Sea Shepherd Conservation Soc'y v. Internal Revenue Serv.

• Decision Date: 20 September 2016
• Docket Number: Civil Action No. 13-1422 (ABJ)
• Citation: 208 F.Supp.3d 58
• Parties: SEA SHEPHERD CONSERVATION SOCIETY, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

208 F.Supp.3d 58

SEA SHEPHERD CONSERVATION SOCIETY, Plaintiff,

v.INTERNAL REVENUE SERVICE, Defendant.

Civil Action No. 13-1422 (ABJ)

United States District Court, District of Columbia.

Signed September 20, 2016

Christopher S. Rizek, Caplin & Drysdale, Chartered, Washington, DC, for Plaintiff.

Stephanie Ann Sasarak, Ann E. Nash, 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 Sea Shepherd Conservation Society ("Sea Shepherd") brought this action under the Freedom of Information Act ("FOIA") against defendant the Internal Revenue Service ("IRS"), seeking all records related to itself in IRS files dated January 1, 2006 to May 13, 2013. Compl. [Dkt # 1]. On March 31, 2015, the Court remanded the matter to the IRS so that the agency could conduct additional searches, provide more detailed descriptions of its searches and more detailed justifications of its withholdings, and release any non-exempt portions of responsive records to plaintiff. Sea Shepherd Conservation Soc'y v. IRS , 89 F.Supp.3d 81 (D.D.C. 2015).

With that process now complete, the parties have again cross-moved for summary judgment, and these pleadings also address the adequacy of the agency's searches and the justifications for its withholdings. Def.'s Mot. for Summ. J. [Dkt # 35] ("Def.'s Mot."); Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt # 35-1] ("Def.'s Mem."); Pl.'s Cross-Mot. for Summ. J. [Dkt. # 37] ("Pl.'s Cross-Mot."); Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. and in Supp. of Pl.'s Cross-Mot. [Dkt. # 37-1] ("Pl.'s Cross-Mem."). Because the Court finds once again that one of defendant's searches was inadequate, it will grant plaintiff's motion in part, and remand the matter to the agency for a second time, so that the agency can renew its searches of the Exempt Organizations Examinations function. But because the agency adequately searched for records in the National & Area Chief Counsel Office of TEGE, the Exempt Organizations Rulings & Agreements function, the Communications & Liaison Office, and the Whistleblower Office, the Court will grant defendant's motion in part as well. In addition, the Court finds that defendant's invocation of Exemptions 3 and 7(D) is justified, and it will grant defendant's motion for summary judgment in part on those issues. But the Court finds that the agency's Glomar response with regard to records from the Whistleblower office is not justified, based on the unique circumstances of this case. So the Court will grant plaintiff's motion in part on that issue, as well.

BACKGROUND

I. Sea Shepherd's FOIA Request, IRS's First Search, and the Court's Remand

Sea Shepherd is a 501(c)(3) non-profit environmental organization dedicated to the preservation of oceanic habitats and wildlife. Sea Shepherd , 89 F.Supp.3d at 86.¹ It filed a FOIA request on May 13, 2013, seeking (1) "any and all documents, from January 1, 2006, through the date of this request, related to Sea Shepherd," (2) "any and all documents related to the examination of Sea Shepherd commenced by the Internal Revenue Service on or about January 4, 2013," (3) "any and all documents relating to any complaint ... regarding Sea Shepherd's activities or qualifications for tax-exempt status after January 1, 2006," and (4) "any and all documents related to any request from any person that the Internal Revenue Service examine Sea Shepherd." Ex. A to Compl. [Dkt. # 1] at 1. Plaintiff specifically requested that the IRS search the following locations: the files of Peter Huang, the agent who handled the examination of plaintiff's tax-exempt status; the National and Area Chief Counsel Offices of the Tax-Exempt and Government Entities ("TEGE") function of the IRS; the office of the Director of Exempt Organizations Examinations in Dallas, Texas; and the office of Exempt Organizations Ruling and Agreements in the TEGE National Office. Id.

When defendant did not timely respond to the FOIA request, Compl. ¶¶ 7–9, Sea Shepherd filed suit. Compl. After the lawsuit had been commenced, the IRS conducted a search and produced more than 12,000 pages of responsive, non-exempt records. Def.'s Statement of Undisputed Material Facts [Dkt. # 35-2] ("Def.'s SOF") ¶ 3; see Pl.'s Statement of Genuine Issues in Opp. to Def.'s SOF [Dkt. # 37-2, 38-2] ("Pl.'s SOF") ¶ 3.

The IRS moved for summary judgment on May 20, 2014, arguing both that its search was adequate, and that its production included all of the responsive and non-exempt documents. Def.'s SOF ¶ 4; Pl.'s SOF ¶ 4. On March 31, 2015, the Court denied the IRS's motion for summary judgment and remanded the matter to the agency. Sea Shepherd , 89 F.Supp.3d at 89–103. The Court held that certain of defendant's declarations were inadequate:

First, none of the declarations adequately addresses plaintiff's request for "any and all documents" related to it ... or even indicates that a search for "any and all documents" related to plaintiff was actually conducted. Second, none of the declarations describes defendant's overall "rationale for searching certain locations and not others." And third, the individual declarations suffer from numerous other deficiencies ....

Id. at 91 (internal citations omitted). The Court then "turn[ed] to those records that the IRS did identify," and found that the claimed exemptions—exemptions 6 and 7—were not justified. Id. at 94–98. The Court also found that the IRS's reliance on exemption 3 was not uniformly justified. Id. at 98–102. But the Court did find many of the agency's exemption 5 withholdings justified. Id. at 102–03. The Court instructed the IRS to "conduct a further search for responsive records, to provide a more detailed justification for the adequacy of its search and for any withholdings of responsive material, and to release any reasonably segregable non-exempt material to [Sea Shepherd] consistent with the FOIA statute and this opinion." Id. at 104.

II. Procedural History

On September 15, 2015, after concluding its supplemental search and releasing additional materials to Sea Shepherd, the IRS filed a renewed motion for summary judgment, along with a statement of facts, an updated Vaughn Index, and several declarations. Def.'s Mot.; Def.'s Mem.; Def.'s SOF; Vaughn Index [Dkt. # 35-5]; 3d Decl. of A.M. Gulas, Ex. 3 to Def.'s Mot. [Dkt. # 35-3] ("3d Gulas Decl."); 2d Decl. of Michael Franklin [Dkt. # 35-4] ("2d Franklin Decl."); Decl. of Nia Dowdy [Dkt. # 35-6] ("Dowdy Decl."); Decl. of Jon Waddell [Dkt. # 35-7] ("Waddell Decl."); Decl. of Margaret Von Lienen [Dkt. # 35-8] ("Von Lienen Decl."); Decl. of Dean Patterson [Dkt. # 35-9] ("Patterson Decl."); Decl. of Cindy Stuart [Dkt. # 35-10] ("Stuart Decl."). Plaintiff then filed a cross-motion for summary judgment. Pl.'s Cross-Mot.; Pl.'s Cross-Mem. It also attached a "Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts," Pl.'s SOF, its own Statement of Undisputed Material Facts, Pl.'s Statement of Undisputed Material Facts in Supp. of Pl.'s Cross-Mot. [Dkt. # 37-3, 38-3] ("Pl.'s Cross-SOF"), and two supporting declarations. Decl. of Ann E. Prezyna [Dkt. # 37-4]; 2d Decl. of Christopher S. Rizek [Dkt. # 37-5].

On December 4, 2015, defendant filed a reply in support of its motion and cross-opposition to plaintiff's motion. Def.'s Reply in Supp. of Def.'s Mot. & Opp. to Pl.'s Cross-Mot. [Dkt. # 42, 43] ("Def.'s Reply"), along with a response to plaintiff's statement of facts and two additional declarations. And on January 4, 2016, Sea Shepherd filed a cross-reply in support of its motion. Pl.'s Reply Mem. in Supp. of its Cross-Mot. [Dkt. # 45] ("Pl.'s Cross-Reply").² The Court also granted the IRS's requests, over plaintiff's objections, to submit declarations ex parte and in camera in support of their motion and their cross-opposition, Min. Order (Sept. 18, 2015); Min. Order (Dec. 7, 2015). On August 8, 2016, the Court ordered the agency to provide another ex parte and in camera declaration. Min. Order (Aug. 8, 2016). The Court ultimately ordered defendant to file part of the in camera submission on the public docket, Min. Order (Aug. 25, 2016), and defendant submitted a redacted version of the August 15, 2016. See Redacted Decl. of Michael Franklin [Dkt. # 47] ("Redacted Franklin Decl.").

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency's decisions de novo and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) ; Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). "FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush , 601 F.Supp.2d 6, 12 (D.D.C. 2009).

Summary judgment is appropriate "if the movant shows that 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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the...