Cause Action v. Internal Revenue Serv.

• Decision Date: 25 May 2017
• Docket Number: Civil Action No. 13-0920 (ABJ).
• Parties: CAUSE OF ACTION, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

253 F.Supp.3d 149

CAUSE OF ACTION, Plaintiff,

v.INTERNAL REVENUE SERVICE, Defendant.

Civil Action No. 13-0920 (ABJ).

United States District Court, District of Columbia.

Signed May 25, 2017

Erica L. Marshall, pro hac vice, Julie A. Smith, Ryan Patrick Mulvey, Daniel Zachary Epstein, Cause of Action Institute, David T. Fischer, Sheppard Mullin Richter & Hampton LLP, Washington, DC, for Plaintiff.

Stephanie Ann Sasarak, U.S. Department of Justice, Yonatan Gelblum, Board of Governors of the Federal Reserve System, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Cause of Action brought this action under the Freedom of Information Act ("FOIA") against the Internal Revenue Service ("IRS"). Plaintiff suspects that someone within the Executive Office of the President unlawfully requested taxpayer or "return information" from the IRS, and it seeks records to prove its allegations. Compl. [Dkt. # 1] ¶ 7. The parties have been before the Court before: on August 28, 2015, the Court found the agency's search efforts to be inadequate, and it remanded the matter to the IRS so that the agency could conduct additional searches and release any non-exempt portions of responsive records to plaintiff. Cause of Action v. IRS , 125 F.Supp.3d 145 (D.D.C. 2015).

The agency conducted another search, but it did not locate any additional responsive records. So the parties have again both moved for summary judgment, and plaintiff has moved to strike part of one of the agency's declarations. Def.'s Mot. for Summ. J. [Dkt. # 66] ("Def.'s Mot."); Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 66–2] ("Def.'s Mem."); Pl.'s Cross–Mot. for Summ. J. & Mot. to Strike [Dkt. # 69] ("Pl.'s Mot."); Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. & in Supp. of Pl.'s Mot. [Dkt. # 69–1] ("Pl.'s Mem."). The motion to strike will be denied, and because the Court concludes that the agency's searches were adequate under all of the circumstances, it will grant defendant's motion for summary judgment and deny the motion filed by plaintiff.

BACKGROUND

I. Cause of Action's FOIA Request, and the Court's Remand

On October 9, 2012, plaintiff requested eight categories of records from defendant. Ex. 1 to Compl. [Dkt. # 1–3] ("FOIA Req.").¹ Only two sets of records—categories three and four of plaintiff's original request—remain at issue:

3) Any communications by or from anyone in the Executive Office of the President constituting requests for taxpayer or "return information" within the meaning of § 6103(a) that were not made pursuant to § 6103(g);

4) All documents, including notes and emails, referring or relating to any communication described in request #3;

FOIA Req. at 2.² In other words, the FOIA request specifically called for records of requests for confidential taxpayer information made outside of normal channels.

In 2015, the parties moved for summary judgment on issues relating to the adequacy of the agency's searches and the agency's invocation of certain statutory exemptions to redact information from the records it retrieved. At that time, the Court concluded that the search for records responsive to categories three and four was inadequate. Cause of Action , 125 F.Supp.3d at 157–58. The agency had searched for responsive records in the Office of Legislative Affairs, and it also searched the Services and Enforcement Office, the Small Business/Self Employed function, the IRS Media Relations Office, and the Office of the Commissioner. Id. at 157. It located a set of documents called "tax checks," which are requests for the return information of individuals who are under consideration for various appointments to positions in the Executive Branch, but it did not search those documents because it categorically determined that those records would be exempt from disclosure under FOIA Exemption 3 and 26 U.S.C. § 6103(a). Id.

The Court found the agency's search to be inadequate, because the declaration submitted provided "no explanation for the conclusion that records of requests made by the Executive Branch would be located in the Office of Legislative Affairs or in any of the other offices [the agency] named, or why they would not be elsewhere." Id. at 157. The Court also faulted the agency for failing to identify key words or search terms that might identify "requests for ‘taxpayer or return information’ by the Executive Office of the President that were not made pursuant to section 6103(g)." Id. The Court remanded the matter to the agency to conduct additional searches for records responsive to items three and four of plaintiff's request. Id.³

II. The renewed search for documents

The agency has proffered three declarations to support its second set of search efforts in this case: two declarations of Sarah Tate, an Attorney in the Office of Chief Counsel at the IRS, Decl. of Sarah Tate [Dkt. # 66–3] ("Tate Decl.") ¶¶ 1–2; Second Decl. of Sarah Tate [Dkt. # 75–1] ("2d Tate Decl.") ¶¶ 1–2, and the declaration of Linda J. McCarty, the Director of the Office of the Executive Secretariat in the Office of the Chief of Staff of the IRS. Decl. of Linda J. McCarty [Dkt. # 66–4] ("McCarty Decl.") ¶ 1.

The agency attorney stated that the "Office of the Commissioner is the only office or division of the IRS likely to receive correspondence from the Executive Office of the President that is responsive to items 3 and 4" of plaintiff's request, and that the Office of the Executive Secretariat, which is within the Office of the Commissioner, is responsible for "receiving and tracking correspondence from the Executive Office of the President, and determining how each item should be handled." Tate Decl. ¶ 3. Therefore, according to the declarations, the Office of the Executive Secretariat is the component where responsive records were most likely to be found.

McCarty avers that the Office of the Executive Secretariat:

[R]eceived several communications each month from the White House that pertained to the tax matters of specific taxpayers. These communications were correspondence the specific taxpayer addressed to the President, the First Lady, or the Vice President, seeking assistance with a tax matter. The White House forwarded such communications, without comment, to the IRS for handling. In each instance, staff of the IRS Office of the Executive Secretariat entered the communication in the correspondence-tracking system, E–Trak, and then forwarded the communication to the IRS office or division responsible for the tax matter for direct response to the taxpayer. The White House did not request information about the taxpayer or tax matter, and was not informed in writing or verbally anything about how the IRS handled each matter. It was the apparent business practice of the White House to send all correspondence pertaining to taxpayer-specific matters to the Office of the Executive Secretariat.

McCarty Decl. ¶ 3.

The agency also explained that the "E–Trak database provides the Service's leadership and business units the ability to manage incoming correspondence from, and replies to, inter alia , taxpayers, Congress, the Treasury Department, the White House, the Government Accountability Office, and the Treasury Inspector General for Tax Administration." Tate Decl. ¶ 4. Each piece of correspondence is scanned into the E–Trak system, and is categorized by sender, date, and subject matter; the correspondence, along with any replies to that correspondence, can be keyword searched. Id.

To identify responsive documents in the E–Trak database, the agency utilized the following search terms: White House, President of the United States, POTUS, Barack,⁴ Obama, Bush, EOP, and EOP.gov. Tate Decl. ¶ 5. Those terms were used because they were "substantially the same search terms that the Court held constituted an adequate search for records responsive to items 1 and 2 of plaintiff's FOIA request" in the prior opinion. Id. ; see also Cause of Action , 125 F.Supp.3d at 155–57. In February of 2016, the parties agreed that the search for responsive records could be limited to specific offices within the Executive Office of the President: the Council of Economic Advisors, the Executive Residence, the National Security Council, the Office of Administration, the Office of the Vice President, and the White House Office. Id. ¶ 6. The parties also agreed to additional searches in E–Trak using the following search terms: ExecRes, CEA, NSC, OA, WHO, FEC, WH, WHCO, Executive Office of the President, Strelka, Office of the Vice President, OVP, and White House Office. Id. Neither search yielded responsive records. Id. ¶ 8.

Finally, the agency attorney became aware that plaintiff had requested that the agency search two other databases—AFOIA and EDIMS—for responsive records. Tate Decl. ¶ 9. AFOIA "is the nationwide inventory control and case management system used by the IRS Office of Disclosure to track and process requests for agency records made pursuant to section 6103 of the Internal Revenue Code, FOIA, and the Privacy Act." Id. ¶ 10. AFOIA was implemented in the summer of 2011. Id. EDIMS is the legacy system that was used before the implementation of AFOIA. Id. Though it was the agency's position that it "does not maintain the records plaintiff seeks" in either database, it voluntarily agreed to search those databases "in an excess of caution and to forestall disputes about the sufficiency of the search for responsive records." Id. ¶ 9. The agency searched both databases using the following terms: WH, EOP, White House, Obama, Barack Obama, George Bush, and Executive Office of the President. Id. ¶ 11. No responsive records were found. Id.

III. Procedural History

After these searches were complete, the agency moved for summary judgment, attaching a statement of facts and the two declarations. Def.'s Mot.; Def.'s Mem.; Def.'s Statement of Undisputed Material Facts [Dkt. # 66–1] ("Def.'s SOF"); Tate Decl.; McCarty Decl. Plaintiff then filed a cross-motion for summary...