United States District Court, District of Columbia
BERMAN JACKSON United States District Judge.
Sea Shepherd Conservation Society (“Sea
Shepherd”) brought this action under the Freedom of
Information Act (“FOIA”) against defendant the
Internal Revenue Service (“IRS”), seeking all
records related to itself in IRS files dated January 1, 2006
to May 13, 2013. Compl. [Dkt # 1]. On March 31, 2015, the
Court remanded the matter to the IRS so that the agency could
conduct additional searches, provide more detailed
descriptions of its searches and more detailed justifications
of its withholdings, and release any non-exempt portions of
responsive records to plaintiff. Sea Shepherd
Conservation Soc'y v. IRS, 89 F.Supp.3d 81 (D.D.C.
that process now complete, the parties have again cross-moved
for summary judgment, and these pleadings also address the
adequacy of the agency's searches and the justifications
for its withholdings. Def.'s Mot. for Summ. J. [Dkt # 35]
(“Def.'s Mot.”); Mem. of P. & A. in Supp.
of Def.'s Mot. for Summ. J. [Dkt # 35-1]
(“Def.'s Mem.”); Pl.'s Cross-Mot. for
Summ. J. [Dkt. # 37] (“Pl.'s Cross-Mot.”);
Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. and
in Supp. of Pl.'s Cross-Mot. [Dkt. # 37-1]
(“Pl.'s Cross-Mem.”). Because the Court finds
once again that one of defendant's searches was
inadequate, it will grant plaintiff's motion in part, and
remand the matter to the agency for a second time, so that
the agency can renew its searches of the Exempt Organizations
Examinations function. But because the agency adequately
searched for records in the National & Area Chief Counsel
Office of TEGE, the Exempt Organizations Rulings &
Agreements function, the Communications & Liaison Office,
and the Whistleblower Office, the Court will grant
defendant's motion in part as well. In addition, the
Court finds that defendant's invocation of Exemptions 3
and 7(D) is justified, and it will grant defendant's
motion for summary judgment in part on those issues. But the
Court finds that the agency's Glomar response
with regard to records from the Whistleblower office is not
justified, based on the unique circumstances of this case. So
the Court will grant plaintiff's motion in part on that
issue, as well.
Sea Shepherd's FOIA Request, IRS's First Search, and
the Court's Remand
Shepherd is a 501(c)(3) non-profit environmental organization
dedicated to the preservation of oceanic habitats and
wildlife. Sea Shepherd, 89 F.Supp.3d at
It filed a FOIA request on May 13, 2013, seeking (1)
“any and all documents, from January 1, 2006, through
the date of this request, related to Sea Shepherd, ”
(2) “any and all documents related to the examination
of Sea Shepherd commenced by the Internal Revenue Service on
or about January 4, 2013, ” (3) “any and all
documents relating to any complaint . . . regarding Sea
Shepherd's activities or qualifications for tax-exempt
status after January 1, 2006, ” and (4) “any and
all documents related to any request from any person that the
Internal Revenue Service examine Sea Shepherd.” Ex. A
to Compl. [Dkt. # 1] at 1. Plaintiff specifically requested
that the IRS search the following locations: the files of
Peter Huang, the agent who handled the examination of
plaintiff's tax-exempt status; the National and Area
Chief Counsel Offices of the Tax-Exempt and Government
Entities (“TEGE”) function of the IRS; the office
of the Director of Exempt Organizations Examinations in
Dallas, Texas; and the office of Exempt Organizations Ruling
and Agreements in the TEGE National Office. Id.
defendant did not timely respond to the FOIA request, Compl.
¶¶ 7-9, Sea Shepherd filed suit. Compl. After the
lawsuit had been commenced, the IRS conducted a search and
produced more than 12, 000 pages of responsive, non-exempt
records. Def.'s Statement of Undisputed Material Facts
[Dkt. # 35-2] (“Def.'s SOF”) ¶ 3;
see Pl.'s Statement of Genuine Issues in Opp. to
Def.'s SOF [Dkt. # 37-2, 38-2] (“Pl.'s
SOF”) ¶ 3.
moved for summary judgment on May 20, 2014, arguing both that
its search was adequate, and that its production included all
of the responsive and non-exempt documents. Def.'s SOF
¶ 4; Pl.'s SOF ¶ 4. On March 31, 2015, the
Court denied the IRS's motion for summary judgment and
remanded the matter to the agency. Sea Shepherd, 89
F.Supp.3d at 89-103. The Court held that certain of
defendant's declarations were inadequate:
First, none of the declarations adequately addresses
plaintiff's request for “any and all
documents” related to it . . . or even indicates that a
search for “any and all documents” related to
plaintiff was actually conducted. Second, none of the
declarations describes defendant's overall
“rationale for searching certain locations and not
others.” And third, the individual declarations suffer
from numerous other deficiencies . . . .
Id. at 91 (internal citations omitted). The Court
then “turn[ed] to those records that the IRS did
identify, ” and found that the claimed exemptions -
exemptions 6 and 7 - were not justified. Id. at
94-98. The Court also found that the IRS's reliance on
exemption 3 was not uniformly justified. Id. at
98-102. But the Court did find many of the agency's
exemption 5 withholdings justified. Id. at 102-03.
The Court instructed the IRS to “conduct a further
search for responsive records, to provide a more detailed
justification for the adequacy of its search and for any
withholdings of responsive material, and to release any
reasonably segregable non-exempt material to [Sea Shepherd]
consistent with the FOIA statute and this opinion.”
Id. at 104.
September 15, 2015, after concluding its supplemental search
and releasing additional materials to Sea Shepherd, the IRS
filed a renewed motion for summary judgment, along with a
statement of facts, an updated Vaughn Index, and
several declarations. Def.'s Mot.; Def.'s Mem.;
Def.'s SOF; Vaughn Index [Dkt. # 35-5]; 3d Decl.
of A.M. Gulas, Ex. 3 to Def.'s Mot. [Dkt. # 35-3]
(“3d Gulas Decl.”); 2d Decl. of Michael Franklin
[Dkt. # 35-4] (“2d Franklin Decl.”); Decl. of Nia
Dowdy [Dkt. # 35-6] (“Dowdy Decl.”); Decl. of Jon
Waddell [Dkt. # 35-7] (“Waddell Decl.”); Decl. of
Margaret Von Lienen [Dkt. # 35-8] (“Von Lienen
Decl.”); Decl. of Dean Patterson [Dkt. # 35-9]
(“Patterson Decl.”); Decl. of Cindy Stuart [Dkt.
# 35-10] (“Stuart Decl.”). Plaintiff then filed a
cross-motion for summary judgment. Pl.'s Cross-Mot.;
Pl.'s Cross-Mem. It also attached a “Statement of
Genuine Issues in Opposition to Defendant's Statement of
Material Facts, ” Pl.'s SOF, its own Statement of
Undisputed Material Facts, Pl.'s Statement of Undisputed
Material Facts in Supp. of Pl.'s Cross-Mot. [Dkt. # 37-3,
38-3] (“Pl.'s Cross-SOF”), and two supporting
declarations. Decl. of Ann E. Prezyna [Dkt. # 37-4]; 2d Decl.
of Christopher S. Rizek [Dkt. # 37-5].
December 4, 2015, defendant filed a reply in support of its
motion and cross-opposition to plaintiff's motion.
Def.'s Reply in Supp. of Def.'s Mot. & Opp. to
Pl.'s Cross-Mot. [Dkt. # 42, 43] (“Def.'s
Reply”), along with a response to plaintiff's
statement of facts and two additional declarations. And on
January 4, 2016, Sea Shepherd filed a cross-reply in support
of its motion. Pl.'s Reply Mem. in Supp. of its
Cross-Mot. [Dkt. # 45] (“Pl.'s
Cross-Reply”). The Court also granted the IRS's
requests, over plaintiff's objections, to submit
declarations ex parte and in camera in
support of their motion and their cross-opposition, Min.
Order (Sept. 18, 2015); Min. Order (Dec. 7, 2015). On August
8, 2016, the Court ordered the agency to provide another
ex parte and in camera declaration. Min.
Order (Aug. 8, 2016). The Court ultimately ordered defendant
to file part of the in camera submission on the
public docket, Min. Order (Aug. 25, 2016), and defendant
submitted a redacted version of the August 15, 2016.
See Redacted Decl. of Michael Franklin [Dkt. # 47]
(“Redacted Franklin Decl.”).
FOIA case, the district court reviews the agency's
decisions de novo and “the burden is on the
agency to sustain its action.” 5 U.S.C. §
552(a)(4)(B); Military Audit Project v. Casey, 656
F.2d 724, 738 (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
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must “designate specific facts showing that there
is a genuine issue for trial.” Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A dispute is
“genuine” only if a reasonable fact-finder could
find for the non-moving party; a fact is
“material” only if it is capable of affecting the
outcome of the litigation. Id. at 248; Laningham
v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party's motion, the court must “view
the facts and draw reasonable inferences ‘in the light
most favorable to the party opposing the summary judgment
motion.'” Scott v. Harris, 550 U.S. 372,
378 (2007) (alterations omitted), quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
rule governing cross-motions for summary judgment . . . is
that neither party waives the right to a full trial on the
merits by filing its own motion; each side concedes that no
material facts are at issue only for the purposes of its own
motion.” Sherwood v. Wash. Post, 871 F.2d
1144, 1147 n.4 (D.C. Cir. 1989), quoting McKenzie v.
Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In
assessing each party's motion, “[a]ll underlying
facts and inferences are analyzed in the light most favorable
to the non-moving party.” N.S. ex rel. Stein v.
District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C.
2010), citing Anderson, 477 U.S. at 247. In a FOIA
action, where a plaintiff has neither alleged nor 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 the release of government records upon request. Its
purpose is “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 (1978). At the same time,
Congress recognized “that legitimate governmental and
private interests could be harmed by release of certain types
of information and provided nine specific exemptions under
which disclosure could be refused.” FBI v.
Abramson, 456 U.S. 615, 621 (1982); see also Ctr.
for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925
(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”), citing John Doe Agency
v. John Doe Corp., 493 U.S. 146, 152 (1989). The Supreme
Court has instructed that “FOIA exemptions are to be
narrowly construed.” Abramson, 456 U.S. at
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 (D.C. Cir. 1990). 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). “[W]hen an agency seeks to
withhold information, it must provide a ‘relatively
detailed justification'” for the withholding,
Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007),
quoting King v. DOJ, 830 F.2d 210, 219 (D.C. Cir.
1987), through a Vaughn Index, an affidavit, or by
other means. Gallant v. NLRB, 26 F.3d 168, 172-73
(D.C. Cir. 1994).
asserting and explaining its exemptions, an agency must
release “[a]ny reasonably segregable portion of a
record, ” 5 U.S.C. § 552(b), unless the non-exempt
portions are “inextricably intertwined with exempt
portions” of the record. Mead Data Cent., Inc. v.
U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C.
Cir. 1977); see also Johnson v. EOUSA, 310 F.3d 771,
776 (D.C. Cir. 2002). “In order to demonstrate
that all reasonably segregable material has been released,
the agency must provide a ‘detailed justification'
for its non-segregability, ” although “the agency
is not required to provide so much detail that the exempt
material would effectively be disclosed.”
Johnson, 310 F.3d at 776, quoting Mead
Data, 566 F.2d at 261. “[A] district court has the
obligation to consider the segregability issue sua
sponte, regardless of whether it has been raised by the
parties.” Id., citing Trans-Pacific
Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1028 (D.C. Cir. 1999).
a court must determine de novo whether an agency
properly withheld information, a court may examine the
withheld records in camera. 5 U.S.C. §
552(a)(4)(B); Carter v. U.S. Dep't of Commerce,
830 F.2d 388, 393 (D.C. Cir. 1987) (“[W]hen the
requested documents ‘are few in number and of short
length, ' in camera review may save time and
money.”), quoting Allen v. CIA, 636 F.2d 1287,
1298 (D.C. Cir. 1980).
Defendant has failed to adequately justify one of its renewed
agency's search is questioned, it must show “beyond
material doubt that its search was reasonably calculated to
uncover all relevant documents.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 514 (D.C. Cir. 2011), quoting Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
1999); see also Oglesby, 920 F.2d at 68;
Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir.
demonstrate that it has performed an adequate search for
documents responsive to a FOIA request, an agency must submit
a reasonably detailed affidavit describing the search.
Oglesby, 920 F.2d at 68; see also Defs. of
Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 91
(D.D.C. 2009). 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 Defs. of Wildlife, 623 F.Supp.2d at 92.
declaration, therefore, must at least include the
agency's “rationale for searching certain locations
and not others.” Defs. of Wildlife, 623
F.Supp.2d at 92; see also Nat'l Sec. Counselors v.
CIA, 849 F.Supp.2d 6, 11 (D.D.C. 2012) (finding
affidavit sufficient where it “outline[d] with
reasonable detail the CIA's decision to limit the
search” to a particular area); Hodge v. FBI,
703 F.3d 575, 580 (D.C. Cir. 2013) (affirming the grant of
summary judgment where the initial search was inadequate, but
the ultimate search was reasonable, and where the agency
provided a detailed declaration articulating the search
process). Agency affidavits attesting to a reasonable search
“are accorded a presumption of good faith, ”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991), that can be rebutted only “with
evidence that the agency's search was not made in good
faith.” Trans Union LLC v. FTC, 141 F.Supp.2d
62, 69 (D.D.C. 2001).
agency's declarations “need not ‘set forth
with meticulous documentation the details of an epic search
for the requested records, '” Defs. of
Wildlife, 623 F.Supp.2d at 91, quoting Perry v.
Block, 684 F.2d 121, 127 (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 (D.C. Cir. 1994).
Conclusory assertions about the agency's thoroughness are
not sufficient. SeeMorley v. CIA, 508 F.3d 1108,
1121-22 (D.C. Cir. 2007) (finding agency's “single
conclusory affidavit” to be inadequate). 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).
Defendant has adequately explained all but one of its renewed
address the inadequacies of its first search, the IRS
conducted supplemental searches of three functions: the
National and Area Chief Counsel Offices of TEGE, the Exempt
Organizations Rulings and Agreements section, and the Exempt
Organizations Examinations function, see Def's
Mem. at 8-15, as well as the IRS Communications and Liaison
office, and the IRS Whistleblower Office. Def's SOF
¶ 33; Pl.'s SOF ¶ 33. To demonstrate the
adequacy of these searches, the IRS submitted six
• The third declaration of A.M. Gulas, Senior Counsel in
the Office of the Associate Chief Counsel, which describes
her coordination with others in the agency to complete an
adequate search. See 3d Gulas Decl.
• The declaration of Nia Dowdy, a Paralegal Specialist
in the Disclosure & Litigation Support
(“DLS”) branch of the Office of Associate Chief
Counsel, which describes her search for records in the
National and Area TEGE offices. See Dowdy Decl.
• Two declarations from Margaret Von Lienen describing
the search of the Exempt Organizations Examinations function.
See Von Lienen Decl.; 2d Von Lienen Decl..
• The declaration of Jon Waddell, Senior Manager in
Exempt Organizations Rulings and Determinations Unit, which
describes the search of his unit. See Waddell Decl.
• The declaration of Dean Patterson, a Public Affairs
Specialist in the Media Relations Division of the
Communications & Liaison Office, which describes his
coordination with the branch chiefs of that office to search
for responsive records. See Patterson Decl.
• The declaration of Cindy Stuart, a Management Analyst
and Executive Assistant in the Whistleblower Office, which
describes her search for records and the agency's
Glomar response. See Stuart Decl.
The renewed search of the National and Area Chief Counsel
Offices of TEGE was adequate.
first decision, the Court found that the search of the
National & Area Chief Counsel Offices of TEGE was
inadequate. Sea Shepherd, 89 F.Supp.3d at 94.
Although a search memorandum was sent to the National TEGE
Counsel Office, the declaration provided “no indication
that . . . anyone . . . ever responded to the request to
search for responsive records, nor does the declaration
indicate that [the declarant] contacted anyone in the Area
Chief Counsel offices of TEGE.” Sea Shepherd,
89 F.Supp.3d at 93. Despite the agency's attempts to cure
the deficiency during the pendency of the litigation, the
Court concluded that the agency's efforts were
insufficient because they did “not sufficiently
indicate that defendant conducted a search for records
responsive to all portions of plaintiff's request,
” nor did they “explain the rationale for only
contacting Weiner in the Pacific Coast Area TEGE Counsel
office, and no other individuals or offices, with respect to
plaintiff's full request.” Id. at 93-94.
its renewed motion for summary judgment, IRS has offered a
declaration of paralegal specialist Nia Dowdy to further
describe its first search of the National Counsel Office.
Dowdy Decl. Dowdy's duties include processing FOIA
requests; she has knowledge of the records kept by the
National Counsel Office, and of the procedures for processing
requests for records. Def.'s SOF ¶ 24; Pl.'s SOF
now states that on or about June 19, 2013, DLS received a
copy of Sea Shepherd's FOIA request, which was
subsequently assigned to Dowdy. Def.'s SOF ¶ 26;
Pl.'s SOF ¶ 26. Dowdy searched CASE-MIS, an
automated case tracking system, for Sea Shepherd's full
name, because, as she explains, files involving a particular
taxpayer are labeled using that taxpayer's name.
Def.'s SOF ¶¶ 27-29; Pl.'s SOF ¶¶
27-29. The search returned two case numbers: PRESP-111843-13,
assigned to Courtney Jones in the Exempt Organizations branch
of the TEGE Associate Office in Washington, D.C., and
POSTU-103863-13, assigned to Mark Weiner in the Los Angeles
TEGE office. Def.'s SOF ¶ 29; Pl.'s SOF ¶
29. There were no other case files in CASE-MIS associated
with Sea Shepherd. Def.'s SOF ¶ 29; Pl.'s SOF
sent Jones a search memorandum and requested a copy of her
case file, and she also sent Jones a copy of plaintiff's
FOIA request and a form to provide a description of her
search efforts. Def.'s SOF ¶ 30; Pl.'s SOF
¶ 30. The records that Dowdy received from Jones were
produced to Sea Shepherd. Def.'s SOF ¶ 32; Pl.'s
SOF ¶ 32.
addition, Senior Counsel A.M. Gulas, who coordinated the
defendant's overall response to plaintiff's request,
see, e.g., Sea Shepherd, 89 F.Supp.3d at
92, searched CASE-MIS to determine who in TEGE might have
responsive documents. Def.'s SOF ¶ 36; Pl.'s SOF
¶ 36.The system returned the same two files:
POSTU-103863-13, which was assigned to Mark Weiner and
Patricia Wang in the TEGE Area Counsel's office in Los
Angeles, Def.'s SOF ¶ 37; Pl.'s SOF ¶ 37;
and PRESP-111841-13, which had been assigned to Courtney
Jones in the Office of Associate Chief Counsel of TEGE, and
was reviewed by Kenneth Griffin. Def.'s SOF ¶ 41;
Pl.'s SOF ¶ 41.
asserts that Gulas had already obtained all responsive
documents in Weiner's control during her first search. 3d
Gulas Decl. ¶ 4. To obtain any documents created or
compiled by Wang, Gulas sent Wang a copy of Sea
Shepherd's FOIA request, and asked her to search for
responsive documents. Wang responded by email on April 29,
2015, indicating that she did not have any additional
responsive documents. Id. ¶ 5. Gulas's
declaration states that Wang forwarded the FOIA request to
Kirk Paxson, who was the Deputy Division Counsel-Associate
Chief Counsel for TEGE at the time of the request, and had
been copied on certain emails that had been deemed
responsive. Id. ¶ 6. Paxson responded to Gulas
by email and reported that he did not have additional
responsive documents. Id. Paxson then forwarded the
FOIA request to Helene Winnick, the Special Counsel to the
Division Counsel, who replied that she had no responsive
files, either. Id. ¶ 7.
second file identified in CASE-MIS, PRESP-111841-13, had been
assigned to Courtney Jones in the Office of Associate Chief
Counsel of TEGE, with Kenneth Griffin as her reviewer.
Def.'s SOF ¶ 41; Pl.'s SOF ¶ 41. Gulas had
previously obtained from Dowdy a copy of Jones's PRESP
file, including all of the emails and documents that Jones
had compiled. Def.'s SOF ¶ 42; Pl.'s SOF ¶
42. Gulas also sent Griffin, Jones's reviewer, a copy of
the FOIA request and asked him to search for responsive
records. Def.'s SOF ¶ 43; Pl.'s SOF ¶ 43.
Griffin responded via email that he had no responsive
documents and explained that his involvement in the matter
had been minimal. Def.'s SOF ¶ 43. Griffin included
Senior Counsel Don Spellman on the email, and asked Spellman
to “look for any documents or emails he might
possess.” Id.; Pl.'s SOF ¶ 43.
Spellman responded to Gulas, and reported that he reviewed
all of his records and emails, and had located four emails on
which he had been copied, but that he located no paper files
pertaining to plaintiff. Def.'s SOF ¶ 44; Pl.'s
SOF ¶ 44. Gulas subsequently determined the emails
received from Spellman were duplicates of emails that had
been previously produced at control numbers 012208-012228.
Def.'s SOF ¶ 44; Pl.'s SOF ¶ 44.
searches returned no other files associated with
plaintiff's name. Def.'s SOF ¶ 45. OCC does not
have any system other than CASE-MIS which would have likely
produced responsive records. Id. According to Gulas,
the “best way to locate the counsel records created or
compiled for a particular taxpayer's case is to identify
the counsel employee(s) assigned to such case by consulting
CASE-MIS.” 3d Gulas Decl. ¶ 3. Because Gulas
obtained responsive documents, or a response indicating that
no documents were found, from each person assigned to or
involved with the two Sea Shepherd cases, Gulas concluded
there were no additional locations to search for OCC
documents. Id. ¶ 12.
Shepherd argues that the searches were deficient because only
Gulas submitted a declaration, and Gulas lacks personal
knowledge of the searches conducted by the other TEGE
employees. Pl.'s SOF ¶ 38. In essence, Sea Shepherd
demands an unbroken chain of declarations from each person
who received a request to search their area for responsive
documents. See e.g. Pl.'s SOF ¶ 39, 40. But
because the statute does not require the IRS to undertake
such a painstaking approach, the Court will find the search
of TEGE to be adequate.
defendant's declarations could certainly be more
detailed, “the issue to be resolved is not whether
there might exist any other documents possibly responsive to
the request, but rather whether the search for those
documents was adequate.” Weisberg,
745 F.2d at 1485 (emphasis in original). The adequacy of an
agency's search “is judged by a standard of
reasonableness and depends, not surprisingly, upon the facts
of each case.” Id. “In 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 LLC, 141 F.Supp.2d at 68-69, citing
Judicial Watch, Inc. 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.”).
case, Gulas coordinated a wide-ranging search for records in
numerous components of TEGE, instructing the searchers to
look for any records related to Sea Shepherd. Since what
plaintiff sought was exactly that - all records related to
itself - defendant's failure to identify particular
search terms used by Paxson and Wang does not indicate that
the search was inadequate. See Friends of Blackwater v.
U.S. Dep't of Interior, 391 F.Supp.2d 115, 120
(D.D.C. 2005) (stating that the “fail[ure] to enumerate
any specific search terms used” in a FOIA search
“might not be enough to invalidate an otherwise
Court concludes that Dowdy's and Gulas's searches of
OCC were “reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild, 641
F.3d at 514, quoting Valencia-Lucena, 180 F.3d at
325. Gulas and Dowdy identified the relevant database that
was reasonably likely to contain all records concerning Sea
Shepherd within the time period at issue. They described the
search methodology - plaintiff's name. And they
contacted all of the employees who were listed as having
worked on the case, and tracked down any additional leads
that flowed from those contacts. So the Court concludes that
there is enough here to support judgment for the agency as to
the adequacy of the searches of OCC and TEGE.
The renewed search of the Exempt Organizations Rulings