Ruotolo v. Department of Justice, Tax Div.

• Decision Date: 19 April 1995
• Docket Number: D,No. 1065,1065
• Citation: 53 F.3d 4
• Parties: -1898 Michael RUOTOLO and Kathleen M. Ruotolo, Plaintiffs-Appellants, v. DEPARTMENT OF JUSTICE, TAX DIVISION, Defendant-Appellee. ocket 94-6236.
• Court: U.S. Court of Appeals — Second Circuit

Page 4

53 F.3d 4

75 A.F.T.R.2d 95-1898

Michael RUOTOLO and Kathleen M. Ruotolo, Plaintiffs-Appellants, v. DEPARTMENT OF JUSTICE, TAX DIVISION, Defendant-Appellee.

No. 1065, Docket 94-6236.

United States Court of Appeals Second Circuit.

Argued Nov. 28, 1994.

Decided April 19, 1995.

Michael C. Ruotolo, Guilford, CT, pro se.

Kathleen M. Ruotolo, Guilford, CT, pro se.

Teresa T. Milton, Washington, DC (Christopher F. Droney, U.S. Atty. for the D. of Conn., Loretta C. Argrett, Asst. Atty. Gen., Washington, DC, Gary R. Allen, Jonathan S. Cohen, Tax Div., Dep't of Justice, Washington, DC, of counsel), for appellee.

Before: MINER and LEVAL, Circuit Judges, and SAND, ^* District Judge.

MINER, Circuit Judge.

Plaintiffs-appellants Michael and Kathleen Ruotolo, husband and wife, ("the Ruotolos") appeal from a summary judgment entered in the United States District Court for the District of Connecticut (Nevas, J.) in favor of defendant-appellee Department of Justice, Tax Division. The judgment was rendered in an action brought by the Ruotolos under the provisions of the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, to gain access to certain records of the Tax Division. Following the denial of the initial request submitted to the Division by the Ruotolos, the parties exchanged additional correspondence. Ultimately, the Division failed to honor the information request, and the lawsuit resulting in the judgment giving rise to this appeal ensued. In granting summary judgment and dismissing the Ruotolos' action, the district

court determined that the document request submitted to the Division did not reasonably describe the records sought and would be unduly burdensome to process.

BACKGROUND

The Ruotolos seek the documents at issue here in aid of a separate FOIA action they are pursuing in the district court in Connecticut. In that case, they seek documents relating to an investigation of their involvement in criminal and civil tax law violations that the Internal Revenue Service apparently has been conducting. Although the district court granted the Government's motion for summary judgment in that case, we reversed for failure to give adequate notice to these pro se litigants of the consequences of their default in answering the motion. See Ruotolo v. IRS, 28 F.3d 6 (2d Cir.1994). Accordingly, the earlier FOIA action is still pending in the district court. It appears that the Ruotolos consider the Vaughn index provided in that case inadequate and now seek information about indices provided in other cases to demonstrate that this is so. A Vaughn index is provided in the course of FOIA litigation by a government agency to correlate specific documents or portions thereof that the agency desires to shield from disclosure with statements of justification for the non-disclosure. See Vaughn v. Rosen, 484 F.2d 820, 828 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The subject of appeal here is a judgment supporting the Tax Division's failure to comply with a letter from the Ruotolos dated October 16, 1993 seeking:

(1) For all FOIA requests from 1978 on that involve requests from taxpayer(s) for records of their audit, examination, and/or investigation ...

(a) Copies of all Vaughn indexes, affidavit[s], declarations, etc., that the government has filed with any United States Court and [are] not sealed.

(b) Copies of all the pertinent parts of any Court Orders of the materials in Section (a), including any decisions related to the detail and sufficiency of this material....

(c) Copies of all pertinent parts of any taxpayers['] [m]otions and [b]riefs filed in any United States Court related to the detail, sufficiency, etc., of the materials in Section (a), whether before or after any decision by the Court, concerning said index( [e]s), affidavit(s), declaration(s), etc. (e.g. [m]otions and memorand[a] for Vaughn indexes, affidavits, declarations, etc., ... and all pertinent parts of [s]ummary [j]udgment [m]otions and memorand[a] concerning the detail, sufficiency, etc. of the materials in Section (a) above.)

(2) A complete listing or printout that lists all information, computerized or otherwise, of:

(a) the Department of Justice's filing, categorizing, and/or indexing of the above Sections....

The Ruotolos offered to pay up to $250 for any materials received.

The Tax Division response came in a letter dated October 20, 1993 from J. Brian Ferrel, Assistant Section Chief, Civil Trial Section, Eastern Region. Mr. Ferrel asserted that: the information maintained by the Tax Division pertains mostly to tax litigation, criminal and civil; the information is maintained in files indexed under the names of parties to the litigation; some information is maintained relating to procedures and guidelines pertinent to tax case processing; and "[s]ome of this information is listed periodically in the Federal Register and is available for public inspection in a designated reading room, as required by the Freedom of Information Act." The letter concludes by advising the Ruotolos that the information sought "is not retrievable by means of the Tax Division's indices."

The Ruotolos replied to the letter from Mr. Ferrel in a letter dated November 1, 1993 addressed to Edward J. Snyder, Civil Trial Section Chief. They sought reconsideration of the denial of their request, noted that Mr. Ferrel had not claimed any exemption for the information sought and stated as follows: "The mere fact that your indexes may not have been designed to retrieve the information we desire does not relieve you of your responsibility under the FOIA." The Ruotolos Mr. Ferrel responded on behalf of the Tax Division in a letter dated November 5, 1993. In that letter, the Ruotolos were advised that their request did not reasonably describe the records sought in such a manner as would allow a professional employee of the Tax Division to locate them with a reasonable amount of effort; that the Tax Division has only those Vaughn indices that were filed in litigation it handled and therefore does not have all the indices that have been filed in federal courts; and that the Tax Division litigation files, being maintained under the names of individuals and entities involved in litigation, would have to be manually searched for Vaughn indices. It was estimated that there would be "hundreds" of files of FOIA litigation from 1978 to the present, and that the fees to be charged would greatly exceed what the Ruotolos offered to pay "and would have to be paid before any documents could be released." The letter suggested that the Ruotolos "restructure [their] request for the purpose of narrowing its scope, and hence, its cost."

cited several cases that they claimed supported their position.

The Ruotolos responded in a letter dated November 9, 1993 to Mr. Snyder. Enclosed with the letter was a certified check for $600 payable to the Treasurer of the United States. The Ruotolos wrote: "We hereby now agree to incur costs up to $600.00. Please begin compiling the most current material responsive to our request and work toward 1978." To the extent that the payment transmitted proved insufficient, the Ruotolos sought "an itemized estimate detailing specifically each additional cost beyond $600.00 to complete your compliance with this request." They stated that the "information is urgently needed and is necessary to evaluate the sufficiency of the index/affidavit/declaration issue in the Ruotolo v. Internal Revenue Service case." By his letter of reply dated November 18, 1993, Mr. Ferrel of the Tax Division noted that the Ruotolos had "fail[ed] to address the points raised in our November 5, 1993 letter," referred the Ruotolos to that letter "for guidance with respect to submitting a FOIA request which reasonably describes the records sought," and returned the $600 check.

Rather than continuing the correspondence, the Ruotolos commenced their action for injunctive relief in the district court. The Division's motion for summary judgment in the action was predicated upon the government's contention that the request for records did not reasonably describe the records sought and, consequently, that the district court lacked subject matter jurisdiction over the suit. Supporting the motion was a "Declaration" by Pamela J. Martin, who described herself as "a paralegal specialist employed in the Information & Privacy Unit (Civil Trial Section, Eastern Region) of the Tax Division, United States Department of Justice." Ms. Martin said that she read the October 16, 1993 FOIA request of the Ruotolos, recognized that there were no "research tools" that would permit her to locate the records sought, and prepared the Tax Division's October 20, 1993 letter for the signature of Mr. Ferrel, her supervisor. According to Ms. Martin, the Tax Division maintains civil case files by name of litigants and

also collects and maintains in its computerized listings of cases: codes which indicate the primary type of case (i.e. refund suit, summons enforcement action, bankruptcy objection to proof of claim; Freedom of Information Act case); the attorney(s) assigned; date of filing; date of closing; amount at issue; relative complexity or importance of the case; etc.

In his Declaration in support of the Division's motion for summary judgment, Mr. Ferrel asserted that the Division handled 803 Freedom of Information Act cases between January 1, 1978 and October 18, 1993. In order to fulfill the Ruotolos' request, according to Ferrel, it would be necessary to order closed cases from the Federal Records Center, a time-consuming procedure that would take one to three weeks per file. Mr. Ferrel claimed "that a request for files of 803 cases would overwhelm the Division's file unit for a not inconsiderable period of time." Each file then would have to be searched for a Vaughn index and the cost of the whole process "would far exceed the amount the plaintiffs agreed to pay...