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Alliance Defending Freedom v. Internal Revenue Service

United States District Court, District of Columbia

September 27, 2017



          Emmet G. Sullivan United States District Judge

         Plaintiff 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.

         I. Background

         On July 22, 2014, ADF submitted a FOIA request to the IRS for the following records:

(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.

         IRS's 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 ¶ 2.

         Prior 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. 23.

         The 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.

         In its 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.

         To cure 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.

         Mr. 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 (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 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. ¶¶ 8-9.

         ADF 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 ...

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