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Cause of Action v. Treasury Inspector General for Tax Administration

United States District Court, D. Columbia.

September 16, 2015

CAUSE OF ACTION, Plaintiff,
v.
TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION, Defendant

          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, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

Page 271

         MEMORANDUM OPINION

         AMY BERMAN JACKSON, United States District Judge.

         This case arises out of a Freedom of Information Act (" FOIA" ) request submitted by plaintiff Cause of Action, a non-profit organization, to the Internal Revenue Service (" IRS" ) on October 9, 2012. The IRS referred one portion of the request to defendant, the Treasury Inspector General for Tax Administration (" TIGTA" ). On November 30, 2012, TIGTA informed plaintiff that it could neither admit nor deny the existence of any responsive records, asserting what is commonly known as a " Glomar" response. Plaintiff filed a complaint challenging defendant's Glomar response, and the Court found that the response was not justified. Therefore, the Court remanded the matter to TIGTA with instructions to process plaintiff's request.

         TIGTA then conducted a search for records responsive to plaintiff's FOIA request, and it identified over 2,500 pages of records, the vast majority of which were withheld in full. But in the course of this litigation, it became clear that none of the records that defendant identified as responsive to plaintiff's request were, in fact, responsive. For that reason, and because the Court finds that defendant's search for responsive records was adequate, the Court will grant defendant's motion for summary judgment and deny plaintiff's cross-motion for summary judgment.

         BACKGROUND

         On October 9, 2012, plaintiff submitted a FOIA request to the Internal Revenue Service seeking eight categories of records. Ex. 1 to Compl. [Dkt. # 1-1] (" FOIA Req." ). The seventh item of the request sought: " All documents, including but not limited to emails, letters, telephone

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logs, and reports pertaining to any investigation by the Treasury Inspector General for Tax Administration into the unauthorized disclosure of § 6103 'return information' to anyone in the Executive Office of the President." Id. at 2. The IRS referred this portion of plaintiff's request to defendant.[1] Def.'s Statement of Undisp. Material Facts [Dkt. # 46-2] (" Def.'s SOF" ) ¶ 1; Pl.'s Statement of Undisp. Material Facts in Supp. of Cross-Mot. for Summ. J. [Dkt. # 48-2] (" Pl.'s SOF" ) ¶ 3.

         TIGTA is a component of the U.S. Department of the Treasury, and its activities include the investigation of wrongdoing by IRS employees. On November 30, 2012, TIGTA issued a response neither confirming nor denying the existence of responsive documents, commonly known as a " Glomar" response. Def.'s SOF ¶ ¶ 8, 10; Pl.'s SOF ¶ ¶ 4, 6; see also Wolf v. CIA, 473 F.3d 370, 374, 374 U.S. App.D.C. 230 (D.C. Cir. 2007). After exhausting the administrative process, plaintiff filed suit in this Court. Compl. Both parties moved for summary judgment, Def.'s SOF ¶ 11; Pl.'s SOF ¶ 15, and on September 29, 2014, the Court denied defendant's motion and granted plaintiff's cross-motion, finding that the Glomar response was not justified. Order (Sept. 29, 2014) [Dkt. # 37]; Mem. Op. (Sept. 29, 2014) [Dkt. # 38]. The Court remanded the matter to TIGTA with instructions to process plaintiff's request.

         On remand, TIGTA conducted a search that yielded 2,509 pages of records it deemed responsive to plaintiff's FOIA request. Def.'s SOF ¶ 14; Pl.'s SOF ¶ 16. TIGTA withheld all but 27 pages in full and 4 pages in part, citing FOIA Exemptions 3,[2] 5, 6, and 7(C). Def.'s SOF ¶ ¶ 16, 19-26; see also Pl.'s SOF ¶ 18.

         Defendant moved for summary judgment on January 30, 2015. Def.'s Mot. for Summ. J. [Dkt. # 46] (" Def.'s Mot." ). On February 24, 2015, plaintiff filed an opposition to defendant's motion combined with a cross-motion for summary judgment. Pl.'s Mot for Summ. J. [Dkt. # 48] (" Pl.'s Mot." ); Mem. of P. & A. in Opp. to Def.'s Mot. & in Supp. of Pl.'s Mot. [Dkt. # 48-1] (" Pl.'s Mem." ). On March 13, 2015, defendant moved for leave to supplement its motion for summary judgment with documents filed for the Court's in camera review. Def.'s Mot. for Leave to Submit Docs. for Court's in Camera Review [Dkt. # 52] (" Def.'s in Camera Mot." ), which plaintiff opposed. Pl.'s Opp. & Objection to Def.'s in Camera Mot. [Dkt. # 54]. On March 23, 2015, the Court granted defendant's motion, see Minute Order (Mar. 23, 2015), and it has considered the materials filed in camera in connection with this Memorandum Opinion. See Arieff v. U.S. Dep't of Navy, 712 F.2d 1462, 1469, 229 U.S. App.D.C. 430 (D.C. Cir. 1983) (" [T]he receipt of in camera affidavits . . . when necessary, [is] 'part of a trial judge's procedural arsenal.'" ), quoting United States v. Southard, 700 F.2d 1, 11 (1st Cir. 1983).

         On April 1, 2015, plaintiff filed a reply in support of its cross-motion in which it clarified that its request only sought records related to " investigations into unauthorized disclosures" of return information, and not records related to " investigations into alleged unauthorized disclosures." Pl.'s Reply in Supp. of Pl.'s Mot. [Dkt. # 55] (" Pl.'s Reply" ) at 5 (emphasis in

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original). Plaintiff further stated that if TIGTA " conducted an investigation into allegations of unauthorized disclosure, such records are not responsive." Id. (emphasis in original). Finally, plaintiff asserted that TIGTA had " misconstrued" its request " as seeking records pertaining to any investigation by TIGTA into 'alleged unauthorized disclosure.'" Id.

         In light of plaintiff's clarification of the scope of its request, the Court ordered TIGTA " to publicly file a notice, with a declaration attached . . . stating whether any of the 2,509 pages of records . . . are responsive to the only request at issue in this case." Order (July 28, 2015) [Dkt. # 57]. On July 30, 2015, plaintiff informed the Court that " all of the 2,509 pages of records at issue in this case consist of records related to TIGTA's investigation into allegations of unauthorized disclosures. Thus, none of the 2,509 pages of records that TIGTA located in response to Cause of Action's FOIA request are responsive." 3d Decl. of Gregory M. Miller [Dkt. # 58-1] (" 3d Miller Decl." ) ¶ 5; see also Notice [Dkt. # 58] at 1.

         On August 3, 2015, plaintiff responded to defendant's notice, emphasizing again that its request did not seek " records relating to allegations of unauthorized disclosures that did not lead to findings of actual unauthorized ...


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