United States District Court, D. Columbia.
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,
TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION, Defendant:
Yonatan Gelblum, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
BERMAN JACKSON, United States District Judge.
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.
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
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
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. 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.
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
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, 5, 6, and 7(C). Def.'s SOF ¶
¶ 16, 19-26; see also Pl.'s SOF ¶ 18.
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.
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
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.
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.
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