Alliance Defending Freedom v. Internal Revenue Service

• Court: District Court, District of Columbia
• Decided: September 27, 2017
• Docket: Civil Action No. 2015-0525
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) ALLIANCE DEFENDING FREEDOM, ) ) Plaintiff, ) ) v. ) Civil Action No. 15-525 (EGS) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Alliance Defending Freedom ("ADF") sued the

Internal Revenue Service ("IRS") to obtain records under the

Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Currently

pending before the Court are both parties' motions for summary

judgment. Upon consideration of the motions, the responses and

replies thereto, the applicable law, and the entire record, the

Court GRANTS the IRS's motion for summary judgment and DENIES

ADF's cross-motion for summary judgment.

I. Background

On July 22, 2014, ADF submitted a FOIA request to the IRS

for the following records:

(1) All documents related to any existing, proposed, new, or adopted procedures for church tax inquiries or examinations from January 2009 to the present;

1 (2) All documents related to proposed or adopted changes to Treasury Regulations §301.7611-1 ("§ 7611 regulation") from January 2009 to the present; and

(3) All documents related to new IRS policies or procedures referenced in Freedom From Religion Foundation's ("FFRF") July 17, 2014 press release.

IRS's Statement of Undisputed Material Facts ("IRS SUMF") ¶ 1,

ECF No. 25-2; ADF's Resp. to IRS SUMF and Statement of

Undisputed Material Facts ("ADF SUMF") ¶ 1, ECF No. 26-2. The

IRS acknowledged receipt of ADF's request on August 28, 2014.

IRS SUMF ¶ 2; ADF SUMF ¶ 2. Between August 2014 and the

initiation of the instant litigation, the IRS sent ADF a series

of letters in which it asked for more time to respond to ADF's

FOIA request. IRS SUMF ¶ 2; ADF SUMF ¶ 2. Having not received

any substantive response from the IRS, ADF filed this suit on

April 9, 2015, approximately eight months after it made its

initial request. IRS SUMF ¶ 2; ADF SUMF ¶ 2.

Prior to ADF filing suit, the IRS had initiated its search

for documents responsive to ADF's FOIA request. Specifically,

the IRS searched the legal file created for the § 7611

regulation project, the file associated with the Notice of

Proposed Rulemaking for the § 7611 regulation, the archive for

the revision of the section of the Internal Revenue Manual

related to church tax inquiries and examinations, and the files

of custodians it determined could have responsive materials. IRS

2 SUMF ¶¶ 10-17; ADF SUMF ¶¶ 10-17. Through these searches, the

IRS identified 16,439 pages of documents responsive to ADF's

request. IRS's Mot. for Summ. J., Declaration of Brittany

Harrison ¶ 12, ECF No. 25-4. Of those, the IRS withheld in full

10,672 pages and released, either in whole or in part, the

remainder. Id. ADF subsequently moved to compel a detailed

Vaughn index. See Mot. to Compel Detailed Vaughn Index, ECF No.

16. The Court denied that motion, permitting the IRS to instead

produce a randomly-selected sample constituting two percent of

the pages withheld in full. See Order Denying Motion to Compel

Full Vaughn Index (Dec. 22, 2016), ECF No. 23.

The parties now both move for summary judgment. The IRS

asserts that it is entitled to summary judgment because there is

no genuine dispute of material fact as to whether (1) the agency

conducted an adequate search for records, and (2) the documents

withheld by the IRS fall under one of FOIA's exemptions from

disclosure. IRS Mem. in Supp. of Mot. for Summ. J. at 2-3, ECF

No. 25-1. In support of its motion, the IRS has submitted two

declarations. The first declaration is from Scott A. Hovey, an

attorney in the IRS's Office of Chief Counsel, Office of

Division Counsel for Small Business/Self-Employed. IRS's Mot.

for Summ. J., Declaration of Scott A. Hovey ¶ 1, ECF No. 25-3.

Mr. Hovey was the attorney assigned to the instant litigation

who initiated, supervised, or was otherwise involved in the

3 searches for records responsive to ADF's request. Id. ¶¶ 1-3.

The second declaration is from Brittany Harrison, an attorney in

the Associate Chief Counsel's Procedure and Administration

Office. IRS's Mot. for Summ. J., Declaration of Brittany

Harrison ¶ 1, ECF No. 25-4. Ms. Harrison's office "provides

subject matter experts for disclosure and privilege matters" in,

inter alia, FOIA litigation. Id. Ms. Harrison was responsible

for determining which responsive records were exempt from

disclosure. Id. ¶ 1. In addition, she was responsible for

creating the sample Vaughn index ordered by the Court. Id. ¶¶ 4-

11.

In its opposition, ADF does not challenge the IRS's

withholdings pursuant to FOIA exemptions. See ADF's Mem. in Opp.

to IRS Mot. for Summ. J. and Cross-Motion for Summ. J. ("ADF

Opp.") at 1, ECF No. 26-1 (ADF "has chosen not to challenge the

IRS's withholdings under 5 U.S.C. § 552(b)(5) asserted in the

agency's limited Vaughn index"). Nor does ADF focus on the

portions of its FOIA request seeking documents pertaining to

"existing, proposed, new, or adopted procedures for tax

inquiries" or "records related to new IRS policies referenced in

the Freedom From Religion Foundation's July 14, 2014 press

release." See id. Instead, ADF's opposition is focused on the

sufficiency of IRS's search with respect to documents related to

the § 7611 regulation, see id. at 2-3, arguing that the IRS's

4 search for such documents was unreasonably narrow in scope and

that the IRS's declarations failed to adequately describe the

agency's search methods, id. at 2-6. In particular, ADF asserts

that the IRS only searched the records of employees "involved in

the nuts and bolts of drafting, editing, and revising § 7611" –

and that it should have also searched the records of "higher

level IRS policymakers." Id. at 3. ADF further claims that the

IRS's declarations are insufficient because they "provided

almost no information about the actual searches it conducted,

making it virtually impossible for ADF or the Court to evaluate

the sufficiency of [the IRS's] search method." Id. at 4. For

example, according to ADF, the declarations fail to provide

information about the IRS's filing and record retention systems

or the search terms used by the custodians in collecting

responsive records. Id. at 5.

To cure these alleged deficiencies, the IRS attached a

third declaration to its reply brief. See IRS Reply in Supp.

Mot. for Summ. J. ("IRS Reply"), Declaration of Kirk Paxson

("Paxson Decl."), ECF No. 28-2. Mr. Kirk Paxson – Deputy

Division Counsel in the Tax-Exempt and Governmental Entities

("TE/GE") Division – was responsible for facilitating the

process of searching for responsive documents. Paxson Decl. ¶ 5.

In his declaration, Mr. Paxson explained that a Tax Law

Specialist in the IRS Office of Disclosure first identified

5 TE/GE as "the function in the Service most likely to have

responsive documents because all matters relevant to tax-exempt

organizations, including churches and religious organizations,

fall within" that office's domain. Id. ¶ 4. Mr. Paxson then

identified the employees involved in drafting the regulations

and asked them to search their files for responsive records. Id.

¶¶ 4-5. Mr. Paxson also provided additional details regarding

the searches for responsive documents, including the search

terms used by the custodians and the universe of files searched.

See id. ¶¶ 6-21.

Mr. Paxson further explained that records relevant to new

and proposed regulations are maintained in accordance with the

Chief Counsel Regulation Handbook located in the Chief Counsel

Directives Manual ("CCDM"). See Paxson Decl. ¶¶ 8-9; see also

CCDM 32.1, available at https://www.irs.gov/irm/ (last accessed

September 12, 2017). The CCDM directs the drafting team

responsible for a particular regulation to begin creating a

"legal file . . . as soon as the regulation project is opened."

CCDM 32.1.2.1. Each legal file should "contain all relevant

documents and correspondences related to a regulation project."

Paxson Decl. ¶ 9 (emphasis added). Mr. Paxson affirms that the §

7611 regulation file was searched in response to ADF's FOIA

request. Id. ¶¶ 8-9.

6 ADF acknowledges that the IRS's reply memorandum and the

Paxson Declaration "offer[] some clarification of [the IRS's]

search methods." ADF's Reply in Supp. of ADF's Cross-Motion

("ADF Reply") at 1, ECF No. 30. As such, ADF submits that only

one issue remains on summary judgment: the scope of the IRS's

search. Id. Specifically, ADF contends that the IRS improperly

limited its search to custodians located within the Office of

the Chief Counsel. Id. at 1-2. According to ADF, the IRS should

have also searched the records of IRS and Treasury "policymakers

and leadership" who presumably have been involved in the "years-

long process of revising this regulation." Id. This issue is

ripe for the Court's consideration.

II. LEGAL STANDARD

FOIA requires that "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." 5 U.S.C. §

552(a)(3)(A). "To fulfill its disclosure obligations, an agency

must conduct a comprehensive search tailored to the request and

release any responsive material not protected by one of FOIA's

enumerated exemptions." Tushnet v. United States Immigration &

Customs Enf't, No. 1:15-CV-00907 (CRC), 2017 WL 1208397, at *4

(D.D.C. Mar. 31, 2017).

7 The "vast majority" of FOIA cases can be resolved on

summary judgment. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may

grant summary judgment only if 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). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep't of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citation omitted). Under FOIA, the underlying facts and

inferences drawn from them are analyzed in the light most

favorable to the FOIA requester, and summary judgment is

appropriate only after the agency proves that it has fully

discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp.

32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice,

705 F.2d 1344, 1350 (D.C. Cir. 1983)).

When considering a motion for summary judgment under FOIA,

the court must conduct a de novo review of the record. See 5

U.S.C. § 552(a)(4)(B). The court may grant summary judgment

based on information provided in an agency's affidavits or

declarations when they are "relatively detailed and non-

conclusory," SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197,

8 1200 (D.C. Cir. 1991) (citation and internal quotation marks

omitted), and "not controverted by either contrary evidence in

the record nor by evidence of agency bad faith," Larson v. Dep't

of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation and

internal quotation marks 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., 926 F.2d 1197 at 1200 (citation omitted).

III. ANALYSIS

The sole issue remaining for summary judgment is whether

the scope of the IRS's search for records responsive to ADF's

FOIA request was adequate. Specifically, the Court must decide

whether the IRS's search of the paper files concerning the §

7611 regulation project and records of certain staff members in

the Office of the Associate Chief Counsel was reasonably

calculated to discover the documents requested by ADF pertaining

to "proposed or adopted changes" to the § 7611 regulation.

Where a plaintiff challenges the adequacy of an agency's

search, the question for the court is "'whether the search was

reasonably calculated to discover the requested documents, not

whether it actually uncovered every document extant.'" Judicial

Watch, Inc. v. United States Dep't of State, 681 F. App'x 2, 4

(D.C. Cir. 2017) (quoting SafeCard Servs., 926 F. 2d at 1201).

9 The adequacy of an agency's search is "measured by a 'standard

of reasonableness' and is 'dependent upon the circumstances of

the case.'" Weisberg, 705 F.2d at 1351(citations omitted). To

meet its burden at summary judgment, an agency may provide "'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 ... were searched.'"

Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C.

Cir. 2003) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d

57, 68 (D.C. Cir. 1990)). Any factual assertions in such an

affidavit will be accepted as true unless the requesting party

submits affidavits or other documentary evidence contradicting

those assertions. Wilson v. U.S. Dep't of Transp., 730 F. Supp.

2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453,

456-57 (D.C. Cir. 1992)).

Here, the IRS has submitted three declarations in support

of its motion for summary judgment. 1 These declarations list the

names and positions of the custodians whose files were searched

1 Although one of these declarations was attached to the IRS's reply memorandum in support of its motion for summary judgment, see Paxson Decl., the Court can "'rel[y] on supplemental declarations submitted with an agency's reply memorandum to cure deficiencies in previously submitted declarations'" where a plaintiff has not challenged the supplemental declaration. See Walston v. United States Dep't of Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017) (citing DeSilva v. U.S. Dep't of Housing and Urban Dev., 36 F. Supp. 3d 65, 72 (D.D.C. 2014)). 10 and explain the parameters of the search along with the search

terms that were used. For example, the Paxson Declaration

includes a separate paragraph for each of the eight custodians

whose records were searched. Paxson Decl. ¶¶ 10-20. Each

paragraph sets forth the folders or systems that the custodian

searched and outlines the search terms that were used. Id.

ADF argues that the IRS's search for records was unduly

narrow in scope. ADF asserts that the IRS's declarations make

clear that the agency only searched the records of custodians

who work in the Office of Associate Chief Counsel. ADF Reply at

1-2. According to ADF, the IRS should have also searched the

records of "the IRS's policymakers and leadership." Id. at 2.

ADF also points to the CCDM – which states that regulation files

can only be opened with the approval of both the Associate Chief

Counsel and Treasury – to argue that IRS should have searched

Treasury files for relevant records. Id. As explained more fully

below, neither argument renders the IRS's search inadequate.

First, the fact that the IRS only searched the files of

custodians in the Office of Associate Chief Counsel for records

relating to the § 7611 regulation does not render the IRS's

search insufficient. Courts have consistently held that an

agency is not required to search every record system for

responsive records. See, e.g., Oglesby v. U.S. Dep't of Army,

920 F.2d 57, 68 (D.C. Cir. 1990) ("There is no requirement that

11 an agency search every record system."); Perry v. Block, 684

F.2d 121, 128 (D.C. Cir. 1982)(agency need not demonstrate that

all responsive documents were found and that no other relevant

documents could possibly exist). While an agency "cannot limit

its search to only one record system if there are others that

are likely to turn up the information requested," it may so

limit its search where it "explain[s] in its affidavit that no

other record system [i]s likely to produce responsive

documents." Oglesby, 920 F.2d at 68.

When faced with ADF's concern that additional documents may

exist outside of the IRS Office of Associate Chief Counsel, the

IRS explained in its affidavit that the IRS Office of Associate

Chief Counsel is "solely responsible for issuing published

guidance, including regulations." IRS Reply at 3; Paxson Decl. ¶

8. Moreover, as the CCDM makes clear, the Associate Office

responsible for drafting the particular regulation is also

responsible for creating a legal file that contains "all

documents related to the publication of the regulation." CCDM

32.1.2.1 (emphasis added). Here, because the § 7611 regulation

fell within the jurisdiction assigned to the Associate Chief

Counsel Office, TE/GE Division, that office was responsible for

maintaining the legal file associated with that regulation. IRS

Reply at 3; Paxson Decl. ¶¶ 8-9. Amy Giuliano, a Senior

Technical Reviewer in the TE/GE Division Counsel/Associate Chief

12 Counsel office, is the custodian of the § 7611 regulation file,

and she verified that the file was maintained in accordance with

the directives set forth in the CCDM. Paxson Decl. ¶¶ 6, 10. Mr.

Paxson avers that the "paper file contains all relevant

documents and correspondence related to a regulation project"

and therefore a search of the regulation file would "locate

records responsive to ADF's FOIA request." Paxson Decl. ¶ 9.

Moreover, the IRS did more than simply search for documents

within the legal file. In addition to providing the contents of

the file for processing, Ms. Giuliano also searched Microsoft

Outlook and Microsoft Word to verify that any responsive

documents contained in those systems were duplicative of

documents contained in the legal file. Id. ¶ 10. The IRS also

searched the files of other personnel located within the Office

of Chief Counsel, TE/GE Division, that were assigned to the §

7611 regulation project. Id. ¶ 11; see also id. ¶ 5 (explaining

that he identified custodians who, based on his knowledge of the

Freedom From Religion Foundation litigation and the revised

regulations drafted under § 7611, he believed were "most likely

to have documents responsive" to ADF's FOIA request). The

identity of the individuals whose files were searched – and the

parameters of those searches – are described in detail in the

Paxson Declaration. See id. ¶¶ 11-21.

13 Second, ADF's amorphous claims that the IRS should have

searched the files of unspecified policymakers does not render

the IRS's search inadequate either. According to ADF, because

Treasury's "authorization is required to even undertake a

regulation revision project," the IRS should have searched the

files of Treasury officials for responsive records. ADF Reply at

2. But any such files, if they exist, should be in the legal

file, which must contain, inter alia, "briefing memoranda,

briefing confirmation, [] Conference Reports," "IRS and Treasury

memos, transmittal and policy memos, and internal comments"

related to the regulation. CCDM 32.1.2.1. The fact that no such

memoranda were found, absent some other compelling evidence that

the documents exist or of bad faith on the part of the agency,

"does not undermine the finding that the agency conducted a

reasonable search for them." Safecard Servs., 926 F.2d at 1201.

Moreover, to the extent that ADF's contention that other

custodians are likely to have responsive record rises beyond

mere speculation, the Court finds that Mr. Paxson's attestation

that he is "not aware of any other custodian or system of

records likely to maintain records responsive to plaintiff's

FOIA request," Paxson Decl. ¶ 22, to be sufficient.

In short, the Court is satisfied, based on the three

detailed declarations submitted by the IRS, that the agency

conducted an adequate search for responsive documents.

14 IV. Conclusion

For the foregoing reasons, the Court concludes that there

is no genuine dispute of material fact as to the adequacy of the

IRS's search for documents responsive to ADF's FOIA request.

Accordingly, the IRS's motion for summary judgement is GRANTED,

and ADF's cross-motion for summary judgment is DENIED. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED. Signed: Emmet G. Sullivan United States District Judge September 27, 2017