Summary
In Judicial Watch, Inc. v. Rossotti, No. WMN-01-2672, 2002 WL 31962775 (D. Md. Dec. 16, 2002), filed on September 6, 2001, Judicial Watch sought to enjoin the IRS audit. It also asked for an order compelling the IRS to produce documents sought in five of the same FOIA requests that are at issue in this lawsuit: those requests dated October 14, 1998, April 14, 2000, January 13, 2001, July 27, 2001, and December 18, 2001. Affidavit of Stuart D. Gibson ("Gibson Aff") ¶ 5.
Summary of this case from Judicial Watch, Inc. v. RossottiOpinion
Civil Action No. WMN-01-2672
December 16, 2002
MEMORANDUM
Before the Court are Plaintiff's Motion for Summary Judgment (Paper No. 44) and Defendant's Motion for Summary Judgment (Paper No. 56). The motions have been fully briefed and are ripe for decision. Upon review of the pleadings and applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6), and that Plaintiff's motion will be denied and Defendant's motion granted.
I. BACKGROUND
Plaintiff filed this lawsuit in September 2001, seeking relief from the Commissioner of Internal Revenue and four lower-lever Internal Revenue Service (I.R.S.) employees. Additionally, Plaintiff sought to compel Defendant I.R.S. to produce documents responsive to four separate requests made under the Freedom of Information Act (FOIA) between October 1998 and July 2001. On January 11, 2002, Plaintiff filed an Amended Complaint in which, inter alia, it added a fifth claim to enforce a FOIA request made on December 18, 2001. This Court has previously dismissed claims against the individual Defendants. The only claims that remain before this Court involve Plaintiff's attempts to compel Defendant I.R.S. to produce additional documents sought in its five FOIA requests. See Counts IV and V of Amended Complaint. Both parties have filed motions for summary judgment as to these counts.
See Memorandum and Order, March 27, 2002 (Paper Nos. 27 and 28).
The I.R.S. relies on the declarations of Sarah Tate, an attorney in the office of the I.R.S. Assistance Chief Counsel, Disclosure and Privacy Law, Melody Magin, a Disclosure Specialist in the Baltimore office of the I.R.S., and Michael Frosch, a Branch Chief in the office of the I.R.S. Assistance Chief Counsel, Disclosure and Privacy Law.
Plaintiff made FOIA requests to eleven I.R.S. offices, including the Baltimore Office, in letters dated October 14, 1998; April 14, 2000; January 13, 2001; July 27, 2001; and December 18, 2001. In essence, Plaintiff requested that the I.R.S. produce all documents from 1994 to the date of each request, "that refer or relate to [Larry Klayman, Judicial Watch's founder and chairman, or Judicial Watch, Inc.] in any way." Pl.'s Exhs. 1, 6, 10, and 13.
Plaintiff has filed a lawsuit in the United States District Court for the District of Columbia to enforce the FOIA requests made to I.R.S. offices outside Maryland. Judicial Watch, Inc. v. IRS, C.A. No. 1:02cv928 (RJL). Dispositive motions have been filed in that action. Defs.' Mot. at 4. In the interest of judicial efficiency, this Court will limit its review to Plaintiff's FOIA requests directed to the I.R.S. office in Maryland. The Baltimore Disclosure Office was responsible for processing these FOIA requests. Id. at 5.
Over the course of four years, the I.R.S. responded to Plaintiff's various FOIA requests. In 1999 and 2001 (before Plaintiff filed this lawsuit), the I.R.S. released in full 387 pages of documents responsive to Plaintiff's October 14, 1998 and January 13, 2001 FOIA requests. Magin Decl. at ¶¶ 4, 6. On June 11, 2002 (after Plaintiff filed this lawsuit, but before it filed its motion for summary judgment), the I.R.S., through its attorneys in this lawsuit, released in full an additional 498 pages of documents responsive to the October 14, 1998; April 14, 2000; January 13, 2001; and July 27, 2001 FOIA requests. Tate Decl. at ¶ 6. The I.R.S. continues to withhold in full 22 pages of responsive documents and portions of another 125 pages of responsive documents. Id. at ¶ 7. Those documents consist of:
The Tate Declaration contends that the Baltimore Disclosure Office identified 694 pages as potentially responsive to Plaintiff's first four requests. Tate Decl. at ¶ 6. of these potentially responsive pages, 498 pages have been released in full to Plaintiff. Id. of the remaining 196 pages, the Tate declaration revealed that one partial page and 48 full pages are not responsive because either they were created after the Baltimore Disclosure Office received Plaintiff's fourth FOIA request or they pertain exclusively to a taxpayer other than Plaintiff. Id.
While this Court cannot independently determine this number through the factual history given, a court is entitled to accept the credibility of any affidavits, so long as there is no reason to question the good faith of the agency. Bowers v. Dep't of Justice, 930 F.2d 350, 357 (4th Cir.), cert. denied, 502 U.S. 911 (1991). The Tate Declaration reveals that five of these pages have material redacted pursuant to two different FOIA exemptions. Tate Decl. at ¶ 7 n. 6.
(1) redacted "return information" of taxpayers other than Plaintiff in the form of memoranda, document transmittals, FAX cover sheets, and reports; (2) identifying information concerning lower-level I.R.S. employees; (3) identifying information concerning private individuals who wrote to the I.R.S., either directly or through their elected representatives, expressing concern about Judicial Watch; (4) the Revenue Agent's Case Chronology Log, which consists of a recommended list of issues to be pursued in the still-ongoing audit of Plaintiff; (5) internal e-mails among attorneys in the I.R.S. Office of Chief Counsel; and (6) draft legal opinions and advice from the Assistant District Counsel for the Delaware-Maryland District to the Delaware-Maryland District Director of the I.R.S. Id. at ¶¶ 8-12. Plaintiff argues that the I.R.S. has unlawfully withheld responsive documents and inappropriately redacted certain information from the partially released documents. The I.R.S. asserts that it is entitled to judgment as a matter of law because various FOIA exemptions apply to the documents at issue.II. STANDARD OF REVIEW
The Freedom of Information Act was enacted to maintain an open government and to ensure the existence of an informed citizenry "to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978). The FOIA is to be construed broadly to provide information to the public in accordance with its purposes, and the exemptions from production are to be construed narrowly. Ethyl Corp. v. United States E.P.A., 25 F.3d 1241, 1245 (4th Cir. 1994) (citing United States Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Upon complaint, a district court must make a de novo determination of whether government records were properly withheld under a FOIA exemption provision. 5 U.S.C. § 552(a)(4)(B). The agency refusing to release the information bears the burden of proving that its actions were correct. Id.
The exemptions are codified in 5 U.S.C. § 552(b).
The agency may sustain its burden by submitting affidavits which provide a reasonably detailed analysis of the requested documents and the reasons for provoking a particular exemption. The Court may grant summary judgment solely on the basis of these agency affidavits if they are clear, specific, and reasonably detailed, and describe the withheld information in a factual and non-conclusory manner. Miller v. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985).
If a district court has jurisdiction, it has authority to enjoin the withholding of the documents and to order the production of any agency records that are improperly withheld. Id. A federal court only has jurisdiction to devise a remedy upon a showing that the agency has: (1) improperly; (2) withheld; (3) agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). An agency acts improperly "`when a record is withheld outside one of the enumerated FOIA exceptions.'" Kim v. Internal Revenue Service, 1999 WL 1424998, at *2 (D. Md. 1999) (quoting Bartlett v. United States Dep't of Justice. Fed. Bureau of Investigation, 867 F. Supp. 314, 315 (E.D. Pa. 1994). An agency withholds records only when it has custody over the documents and does not release them. Id. Finally, an agency record "is defined as material created or obtained by the agency, that is in the agency's control at the time the FOIA request is made." Bartlett, 867 F. Supp. at 315. An agency has no duty to create records upon a FOIA request. Id.
In order to file suit under the FOIA, a requester must first exhaust all its administrative remedies. Pollack v. Dep't of Justice, 49 F.3d 115, 118 (4th Cir.), cert. denied, 516 U.S. 843 (1995). The FOIA requires an agency to respond to a proper request within 20 working days. 5 U.S.C. § 552(a)(6)(A)(i). In this case, Plaintiff filed its most recent FOIA request to the Baltimore Office of the I.R.S. by letter dated December 18, 2001. It sought to add that request to this lawsuit in the amended complaint that it filed on January 11, 2002. There were only sixteen working days between the date Plaintiff filed its December 18, 2001 FOIA request and the date it filed its amended complaint. As such, Plaintiff failed to exhaust its administrative remedies before filing suit, and accordingly, this Court does not have jurisdiction over the December 18, 2001 FOIA request. III. DISCUSSION
Plaintiff argues that it asked for "expedited processing" of this request, and that because the I.R.S. did not respond within ten days, this Court has jurisdiction. Pl.'s Reply at 12-13. Section 552(a)(6)(E) directs agencies to promulgate rules for expedited processing where the requester "demonstrates compelling need." The statute defines "compelling need" as either, "failure to obtain requested records on an expedited process could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;" or "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. § 552(a)(6)(E)(v). In its request, Plaintiff alleged that it was the victim of ongoing criminal activity, and would be unable to vindicate its rights without the requested documents. Pl.'s Exh. 17, at 2. Plaintiff's request for expedited processing does not meet the statutory definition of "compelling need." Because Plaintiff did not exhaust its administrative remedies, this Court lacks jurisdiction to enforce the December 18, 2001 request. Because that request is properly before the court in Washington, D.C., Plaintiff will suffer no prejudice by this Court dismissing it. See Defs.' Mot. at 8 n. 15.
Plaintiff first contends that the I.R.S.'s search for the requested documents failed to meet articulated standards of thoroughness and requests discovery of "the reasonableness and adequacy of Defendants' search for responsive documents." Pl.'s Reply at 20. To support its allegation. Plaintiff argues that the I.R.S. failed to produce or even reference "numerous documents known to [Plaintiff] which are without question in the possession of the I.R.S." Pl.'s Mot. at 9. Specifically, Plaintiff claims that these documents relate to Plaintiff's criminal conflict of interest complaints against Commissioner Rossotti, its written requests for meetings, and meetings Plaintiff had with the I.R.S. Id. Further, Plaintiff argues that the fact that the above-described documents were included in the I.R.S.'s document submission to the United States District Court for the District of Columbia in the pending I.R.S. summons enforcement action against Plaintiff is evidence of Defendants' bad faith conduct in its search for responsive documents. Pl.'s Reply at 17.
When this Court judges the adequacy of the I.R.S. search for documents, "the relevant question is not whether every single potentially responsive document has been unearthed, but whether the agency has demonstrated that it has conducted a search reasonably calculated to uncover all relevant documents." Ethyl Corp., 25 F.3d at 1246 (internal quotations and citations omitted). To demonstrate the adequacy of its search, an agency must submit affidavits "that explain in reasonable detail the scope and method of the search conducted by the agency. . . ." Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). A search is not unreasonable "simply because it fails to produce all relevant material . . . ." Meeroool v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986).
In this case, the Magin Declaration outlines the scope and method of the search conducted by the Baltimore Disclosure Office. When the Baltimore disclosure specialist received the first FOIA request, the only significant activity within Maryland concerning Plaintiff was the audit of its tax-exempt status. Magin Decl. at ¶ 4. To locate documents potentially responsive to the FOIA request made to Baltimore, the I.R.S. searched the files of the Tax Exempt and Government Entities (TEGE) function, the I.R.S. function responsible for conducting the audit. Id. With respect to the second and third FOIA requests, the disclosure specialist requested the Baltimore office of TEGE to search for responsive records, and the search focused on the audit being conducted out of that office. Id. at ¶¶ 5, 6. When the disclosure specialist received Plaintiff's fourth FOIA request, she again checked to see what activity concerning Plaintiff existed in Maryland. The only open activity concerning Plaintiff was the pending audit in the TEGE function. Because that was the only activity, that function was the only one searched for responsive documents. Id. at ¶ 8.
Because this Court has decided to limit its review to Plaintiff's FOIA requests directed to the I.R.S. office in Maryland, it will judge only the searches conducted in Maryland.
The Court concludes that the I.R.S. has met its burden of showing that it conducted an adequate search. As the Baltimore office received Plaintiff's FOIA requests, it determined what was the significant activity within Maryland concerning Plaintiff and tailored its search according to that activity. The Court is satisfied that the I.R.S. searched the locations within Maryland where it might reasonably expect to find documents which Plaintiff was seeking in its FOIA requests.
Plaintiff next argues that Defendants "have failed to produce a Vaughn index or otherwise establish their alleged entitlement to the various exemptions to production they assert as required by law." Pl.'s Reply at 3. A Vaughn index "is a surrogate for the production of documents for in camera review, designed to enable the district court to rule on a privilege without having to review the document itself." Ethyl Corp., 25 F.3d at 1249. The court in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), directed that the government provide "a detailed justification for its exemption and index the documents against the justification, fragmenting the documents into segregable parts." Ethyl Corp., 25 F.3d at 1250. The Ninth Circuit has observed:
The form of disclosure is not critical. What matters is the substantive adequacy of the disclosures, in whatever form, to enable the requester to be able to make an intelligent judgment whether to contest claims of nondiscoverability and the court to decide them. Any form—letter, Vaughn index, affidavit, copy of redacted document—may be adequate or inadequate depending on the circumstances.Fidducia v. Dep't of Justice, 185 F.3d 1035, 1044 (9th Cir. 1999).
In this case, the I.R.S. provides the declarations of Sarah Tate, an attorney in the office of the I.R.S. Assistance Chief Counsel, Disclosure and Privacy Law and Michael Frosch, a Branch Chief in the office of the I.R.S. Assistance Chief Counsel, Disclosure and Privacy Law. Tate's declaration divides the withheld or redacted pages by way of claimed FOIA exemption. See Tate Decl. at ¶¶ 8-12. Tate provides the number of pages falling under each exemption, describes the type of page (e.g., memorandum, correspondence, etc.), and explains how the page corresponds to the exemption. Id. Although not labeled as a Vaughn index, this Court concludes that Tate's declaration performs the same function. The declaration describes the withheld material in sufficient detail to enable the Court to determine whether the pages fall within the claimed exemption.
The I.R.S. has redacted "return information" of taxpayers other than Plaintiff from twenty-two pages and withheld five pages of that information in full, in reliance upon 5 U.S.C. § 552(b)(3) and 26 U.S.C. § 6103(a). Tate Decl. at ¶ 8. The FOIA exemption 3 provides that an agency is not required to produce documents,
. . . that are specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
Under this exemption, if the Court determines that a relevant statute exists, and that any of the withheld information falls within coverage of the exempting statute, the material must be withheld. Fund for Constitutional Gov't v. Nat'l Archives and Records Serv., 656 F.2d 856, 868 n. 29 (D.C. Cir. 1981).
Section 6103 of the Internal Revenue Code has been held to be an exempting statute under exemption 3 of the FOIA. Church of Scientology of California v. I.R.S., 484 U.S. 9, 15 (1987). Section 6103 provides that "[r]eturns and return information shall be confidential" and prohibits any United States officer or employee from disclosing any such information. 26 U.S.C. § 6103(a). Return information is defined as:
"a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, or is being examined, or subject to other investigations or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence of liability (or amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition or offense . . . ."26 U.S.C. § 6103(b)(2)(A).
Clearly, section 6103 prohibits the release of records containing tax return information of third parties. Kim, 1999 WL 1424998, at *3. The Court agrees with the I.R.S. that return information of taxpayers other than Plaintiff cannot be released to Plaintiff absent some exception to the general rule.
The I.R.S., relying upon 5 U.S.C. § 552(b)(6), has redacted from five pages the names of lower-level clerical employees contained in correspondence or a correspondence log, and the home telephone number of an I.R.S. employee. Tate Decl. at ¶ 9. The FOIA exemption 6 protects information contained in an agency's "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Supreme Court has broadly interpreted the types of files to which this exemption applies, holding that the protection of the personal privacy interests does not turn on the label of the file which contains the information, but instead, the exemption is intended to cover detailed Government records on an individual which can be identified as applying to that individual. U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982). The I.R.S. argues that the public interest in this type of information extends only to matters that go to the "core purpose" of the FOIA "to shed light on the agency's performance of its duties," Dep't of Justice v. Reporters Comm., 489 U.S. 749, 773 (1989), and that no public interest exists in disclosing the names of the lower-level employees who were tasked with ministerial duties. Defs.' Mot. at 21.
Plaintiff does not object to the redaction of the home telephone number but does object to the redaction of the employees' names. Pl.'s Reply at 9. Plaintiff argues that no personal privacy issues exist to serve as the basis for the redaction of the names and that the disclosure of the entire responsive document is necessary to "fully and fairly vindicate its constitutional rights." Id. at 9-10. The Court concludes that federal employees do have a privacy interest in the nondisclosure of their names and that Plaintiff suffers no prejudice by the redaction of these names. See U.S. Dep't of Navy v. Fed. Labor Relations Auth., 975 F.2d 348, 353 (7th Cir. 1992). The I.R.S. has disclosed the entire document to Plaintiff except for the names of the employees. Plaintiff argues that disclosure of the employees' names is necessary to vindicate its rights, but does not explain how knowledge of the names will help in that vindication. Additionally, the Court does not understand how disclosure of the employees' names will provide Plaintiff with information about the government's operations. See id. at 354 ("If a FOIA disclosure request would not reveal information about the government's operations, then it is not in the public interest."). As such, the Court concludes that the I.R.S. properly redacted the employees' names and a home telephone number from five pages of responsive documents.
The I.R.S. has redacted information (names, addresses, and postal bar codes) from eighty-eight pages that would identify people who wrote to the I.R.S., either directly or through their elected representatives, expressing concerns about whether Plaintiff was complying with the laws that govern its tax-exempt status. Tate Decl. at ¶ 10. Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), exempts from disclosure "records of information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy."
The Court must first determine that the information the I.R.S. seeks to withhold under Exemption 7(C) was "compiled for law enforcement purposes." Courts have held that this exemption covers not only records of criminal investigations, but also records relating to civil enforcement matters and matters involving administrative regulatory enforcement. See, e.g., Baltimore Sun v. U.S. Marshals Service, 131 F. Supp.2d 725, 728 n. 2 (D. Md. 2001). Additionally, courts have found that this exemption covers the I.R.S.'s files of civil income tax audits and civil tax collection cases. Williams v. I.R.S., 479 F.2d 317, 318 (3rd Cir. 1973). In this case, the I.R.S. retrieved these responsive documents from the files concerning its audit of Plaintiff's tax-exempt status. Tate Decl. at ¶¶ 4, 8. These are investigatory files compiled for civil law enforcement purposes. As such, the Court must next determine whether production of this information could reasonably be expected to constitute an unwarranted invasion of personal privacy.
The I.R.S. argues that the private individuals who submitted their concerns about Plaintiff have an interest in maintaining their personal privacy. Defs.' Mot. at 24. Name and address lists implicate significant privacy interests under FOIA. Becker v. I.R.S., 1992 WL 67849, at *5 (N.D. Ill. 1992); rev'd on other grounds, 34 F.3d 398 (7th Cir. 1994). The Court must then balance the privacy interests of these individuals against the public interest in disclosure. Id. Plaintiff argues that the names and addresses should be disclosed so that Plaintiff may investigate the "connection between the volunteer tipsters and the retaliatory, political motivation for the unconstitutional audit and investigation." Pl.'s Mot. at 12. The Court does not find this reason to be of genuine public interest. The Court does not agree that disclosure of the identifying information of these private individuals would contribute anything to the public understanding of the operations or activities of the I.R.S. See Becker, 1992 WL 67849, at *6. The Court holds that the names and other identifying information sought were properly redacted and withheld under exemption 7(C).
Finally, the I.R.S. withheld two draft legal opinions (totaling seventeen pages) and redacted information from another fifteen pages. Tate Decl. at ¶¶ 11, 12. The matters withheld include information provided to I.R.S. attorneys regarding the audit of Plaintiff, the opinions of those I.R.S. attorneys, and drafts of those attorneys' advice. Id. The I.R.S. asserts that it has properly withheld that information under the FOIA exemptions 3, 7(A), and 5. Defs.'s Mot. at 27-29. Because this Court concludes that exemption 5 covers all of the documents, it will not discuss the applicability of exemptions 3 and 7(A).
Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." A document must satisfy two conditions in order to fall under exemption 5; "its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8 (2001). The privileges against discovery include the attorney work-product privilege and the "deliberative process" privilege. Id. "Work product protects the mental processes of the attorney, while deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. (internal quotations and citations omitted).
In this case, the I.R.S. has withheld a list of recommended issues to be pursued in the audit of Plaintiff and a discussion of the I.R.S.'s ability to support its position on those issues; internal e-mails about the audit circulated among attorneys in the I.R.S. Office of Chief Counsel; and two draft memoranda from the Assistant District Counsel for the Delaware-Maryland District to the Delaware-Maryland District Director of the I.R.S. Tate Decl. at ¶¶ 11, 12. These types of documents are the type traditionally protected by the government deliberative process privilege. See City of Virginia Beach v. Dep't of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) ("Thus, the deliberative process exemption protects recommendations, draft documents, proposals, suggestions, and other objective documents which reflect personal opinions of the writer rather than policy of the agency." (internal quotations omitted)). Because the Court concludes that these documents are protected by the privileges codified in FOIA exemption 5, the I.R.S. acted properly in redacting and withholding these pages.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendant's Motion to for Summary Judgment and deny Plaintiff's Motion for Summary Judgment. A separate order consistent with this memorandum will issue.
ORDER
Pursuant to the foregoing Memorandum, and for the reasons stated therein, IT IS this 16th day of December, 2002, by the United States District Court for the District of Maryland, ORDERED:
1. That Plaintiff's Motion for Summary Judgment (Paper No. 44) is hereby DENIED;
2. That Defendant's Motion for Summary Judgment (Paper No. 56) is hereby GRANTED;
3. That this case is hereby CLOSED;
4. That any and all prior rulings made by this Court disposing of any claims against any parties are incorporated by reference herein and this order shall be deemed to be a final judgment within the meaning of Fed.R.Civ.P. 58; and
5. That the Clerk of the Court shall mail or transmit copies of this Memorandum and Order to all counsel of record.