United States District Court, District of Columbia
CRESTEK, INC. & SUBSIDIARIES, et al., Plaintiffs,
INTERNAL REVENUE SERVICE, Defendant.
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Inc. & Subsidiaries and its CEO, J. Michael Goodson
(collectively, “Crestek”), challenge the Internal
Revenue Service's response to their Freedom of
Information Act, or FOIA, requests for 22 categories of
documents related to their income tax liabilities from 2006
to 2014. See Compl. Exs. 1, 3. The IRS identified
14, 482 pages of responsive records, 12, 467 of which it
produced in full. Mot. Summary J. Decl. of William V. Spatz
(Spatz Decl.) ¶¶ 6-7. The IRS invoked several FOIA
exemptions to withhold 920 pages in full and to redact
portions of the remaining 1, 095 pages. Id. ¶
7. During this litigation, the IRS resolved some disputes by
disclosing additional materials. Reply ISO Mot. Summary J.
Supplemental Decl. of William V. Spatz (Supp. Spatz Decl. I)
¶ 20; Second Supplemental Decl. of William V. Spatz
(Supp. Spatz Decl. II), ECF No. 41, ¶¶ 8-9. But
Crestek still challenges the adequacy of the IRS's search
for responsive records. It also disputes many withholdings
and redactions that the IRS made under FOIA's exemptions
for documents that would not otherwise be available to
private parties in litigation and for law enforcement
information that could reasonably be expected to compromise a
confidential source or to risk circumvention of the law by
disclosing investigatory techniques and procedures. Because
the search was adequate and at least one FOIA exemption
justifies each withholding and redaction, the IRS's
Motion for Summary Judgment will be granted.
prevail on a motion for summary judgment, a movant must show
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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
FOIA requires federal agencies to “disclose information
to the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (request must “reasonably
describe” records sought). So, a FOIA defendant is
entitled to summary judgment if it shows that there is no
genuine dispute about whether “each document that falls
within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act's
inspection requirements.” See Weisberg v. Dep't
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). Courts
decide the “vast majority” of FOIA cases on
motions for summary judgment. See Brayton v. Office of
United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir.
that any unproduced documents are exempt from FOIA, an agency
may file “affidavits describing the material withheld
and the manner in which it falls within the exemption
claimed.” King v. Dep't of Justice, 830
F.2d 210, 217 (D.C. Cir. 1987). To show that any unproduced
documents are unidentifiable, a defendant must show “a
good faith effort to  search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” Oglesby v. Dep't of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). In other words,
the defendant must “demonstrate beyond material doubt
that its search was reasonably calculated to uncover all
relevant documents.” Nation Magazine v. Customs
Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). The touchstone
of the analysis is the reasonableness of the search, not the
records produced. See Hodge v. FBI, 703 F.3d 575,
580 (D.C. Cir. 2013) (“[T]he adequacy of a search is
determined not by the fruits of the search, but by the
appropriateness of [its] methods.”); Mobley v.
CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (“[A]
search, under FOIA, is not unreasonable simply because it
fails to produce all relevant material.”).
agency has discretion to craft its search to meet this
standard and does not have to search every system if
additional searches are unlikely to produce any marginal
return. See Campbell v. Dep't of Justice, 164
F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires
“both systemic and case-specific exercises of
discretion and administrative judgment and expertise.”
Schrecker v. Dep't of Justice, 349 F.3d 657, 662
(D.C. Cir. 2003). This is “hardly an area in which the
courts should attempt to micro-manage the executive
branch.” Id. To establish the reasonableness
of its search, an agency can submit a “reasonably
detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched.” Oglesby, 920 F.2d at 68. Agency
declarations enjoy “a presumption of good faith, which
cannot be rebutted by ‘purely speculative claims about
the existence and discoverability of other
documents.'” SafeCard Servs. Inc. v. SEC,
926 F.2d 1197, 1201 (D.C. Cir. 1991).
The IRS Conducted an Adequate Search
has provided affidavits describing its search for responsive
documents. Mot. Summary J. Declaration of Charlene Inman
(Inman Decl.) ¶¶ 4-11; Spatz Decl. ¶¶
4-5. It has also provided an affidavit stating that,
“[t]o the best of my knowledge, there are no other
files responsive to [Crestek's] FOIA requests that would
be located in any other office or location.” Supp.
Spatz Decl. I ¶ 13. Crestek challenges both the
sufficiency of these declarations and their credibility.
See Opp. to Mot. Summary J. 5-6; Sur-Reply to Mot.
Summary J. 1-2.
raises two challenges to the sufficiency of the IRS
declarations. First, Crestek complains that the
declarations do not say the IRS located “all responsive
documents.” Opp. to Mot. Summary J. 6. But the law does
not require such a representation. See Mobley, 806
F.3d at 583 (noting that a search may be adequate even if it
does not identify all relevant material). If Crestek intended
to point out that the original declarations did not state
that the IRS searched all files likely to contain responsive
materials, see Oglesby, 920 F.2d at 68, the
Supplemental Spatz Declaration remedies this deficiency.
See Supp. Spatz Decl. I ¶ 13.
Crestek complains that Lisa Rodriguez and Carmen
Presinal-Roberts, “who actually originally gathered and
identified the documents, ” did not author the
declarations. Opp. to Mot. Summary J. 6. But Crestek cites no
legal authority stating that the person who conducted a
search must author the agency's declaration to prove the
search's adequacy. See Id. Nor does it cite
anything in the record to suggest that the declarants did not
conduct the search as they claim. See id.; see
also Inman Decl. ¶¶ 4-11 (describing steps Ms.
Inman took to identify responsive records); Spatz Decl.
¶¶ 4-5 (describing steps Mr. Inman took to identify
additional responsive records); Supp. Spatz Decl. I
¶¶ 9, 11-13 (same). I conclude the IRS declarations
are sufficient. See Assassination Archives & Research
Center, Inc. v. CIA, ___F.Supp.3d ___, 2018 WL 3448229
at *3 (D.D.C. July 17, 2018) (“No statutory provision
or court precedent requires affidavits from all government
employees involved in the search or dictates who among them
should be the affiant.”).
has also failed to overcome the presumption of good faith
accorded to the IRS declarations. See SafeCard, 926
F.2d at 1201. Crestek challenges the Inman Declaration's
credibility on two grounds. First, Crestek
challenges its credibility because the record does not
contain independent validation of its statement that Ms.
Inman left a voicemail for Crestek's attorney asking if
some of Crestek's FOIA requests were satisfied by
discovery that Crestek had obtained in other litigation. Opp.
to Mot. Summary J. 5. But Crestek offers no basis for demanding
corroborating evidence. See Oglesby, 920 F.2d at 68
(holding that a court may rely on an affidavit to determine
the adequacy of a FOIA search). Second, Crestek
challenges the Inman Declaration's credibility because
the IRS did not produce responsive documents until April 2017
even though the declaration says that the IRS gathered 2, 580
pages of records by March 2016 and another 445 pages of
records by October 2016. Id. 5-6. But it offers only
speculation to suggest that these facts are inconsistent.
See SafeCard, 926 F.2d at 1201 (holding that
speculation cannot overcome the presumption of good faith).
Neither of these challenges to the Inman Declaration's
credibility has merit.
also challenges the Spatz Declaration's credibility for
two reasons. First, it complains that Spatz relied
on others to identify responsive records and that this was
unreasonable since he identified responsive records that
others did not find. Id. at 6. But the Spatz
Declaration-and Crestek's observation that Mr. Spatz
identified responsive records that others overlooked-shows
that he did not simply rely on others. Spatz Decl.
¶¶ 4-5. Second, Crestek challenges the
Supplemental Spatz Declaration's credibility because it
references Ms. Inman's voicemail without explaining how
he would have personal knowledge of it. Sur-Reply to Mot.
Summary J. 1-2. But the Supplemental Spatz Declaration
explains that Mr. Spatz's information about Ms.
Inman's voicemail was based on her representations. Supp.
Spatz Decl. I ¶ 8. And none of the statements that
Crestek challenges are material to the adequacy of the
IRS's search for responsive records. So, I conclude that
the declarations provide sufficient and credible evidence
that the IRS conducted an adequate search.
The IRS Has Justified All Disputed Exemption 5 Redactions and
5 applies to “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party
other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). FOIA qualifies Exemption 5 by saying
that “the deliberative process privilege shall not
apply to records created 25 years or more before the date on
which the records were requested.” Id. In
addition to protecting documents that enjoy the deliberative
process privilege, Exemption 5 protects documents subject to
the attorney work-product privilege and the attorney-client