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Institute for Justice v. Internal Revenue Service

United States District Court, District of Columbia

September 28, 2018

INSTITUTE FOR JUSTICE, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, U.S.D.J.

         The 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.

         I. Background

         The 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, 24-25.

         When 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.

         The 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.

         After 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.[1] 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.

         II. Legal Standards

         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) (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).

         Agency 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).

         III. Analysis

         A. Creating the Open and Closed Report Satisfied FOIA's Search Requirements

         “The 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).

         But the 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.

         The IRS 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.

         Not so 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.

         These 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.[2] 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. ...


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