Cause of Action Inst. v. Internal Revenue Serv.

316 F. Supp. 3d 99
Court of Appeals for the D.C. Circuit·Decided June 12, 2018·No. Civil Action No. 14–1407 (EGS)·Published·Cited by 5 cases

Opinion

Emmet G. Sullivan, United States District Judge

Plaintiff Cause of Action Institute ("Cause of Action") 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 the parties' cross-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 Cause of Action's cross-motion for summary judgment.

I. BACKGROUND

In April 2009, White House Counsel Gregory Craig issued a memorandum advising "all federal agency and department general counsels to consult with the White House on all document requests that may involve documents with 'White House equities.' " Compl., ECF No. 1 ¶¶ 1-3; Pl.'s Statement of Undisputed Material Facts ("Pl.'s SUMF"), ECF No. 55-2 ¶ 1. Concerned about the White House's involvement in the FOIA process, Cause of Action requested the following records from the IRS:

All records, including but not limited to e-mails, letters, meeting records, and *103phone records, reflecting communications between IRS FOIA staff or IRS Chief Counsel's office and the White House Counsel's office concerning records forwarded by the IRS for White House review in connection with document requests by Congress, the U.S. Government Accountability Office, or FOIA requesters.

Compl., ECF No. 1 ¶ 17; Pl.'s SUMF ¶ 2.1 The request, which was submitted on May 29, 2013, sought records from "January 2009 to the present." Id. The IRS acknowledged receipt of Cause of Action's request on June 25, 2013, but then proceeded to ask for numerous extensions of time to respond. Compl., ECF No. 1 ¶¶ 18-23; Pl.'s SUMF ¶¶ 3-4. When Cause of Action filed this action on August 18, 2014, the IRS had not yet produced any responsive records or provided a final determination as to plaintiff's FOIA request. Pl.'s SUMF ¶¶ 5, 7.

According to the declarations submitted by the IRS in support of its motion for summary judgment, the IRS first began searching for records responsive to Cause of Action's request on August 21, 2013, approximately three months after the date of plaintiff's request. See Decl. of A.M. Gulas ("Gulas Decl."), Def.'s Mot. for Summ. J. Ex. 1, ECF No. 51-3 ¶ 5. The IRS interpreted Cause of Action's FOIA request as "seeking records reflecting communications between the IRS FOIA staff, or Chief Counsel, and the White House Counsel's office, relating to records forwarded by the IRS FOIA staff, or Chief Counsel, to the White House Counsel's office to review before such records are provided to Congress, GAO or FOIA requesters." Id. ¶ 4. Based on this interpretation and her knowledge of "the IRS's functions and procedures," Ms. Gulas determined that three offices were the most likely to have potentially responsive records: (1) the Office of the Chief Counsel; (2) the Executive Secretariat Correspondence Office ("ESCO"); and (3) the Office of Disclosure, which is within the Office of Privacy, Governmental Liaison and Disclosure ("PGLD"). Id. ¶ 8. In searching for records in these offices, the IRS generally limited its search to records created through May 29, 2013, the date on which Cause of Action made its FOIA request. Id. ¶ 3.

With respect to the Office of the Chief Counsel, the IRS focused its search on the Office of the Associate Chief Counsel (Procedure & Administration) because that office "has responsibility for disclosure, privacy and FOIA issues." Gulas Decl., ECF No. 51-3 ¶ 27. Although the office has seven branches, all of the attorneys "who handle matters involving disclosure laws are located in branches 6 and 7." Id. ¶ 28. Accordingly, Ms. Gulas sent a request to "all attorneys and branch chiefs in branches 6 and 7" asking them to search their email for responsive records dated within the relevant time period. Id. ¶ 29. Ms. Gulas directed these individuals to use the following terms in conducting their searches: "White House," "WH," "White House Counsel," "WH Counsel," "consultation," "consult," "WH equities," "EOP," and "GAO." Id. In addition, the emails of two former attorneys-including the Deputy Associate Chief Counsel for Procedure and Administration for disclosure matters during most of the relevant time period-were also searched. Id. ¶ 30. These *104searches did not yield any responsive documents. Id. ¶¶ 29-31.

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Cause of Action Inst. v. Internal Revenue Serv., 316 F. Supp. 3d 99 (D.C. Cir. 2018).

316 F. Supp. 3d 99 (Cause of Action Inst. v. Internal Revenue Serv.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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