United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Institute for Justice is a nonprofit interested in civil
forfeiture issues, and the Internal Revenue Service conducts
civil seizures and forfeitures as part of its law enforcement
role. At issue here is the Institute's request under the
Freedom of Information Act for a comprehensive
“database dump” from the IRS Asset Forfeiture
Tracking and Retrieval System (AFTRAK), which monitors seized
assets. The IRS contends that AFTRAK is not a database
containing “records” and thus subject to FOIA but
is only an electronic system that generates reports based on
“records” in subsidiary databases. Because
standard reports may still qualify as “records”
under FOIA, the IRS generated the most comprehensive report
that AFTRAK can create, producing an almost completely
redacted version to the Institute. The Institute,
understandably, was not satisfied. For the reasons below, the
Court holds that the IRS has produced the legally relevant
report, but with a few improper redactions under FOIA. Each
party's Motion for Summary Judgment will therefore be
granted in part and denied in part.
Institute for Justice (the Institute, or IJ) describes itself
as “a non-profit organization . . . dedicated to
promoting and defending civil liberties.” Compl. ¶
2, ECF No. 1. The Institute “has dedicated considerable
resources to studying and informing the public about problems
associated with civil forfeiture.” Id. ¶
3. In March 2015, the Institute asked the IRS to provide
“all records contained in the Internal Revenue
Service-Criminal [I]nvestigations Division's Asset
Forfeiture Tracking and Retrieval (AFTRAK) database from 2000
to the present.” Compl. Ex. A (FOIA Request), ECF No.
1-5. The request asked for the records “in an
electronic format such as a database ‘dump' or
comma-separated value files, ” and also sought
“the complete database schema and/or database model
describing the tables, ” and “any database
reports, stored procedures, or queries used to aggregate
information, such as an annual report.” Id.
The IRS at first demanded a fee of $753, 760 before it would
process the request, and it denied the Institute's
request for a fee waiver. Id. ¶¶ 20,
the Institute sued in December 2016, the IRS jettisoned its
fee requirement. IRS Mem. In Support of Mot. Summ. J. (IRS
Mot. Summ. J.) 1. Instead, it generated AFTRAK's Open and
Closed Report (Report), “which contains comprehensive
data about every asset seized by [the IRS Criminal
Investigation Division] within a specified time
period.” Decl. of Dean E. Martin (Martin Decl.) ¶
10, IRS Mot. Summ. J., ECF No. 14-3. The Report is “the
most utilized and complete standard report available from the
AFTRAK system, ” id., and the IRS concluded
that “release of any of the other standard reports
available from AFTRAK, alone or in combination, would not
result in the production of any additional or different
information about any of the [relevant] assets.”
Id. ¶ 11. Sr. Analyst Dean Martin ran the
Report for the relevant timeframe-January 1, 2000, to March
3, 2015, the date of the FOIA request-and redacted the
portions of the Report that he believed to be subject to FOIA
exemptions. Id. ¶¶ 12, 21.
Report is “a 78-page table, with each row . . .
corresponding to an individual AFTRAK asset seizure and each
column corresponding to a certain type of information.”
IJ Mem. In Support of Mot. Summ. J. (IJ Mot. Summ. J.) 6
(citations omitted). The final product, according to the
Institute, was “a PDF file that is approximately 94-99
percent redacted, ” mostly on a “row-by-row or
column-by-column basis.” Id.
the IRS produced the redacted Report, the parties filed
cross-motions for summary judgment. The Court then issued an
Order holding that the IRS had inadequately invoked FOIA
exemptions for two redaction categories: certain fields
redacted because of alleged grand jury connections, and four
columns redacted because of privacy concerns. Order of June
5, 2018 1-2, ECF No. 32. The Order required the IRS to either
produce the relevant information or submit a supplemental
declaration explaining in greater detail why production was
not required. Id. The IRS then produced almost all
the relevant information along with a supplemental affidavit,
Notice of Compliance, ECF No. 35; Declaration of Jacqueline
K. Queener (Queener Decl.), ECF No. 34, and the parties filed
briefs disputing whether the IRS had complied with the Order
in full. The case is now ripe for decision.
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) (records sought must be “reasonably
describe[d]”). To 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). Thus, a FOIA defendant is entitled to
summary judgment if it proves “beyond material doubt 
that it has conducted a search reasonably calculated to
uncover all relevant documents, ” Morley v.
CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (citation
omitted), and that there is no genuine dispute over 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.”
Weisberg v. Dep't of Justice, 627 F.2d 365, 368
(D.C. Cir. 1980) (citation omitted).
declarations receive “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) (citation omitted).
Searching for records requires “both systemic and
case-specific exercises of discretion and administrative
judgment and expertise, ” and is “hardly an area
in which the courts should attempt to micro-manage the
executive branch.” Schrecker v. Dep't of
Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). 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 v. U.S. Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). “[S]ummary judgment . . . is
warranted if the affidavits describe the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted
by either contrary evidence in the record nor by evidence of
agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Creating the Open and Closed Report Satisfied FOIA's
Freedom of Information Act deals with ‘agency
records,' not information in the abstract.”
Forsham v. Harris, 445 U.S. 169, 185 (1980); 5
U.S.C. § 552(a)(3)(A) (“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.”). Agency records may even include “the
contents of entire databases” and “all non-exempt
data points” therein. Nat'l Sec. Counselors v.
CIA (NSC I), 898 F.Supp.2d 233, 272 (D.D.C.
2012). Knowing this, the Institute asked the IRS for
“all records contained in the [AFTRAK]
database, ” and the information it needed to understand
those records. FOIA Request, ECF No. 1-5 (emphasis added).
IRS contends that “AFTRAK does not ‘contain'
records because it is not a database.” IRS Mot. Summ.
J. 7. Instead, AFTRAK is “a web-based application
system specifically designed to track assets seized for
forfeiture, evidence, and abandonment, ” that
“compiles information from multiple databases.”
Martin Decl. ¶¶ 6, 8. In essence, the IRS argues
that the Institute is asking for records that do not exist
(records “in” AFTRAK itself), and for a
technological impossibility (a database dump from a
non-database). IRS Mot. Summ. J. 6-7.
admits that AFTRAK could compile information from other
databases, creating records of interest to IJ. Id.
at 7. But it argues that doing so exceeds the agency's
duties under FOIA. Though FOIA is a broad statute, it
“imposes no duty on the agency to create
records.” Forsham, 445 U.S. at 186; see
Nat'l Sec. Counselors v. C.I.A. (NSC II),
960 F.Supp.2d 101, 160 n.28 (D.D.C. 2013) (holding that
“a unique permutation of smaller, individual pieces of
information . . . constitutes a distinct record” for
FOIA purposes). Because “[a] requester is entitled only
to records that an agency has in fact chosen to create and
retain, ” Yeager v. Drug Enf't Admin., 678
F.2d 315, 321 (D.C. Cir. 1982), the IRS reasoned that
standard reports like the Open and Closed Report might
constitute existing records under FOIA. IRS Mot. Summ. J. 8.
It decided to produce the most comprehensive standard report
available from AFTRAK, to satisfy any possible obligation
under FOIA. Id.
fast, the Institute says. The Government must conduct a
“search reasonably calculated to uncover all relevant
documents.” Weisberg v. U.S. Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (citation
omitted). The search here was inadequate, the Institute
argues, because its reasoning about the relevant records is
incorrect. The Institute cites several documents produced by
the IRS that describe AFTRAK as a “database” or
its functional equivalent, and it points out that Mr.
Martin's affidavit never explicitly denies that AFTRAK is
a database. Mem. In Support of Pl.'s Opp. and Cross-Mot.
Summ. J. (IJ Cross-Mot. Summ. J.) 8-10. Even if AFTRAK is not
technically a database, the IRS should have construed the
request liberally, the Institute contends, and searched for
the records that the Institute clearly desired. Id.
11-12. According to the Institute, the IRS admits that it
conducted no search at all, let alone a reasonable one, and
provided the redacted Report only for its own convenience.
Id. at 12-13.
arguments fall short. The Institute asked for “all
records contained in the [AFTRAK] database, ” ideally
in the form of a database dump or comma-separated value (CSV)
files. FOIA Request, ECF No. 1-5. Interpreting that request
“liberally” as the IRS must, Nation Magazine,
Washington Bureau v. U.S. Customs Serv., 71 F.3d 885,
890 (D.C. Cir. 1995), the Institute asked for all the data
that AFTRAK had to offer. That is exactly what the IRS looked
for. The IRS produced a Report that-in unredacted
form-contains every data point on every relevant seized
asset. The Institute argues that even if AFTRAK is not a
database, the IRS should have searched for all records
accessible through the AFTRAK system. Id. at 11. ...