United States District Court, District of Columbia
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Cause of Action Institute (“Cause of Action”)
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 the parties' cross-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 Cause
of Action's cross-motion for summary judgment.
April 2009, White House Counsel Gregory Craig issued a
memorandum advising “all federal agency and department
general counsels to consult with the White House on all
document requests that may involve documents with
‘White House equities.'” Compl., ECF No. 1
¶¶ 1-3; Pl.'s Statement of Undisputed Material
Facts (“Pl.'s SUMF”), ECF No. 55-2 ¶
1.Concerned about the White House's involvement in the
FOIA process, Cause of Action requested the following records
from the IRS:
All records, including but not limited to emails, letters,
meeting records, and phone records, reflecting communications
between IRS FOIA staff or IRS Chief Counsel's office and
the White House Counsel's office concerning records
forwarded by the IRS for White House review in connection
with document requests by Congress, the U.S. Government
Accountability Office, or FOIA requesters.
Compl., ECF No. 1 ¶ 17; Pl.'s SUMF ¶
The request, which was submitted on May 29, 2013, sought
records from “January 2009 to the present.”
Id. The IRS acknowledged receipt of Cause of
Action's request on June 25, 2013, but then proceeded to
ask for numerous extensions of time to respond. Compl., ECF
No. 1 ¶¶ 18-23; Pl.'s SUMF ¶¶ 3-4.
When Cause of Action filed this action on August 18, 2014,
the IRS had not yet produced any responsive records or
provided a final determination as to plaintiff's FOIA
request. Pl.'s SUMF ¶¶ 5, 7.
to the declarations submitted by the IRS in support of its
motion for summary judgment, the IRS first began searching
for records responsive to Cause of Action's request on
August 21, 2013, approximately three months after the date of
plaintiff's request. See Decl. of A.M. Gulas
(“Gulas Decl.”), Def.'s Mot. for Summ. J. Ex.
1, ECF No. 51-3 ¶ 5. The IRS interpreted Cause of
Action's FOIA request as “seeking records
reflecting communications between the IRS FOIA staff, or
Chief Counsel, and the White House Counsel's office,
relating to records forwarded by the IRS FOIA staff, or Chief
Counsel, to the White House Counsel's office to review
before such records are provided to Congress, GAO or FOIA
requesters.” Id. ¶ 4. Based on this
interpretation and her knowledge of “the IRS's
functions and procedures, ” Ms. Gulas determined that
three offices were the most likely to have potentially
responsive records: (1) the Office of the Chief Counsel; (2)
the Executive Secretariat Correspondence Office
(“ESCO”); and (3) the Office of Disclosure, which
is within the Office of Privacy, Governmental Liaison and
Disclosure (“PGLD”). Id. ¶ 8. In
searching for records in these offices, the IRS generally
limited its search to records created through May 29, 2013,
the date on which Cause of Action made its FOIA request.
Id. ¶ 3.
respect to the Office of the Chief Counsel, the IRS focused
its search on the Office of the Associate Chief Counsel
(Procedure & Administration) because that office
“has responsibility for disclosure, privacy and FOIA
issues.” Gulas Decl., ECF No. 51-3 ¶ 27. Although
the office has seven branches, all of the attorneys
“who handle matters involving disclosure laws are
located in branches 6 and 7.” Id. ¶ 28.
Accordingly, Ms. Gulas sent a request to “all attorneys
and branch chiefs in branches 6 and 7” asking them to
search their email for responsive records dated within the
relevant time period. Id. ¶ 29. Ms. Gulas
directed these individuals to use the following terms in
conducting their searches: “White House, ”
“WH, ” “White House Counsel, ”
“WH Counsel, ” “consultation, ”
“consult, ” “WH equities, ”
“EOP, ” and “GAO.” Id. In
addition, the emails of two former attorneys —
including the Deputy Associate Chief Counsel for Procedure
and Administration for disclosure matters during most of the
relevant time period — were also searched. Id.
¶ 30. These searches did not yield any responsive
documents. Id. ¶¶ 29-31.
also searched ESCO, which is the office that receives
“all correspondence addressed to the Commissioner, as
well as correspondence referred to the IRS by the White
House, by the Office of Treasury Legislative Affairs, and by
the Treasury Executive Secretariat.” Id.
¶ 15. ESCO uses a document-management system called
E-Trak to store such correspondence. Id. ¶ 16.
To find documents responsive to Cause of Action's
request, the IRS searched E-Trak using the following terms:
“White House, ” “Craig, ”
“Obama, ” “Executive Office of the
President, ” “EOP, ” “GAO, ”
“FOIA, ” “Freedom of Information Act,
” “WH, ” “WH equities, ”
“consultation, ” and “consult.”
Id. ¶¶ 21-23. Although these searches
yielded 4, 627 hits, after further review the IRS determined
that none of those documents were in fact responsive.
Id. ¶¶ 24-25.
the IRS searched the Office of Disclosure, which is the
office responsible for responding to FOIA requests.
Id. ¶ 9. Although John Davis, the Deputy
Associate Director of the office, confirmed that the office
“had not coordinated any responses to FOIA requests
with the White House Counsel's office” and that he
was not “aware of a memorandum from White House Counsel
Gregory Craig, ” see Id. ¶¶ 12-13,
the IRS nonetheless searched two systems within the Office of
Disclosure: the Automated Freedom of Information Act System
(“AFOIA”) and the Electronic Disclosure
Information System (“EDIMS”), see Decl.
of Jennifer Black (“Black Decl.”), Def.'s
Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 14. These
databases are used “to track and process all requests
for agency records” made pursuant to FOIA. Black Decl.,
ECF No. 51-4 ¶¶ 10-11. The IRS searched the case
history notes, “which should contain references to any
referral or consultation with another agency, ” using
the following terms: “WH, ” “EOP, ”
“White House, ” “Obama, ” and
“Executive Office of the President.” Id.
¶ 14. These searches yielded 112 hits, none of which
were deemed responsive to Cause of Action's FOIA request
after further review. Id. ¶ 17.
April 3, 2015 — nearly two years after Cause of Action
sent its FOIA request — the IRS sent a “final
response letter” indicating that it had determined that
it did not have any responsive records. Def.'s Mot. for
Summ. J. Ex. 3, ECF No. 51-5; Pl.'s SUMF ¶ 7. The
eleven other government agencies to which Cause of Action had
sent substantially similar FOIA requests all ultimately
produced responsive records. Pl.'s SUMF ¶ 8.
parties now 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 the agency
conducted an adequate search for records. See
Def.'s Mem. in Supp. of Mot. for Summ. J.
(“Def.'s Mem.”), ECF No. 51-1. In support of
its motion, the IRS offers declarations from two individuals.
The first declaration is from A. M. Gulas, a senior counsel
in the Office of the Associate Chief Counsel who was assigned
to assist the Department of Justice in litigating this case.
See Gulas Decl., ECF No. 51-3 ¶ 2. Ms. Gulas
has served as a disclosure attorney in the IRS's Office
of Chief Counsel for over twenty-one years. Id.
¶ 1. The second declaration is from Jennifer Black, the
attorney who succeeded Ms. Gulas when she retired in August
2015. See Black Decl., ECF No. 51-4 ¶ 1. These
declarations outline the searches undertaken by the IRS to
locate records responsive to Cause of Action's FOIA
request. Cause of Action opposes the motion and moves for
summary judgment, arguing that the IRS's search was
unduly narrow for a host of reasons. See Pl.'s
Mem. in Opp. to IRS Mot, for Summ. J. and Cross-Motion for
Summ. J. (“Pl.'s Opp.”), ECF No. 55-1.
requires that “each agency, upon any request for
records which (i) reasonably describes such records and (ii)
is made in accordance with published rules ... shall make the
records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). “To fulfill its disclosure
obligations, an agency must conduct a comprehensive search
tailored to the request and release any responsive material
not protected by one of FOIA's enumerated
exemptions.” Tushnet v. U.S. Immigration &
Customs Enf't, 246 F.Supp.3d 422, 430 (D.D.C. 2017).
“vast majority” of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court may grant summary judgment only if 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). Likewise, in ruling on cross-motions for summary
judgment, the court shall grant summary judgment only if one
of the moving parties is entitled to judgment as a matter of
law upon material facts that are not genuinely disputed.
See Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep't of Justice, 658 F.Supp.2d 217, 224
(D.D.C. 2009) (citation omitted). Under FOIA, the underlying
facts and inferences drawn from them are analyzed in the
light most favorable to the FOIA requester, and summary
judgment is appropriate only after the agency proves that it
has fully discharged its FOIA obligations. Moore v.
Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing
Weisberg v. U.S. Dep't of Justice, 705 F.2d
1344, 1350 (D.C. Cir. 1983)).
considering a motion for summary judgment under FOIA, the
court must conduct a de novo review of the record.
See 5 U.S.C. § 552(a)(4)(B). The court may
grant summary judgment based on information provided in an
agency's affidavits or declarations when they are
“relatively detailed and nonconclusory, ”
SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation and internal quotation marks
omitted), and “not controverted by either contrary
evidence in the record nor by evidence of agency bad faith,
” Larson v. Dep't of State, 565 F.3d 857,
862 (D.C. Cir. 2009) (citation and internal quotation marks
omitted). Such affidavits or declarations are “accorded
a presumption of ...