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Cause of Action Institute v. Internal Revenue Service

United States District Court, District of Columbia

June 12, 2018

CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
INTERNAL REVENUE SERVICE, et al. Defendants.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. BACKGROUND

         In 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 ¶ 2.[1] 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.

         According 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.

         With 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.

         The IRS 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.

         Finally, 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.

         On 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.

         Both 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.

         II. LEGAL STANDARD

         FOIA 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).

         The “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)).

         When 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 ...


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