Smart-Tek Servs., Inc. v. U.S. Internal Revenue Serv.
| Decision Date | 25 September 2018 |
| Docket Number | Case No.: 15-cv-0449-BTM-JMA |
| Citation | 344 F.Supp.3d 1166 |
| Court | U.S. District Court — Southern District of California |
| Parties | SMART-TEK SERVICES, INC., Plaintiff, v. UNITED STATES INTERNAL REVENUE SERVICE, Defendant. |
Dick A. Semerdjian, Schwartz Semerdjian Cauley & Moot, LLP, Ronson J. Shamoun, Law Office of Ronson J. Shamoun, San Diego, CA, for Plaintiff.
Ryan O. McMonagle, United States Department of Justice, Washington, DC, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The United States Internal Revenue Service ("IRS") and Plaintiff Smart-Tek Services, Inc. have filed cross-motions for summary judgment as to Plaintiff's claims under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq. (ECF Nos. 44, 48). For the reasons discussed below, the Plaintiff's and IRS's motions are granted in part and denied in part.
This is one of five actions filed by related entities against the IRS.1 Each case is based on the claim that the IRS failed to comply with its obligations under 5 U.S.C. § 552 to respond to FOIA requests submitted by the plaintiffs. Plaintiffs contend they submitted their requests after the IRS filed a series of liens against them between 2011 and 2013 holding them liable for payroll tax liabilities of other corporations under alter ego and/or successor liability theories.
Plaintiff Smart-Tek Services, Inc. alleges it sent a written FOIA request to the IRS on May 12, 2014. Compl. (ECF No. 1) ¶ 10. Under 5 U.S.C. § 552(a)(6)(A)(i), an agency has 20 business days following receipt of a FOIA request to determine whether to comply with the request and must "immediately" notify the requester of its determination. 5 U.S.C. § 552(a)(6)(A)(i). On June 6, 2014, the IRS sent a response to Plaintiff in which it acknowledged receipt of the request but "failed to make any determination about the request." Compl. ¶ 11. On February 27, 2015, having received no further response from the IRS, Plaintiff initiated this action.
On October 7, 2016, the IRS filed a motion for summary judgment on the ground that it had fully discharged its obligations under 5 U.S.C. § 552. It indicated it had completed its search for records and released 1,743 pages in full, and 10 pages in part, of non-exempt documents responsive to Plaintiff's FOIA request. (ECF No. 28). On July 5, 2017, this Court denied the IRS's motion for summary judgment without prejudice, explaining that the declaration of Delphine Thomas, a Disclosure Specialist, was insufficient to demonstrate the adequacy of the IRS's search because (1) it provided no indication of how the IRS interpreted Plaintiff's FOIA request and did not identify the scope of the documents the IRS determined were responsive to the request and (2) it failed to give sufficient information describing the IRS's review of 65 boxes of documents. (ECF No. 38).
The IRS has now filed a renewed motion for summary judgment. (ECF No. 48). Plaintiff has also filed a motion for summary judgment. (ECF No. 44).
Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of showing there is no material factual dispute and he or she is entitled to prevail as a matter of law. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its burden, the nonmoving party must go beyond the pleadings and identify specific facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
District courts are directed to conduct a de novo review of the adequacy of an agency's response to a FOIA request. 5 U.S.C. § 552(a)(4)(B) ; U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Because FOIA cases rarely involve material factual disputes, they "are typically and appropriately decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 97 (D.D.C. 2009) ; see Shannahan v. Internal Revenue Serv. , 637 F.Supp.2d 902, 912 (W.D. Wash. 2009). Courts "follow a two-step inquiry when presented with a motion for summary judgment in a FOIA case." Shannahan , 637 F.Supp.2d at 912.
First, the district court must determine whether the agency has established that it fully discharged its obligation under FOIA to conduct an adequate search for responsive records. Zemansky v. U.S. Envtl. Prot. Agency , 767 F.2d 569, 571 (9th Cir. 1985). To meet this burden, the agency must:
demonstrate that it has conducted a "search reasonably calculated to uncover all relevant documents." Further, the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.
Id. (quoting Weisberg v. U.S. Dep't of Justice ("Weisberg II "), 745 F.2d 1476, 1485 (D.C. Cir. 1984) ).
If the agency satisfies its initial burden, the court proceeds to the second step and considers "whether the agency has proven that the information that it did not disclose falls within one of nine FOIA exemptions." Shannahan , 637 F.Supp.2d at 912 (quoting Los Angeles Times Commc'ns, LLC v. Dep't of the Army , 442 F.Supp.2d 880, 894 (C.D. Cal. 2006) ). Agencies seeking to withhold documents pursuant to a FOIA exemption "have been required to supply the opposing party and the court with a ‘Vaughn index,’ identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption." Wiener v. Fed. Bureau of Investigation , 943 F.2d 972, 977 (9th Cir. 1991) ; see Vaughn v. Rosen , 484 F.2d 820, 823-25 (D.C. Cir. 1973). "The purpose of a Vaughn index ‘is ... to afford the requester an opportunity to intelligently advocate release of the withheld documents and to afford the court the opportunity to intelligently judge the contest.’ " Shannahan , 637 F.Supp.2d at 912 (quoting Wiener , 943 F.2d at 979 ).
Finally, "even if the agency satisfies the two-part test, it generally must still disclose any reasonably segregable portions of the withheld documents." Id. ; 5 U.S.C. § 552(b) (). "The burden is on the agency to establish that all reasonably segregable portions of a document have been segregated and disclosed." Id. (quoting Pac. Fisheries Inc. v. United States , 539 F.3d 1143, 1148 (9th Cir. 2008) ).
The IRS contends it has conducted an adequate search for records responsive to Plaintiff's FOIA request. To fulfill its obligations under FOIA, "the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). The agency must show "[w]hat records were searched, by whom, and through what process." Steinberg v. U.S. Dep't of Justice , 23 F.3d 548, 552 (D.C. Cir. 1994). An agency can meet its burden by submitting a "reasonably detailed, nonconclusory" affidavit "in good faith." Id. at 551 (quoting Weisberg II , 745 F.2d at 1485 ). Agency affidavits that "do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to allow the plaintiff to challenge the procedures utilized" are insufficient to fulfill the agency's burden. Weisberg v. U.S. Dep't of Justice , 627 F.2d 365, 371 (D.C. Cir. 1980). In determining whether an agency has met its burden to prove an adequate search, "the facts must be viewed in the light most favorable to the requestor." Zemansky , 767 F.2d at 571 (citing Weisberg II , 745 F.2d at 1485 ).
In support of its contention that it conducted an adequate search for records responsive to Plaintiff's FOIA request, the IRS submits the declarations of Delphine Thomas, Andrew Durrett, and Christopher Valvardi. (ECF No. 48-1). Thomas is a Disclosure Specialist whose duties include responding to FOIA requests for IRS records, which requires her to "have knowledge of the types of documents created and maintained by the various divisions and functions of the IRS." Thomas Decl. ¶ 1. Durrett is an attorney in the Office of Chief Counsel of the IRS whose duties "require knowledge of the types of documents created and maintained by the various divisions and functions of the IRS, and an understanding of the provisions of the FOIA that exempt certain types of documents from disclosure in response to a request." Durrett Decl. ¶¶ 1-2. Valvardi is an attorney in the Office of Chief Counsel of the IRS who was assigned to replace Durrett on December 1, 2016 in connection with the FOIA lawsuit brought against the IRS in the instant action. Valvardi Decl. ¶¶ 1-2.
On June 23, 2014, the IRS received a FOIA request from Plaintiff seeking "a complete copy of the administrative file" for Plaintiff "for tax forms 940, 941, and 1120 for years 2007-2014." Thomas Decl. Exh. A. Pursuant to established practice, Disclosure Specialist Mary Cooper, who was initially assigned to Plaintiff's...
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