was sufficient where it " outline[d] with
reasonable detail the CIA's decision to limit the
search" to a particular area).
agency's declarations " need not 'set forth with
meticulous documentation the details of an epic search for
requested records,'" Defenders II, 623
F.Supp.2d at 91, quoting Perry v. Block, 684 F.2d
121, 127, 221 U.S. App.D.C. 347 (D.C. Cir. 1982), but they
should " describe what records were searched, by whom,
and through what processes." Id., quoting
Steinberg v. DOJ, 23 F.3d 548, 552, 306 U.S.
App.D.C. 240 (D.C. Cir. 1994). Conclusory assertions about
the agency's thoroughness are not sufficient.
See Morley v. CIA, 508 F.3d 1108, 1121-22,
378 U.S. App.D.C. 411 (D.C. Cir. 2007) (finding agency's
" single, conclusory affidavit" to be inadequate),
quoting Perry, 684 F.2d at 128. At the same time,
however, where an " affidavit could in theory be more
detailed, that fact alone does not warrant denying summary
judgment in favor of" a defendant. White v.
DOJ, 840 F.Supp.2d 83, 89 (D.D.C. 2012). Agency
affidavits attesting to a reasonable search " are
afforded a presumption of good faith" that " can be
rebutted only 'with evidence that the agency's search
was not made in good faith.'" Defenders of
Wildlife v. U.S. Dep't of Interior ( Defenders
I ), 314 F.Supp.2d 1, 8 (D.D.C. 2004), first citing
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200,
288 U.S. App.D.C. 324 (D.C. Cir. 1991), and then quoting
Trans Union LLC v. FTC, 141 F.Supp.2d 62, 69 (D.D.C.
submitted an affidavit by Denise Higley, a Tax Law Specialist
assigned to the IRS's Headquarters Freedom of Information
Act group, describing the agency's search for records
responsive to items one through four of plaintiff's
request. Higley Decl. Plaintiff argues that the
Higley declaration is insufficiently detailed and does not
describe an adequate search. Pl.'s Mem. at 29-33;
at 11-16. The Court finds that the Higley declaration does
describe a search that was adequate with respect to items one
and two of the FOIA request, but not with respect to items
three and four.
The search for records responsive to items one and two was
one and two of plaintiff's FOIA request sought records
pertaining to any FOIA requests or lawsuits relating to
section 6103(g) of the Internal Revenue Code. FOIA Req. at 2.
Higley explains that at the time she began searching for
records, she was aware that plaintiff had previously
submitted a FOIA request pertaining to section 6103(g) in
March of 2012, and she determined that records related to the
March 2012 request would be responsive to the October 2012
request at issue here. Higley Decl. ¶ ¶ 5, 7.
Higley retrieved all records related to plaintiff's March
2012 request from the IRS's Automated Freedom of
Information Act (" AFOIA" ) database, which is
" the image-based document management system used by the
Office of Privacy, Governmental Liaison and Disclosure to
process FOIA requests." Id. ¶ ¶ 7-8.
learned that plaintiff had filed a lawsuit related to its
March 2012 FOIA request in October 2012. Higley Decl. ¶
9. She worked with the attorney in the Office of Chief
Counsel who was handling that lawsuit, Deborah Lambert-Dean,
to conduct an additional search for records that might be
responsive to items one and two of the instant request, and
the two searched the AFOIA database, as well as the
Electronic Disclosure Information System (" E-DIMS"
) database, the predecessor database to AFOIA. Id.
¶ ¶ 8-10 & n.1. Those databases were searched using
the terms " 6103(g), White House, President of the
United States, POTUS, Barack, Obama, George, and Bush"
in a manner that would have returned records containing any
one of those terms. Id. ¶ 10 & n.3. The only
responsive records that this search revealed pertained to
plaintiff's March 2012 FOIA request and the associated
lawsuit. Id. ¶ 10.
reviewed those records, consulted with her colleagues, and
identified the individuals who were involved with
plaintiff's March 2012 FOIA request and might therefore
possess responsive records. Higley Decl. ¶ 11. She
directed each of
those individuals to conduct a search for records that would
be responsive to items one and two of the request at issue in
this case. Id.
on the records she received from those searches, and upon
consultation with Lambert-Dean, Higley determined that the
IRS Media Relations Office and the IRS Office of Appeals
might possess responsive records. Higley Decl. ¶ 12. She
sent those offices a copy of plaintiff's request and a
memorandum directing them to search for records responsive to
items one and two. Id. She also requested a copy of
the appeal letter related to plaintiff's March 2012 FOIA
request from the Office of Appeals. Id. Based on the
response she received from the Media Relations Office, she
sent a copy of plaintiff's request and a search
memorandum to the IRS Office of Communications and Liaison.
Id. Higley followed the trail of the records yielded
by those searches, and she determined that specific
individuals in the Office of Privacy, Governmental Liaison,
and Disclosure might also possess records responsive to items
one and two. Id. ¶ 13. She forwarded
plaintiff's request to them and asked them to search for
records responsive to items one and two. Id.
states that she received responses from everyone to whom she
sent a search request, and that she determined that
plaintiff's March 2012 request was the only FOIA request
the IRS had received relating to section 6103(g).
Id. ¶ ¶ 14-15. In total, she found 790
pages of responsive documents, made redactions to 289 pages,
and identified 6 pages to be withheld in full. Id.
parties do not dispute that, " [i]n cases where
documents are collected from several different offices,
unit-specific descriptions are not required, and the
affidavit of the officer ultimately responsible for the
supervision of the FOIA search is sufficient." Trans
Union, 141 F.Supp.2d at 68-69; see also
Judicial Watch, Inc. v. U.S. Dep't of Health
& Human Servs. ( Judicial Watch v. HHS ), 27
F.Supp.2d 240, 244 (D.D.C. 1998) (" Unit-specific
descriptions are not required, at least where plaintiff has
failed to raise some issue of fact necessitating
rebuttal." ). Nevertheless, plaintiff argues that the
Higley declaration is inadequate because it does not provide
enough information about each of the individual searches that
was performed and the people who performed them. Pl.'s
Mem. at 30-32; Pl.'s Reply at 11-15.
Higley declaration devotes five pages to describing a
comprehensive search for records responsive to items one and
two, including the specific terms she used to search AFOIA,
the review of responsive records, and the process of
identifying and issuing search memoranda to individuals and
offices that were likely to possess additional records.
See Higley Decl. ¶ ¶ 7-16; see
alsoJudicial Watch v. HHS, 27 F.Supp.2d at 244
(" [T]he declaration's five-page overview of the
search effort is adequate to support the reasonableness of
the search." ). The Court finds that the description
provided in the declaration is sufficient to indicate "
what records were searched, by whom, and through what
processes" with respect to items ...