United States District Court, District of Columbia
WILLIAM E. POWELL, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant.
E. Boasberg United States District Judge.
se Plaintiff William E. Powell seeks additional
information from the Internal Revenue Service concerning his
grandfather, father, a printing business once owned by his
family, and himself. In the winter of 2017 and the spring of
2018, Powell claims to have submitted several requests to the
IRS under the Freedom of Information Act and the Privacy Act.
He then brought this action alleging that he got little
response. Defendant now moves for summary judgment, arguing
that it did not receive most of the requests, that it
performed an adequate search for the request that did arrive,
and that Powell has failed to exhaust the required
administrative remedies before attempting to open the
courthouse doors. Agreeing, the Court will grant the Motion.
continues his efforts to uncover information held by the IRS
regarding asset distribution following the death of his
father, William A. Powell, in 1992. See Powell v.
Internal Revenue Serv., 280 F.Supp.3d 155, 157 (D.D.C.
2017). He believes that financial records possessed by the
Service may reveal evidence of impropriety in the dealings of
trustees charged with administering his father's estate.
See ECF No. 8 (Amend. Compl.), Exh. A (Dec. 11,
2017, Request) at 7. Powell is no stranger to the process of
requesting information from agencies on this matter. Indeed,
he has already brought multiple suits in both this Court and
the Eastern District of Michigan, all requesting various
records involving his family's business. See,
e.g., Powell, 280 F.Supp.3d at 155; Powell
v. Internal Revenue Serv., 2016 WL 7473446, at *1 (E.D.
Mich. Dec. 29, 2016).
time around, Plaintiff claims to have requested a variety of
tax records from the IRS under FOIA, 5 U.S.C. § 522(a),
and the Privacy Act, 5 U.S.C. § 552a. Despite his
efforts, he alleges that the Service has “not responded
or sent any correspondence” to answer each request.
See Amend. Compl. at 3. Powell then filed this suit
on April 3, 2018. His Complaint alleges that Defendant failed
to respond to the December 11, 2017, FOIA and Privacy Act
requests; the February 20, 2018, FOIA and Privacy Act
requests; one March 5, 2018, Privacy Act and two Return and
Income Verification Services (RAIVS) requests; and a March 7,
2018, Privacy Act request. Id. at 3-4 & Exh. C.
disagrees. It claims to have received only one Privacy Act
request and to have no record of the other requests in its
document-review system. See ECF No. 21 (Def. MSJ),
Attach. 2 (Def. SUMF), ¶ 26. Additionally, it explains
that it responded to that sole request by having an analyst,
William White, search for records in Defendant's master
database and mail five pages of these records to Powell.
Id., ¶¶ 38-39. Believing its job
accomplished in accordance with FOIA's requirements,
Defendant moves for summary judgment.
judgment may be granted if “the movant shows 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). A genuine issue of material fact is one
that would change the outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). In the event
of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable
to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
cases typically and appropriately are decided on motions for
summary judgment. See Defenders of Wildlife v. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood
v. U.S. Agency for Int'l De v., 484 F.Supp.2d 68, 73
(D.D.C. 2007). In such cases, the agency bears the ultimate
burden of proof to show that it conducted an adequate search.
See Steinberg v. Dep't of Justice, 23 F.3d 548,
551 (D.C. Cir. 1994). T o determine whether a search
“us[ed] methods which can be reasonably expected to
produce the information requested, ” a court may rely
upon an agency's “affidavits or declarations that
explain in reasonable detail and in a nonconclusory fashion
the scope and method of the search.” Brown v.
FBI, 675 F.Supp.2d 122, 125 (D.D.C. 2009) (quoting
Oglesby v. Dep't of the Army, 920 F.3d 57, 68
(D.C. Cir. 1990)) (internal quotations omitted). Such
affidavits or declarations are “accorded 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, 1200 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor
of disclosure.'” Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Dep't of State v. Ray, 502 U.S. 164,
asks the Court to grant summary judgment both for the
requests that it claims not to have received and for the one
to which it responded. First, the Service argues that because
it has “no record of having received” the
December 11, the February 20, two of the three March 5, and
the March 7 requests, Plaintiff “has failed to exhaust
his administrative remedies” for these requests.
See Def. MSJ at 5. Second, Defendant contends that
it “performed an adequate search for the records sought
in the March 5 request” that it did receive.
Id. at 7. The Court addresses each argument in turn.
Receipt of Records Requests
parties' disagreement hinges on a narrow issue: whether
the IRS received the December 11, February 20, March 5
(RAIVS), and March 7 requests for tax documents. In a
nutshell, Powell says he mailed or faxed all of them, and the
Service says they never arrived. Plaintiff has filed exhibits
displaying each request that he purported to send.
See Amend. Compl., Exhs. A-D. The first set, a FOIA
request and a Privacy Act request dated December 11, 2017, is
addressed to Defendant's “Disclosure Scanning
Operation” office in Atlanta. Id., Exh. A.
Plaintiff has supplemented his proof with a declaration from
his personal assistant, Adrienne Wright-Lawrence, indicating
that she mailed the FOIA request to the IRS “Central
Processing Unit” at the same address. See ECF
No. 22 (Plaintiff's Opposition), Attach. 1 (Declaration
of Adrienne Wright-Lawrence) at 1. She does not claim to have
sent any other requests. A second letter, dated February 20,
2018, included an additional FOIA and Privacy Act request to
the same mailing address. See Amend. Compl., Exh. B.
Plaintiff also alleges that he faxed several requests: two
RAIVS requests to the IRS “RAIVES [sic]
TEAM” on March 5, 2018, and one Privacy Act request to
the “Cincinnati Submission Processing Center” on
March 7, 2018. Id., Exhs. C-D. Finally, Powell faxed
a separate Privacy Act request to the fax number of the IRS
Central Processing Unit Atlanta office on March 5, 2018, that
the Service acknowledges receiving. Id., Exh. D.
rejoins that the evidence provided by Powell is insufficient
because he must prove not “that the requester sent a
request [but] that the agency received the
request.” ECF No. 27 (Def. Reply) at 6. On that point,
the IRS has submitted a declaration from its analyst, William
J. White, describing the procedures used to search for
Powell's requests in the Automated Freedom of Information
Act (AFOIA) database. See Def. MSJ, Attach. 9
(Declaration of William J. White), ¶ 10. According to
White, “AFOIA captures scanned images and data for all
Disclosure Office casework” -- including FOIA and
Privacy Act requests -- and “is searchable by the
requestor's name.” Id., ¶¶ 11,
13. When White conducted a search for the name “William
Powell, ” he found many of Plaintiff's past
requests, but “among the requests described in (or
attached to) the Amended Complaint, AFOIA ...