United States District Court, District of Columbia
G. Sullivan United States District Judge
Alliance Defending Freedom ("ADF") sued the
Internal Revenue Service ("IRS") to obtain records
under the Freedom of Information Act, 5 U.S.C. § 552
("FOIA"). Currently pending before the Court are
both parties' motions for summary judgment. Upon
consideration of the motions, the responses and replies
thereto, the applicable law, and the entire record, the Court
GRANTS the IRS's motion for summary
judgment and DENIES ADF's cross-motion
for summary judgment.
22, 2014, ADF submitted a FOIA request to the IRS for the
(1) All documents related to any existing, proposed, new, or
adopted procedures for church tax inquiries or examinations
from January 2009 to the present;
(2) All documents related to proposed or adopted changes to
Treasury Regulations §301.7611-1 ("§ 7611
regulation") from January 2009 to the present; and
(3) All documents related to new IRS policies or procedures
referenced in Freedom From Religion Foundation's
("FFRF") July 17, 2014 press release.
Statement of Undisputed Material Facts ("IRS SUMF")
¶ 1, ECF No. 25-2; ADF's Resp. to IRS SUMF and
Statement of Undisputed Material Facts ("ADF SUMF")
¶ 1, ECF No. 26-2. The IRS acknowledged receipt of
ADF's request on August 28, 2014. IRS SUMF ¶ 2; ADF
SUMF ¶ 2. Between August 2014 and the initiation of the
instant litigation, the IRS sent ADF a series of letters in
which it asked for more time to respond to ADF's FOIA
request. IRS SUMF ¶ 2; ADF SUMF ¶ 2. Having not
received any substantive response from the IRS, ADF filed
this suit on April 9, 2015, approximately eight months after
it made its initial request. IRS SUMF ¶ 2; ADF SUMF
to ADF filing suit, the IRS had initiated its search for
documents responsive to ADF's FOIA request. Specifically,
the IRS searched the legal file created for the § 7611
regulation project, the file associated with the Notice of
Proposed Rulemaking for the § 7611 regulation, the
archive for the revision of the section of the Internal
Revenue Manual related to church tax inquiries and
examinations, and the files of custodians it determined could
have responsive materials. IRS SUMF ¶¶ 10-17; ADF
SUMF ¶¶ 10-17. Through these searches, the IRS
identified 16, 439 pages of documents responsive to ADF's
request. IRS's Mot. for Summ. J., Declaration of Brittany
Harrison ¶ 12, ECF No. 25-4. Of those, the IRS withheld
in full 10, 672 pages and released, either in whole or in
part, the remainder. Id. ADF subsequently moved to
compel a detailed Vaughn index. See Mot. to
Compel Detailed Vaughn Index, ECF No. 16. The Court
denied that motion, permitting the IRS to instead produce a
randomly-selected sample constituting two percent of the
pages withheld in full. See Order Denying Motion to
Compel Full Vaughn Index (Dec. 22, 2016), ECF No.
parties now both move for summary judgment. The IRS asserts
that it is entitled to summary judgment because there is no
genuine dispute of material fact as to whether (1) the agency
conducted an adequate search for records, and (2) the
documents withheld by the IRS fall under one of FOIA's
exemptions from disclosure. IRS Mem. in Supp. of Mot. for
Summ. J. at 2-3, ECF No. 25-1. In support of its motion, the
IRS has submitted two declarations. The first declaration is
from Scott A. Hovey, an attorney in the IRS's Office of
Chief Counsel, Office of Division Counsel for Small
Business/Self-Employed. IRS's Mot. for Summ. J.,
Declaration of Scott A. Hovey ¶ 1, ECF No. 25-3. Mr.
Hovey was the attorney assigned to the instant litigation who
initiated, supervised, or was otherwise involved in the
searches for records responsive to ADF's request.
Id. ¶¶ 1-3. The second declaration is from
Brittany Harrison, an attorney in the Associate Chief
Counsel's Procedure and Administration Office. IRS's
Mot. for Summ. J., Declaration of Brittany Harrison ¶ 1,
ECF No. 25-4. Ms. Harrison's office "provides
subject matter experts for disclosure and privilege
matters" in, inter alia, FOIA litigation.
Id. Ms. Harrison was responsible for determining
which responsive records were exempt from disclosure.
Id. ¶ 1. In addition, she was responsible for
creating the sample Vaughn index ordered by the
Court. Id. ¶¶ 4-11.
opposition, ADF does not challenge the IRS's withholdings
pursuant to FOIA exemptions. See ADF's Mem. in
Opp. to IRS Mot. for Summ. J. and Cross-Motion for Summ. J.
("ADF Opp.") at 1, ECF No. 26-1 (ADF "has
chosen not to challenge the IRS's withholdings under 5
U.S.C. § 552(b)(5) asserted in the agency's limited
Vaughn index"). Nor does ADF focus on the
portions of its FOIA request seeking documents pertaining to
"existing, proposed, new, or adopted procedures for tax
inquiries" or "records related to new IRS policies
referenced in the Freedom From Religion Foundation's July
14, 2014 press release." See Id. Instead,
ADF's opposition is focused on the sufficiency of
IRS's search with respect to documents related to the
§ 7611 regulation, see Id. at 2-3, arguing that
the IRS's search for such documents was unreasonably
narrow in scope and that the IRS's declarations failed to
adequately describe the agency's search methods,
id. at 2-6. In particular, ADF asserts that the IRS
only searched the records of employees "involved in the
nuts and bolts of drafting, editing, and revising §
7611" - and that it should have also searched the
records of "higher level IRS policymakers."
Id. at 3. ADF further claims that the IRS's
declarations are insufficient because they "provided
almost no information about the actual searches it conducted,
making it virtually impossible for ADF or the Court to
evaluate the sufficiency of [the IRS's] search
method." Id. at 4. For example, according to
ADF, the declarations fail to provide information about the
IRS's filing and record retention systems or the search
terms used by the custodians in collecting responsive
records. Id. at 5.
these alleged deficiencies, the IRS attached a third
declaration to its reply brief. See IRS Reply in
Supp. Mot. for Summ. J. ("IRS Reply"), Declaration
of Kirk Paxson ("Paxson Decl."), ECF No. 28-2. Mr.
Kirk Paxson - Deputy Division Counsel in the Tax-Exempt and
Governmental Entities ("TE/GE") Division - was
responsible for facilitating the process of searching for
responsive documents. Paxson Decl. ¶ 5. In his
declaration, Mr. Paxson explained that a Tax Law Specialist
in the IRS Office of Disclosure first identified TE/GE as
"the function in the Service most likely to have
responsive documents because all matters relevant to
tax-exempt organizations, including churches and religious
organizations, fall within" that office's domain.
Id. ¶ 4. Mr. Paxson then identified the
employees involved in drafting the regulations and asked them
to search their files for responsive records. Id.
¶¶ 4-5. Mr. Paxson also provided additional details
regarding the searches for responsive documents, including
the search terms used by the custodians and the universe of
files searched. See Id. ¶¶ 6-21.
Paxson further explained that records relevant to new and
proposed regulations are maintained in accordance with the
Chief Counsel Regulation Handbook located in the Chief
Counsel Directives Manual ("CCDM"). See
Paxson Decl. ¶¶ 8-9; see also CCDM 32.1,
available at https://www.irs.gov/irm/ (last accessed
September 12, 2017). The CCDM directs the drafting team
responsible for a particular regulation to begin creating a
"legal file . . . as soon as the regulation project is
opened." CCDM 18.104.22.168. Each legal file should
"contain all relevant
documents and correspondences related to a regulation
project." Paxson Decl. ¶ 9 (emphasis added). Mr.
Paxson affirms that the § 7611 regulation file was
searched in response to ADF's FOIA request. Id.
acknowledges that the IRS's reply memorandum and the
Paxson Declaration "offer some clarification of [the
IRS's] search methods." ADF's Reply in Supp. of
ADF's Cross-Motion ("ADF Reply") at 1, ECF No.
30. As such, ADF submits that only one issue remains on
summary judgment: the scope of the IRS's search.
Id. Specifically, ADF contends that the IRS
improperly limited its search to custodians located within
the Office of the Chief Counsel. Id. at 1-2.
According to ADF, the IRS should have also searched the
records of IRS and Treasury "policymakers and
leadership" who presumably have ...