MEMORANDUM OPINION
JAMES
E. BOASBERG, UNITED STATES DISTRICT JUDGE
Plaintiffs
Thomas and Beth Montgomery want to know if anyone sent the
Internal Revenue Service information about their tax
activities. The IRS does not want to give them an answer.
Three Opinions and two substantive Orders later, their
Freedom of Information Act suit seems hardly closer to a
resolution. After previously maintaining that no records were
responsive to seven of Plaintiffs' FOIA requests, the IRS
currently asserts that it can neither confirm nor deny that
any such records exist - in FOIA parlance, a Glomar
response. The Montgomerys have now filed a Motion challenging
this position, correctly pointing out that the agency has not
invoked any particular FOIA exemption to justify its stance.
Agreeing with Plaintiffs that the response is deficient in
this respect, the Court will grant their Motion.
I.
Background
The
Court has outlined the facts underlying this lawsuit in
several of its past Opinions, leaving little need to go into
them in any depth here. See, e.g., Montgomery v.
IRS, 292 F.Supp.3d 391, 393-94 (D.D.C. 2018). It is
necessary, however, to address the procedural history in some
detail to provide context on how this most recent dispute
arose.
Back in
May 2016, Plaintiffs filed a number of FOIA requests with the
IRS, seeking in total twelve different items related to their
tax dealings with the Service. (The Court, consistent with
its prior Opinions, will refer to these items as requests,
even though they were not denominated as such in the
administrative process.) The first five sought specific IRS
forms, most relating to informant awards and the reporting of
tax fraud and abuse. See ECF No. 1 (Complaint),
¶ 16(1)-(5). Requests 6-12 sought a broader set of
documents that the IRS may have received or prepared in
connection with third parties concerning the Montgomerys and
their tax litigation with the IRS. Id., ¶
16(6)-(12). The agency refused to confirm or deny the
existence of documents responsive to the first five -
invoking FOIA Exemption 7(D) - but averred that it had found
“no documents specifically responsive to . . . items 6
through 12.” Compl., Exh. E (FOIA Response) at 2;
see also ECF No. 31-4 (Declaration of Patricia
Williams), ¶ 16. Dissatisfied with these responses, the
Montgomerys filed suit.
After
Plaintiffs dodged several procedural roadblocks, see
Montgomery, 292 F.Supp.3d at 393, both parties moved for
summary judgment. The Court upheld the Service's
Glomar response to Requests 1-5, finding that
disclosure of the existence (or non-existence) of responsive
records was reasonably likely to compromise the IRS's
efforts to protect “the identit[ies] of [] confidential
source[s], ” thereby realizing the harms that Exemption
7(D) was drafted to address. See Montgomery v. IRS,
330 F.Supp.3d 161, 170 (D.D.C. 2018) (quoting 5 U.S.C. §
552(b)(7)(D)). Consistent with the IRS's supporting
declarations and summary-judgment motion, the Court's
analysis focused on the IRS forms subject to requests 1-5 and
whether they implicated that exemption. The Court's
consideration of requests 6-12, conversely, took an entirely
different form. As to those, Plaintiffs had challenged only
the adequacy of the search. (From their perspective, there
was presumably nothing else to challenge, since the Service
had stated that it had found no responsive documents.) While
the Court largely upheld the search, it found that the IRS
had not reasonably explained why the Whistleblower Office
would not have responsive records. Id. at 172. It
therefore ordered the agency to “renew its search or
aver that its prior searches” sufficiently covered
responsive documents accessible through any “IRS
Whistleblower Office Databases.” Id. The Court
also found that the Service had not adequately searched
certain litigation files involving the Montgomerys; any
outstanding questions relating to that search are not at
issue here. Id.
The IRS
subsequently filed a declaration stating that it did not need
to renew any search of the Whistleblower Office because that
office would not have “records responsive to Items 6-
12” that are “unrelated to a
whistleblower.” See ECF No. 54 (Declaration of
Cindy M. Stuart), ¶ 14. The Court found that response
lacking and ordered the agency to “search the
Whistleblower Office for [any] records responsive to
Plaintiffs' FOIA Requests 6-12 and produce the results to
Plaintiffs, or explain why that office is not reasonably
likely to possess such records.” ECF No. 62 (Order on
Motion Challenging Search) at 3. In response, the IRS
submitted an in camera declaration explaining its
position. See ECF No. 68. After reviewing the
declaration and concluding that it contained substantial
information that would not compromise the IRS's previous
Glomar position, the Court ordered Government
personnel to file a redacted copy on the public docket,
stating, “(1) That they have adequately searched the
Whistleblower Office for responsive documents, including
those that may be related to a whistleblower; and (2) Either
the result of the search, or that they are asserting
Glomar with respect to any potentially responsive
documents.” ECF No. 69 (Order on Hebb Declaration).
The
Service filed its redacted declaration on April 10, 2019,
asserting for the first time that it would neither confirm
nor deny the existence of responsive records in the
Whistleblower Office. See ECF No. 71-1 (Redacted
Declaration of Joseph Hebb), ¶ 27(e). Plaintiffs
thereafter filed a Motion contesting the IRS's
Glomar position; their Motion also continues to
dispute the adequacy of the search and argues that certain
redacted or in camera declarations should be made
public. See ECF No. 73 (Motion).
II.
Legal Standard
Plaintiffs'
Motion challenges whether the Government has satisfied its
FOIA obligations in accord with this Court's prior
Opinions and Orders on cross-motions for summary judgment. As
the parties' extant dispute is an offshoot of
summary-judgment briefing, those standards apply. In that
regard, recall that FOIA cases are typically and
appropriately decided at the summary-judgment phase, and the
agency bears the ultimate burden of proof. See Summers v.
Dep't of Justice, 140 F.3d 1077, 1079-81 (D.C. Cir.
1998). The Court may grant summary judgment based on
information provided in an agency's affidavits or
declarations when they 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
In
their Motion, the Montgomerys (1) challenge the propriety of
the Service's Glomar response, (2) dispute the
adequacy of the agency's search, and (3) insist that
certain in camera submissions be made public.
Agreeing with Plaintiffs on the first point, the Court will
defer resolution of the latter two issues in the (perhaps
naïve) hope that the Government's subsequent
response will settle them.
After a
long back and forth over the agency's search for records
responsive to Plaintiffs' FOIA Requests 6-12, the Service
has finally issued a Glomar response. See
ECF No. 74 (Opp.) at 1 (citing Redacted Hebb Decl., ¶
27(e)). For the unfamiliar reader, a Glomar response
is a refusal to confirm or deny the existence of
responsive records; it is appropriate “only when
confirming or denying the existence of records would itself
‘cause harm cognizable under a FOIA
exception.'” ACLU v. CIA, 710 F.3d 422,
426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep't of
Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)). The
agency must, accordingly, “tether its refusal to
respond to one of the nine FOIA Exemptions.”
Montgomery, 330 F.Supp.3d at 168 (citation omitted
and formatting modified). Plaintiffs contend that the
IRS's Glomar response falls short in this
respect because it “has failed to assert any specific
FOIA exemption to support the withholding of such
information.” Mot. at 3. They are correct: nowhere in
the Hebb Declaration or in the Service's briefing does it
explain which FOIA exemption justifies the invocation of
Glomar. The IRS has thus not borne its burden of
establishing that Glomar applies to the records
subject to FOIA Requests 6-12.
The
agency, indeed, hardly defends its approach in its
Opposition, stating only that the Service's response
complies with the Court's April 3, 2019, Order requiring
it either to disclose the results of its search or assert
Glomar. See Opp. at 7. But in giving
Defendant those options, the Court was not preemptively
sanctioning any Glomar response; it was, instead,
explaining the scope of the agency's options ...