Life Extension Found., Inc. v. Internal Revenue Serv.

• Decision Date: 16 January 2013
• Docket Number: Civil Case No. 12–280 (RJL).
• Citation: 915 F.Supp.2d 174
• Parties: LIFE EXTENSION FOUNDATION, INC., Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

915 F.Supp.2d 174

LIFE EXTENSION FOUNDATION, INC., Plaintiff,

v.INTERNAL REVENUE SERVICE, Defendant.

Civil Case No. 12–280 (RJL).

United States District Court, District of Columbia.

Jan. 16, 2013.

James N. Markels, Nancy Ortmeyer Kuhn, Jackson & Campbell, P.C., Washington, DC, for Plaintiff.

Norah Elizabeth Bringer, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff Life Extension Foundation (“Foundation” or “plaintiff”) brings this action against the Internal Revenue Service (“the IRS” or “defendant”) for failure to disclose information pursuant to the Freedom of Information Act (“FOIA”). Plaintiff seeks certain documents from an examination file composed by the IRS's Tax Exempt and Government Entities Examination Division pursuant to a recent audit of the plaintiff. Before the Court are the parties' cross-motions for summary judgment. Upon consideration of the parties' pleadings, relevant law, and the entire record herein, the defendant's motion is GRANTED and the plaintiff's cross-motion is DENIED.

BACKGROUND

Plaintiff is a public charitable organization, recognized under 26 U.S.C. § 501(c)(3), that supports and furthers scientific research. Compl. ¶ 4, ECF No. 1. On July 21, 2011, plaintiff submitted a FOIA request to the IRS for “the examination file with regard to the recent examination conducted by agents from the Tax Exempt and Government Entities Examination Division in Independence, MO for taxable years 2006, 2007, and 2008.” Id. ¶ 7. In its request, the Foundation specifically excluded “copies of documents submitted by the [plaintiff]” and “documents previously provided by the IRS agent to the [plaintiff]” from its FOIA inquiry. Id., Ex. 1 at 1.

After multiple requests for an extension of the response date, the IRS responded to the Foundation's FOIA request on November 10, 2011. Id. ¶¶ 8, 11–13. In its letter, the IRS stated that although it had identified 329 pages that were responsive to the Foundation's FOIA request, it was only providing the charitable organization with 232 of those pages, and withholding 8 pages in part and 97 pages in full under FOIA exemptions 5 U.S.C. § 552(b)(3) ( “Exemption 3”), 5 U.S.C. § 552(b)(5) (“Exemption 5”) and 5 U.S.C. § 552(b)(7)(D) (“Exemption 7D”). Id. ¶ 14. On December 8, 2011, plaintiff formally appealed the IRS's decision to the office of IRS Appeals. Id. ¶ 16. When the Foundation's appeal was denied on January 20, 2012, the IRS asserted additional FOIA exemptions under Exemption 3, in conjunction with 26 U.S.C. § 6103(b)(2) and 5 U.S.C. § 552(b)(7)(E) (“Exemption 7E”), to withhold the requested documents. Id. ¶ 17.

One month later, on February 17, 2012, plaintiff filed a complaint in this Court, seeking an order to compel disclosure of the requested 97 pages of withheld records in their entireties, as well as an order to conduct another search for additional responsive records. See generally id. Although the IRS filed a partial motion to dismiss on April 27, 2012, the parties entered into a Consent Order resolving that motion on May 25, 2012. See Def.'s Partial Mot. to Dismiss, ECF No. 5; Consent Order, ECF No. 8. In that Order, the plaintiff's requests for an IRS search for additional responsive records and for “expeditious proceedings” were dismissed without prejudice. Id. at 1.

On July 16, 2012, the IRS moved for summary judgment, contending that it properly withheld the records at issue under exemptions to FOIA. See Def.'s Mot. for Summ. J. (“Def.'s Mot.”) at 1, ECF No. 11. The IRS supported its motion with two affidavits, one from an IRS Disclosure Specialist responsible for FOIA requests and the other from an attorney in the IRS's Office of Chief Counsel. See Decl. of Stephen Danish (“Danish Decl.”), ECF No. 11–4; Decl. of Carlton W. King (“King Decl.”), ECF No. 11–3. The IRS also submitted additional declarations, in camera, in support of its Motion for Summary Judgment. See Def.'s Notice of In Camera Submission (“Def.'s In CameraSub.”), ECF No. 12. On August 16, 2012, plaintiff also moved for summary judgment, asserting that the IRS is not entitled to summary judgment because it has not provided sufficient information about the withheld documents to carry its burden under FOIA. Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. and in Supp. of Pl.'s Cross–Mot. for Summ. J. and In Camera Review of Withheld Documents (“Pl.'s Mem.”) at 1, ECF No. 13–1. For the reasons set forth below, I disagree and GRANT summary judgment in favor of the defendant.

ANALYSIS

I. Summary Judgment in a FOIA Case

Both parties have moved for summary judgment. FOIA cases, of course, are “typically and appropriately” decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). Indeed, “[w]hen assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo.” Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C.2009) (citing 5 U.S.C. § 552(a)(4)(B)).

Summary judgment is appropriate when the record demonstrates that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). With respect to an agency's non-disclosure decisions in a FOIA action, the court may rely on affidavits or declarations if they describe “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); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (affidavits and declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents”) (internal quotation marks and citation omitted).

“Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007)). In assessing the logic and plausibility of an agency assertion of an exemption, “reviewing courts [should] respect the expertise of an agency” and avoid “overstep[ping] the proper limits of the judicial role in FOIA review.” Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.Cir.1979); see also Military Audit Project, 656 F.2d at 753;Halperin v. CIA, 629 F.2d 144, 148 & n. 20 (D.C.Cir.1980).

II. The IRS's Withholding and Release of Non–Responsive and Responsive Pages

In its complaint, the plaintiff requests that this Court order the IRS to release the 97 pages of records from the examination file that were withheld in full in 2011. See generally Compl. However, due to a calculation error and the release of some previously-withheld documents, the number of responsive pages that the IRS continues to withhold in full under FOIA, and are at issue in this case, is 67 pages of records.

More specifically, of the initial 329 page total that the IRS indicated was responsive to plaintiff's FOIA request, only 306 had indeed been found responsive by Stephen Danish (“Danish”), an IRS DisclosureSpecialist responsible for FOIA requests. See King Decl. ¶ 9; Danish Decl. ¶ 6. Danish inadvertently counted 23 non-responsive documents in the 329 page total, but did not provide such documents to the plaintiff because they fell outside of the terms of plaintiff's request. Id. The IRS has now determined that, of the 329 pages initially identified by Danish as responsive to plaintiff's FOIA request, in fact only 307 pages are responsive, as 22 pages fall outside the scope of plaintiff's request.¹ King Decl. ¶ 11. Accordingly, on November 10, 2011, when the IRS released 232 pages to the plaintiff pursuant to the latter's FOIA request, the agency only withheld 75 responsive pages in full, rather than 97.²

In addition, during the course of litigation, the IRS has released 8 additional pages, in full, that were previously withheld from the plaintiff. ³ King Decl. ¶ 12. As such, the IRS has released, in full or in part, a total of 240 pages, and continues to withhold 67 responsive pages in full from the plaintiff pursuant to relevant exemptions to FOIA.

III. Exemptions Claimed by the IRS

The IRS contends that the withheld documents are exempt from disclosure under FOIA Exemptions 3, 5, and 7(D). Def.'s Brief in Supp. of Mot. for Summ. J. (“Def.'s Mem.”) at 8–9, ECF No. 11–1. The plaintiff challenges these claimed exemptions, asserting that the IRS has failed to provide sufficient information regarding their applicability to the withheld documents and that this court should review the withheld documents in camera to determine whether the IRS's representations are truthful and the documents indeed qualify for exemption. ⁴ Pl.'s Mem. at 7–8, 10, 12, 16. For the following reasons, I agree with the IRS and grant its motion for summary judgment.

A. FOIA Exemption 3

Exemption 3 permits an agency to prevent the release of records that are “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). In determining the applicability of Exemption 3, “the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C.Cir.1978); see Krikorian v. Dep't of State, 984 F.2d 461, 465 (D.C.Cir.1993); Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C.Cir.1987).

Under Exemption 3, the IRS seeks to withhold 4 pages (pgs. 150 to 153), in full, pursuant to 26 U.S.C. § 6103(a). King Decl. ¶ 13(b). This statute provides that tax “[r]eturns and return information shall be confidential,” and “no officer or employee of the United...