Cause of Action v. Internal Revenue Service

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CAUSE OF ACTION, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-0920 (ABJ)

)

INTERNAL REVENUE SERVICE, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION

This case arises out of a Freedom of Information Act request by plaintiff Cause of Action

for records related to possible disclosures of confidential “return information” by the Internal

Revenue Service (“IRS”). Compl. [Dkt. # 1] ¶ 7. The confidentiality of that information is

governed by 26 U.S.C. § 6103, and that provision of the Internal Revenue Code lies at the heart of

this action. “Return information” is defined in section 6103(b)(2), and section 6103(g) governs

disclosures to the President and certain other Executive Branch employees.

On October 9, 2012, plaintiff requested eight categories of records from defendant, the first

six of which are at issue in this lawsuit. 1 Ex. 1 to Compl. [Dkt. # 1-3] (“FOIA Req.”); Pl.’s Mem.

of P. & A. in Opp. to Def.’s Mot. for Summ. J. & in Supp. of its Cross-Mot. for Summ. J. [Dkt.

# 21-1] (“Pl.’s Mem.”) at 3. Specifically, plaintiff sought:

1) All documents, including but not limited to emails, letters, and telephone

logs or other telephone records, constituting communications to and/or from

1 The Court granted defendant’s unopposed motion to dismiss plaintiff’s claims with respect

to categories seven and eight of the request on November 4, 2013. Order (Nov. 4, 2013) [Dkt.

# 9]. Category seven is the subject of a separate lawsuit by plaintiff against the Treasury Inspector

General for Tax Administration. See Cause of Action v. Treasury Inspector Gen. for Tax Admin.,

70 F. Supp. 3d 45, 49 (D.D.C. 2014).

any employee of the IRS concerning any FOIA request or lawsuit that

relates to [26 U.S.C.] § 6103(g);

2) All documents, including notes and emails, referring or relating to any

communication described in request #1;

3) Any communications by or from anyone in the Executive Office of the

President constituting requests for taxpayer or “return information” within

the meaning of § 6103(a) that were not made pursuant to § 6103(g);

4) All documents, including notes and emails, referring or relating to any

communication described in request #3;

5) All requests for disclosure by any agency pursuant to [26 U.S.C.

§] 6103(i)(1), (i)(2), and (i)(3)(A); [and]

6) All documents, including communications not limited to notes, emails,

letters, memoranda and telephone logs or other telephone records, referring

or relating to records described in request #5[.]

FOIA Req. at 2. Plaintiff requested records from the time period of January 1, 2009, through the

date of its FOIA request, October 9, 2012. Id. at 1.

Defendant released 793 pages responsive to categories one and two of plaintiff’s request

with some redactions, citing FOIA Exemptions 5 and 6. Br. in Reply to Pl.’s Opp. to Def.’s Mot.

for Summ. J. & in Opp. to Pl.’s Mot. for Summ. J. [Dkt. # 26] (“Def.’s Reply”) at 1. Defendant

did not release any records in response to items three through six of plaintiff’s FOIA request on

the grounds that any records related to requests for “return information” would themselves

constitute “return information” that is exempt from disclosure under FOIA Exemption 3 in

conjunction with section 6103. Id.; Br. in Supp. of Def.’s Mot. for Summ. J. [Dkt. # 16-1] (“Def.’s

Mem.”) at 1. The IRS also took the position that records responsive to items three through six

would be shielded from disclosure by Exemption 6, and that records responsive to items five and

six could also be withheld under Exemption 7(C). Def.’s Mem. at 1; Def.’s Reply at 1.

Nevertheless, defendant conducted a search for records responsive to items three and four,

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although it did not search for records responsive to items five and six. Decl. of Denise Higley in

Supp. of Def.’s Mot. [Dkt. # 16-3] (“Higley Decl.”) ¶¶ 17–24.

After exhausting its administrative remedies, plaintiff filed a complaint in this Court on

June 19, 2013. Compl. Defendant moved for summary judgment on April 14, 2014, Def.’s Mot.

for Summ. J. [Dkt. # 16], and plaintiff filed a cross-motion combined with its opposition to

defendant’s motion on June 9, 2014. Pl.’s Cross-Mot. for Summ. J. [Dkt. # 21] (“Pl.’s Mot.”);

Pl.’s Mem. Plaintiff claims that defendant failed to conduct an adequate search for responsive

records and that its reliance on most of the FOIA exemptions it claims is improper. Pl.’s Mem.

The IRS filed a cross-opposition combined with a reply on July 28, 2014, Def.’s Reply, and

plaintiff filed a cross-reply on August 22, 2014. Reply in Supp. of Pl.’s Mot. [Dkt. # 30] (“Pl.’s

Reply”).

The Court finds that defendant’s search for records responsive to items one and two of the

FOIA request was adequate, and that its withholdings under Exemption 5 were proper. But

defendant has not described an adequate search for records responsive to items three and four of

the request, and it will therefore be ordered to do more.

Defendant’s response to items three and four also raises the question of whether Executive

Branch requests for “return information” are themselves “return information” that cannot be

disclosed. The Court finds that defendant properly deemed the “tax check” records it identified as

potentially responsive to items three and four to be “return information” that should be withheld

under FOIA Exemption 3 and section 6103, but the Court does not agree that any other records

responsive to these requests would necessarily be exempt from disclosure. In other words, it is

not at all clear that all Executive Branch requests for “return information” can be characterized as

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“return information” that is factual in nature and shielded from disclosure by the taxpayer

confidentiality statute.

Finally, the Court finds that the failure to search for records responsive to items five and

six was not justified by any FOIA exemption. Therefore, the Court will grant both parties’ motions

in part and deny them in part, and it will remand the case to the IRS to conduct an adequate search

for records responsive to items three through six of plaintiff’s FOIA request, and to release any

reasonably segregable, non-exempt information to plaintiff.

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency’s action de novo and “the burden is

on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord 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).

On a motion for summary judgment, the Court “must view the evidence in the light most

favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making

credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706

(D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But where

a plaintiff has not provided evidence that an agency acted in bad faith, “a court may award

summary judgment solely on the basis of information provided by the agency in declarations.”

Moore, 601 F. Supp. 2d at 12.

ANALYSIS

FOIA requires government agencies to release records upon request in order to “ensure an

informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

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Rubber Co., 437 U.S. 214, 242 (1978). But because “legitimate governmental and private interests

could be harmed by [the] release of certain types of information,” Congress provided nine specific

exemptions to the disclosure requirements. FBI v. Abramson, 456 U.S. 615, 621 (1982); see also

Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance

struck by Congress between the public’s right to know and the government’s legitimate interest in

keeping certain information confidential.”). These nine FOIA exemptions are to be construed

narrowly. Abramson, 456 U.S. at 630.

To prevail in a FOIA action, an agency must, first, demonstrate that it has 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 Army, 920 F.2d 57, 68

(D.C. Cir. 1990). And, second, the agency must show that “materials that are withheld . . . fall

within a FOIA statutory exemption.” Leadership Conference on Civil Rights v. Gonzales, 404 F.

Supp. 2d 246, 252 (D.D.C. 2005), citing Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983).

The FOIA requests in this case all reference 26 U.S.C. § 6103, the provision of the Internal

Revenue Code that was enacted to preserve taxpayer privacy. See Tax Analysts v. IRS, 117 F.3d

607, 611 (D.C. Cir. 1997). Subsection (a) sets forth the general proposition that returns and return

information shall be confidential, and subsection (b) defines the key terms in the statute. 26 U.S.C.

§ 6103(a)–(b). The provisions that follow delineate the exceptions to the confidentiality rule,

including the disclosure of returns and return information to the designee of the taxpayer, 26 U.S.C.

§ 6103(c), certain disclosures to state government officials, id. § 6103(d), certain disclosures “to

persons having a material interest,” id. § 6103(e), disclosures pursuant to written requests by

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certain members of Congress, id. § 6103(f), and disclosures to the President, to executive officials,

or to the heads of federal agencies. Id. § 6103(g). 2

I. Defendant describes an adequate search for records responsive to items one and two

of plaintiff’s FOIA request, but not for records responsive to items three and four.

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt

that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena

v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999), quoting Truitt v. Dep’t of State, 897 F.2d

540, 542 (D.C. Cir. 1990); see also Oglesby, 920 F.2d at 68; Weisberg, 705 F.2d at 1351. To

demonstrate that it has performed an adequate search for records responsive to a FOIA request, an

agency must submit a reasonably detailed affidavit describing the search. Oglesby, 920 F.2d at 68

(finding summary judgment improper where agency’s affidavit lacked sufficient detail); see also

2 Section 6103(g) provides, in part:

(1) In general.--Upon written request by the President, signed by him

personally, the Secretary shall furnish to the President, or to such employee

or employees of the White House Office as the President may designate by

name in such request, a return or return information with respect to any

taxpayer named in such request.

***

(2) Disclosure of return information as to Presidential appointees and

certain other Federal Government appointees.--The Secretary may

disclose to a duly authorized representative of the Executive Office of the

President or to the head of any Federal agency, upon written request by the

President or head of such agency, or to the Federal Bureau of Investigation

on behalf of and upon written request by the President or such head, return

information with respect to an individual who is designated as being under

consideration for appointment to a position in the executive or judicial

branch of the Federal Government.

***

Within 3 days of the receipt of any request for any return information with

respect to any individual under this paragraph, the Secretary shall notify

such individual in writing that such information has been requested under

the provisions of this paragraph.

26 U.S.C. § 6103(g).

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Defenders of Wildlife v. U.S. Border Patrol (Defenders II), 623 F. Supp. 2d 83, 91–92 (D.D.C.

2009) (same). A declaration is “reasonably detailed” if it “set[s] forth the search terms and the

type of search performed, and aver[s] that all files likely to contain responsive materials (if such

records exist) were searched.” Oglesby, 920 F.2d at 68; see also Defenders II, 623 F. Supp. 2d at

91–92 (finding declaration deficient where it failed to detail the types of files searched, the filing

methods, and the search terms used). In addition, an affidavit should include the “rationale for

searching certain locations and not others.” Defenders II, 623 F. Supp. 2d at 92; see also Nat’l

Sec. Counselors v. CIA, 849 F. Supp. 2d 6, 11 (D.D.C. 2012) (holding affidavit was sufficient

where it “outline[d] with reasonable detail the CIA’s decision to limit the search” to a particular

area).

An agency’s declarations “need not ‘set forth with meticulous documentation the details of

an epic search for requested records,’” Defenders II, 623 F. Supp. 2d at 91, quoting Perry v. Block,

684 F.2d 121, 127 (D.C. Cir. 1982), but they should “describe what records were searched, by

whom, and through what processes.” Id., quoting Steinberg v. DOJ, 23 F.3d 548, 552 (D.C. Cir.

1994). Conclusory assertions about the agency’s thoroughness are not sufficient. See Morley v.

CIA, 508 F.3d 1108, 1121–22 (D.C. Cir. 2007) (finding agency’s “single, conclusory affidavit” to

be inadequate), quoting Perry, 684 F.2d at 128. At the same time, however, where an “affidavit

could in theory be more detailed, that fact alone does not warrant denying summary judgment in

favor of” a defendant. White v. DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012). Agency affidavits

attesting to a reasonable search “are afforded a presumption of good faith” that “can be rebutted

only ‘with evidence that the agency’s search was not made in good faith.’” Defenders of Wildlife

v. U.S. Dep’t of Interior (Defenders I), 314 F. Supp. 2d 1, 8 (D.D.C. 2004), first citing SafeCard

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Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and then quoting Trans Union LLC v.

FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001).

Defendant submitted an affidavit by Denise Higley, a Tax Law Specialist assigned to the

IRS’s Headquarters Freedom of Information Act group, describing the agency’s search for records

responsive to items one through four of plaintiff’s request. 3 Higley Decl. Plaintiff argues that the

Higley declaration is insufficiently detailed and does not describe an adequate search. 4 Pl.’s Mem.

at 29–33; Pl.’s Reply at 11–16. The Court finds that the Higley declaration does describe a search

that was adequate with respect to items one and two of the FOIA request, but not with respect to

items three and four.

A. The search for records responsive to items one and two was adequate.

Items one and two of plaintiff’s FOIA request sought records pertaining to any FOIA

requests or lawsuits relating to section 6103(g) of the Internal Revenue Code. FOIA Req. at 2.

3 The IRS did not conduct a search for records responsive to items five and six of plaintiff’s

request. Def.’s Mem. at 21; Higley Decl. ¶ 24.

4 In its opening brief, plaintiff also contended that the search described in the Higley

declaration was insufficient because it did not uncover documents related to a 2012 FOIA request

by another organization, Citizens for Responsibility and Ethics in Washington (“CREW”), and

because it construed item four of the request too narrowly by limiting the search to requests for

“tax checks” under section 6103(c). Pl.’s Mem. at 32–33. The IRS responded that the CREW

request did not involve section 6103(g), and so any records associated with the CREW request

would not be responsive to items one or two of the FOIA request at issue here. Def.’s Reply at

20; see also Decl. of Jennifer Black in Supp. of Def.’s Mot. [Dkt. # 26-3] ¶ 3. Defendant also

pointed out that, in fact, the Higley declaration indicates that the search for records responsive to

items three and four was not limited to “tax checks.” Def.’s Reply at 20–21; see also Higley Decl.

¶¶ 17–21. Plaintiff did not contest this evidence or address these points further in its reply brief,

and so the Court finds that it has conceded these arguments. See Hopkins v. Women’s Div., Gen.

Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this

Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004); see also Lewis v. District of

Columbia, No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. 2011).

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Higley explains that at the time she began searching for records, she was aware that plaintiff had

previously submitted a FOIA request pertaining to section 6103(g) in March of 2012, and she

determined that records related to the March 2012 request would be responsive to the October

2012 request at issue here. Higley Decl. ¶¶ 5, 7. Higley retrieved all records related to plaintiff’s

March 2012 request from the IRS’s Automated Freedom of Information Act (“AFOIA”) database,

which is “the image-based document management system used by the Office of Privacy,

Governmental Liaison and Disclosure to process FOIA requests.” Id. ¶¶ 7–8.

Higley learned that plaintiff had filed a lawsuit related to its March 2012 FOIA request in

October 2012. 5 Higley Decl. ¶ 9. She worked with the attorney in the Office of Chief Counsel

who was handling that lawsuit, Deborah Lambert-Dean, to conduct an additional search for records

that might be responsive to items one and two of the instant request, and the two searched the

AFOIA database, as well as the Electronic Disclosure Information System (“E-DIMS”) database,

the predecessor database to AFOIA. Id. ¶¶ 8–10 & n.1. Those databases were searched using the

terms “6103g, White House, President of the United States, POTUS, Barack, Obama, George, and

Bush” in a manner that would have returned records containing any one of those terms. Id. ¶ 10

& n.3. The only responsive records that this search revealed pertained to plaintiff’s March 2012

FOIA request and the associated lawsuit. Id. ¶ 10.

Higley reviewed those records, consulted with her colleagues, and identified the

individuals who were involved with plaintiff’s March 2012 FOIA request and might therefore

possess responsive records. Higley Decl. ¶ 11. She directed each of those individuals to conduct

a search for records that would be responsive to items one and two of the request at issue in this

case. Id.

5 Cause of Action v. IRS, No. 12-cv-1633 (RLW) (D.D.C. dismissed Dec. 5, 2012).

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Based on the records she received from those searches, and upon consultation with

Lambert-Dean, Higley determined that the IRS Media Relations Office and the IRS Office of

Appeals might possess responsive records. Higley Decl. ¶ 12. She sent those offices a copy of

plaintiff’s request and a memorandum directing them to search for records responsive to items one

and two. Id. She also requested a copy of the appeal letter related to plaintiff’s March 2012 FOIA

request from the Office of Appeals. Id. Based on the response she received from the Media

Relations Office, she sent a copy of plaintiff’s request and a search memorandum to the IRS Office

of Communications and Liaison. Id. Higley followed the trail of the records yielded by those

searches, and she determined that specific individuals in the Office of Privacy, Governmental

Liaison, and Disclosure might also possess records responsive to items one and two. Id. ¶ 13. She

forwarded plaintiff’s request to them and asked them to search for records responsive to items one

and two. Id.

Higley states that she received responses from everyone to whom she sent a search request,

and that she determined that plaintiff’s March 2012 request was the only FOIA request the IRS

had received relating to section 6103(g). Id. ¶¶ 14–15. In total, she found 790 pages of responsive

documents, made redactions to 289 pages, and identified 6 pages to be withheld in full. 6 Id. ¶ 16.

The parties do not dispute that, “[i]n cases where documents are collected from several

different offices, unit-specific descriptions are not required, and the affidavit of the officer

ultimately responsible for the supervision of the FOIA search is sufficient.” Trans Union, 141 F.

6 The IRS’s initial response to plaintiff erroneously stated that there were 796 pages

responsive to items one and two of plaintiff’s FOIA request, but the correct number was in fact

790. Def.’s Mem. at 4; Higley Decl. ¶ 16. During the pendency of this case, the IRS identified

three additional pages of records responsive to the first two items in plaintiff’s FOIA request,

bringing the total number of pages to 793. Def.’s Mem. at 4.

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Supp. 2d at 68–69; see also Judicial Watch, Inc. v. U.S. Dep’t of Health & Human Servs. (Judicial

Watch v. HHS), 27 F. Supp. 2d 240, 244 (D.D.C. 1998) (“Unit-specific descriptions are not

required, at least where plaintiff has failed to raise some issue of fact necessitating rebuttal.”).

Nevertheless, plaintiff argues that the Higley declaration is inadequate because it does not provide

enough information about each of the individual searches that was performed and the people who

performed them. Pl.’s Mem. at 30–32; Pl.’s Reply at 11–15.

But the Higley declaration devotes five pages to describing a comprehensive search for

records responsive to items one and two, including the specific terms she used to search AFOIA,

the review of responsive records, and the process of identifying and issuing search memoranda to

individuals and offices that were likely to possess additional records. See Higley Decl. ¶¶ 7–16;

see also Judicial Watch v. HHS, 27 F. Supp. 2d at 244 (“[T]he declaration’s five-page overview

of the search effort is adequate to support the reasonableness of the search.”). The Court finds that

the description provided in the declaration is sufficient to indicate “what records were searched,

by whom, and through what processes” with respect to items one and two of the request. See

Defenders II, 623 F. Supp. 2d at 91, quoting Steinberg, 23 F.3d at 552. Moreover – and contrary

to plaintiff’s allegations, see Pl.’s Mem. at 30; Pl.’s Reply at 11–12 – Higley avers that she

“searched all of the sources and databases that might reasonably contain responsive records.”

Higley Decl. ¶ 28; see also Oglesby, 920 F.2d at 68. In light of the sufficiently detailed description

provided in the affidavit, as well as the absence of any indication that the search was conducted in

bad faith, the Court concludes that defendant’s search for records responsive to items one and two

of plaintiff’s FOIA request was adequate. See Defenders I, 314 F. Supp. 2d at 8.

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B. The search for records responsive to items three and four was not adequate.

Items three and four of plaintiff’s FOIA request sought records related to requests for

“taxpayer or ‘return information’” by anyone in the Executive Office of the President that were

not made pursuant to section 6103(g). FOIA Req. at 2. Higley states that, based on her own

experience and in consultation with Lambert-Dean and Gary Prutsman, the Associate Director of

the Disclosure Office, she determined that “correspondence between the IRS and the Executive

Office of the President [was] most likely maintained by the Office of Legislative Affairs,” and that

the Services and Enforcement Office, the Small Business/Self Employed function, the IRS Media

Relations Office, and the Office of the Commissioner might also possess responsive documents.

Higley Decl. ¶¶ 10, 17–18. She issued search memoranda to all but one of those offices requesting

that they search for records responsive to plaintiff’s FOIA request. 7 Id. ¶¶ 19–20. Higley received

responses to all of the search memoranda she issued, but none of the offices found any records

related to plaintiff’s request. Id. ¶ 21.

Higley conferred with her colleagues, and obtained annual IRS reports to Congress for the

dates in question “regarding disclosures of return information within the Federal government.”

Higley Decl. ¶ 22. She determined from these reports that there had been “a number of requests

for ‘tax checks’” that could be responsive to plaintiff’s request. Id. ¶ 23. “‘Tax checks,’” she

explains, “are requests for the return information of individuals under consideration for

employment within the Executive Branch or appointment by the President” that are made with the

written consent of the candidate under 26 U.S.C. § 6103(c). Id. ¶ 23. Higley did not conduct a

7 Higley did not issue a search memorandum to the Small Business/Self Employed function

because it had already informed her by email that it would not have any responsive records. Higley

Decl. ¶ 19.

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search for “tax checks” and related records because she determined that they were exempt from

disclosure under FOIA Exemption 3 and section 6103(a). Id.

The Court finds that the description of the search for records responsive to items three and

four of the request is not adequate. Higley provides no explanation for her conclusion that records

of requests made by the Executive Branch would be located in the Office of Legislative Affairs or

in any of the other offices she named, or why they would not be elsewhere. See Higley Decl.

¶¶ 17–18. Also, this portion of the FOIA request sought a broad range of records – those related

to requests for “taxpayer or ‘return information’” by the Executive Office of the President that

were not made pursuant to section 6103(g), FOIA Req. at 2 – and Higley’s failure to identify any

key words or search terms that were used, or to describe the types of searches that were performed

in any detail, undermines any claim that the search was “reasonably calculated to uncover all

relevant documents.” See Valencia-Lucena, 180 F.3d at 325, quoting Truitt, 897 F.2d at 542.

Therefore, the Court finds that defendant has not carried its burden to show that the search for

records responsive to items three and four of plaintiff’s request was adequate.

II. Defendant’s withholdings under Exemption 5 were proper.

The IRS redacted and withheld records responsive to items one and two of plaintiff’s FOIA

request pursuant to FOIA Exemption 5, Def.’s Mem. at 28–36, which permits agencies to withhold

“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.” 8 5 U.S.C. § 552(b)(5); see also U.S.

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (holding that a

record may be withheld under Exemption 5 only if “its source [is] . . . a [g]overnment agency, and

8 In addition, defendant redacted the personal phone numbers of employees from the records

produced to plaintiff, citing FOIA Exemption 6. Def.’s Mem. at 37. Plaintiff does not object to

this withholding. Pl.’s Mem. at 19 n.2.

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it . . . fall[s] within the ambit of a privilege against discovery under judicial standards that would

govern litigation against the agency that holds it”). In support of these withholdings, defendant

has supplied two declarations by Francis McCormick, an attorney in the IRS’s Office of Chief

Counsel. Decl. of Francis McCormick in Supp. of Def.’s Mot. [Dkt. # 16-4] (“McCormick Decl.”);

1st Supplemental Decl. of Francis McCormick in Supp. of Def.’s Mot. [Dkt. # 26-2] (“Supp.

McCormick Decl.”). Although plaintiff concedes that the records at issue here qualify as “inter-

agency or intra-agency memorandums or letters” within the meaning of Exemption 5, Pl.’s Mem.

at 23 n.3, plaintiff contends that defendant has not adequately justified its reliance on Exemption

5, and requests that the Court conduct an in camera review of the 289 pages defendant has released

with redactions. 9 Id. at 22–29. But the Court finds that plaintiff’s reliance on Exemption 5 is

appropriate and that in camera review is therefore unnecessary.

A. Legal Standard

Exemption 5 “encompass[es] the protections traditionally afforded certain documents

pursuant to evidentiary privileges in the civil discovery context,” including the attorney-client

privilege, the attorney work-product privilege, and the executive “deliberative process” privilege.

Taxation with Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). The agency

seeking to withhold a document bears the burden of showing that a FOIA exemption applies.

Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir.

2000).

9 Plaintiff’s request for in camera review of the 289 redacted pages does not appear to

include the additional 6 pages that defendant withheld in full. See Pl.’s Mem. at 28 (“[G]iven the

relatively modest 289 pages that Defendant has attempted to withhold under Exemption 5, in

camera review would not be onerous.”).

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1. Deliberative Process Privilege

“The deliberative process privilege rests on the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery,” and its

purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion

among those who make them within the Government.” Klamath, 532 U.S. at 8–9, quoting NLRB

v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), and citing EPA v. Mink, 410 U.S. 73, 86–87

(1973). Thus, the privilege only “protects agency documents that are both predecisional and

deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006); accord McKinley

v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011). “[A] document [is]

predecisional if ‘it was generated before the adoption of an agency policy’ and deliberative if ‘it

reflects the give-and-take of the consultative process.’” Judicial Watch, Inc. v. FDA, 449 F.3d at

151, quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

Records fall within the scope of the deliberative process privilege “only if they ‘reflect[]

advisory opinions, recommendations, and deliberations comprising part of a process by which

governmental decisions and policies are formulated, [or] the personal opinions of the writer prior

to the agency’s adoption of a policy.’” Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d

865, 875 (D.C. Cir. 2009), quoting Taxation with Representation Fund, 646 F.2d at 667. Records

that do not provide advice to a superior, suggest the disposition of a case, discuss the relative pros

and cons of a specific approach, or constitute “one step of an established adjudicatory process” are

not deliberative. See Coastal States, 617 F.2d at 868. It is incumbent upon the agency to establish

“what deliberative process is involved, and the role played by the documents in issue in the course

of that process.” Id. at 869, citing Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975); accord

Senate of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 585–86 (D.C. Cir. 1987).

15

2. Attorney Work Product Privilege

The attorney work product privilege protects materials that reflect the “mental processes

of the attorney,” Klamath, 532 U.S. at 8, quoting United States v. Nobles, 422 U.S. 225, 238 (1975),

when the materials were “prepared in anticipation of litigation or for trial.” Judicial Watch, Inc.

v. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005), quoting Fed. R. Civ. P. 26(b)(3). An agency can

satisfy the “anticipation of litigation” standard by “demonstrating that one of its lawyers prepared

a document in the course of an investigation that was undertaken with litigation in mind,” even if

no specific lawsuit has begun. SafeCard Servs., 926 F.2d at 1202.

3. Attorney-Client Privilege

The attorney-client privilege protects confidential communications from clients to their

attorneys made for the purpose of securing legal advice or services, and “is not limited to

communications made in the context of litigation or even a specific dispute.” Coastal States, 617

F.2d at 862. The privilege also protects communications from attorneys to their clients that “rest

on confidential information obtained from the client.” Tax Analysts, 117 F.3d at 618, quoting In

re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984); see also Mead Data Cent., Inc. v. U.S. Dep’t of

Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977). In the FOIA context, the agency is the “client”

and the agency’s lawyers are the “attorneys” for the purposes of the attorney-client privilege. See

In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998), citing Coastal States, 617 F.2d at 863.

B. Defendant’s Withholdings

Of the 793 pages of records that defendant identified as responsive to items one and two

of plaintiff’s request, defendant withheld 289 pages in part and 6 pages in full. Pl.’s Mem. at 4;

McCormick Decl. ¶ 8. Defendant asserts that these withholdings are justified by FOIA Exemption

5, invoking the deliberative process privilege, the attorney work product privilege, and the

16

attorney-client privilege. Def.’s Mem. at 29. Plaintiff contends that defendant has not adequately

justified its reliance on any of these privileges. Pl.’s Mem. at 23.

The material defendant withheld falls into three general categories: (1) records related to

defendant’s media response to a press release issued by plaintiff on October 2, 2012, in connection

with its October 2012 FOIA lawsuit; (2) records related to defendant’s litigation response to

plaintiff’s October 2012 FOIA lawsuit; and (3) records related to defendant’s “calendar year 2009

reports to the Joint Committee on Taxation under 26 U.S.C. § 6103.” McCormick Decl. ¶ 18.

Defendant contends that all of these records are protected by the deliberative process privilege,

and that some of them are also protected by the attorney work product and attorney-client

privileges. Def.’s Mem. at 33–36 & n.11; McCormick Decl. ¶ 18. The Court finds that these

records fall under the deliberative process privilege, with the exception of one record, which falls

under the attorney work product privilege. Therefore, defendant’s withholdings and redactions

were appropriate.

1. Records Related to Defendant’s Media Response

Defendant has carried its burden to show that all of the redacted records related to the media

response are protected by the deliberative process privilege. Despite plaintiff’s protestations to

the contrary, see Pl.’s Mem. at 24, “Exemption 5 has indeed been found to cover agency

deliberations about how to respond to media inquiries” as long as the deliberations are

“predecisional.” Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 100, 118 (D.D.C. 2014)

(collecting cases). In this case, the withheld portions of the records precede the finalization of the

IRS’s media response. Def.’s Mem. at 32; McCormick Decl. ¶ 18(a). In addition, defendant’s

declaration makes it plain that the redacted material is deliberative because it “reflect[s] the give-

and-take” of the consultative process, see Judicial Watch, Inc. v. FDA, 449 F.3d at 151 (citation

17

omitted), including discussions between the IRS Office of Media Relations and the IRS Office of

Chief Counsel, leading up to a “governmental decision[]” about the IRS’s public position with

respect to the issues raised in plaintiff’s press release. 10 See Public Citizen, 598 F.3d at 875

(citation omitted); see also Supp. McCormick Decl. ¶ 3 (attesting that “[i]t is the standard practice

of the Office of Media Relations” to consult the Office of Chief Counsel “prior to commenting on

a matter related to pending litigation”). Defendant has therefore carried its burden to show that

the deliberative process privilege applies to the records related to the media response.

2. Records Related to Defendant’s Litigation Response

In addition, defendant has established that the deliberative process privilege applies to all

but one of the records related to its litigation response to plaintiff’s October 2012 FOIA lawsuit.

10 See McCormick Decl. ¶¶ 16, 18(b) (describing “an e-mail message . . . from [Senior

Counsel in the IRS Office of Chief Counsel A.M.] Gulas to [Public Affairs Specialist in the IRS

Office of Media Relations] Dean Patterson providing . . . strategic recommendations (not involving

legal analysis) regarding the IRS response to the October 2, 2012, press release”); id. ¶ 18(e)(i)

(“The redacted lines in the email messages . . . contain a draft IRS media response for review and

comment.”); id. ¶ 18(f)(i) (“The redacted lines in these e-mail messages convey . . . information . . .

regarding the IRS’ possible strategy in responding to the October 2, 2012, press release, as well as

opinions regarding the impact of that press release.”); id. ¶ 18(h)(i) (“The redacted lines in this e-

mail message . . . convey a question by John Davis regarding the development of the IRS response

to the October 2, 2012, press release.”); id. ¶ 18(l) (describing an “email message . . . concerning

advice from the IRS Office of Chief Counsel regarding development of the IRS response to the

October 2, 2012 press release); id. ¶¶ 11, 18(d), 18(n)(i) (“The redacted lines in the e-mail

messages . . . convey . . . statements from [Supervisory Public Affairs Specialist in the IRS Office

of Media Relations] Michelle Eldridge to attorney [and Branch Chief, IRS Office of Chief Counsel

(Procedure and Administration) Richard] Goldman regarding the development of the IRS’

response to the October 2, 2012, press release, as well as draft IRS statements and revisions.”); id.

¶ 18(o)(i) (“The redacted lines in the e-mail message . . . contain a draft IRS media response for

review and comment.”); id. ¶ 18(p)(i) (“The redacted lines in the e-mail messages . . . contain draft

IRS statements and revisions.”); id. ¶¶ 16(a)(i), 18(q)(i) (“The redacted lines convey . . . strategic

advice (not involving legal analysis) from attorney Gulas to [Chief, IRS Communications &

Liaison] Frank Keith concerning the IRS response to the press release.”); id. ¶¶ 18(d), 18(r)(i)

(“The redacted lines in the e-mail message . . . convey . . . strategic advice (not involving legal

analysis) from attorney [and Senior Technician Reviewer, Office of Chief Counsel (Procedure and

Administration) Donald] Squires to [Associate Director, Disclosure Office] Gary Prutsman

concerning the IRS response to the press release.”).

18

The redacted portions of these records precede agency decisions about litigation strategy, including

what recommendations the IRS would make to its attorneys in the Department of Justice (“DOJ”)

Tax Division, who had not yet taken action in the case at the time. Def.’s Mem. at 32–34. As with

the media-related materials, defendant’s declaration demonstrates that the withheld materials, with

one exception, contain “the give-and-take” of the consultative process, see Judicial Watch, Inc. v.

FDA, 449 F.3d at 151 (citation omitted), with respect to those “governmental decisions.” 11 See

Public Citizen, 598 F.3d at 875 (citation omitted). There is also some overlap between the media-

related and litigation strategy-related withholdings. 12

11 See McCormick Decl. ¶ 18(a)(ii) (“The redacted lines in the e-mail messages . . . contain

the opinions and recommendations of attorneys Gulas and Lambert-Dean in development of the

IRS Office of Chief Counsel recommendations to the Department of Justice Tax Division

regarding the October 2, 2012 FOIA suit.”); id. ¶ 18(d)(i) (“The redacted lines in this e-mail

message contain a . . . description of possible recommendations to the Department of Justice

regarding litigation strategy with respect to the October 2, 2012, FOIA suit.”); id. ¶¶ 18(i), 18(i)(i)

(“The redacted lines contain questions from attorney Goldman to attorneys [Sarah] Tate and

Squires concerning development of the IRS Office of Chief Counsel recommendations to the

Department of Justice Tax Division regarding the October 2, 2012 FOIA suit.”); id. ¶ 18(j)(i) (“The

redacted lines contain a statement of an opinion about the IRS litigating position in the October 2,

2012, FOIA suit in light of the IRS response to the October 2, 2012 press release.”); id. ¶ 18(k)(i)

(“The redacted lines in the e-mail messages . . . contain statements and questions about issues

regarding the IRS litigating position in the October 2, 2012, FOIA lawsuit.”); id. ¶¶ 18(c), 18(m)(i)

(“The redacted lines in the e-mail message . . . convey a question, comments, and opinions from

attorney Lambert-Dean to [DOJ Tax Division Trial Attorney Carmen] Banerjee about the March

2012 FOIA request in the context of developing the IRS litigating position in the October 2, 2012,

FOIA suit.”). The Court notes that defendant has not fully identified attorney Sarah Tate in its

pleadings or declarations, but this oversight is not material to this decision.

12 See, e.g., McCormick Decl. ¶ 18(a)(i)(“The redacted lines in the e-mail messages . . .

describe the . . . strategic advice (not involving legal analysis) that attorney Gulas had previously

given . . . during the development of the IRS media response . . . [and] communications that

attorney Gulas had with attorneys at the Department of Justice . . . regarding the development of

the IRS media response with respect to litigation concerns.”); id. ¶ 18(c) (describing e-mail

messages between attorney Gulas and three DOJ attorneys with “redacted text [that] discusses the

development of the IRS response to the October 2, 2012, press release in light of the October 2,

2012, FOIA suit . . . as well as discussions of litigation strategy.”).

19

The remaining withholding falls squarely within the attorney work product privilege.

Paragraph 18(a)(iii) of the McCormick declaration provides: “The redacted lines in the e-mail

message . . . contain information regarding attorney Gulas’ investigation regarding the March 2012

FOIA request, which attorney Gulas conducted after plaintiff filed its October 2012 FOIA suit.”

McCormick Decl. ¶ 18(a)(iii). It further states that “[t]he withheld information involves

discussions amongst [Office of Chief] Counsel attorneys regarding active FOIA litigation with the

plaintiff.” Id. Even if it does not fall within the deliberative process privilege, the withheld

material contains details about an investigation undertaken by an IRS attorney with respect to

plaintiff’s then-pending 2012 FOIA lawsuit, see Judicial Watch, Inc. v. DOJ, 432 F.3d at 369, and

it indicates that the redacted material reflects the “mental processes” of Office of Chief Counsel

attorneys regarding active litigation. See Klamath, 532 U.S. at 8, quoting Nobles, 422 U.S. at 238.

Thus, the Court finds that the redactions described in paragraph 18(a)(iii) of the McCormick

declaration are protected by the attorney work product privilege and were properly withheld on

that basis. 13

3. Records Related to Defendant’s Calendar Year 2009 Reports to the Joint

Committee on Taxation

In addition to the documents related to the IRS’s response to plaintiff’s 2012 press release

and FOIA lawsuit, defendant’s declaration indicates that it withheld certain “administrative

materials concerning the development of the IRS calendar year 2009 reports to the Joint

Committee on Taxation under 26 U.S.C. § 6103.” McCormick Decl. ¶ 18(g). Plaintiff has not

13 Because the Court has determined that all of the litigation strategy-related redactions are

justified by the deliberative process privilege or the attorney work product privilege, it need not

consider whether the attorney-client privilege might also apply, or whether the attorney work

product privilege applies to the information that was properly withheld under the deliberative

process privilege.

20

contested this withholding beyond its blanket assertion that “the IRS has failed to provide

adequately specific justifications for its deliberative process withholdings.” Pl.’s Reply at 8.

Defendant’s explanation for its withholdings with respect to this record – that “it contains

draft documents for consideration by the Commissioner, rather than final versions of those

documents,” McCormick Decl. ¶ 18(g)(i) – sufficiently indicates that the deliberative process

privilege applies. Thus, in the absence of any other objection by plaintiff, the Court finds that the

redactions described in paragraph 18(g) of the McCormick declaration are appropriate.

III. Defendant has not established that all of its withholdings under Exemption 3 and

section 6103 were justified.

The IRS takes the position that “[a]ll of the requests for return information described in

items 3 through 6” of plaintiff’s request “would themselves be return information protected from

disclosure under Section 6103(a) and Exemption (b)(3).” Def.’s Mem. at 12. For that reason,

defendant argues, it was not even required to search for records responsive to those portions of the

request. Id. at 11–16; see also Lehrfeld v. Richardson, 132 F.3d 1463, 1465 (D.C. Cir. 1998)

(holding that the IRS’s failure to search for particular records “was reasonable because those

documents were not subject to disclosure”).

Nevertheless, defendant did conduct a search for some records responsive to items three

and four of plaintiff’s FOIA request, Def.’s Mem. at 17 n.5, which sought records related to

requests by “anyone in the Executive Office of the President” for “taxpayer or ‘return

information’ . . . that were not made pursuant to § 6103(g).” FOIA Req. at 2. Through that search,

defendant identified “a number of requests for ‘tax checks,’” which are “requests for the return

information of individuals under consideration for employment within the Executive Branch or

appointment by the President” made under section 6103(c). Higley Decl. ¶ 23. Because defendant

determined that “tax checks” and related records would necessarily constitute “return

21

information,” it did not search further for those records. Id. And defendant did not search for any

records related to items five and six of the request. See Def.’s Mem. at 22.

The Court ordered the IRS to provide a representative sample of the “tax check” records

for in camera review. Minute Order (Aug. 3, 2015); see Arieff v. U.S. Dep’t of Navy, 712 F.2d

1462, 1469 (D.C. Cir. 1983) (“[T]he receipt of in camera affidavits . . . when necessary, [is] ‘part

of a trial judge’s procedural arsenal.’”), quoting United States v. Southard, 700 F.2d 1, 11 (1st Cir.

1983). Upon review of the records, the Court finds that “tax checks” and related records do

constitute “return information” and are therefore exempt from disclosure under FOIA Exemption

3 and 26 U.S.C. § 6103. But the Court does not agree that any and all records responsive to items

three through six of the FOIA request would necessarily constitute exempt “return information.”

For that reason, and because the Court has already determined that the search for records

responsive to items three and four of the request was inadequate, see supra § I(B), the Court will

remand the case to defendant so that it may conduct an adequate search for records responsive to

items three through six and release all reasonably segregable, non-exempt information to plaintiff.

A. Legal Standard

FOIA Exemption 3 authorizes agencies to withhold information that is “specifically

exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). In response to items three through

six of the FOIA request, defendant invokes Exemption 3 by pointing to section 6103 of the Internal

Revenue Code, which requires that returns and return information be kept confidential subject to

certain exceptions. See 26 U.S.C. § 6103(a). “That § 6103 is the sort of nondisclosure statute

contemplated by FOIA exemption 3 is beyond dispute.” Tax Analysts, 117 F.3d at 611.

The “core purpose” of section 6103 is to “protect[] taxpayer privacy.” Id. at 615, citing

Church of Scientology of Cal. v. IRS, 484 U.S. 9, 16 (1987). It was amended into its current form

22

in 1976, “in the wake of Watergate and White House efforts to harass those on its ‘enemies list,’”

and it “restricts government officers and employees from revealing ‘any return’ or ‘return

information.’” Id. at 611. The definition of “return information” is very broad, and it includes:

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, is being, or will be examined or subject

to other investigation 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 the 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).

Although this definition does not lend itself to easy interpretation, courts agree that it

“reaches far beyond what the phrase ‘return information’ would normally conjure up.” Landmark

Legal Found. v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001); see also Hull v. IRS, 656 F.3d 1174,

1183 (10th Cir. 2011) (“The Code expansively defines return information . . . .”); Judicial Watch

v. Rossotti, 285 F. Supp. 2d 17, 29 (D.D.C. 2003) (“The terms ‘returns and return information’ are

broadly defined in [the] statute . . . .”). Still, the definition has limits. As the Court of Appeals

observed in Church of Scientology of California v. IRS, 792 F.2d 146 (D.C. Cir. 1986), aff’d, 484

U.S. at 18, “Congress would not have adopted such a detailed definition of return information in

Section 6103 if it had simply intended the term to cover all information in IRS files.” Id. at 151.

To qualify as “return information,” the information need not “identify a particular

taxpayer,” Church of Scientology, 484 U.S. at 15, but it must be “unique to a particular taxpayer,”

or “taxpayer-specific.” Tax Analysts, 117 F.3d at 614. “[T]he mere removal of identifying details”

does not alter the confidentiality of documents that constitute “return information.” Church of

Scientology, 484 U.S. at 15. At the same time, when a record that is not itself “return information”

23

contains both return information and non-return information, the non-return information can be

released if it is reasonably segregable. See, e.g., Tax Analysts, 117 F.3d at 616, 620 (holding that

the IRS could redact “true return information” from certain field memoranda, but that the legal

analyses contained in the memoranda were not exempt “return information”).

B. The “tax check”-related records responsive to items three and four of plaintiff’s

FOIA request constitute “return information.”

Items three and four of plaintiff’s FOIA request sought information related to

“communications by or from anyone in the Executive Office of the President constituting requests

for taxpayer or ‘return information’ . . . that were not made pursuant to § 6103(g),” FOIA Req. at

2, which is the subsection of the Code that authorizes a particular set of disclosures to the President

and other designated executive branch employees. See 26 U.S.C. § 6103(g).

Although it contends that it did not have to search for records responsive to items three and

four, Def.’s Mem. at 11–12, defendant did conduct a search, and it determined that the only

responsive records would be “tax checks” and related records. Id. at 17 n.5. Defendant

characterized these “tax checks” as “requests for the return information of individuals under

consideration for employment within the Executive Branch or appointment by the President” made

24

with the written consent of the individual pursuant to 26 U.S.C. § 6103(c). 14 Id.; Higley Decl.

¶ 23. Defendant claims that the records related to these requests, and the requests themselves, are

“return information.” Def.’s Mem. at 17.

After reviewing the sample of “tax checks” and related records supplied by the IRS, the

Court questions as a preliminary matter whether these records are responsive to this FOIA request

at all. The “tax check” document itself is a request made by a taxpayer – not by the Executive

Office of the President – who is asking the IRS to disclose certain aspects of his or her return

information to an individual in the Executive Office of the President. So it is not clear that these

records respond to plaintiff’s request for records related to “communications by or from anyone in

the Executive Office of the President.” See FOIA Req. at 2 (emphasis added).

But even if “tax checks” and records related to “tax checks” are responsive to the FOIA

request, the Court finds that they are exempt from disclosure under Exemption 3 and section 6103.

It is undisputed that any personally identifying information contained in the records related to “tax

checks” would constitute “return information” within the plain language of section 6103. See 26

U.S.C. § 6103(b)(2)(A) (defining “return information” to include “a taxpayer’s identity”); see also

14 In a notice filed nearly a year after the briefing in this case concluded, plaintiff objects for

the first time that section 6103(c) does not authorize disclosures to the Executive Office of the

President, and that, instead, “Congress clearly intended that the President perform tax checks

pursuant to 6103(g)(2).” Pl.’s Notice of Supplemental Authority [Dkt. # 45] at 2. Plaintiff further

contends that “there are no reporting requirements for 26 U.S.C. § 6103(c)” and that “the

Presidential circumvention mechanism for the unauthorized disclosure of taxpayer information

under 6103(c) has become so rampant that the IRS attempts compliance by reporting to [the

Congressional Joint Committee on Taxation] some ‘tax checks’ . . . leaving the taxpayer in the

dark about the actual nature of the tax checks the IRS is reporting.” Id. at 4 (footnote omitted).

Plaintiff appears to urge the Court to find that “[t]he President should not be allowed to trump the

specific restrictions of 6103(g) by invoking the broad consent provisions of 6103(c).” Id. at 6.

But none of these contentions – or the 59 pages of supporting materials attached by plaintiff as

exhibits to the notice – is germane to the question before the Court, which is whether the IRS has

complied with the requirements of the FOIA statute.

25

Pl.’s Mem. at 13 (“Plaintiff seeks information that can be reasonably segregated such that non-

personally identifying information could be disclosed.”). The parties differ, however, as to

whether the “tax check” records are, themselves, “return information,” or merely records that

contain “return information.”

The IRS contends that the “tax check” records fit within the catch-all “other data” provision

in the definition of “return information.” Def.’s Mem. at 17; see also 26 U.S.C. § 6103(b)(2)(A).

For any withholding under this provision – and therefore, Exemption 3 – to be proper, the records

must be: (1) data, (2) “received by, recorded by, prepared by, furnished to, or collected by the

Secretary,” (3) “with respect to a return or . . . to the determination of the existence, or possible

existence, of liability . . . of any person” under the Internal Revenue Code. 26 U.S.C.

§ 6103(b)(2)(A).

Plainly, any records responsive to items three and four of the request would have been

“received by, recorded by, prepared by, [or] furnished to” the Secretary of the Treasury. See id.

And a review of the records themselves shows that they relate both to returns 15 and to

determinations of the existence of liability of a taxpayer: the “tax check” requests seek information

about the individual taxpayer’s tax returns and tax liability, and the IRS’s responses convey that

information. See Landmark, 267 F.3d at 1136 (discussing “the extremely general character” of

the phrase “‘with respect to’”).

15 “The term ‘return’ means any tax or information return, declaration of estimated tax, or

claim for refund required by, or provided for or permitted under, the provisions of this title which

is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or

supplement thereto, including supporting schedules, attachments, or lists which are supplemental

to, or part of, the return so filed.” 26 U.S.C. § 6103(b)(1).

26

But are “tax checks” and affiliated records “data”? The text of the statute does not provide

an answer, and the limited case law interpreting the statute does not directly address the question

before the Court.

The D.C. Circuit has issued two opinions interpreting the term. See Tax Analysts, 117

F.3d 607; Landmark, 267 F.3d 1132. In Tax Analysts, the Court of Appeals considered whether

IRS Field Service Advice Memoranda (“FSAs”) constituted “return information” under section

6103. 117 F.3d at 608, 611–12. FSAs are issued by the IRS Office of Chief Counsel in response

to requests from field personnel for legal guidance, usually with respect to a specific taxpayer. Id.

at 608–09. The parties agreed that any FSAs related to individual taxpayers contained at least

some return information, and the dispute centered upon whether the IRS could properly withhold

the documents in their entirety under Exemption 3. Id. at 611. Specifically, the Court was asked

to decide: “Are the legal interpretations and analyses contained in the FSAs ‘any other data . . . ’?”

Id. at 612. If those portions were deemed to constitute “data,” then, in light of the Supreme Court’s

holding in Scientology, it would not matter whether the legal analyses identified any particular

taxpayer or not – they would be “return information” shielded by section 6103. Id.

The Court accorded the agency’s interpretation of the Internal Revenue Code the

heightened deference derived from Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), 16 but it concluded nonetheless: “[w]hile the IRS’s interpretation of

‘data’ in [section 6103] may be linguistically possible . . . it is not a permissible construction of

16 In this case, the IRS does not contend that its interpretation of section 6103 is owed

Chevron deference, nor does it claim that the Court should accord it a lessened degree of deference

under the Skidmore doctrine. Def.’s Reply at 8. Rather, defendant’s claims are “based on a direct

application of the Court’s holding in Scientology.” Id. The Scientology case established the

principle that “Congress did not intend [section 6103] to allow the disclosure of otherwise

confidential return information merely by the redaction of identifying details.” 484 U.S. at 16.

27

the statute in light of its structure and purposes.” Id. at 613, 616; see also id. at 614–15 (stating

that although “we cannot say that the term ‘data’ is incapable of bearing the meaning the IRS

ascribes to it,” the Court was “hard pressed to find any reason derived from § 6103 in favor of the

IRS’s interpretation”).

The Court went on to observe that the term “data” appears at the end of a list of items such

as “the taxpayer’s identity, income, payments, exemptions, liabilities, net worth and so forth” that

were “factual in nature.” Id. at 613–14. The Court made reference to the canon of statutory

construction that “limit[s] ‘general terms which follow specific ones to matters similar to those

specified,’” id. at 614, quoting Gooch v. United States, 297 U.S. 124, 128 (1936), and it determined

that, like the other terms listed in section 6013(b)(2)(A), the term “data” is meant to refer to

information that is “unique to a particular taxpayer.” Id. The Court concluded that the legal

analyses and conclusions were not “taxpayer-specific,” and therefore that they were not “return

information.” Id. at 615. The Court also stated that the IRS had failed to justify the argument that

“non-taxpayer-specific” information constituted “return information,” since withholding it “ha[d]

nothing to do with § 6103’s core purpose of protecting taxpayer privacy.” Id., citing Church of

Scientology, 484 U.S. at 16.

Here, by contrast, the “tax checks” and the documents generated in response to them are

taxpayer specific. So the Tax Analysts holding is not enough to carry the day for plaintiff, and that

conclusion remains the same even if the individual taxpayers’ identities can be redacted from the

material. See Tax Analysts, 117 F.3d at 612 (“If these portions of the FSAs are within the catchall

‘other data,’ the Supreme Court’s Scientology opinion makes it irrelevant whether the legal

analyses and conclusions themselves identify any individual taxpayers.”), citing Church of

28

Scientology, 484 U.S. at 18; see also Church of Scientology, 484 U.S. at 15 (“‘[R]eturn

information’ remains such even when it does not identify a particular taxpayer.”).

In Landmark, the D.C. Circuit looked at the language of section 6103 again. It determined

that the identities of third parties who contacted the IRS to request audits or investigations of

501(c)(3) tax-exempt organizations, as well as the contents of their communications with the

agency, constituted “data,” and therefore “return information,” that was exempt from disclosure.

267 F.3d at 1136–38. The Court found the identities of the third parties calling for the audits to be

“factual in nature,” id. at 1136 (emphasis in original), quoting Tax Analysts, 117 F.3d at 613–14,

concluding that since the catch-all phrase “other data” suggests that Congress regarded all of the

preceding items, including the taxpayer’s identity, to be data, a third-party complainer’s identity

would also qualify. Id. Furthermore, the Court stated, “revelation of any third-party complainer

‘identity’ expresses the factual proposition that the person identified has communicated with the

IRS about the status of a taxpayer or a potential taxpayer.” Id.

The Court also concluded that the contents of the third parties’ letters were “data” because

they “characteristically assert[ed] obviously factual propositions.” Id. at 1137. Moreover, even

the “exhortational” parts of the communications were still “unique to a particular taxpayer,” which

was “the factor [the Court] used in Tax Analysts to help distinguish between non-disclosable facts

and disclosable legal conclusions.” Id., citing Tax Analysts, 117 F.3d at 614. Noting that the Tax

Analysts opinion “rested primarily on the distinction between facts, which are ‘data,’ and legal

analysis, which we held was not,” the Court declined to decide whether “propositions that were

neither factual nor legal” constituted “data.” Id. at 1138. But the Court concluded that “the

taxpayer-specific character of the entirety of these communications points under Tax Analysts

toward their classification as ‘data.’” Id., citing Tax Analysts, 117 F.3d at 614.

29

In light of these cases, the Court finds that the “tax checks” and related records constitute

“data” within the meaning of section 6103. First of all, unlike the legal conclusions at issue in Tax

Analysts, all of these records are unquestionably taxpayer-specific: they relate to requests for the

“taxpayer or ‘return information’” of individual candidates for Executive Branch employment or

presidential appointment. FOIA Req. at 2; see Tax Analysts, 117 F.3d at 614; Landmark, 267 F.3d

at 1137. Indeed, the very existence of these records is “unique” to the individual taxpayer in

question. See Landmark, 267 F.3d at 1137–38. Second, although the question is closer, the Court

finds that it is bound by the decision in Landmark to hold that these records are sufficiently “factual

in nature” to be data; they assert the “obviously factual propositions” that a person was under

consideration for Executive Branch employment, that he or she requested that confidential return

information be disclosed to the Executive Office of the President, and that the IRS responded. See

id. at 1137; see also id. at 1136 (“[R]evelation of any third-party complainer ‘identity’ expresses

the factual proposition that the person identified has communicated with the IRS about the status

of a taxpayer or potential taxpayer.”); 26 U.S.C. § 6103(c) (providing that the Secretary of the

Treasury may release the taxpayer’s return information “to such person or persons as the taxpayer

may designate in a request for or consent to such disclosure”). Following the available precedent,

the Court concludes that “the taxpayer-specific character of the entirety of these [tax check]

communications points under Tax Analysts toward their classification as ‘data.’” See Landmark,

267 F.3d at 1138, citing Tax Analysts, 117 F.3d at 614. Therefore, the “tax checks” and related

records constitute “return information” that is exempt from disclosure under FOIA Exemption 3

and 26 U.S.C. § 6103.

Plaintiff argues that defendant’s interpretation of section 6103 in this case is undermined

by the fact that defendant redacted and released “substantially similar records – namely, tax checks

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for credit worthiness under § 6103(l)(3)” in response to another FOIA request by plaintiff. Pl.’s

Mem. at 7; see also Decl. of Allan Blutstein [Dkt. # 22] ¶¶ 7–8 (describing the FOIA request and

the records released by the IRS). But plaintiff does not seriously contend that the IRS’s allegedly

inconsistent interpretation of section 6103 constitutes a waiver of its ability to withhold the “tax

checks” and associated records, 17 and it is not clear that the protections of section 6103 are subject

to waiver, in any event. See First Heights Bank, F.S.B. v. United States, 46 Fed. Cl. 827, 832

(2000) (“The government merely acts as a steward of the [section 6103] privilege.”). Thus, even

if “[t]he IRS has indulged in . . . an inconsistency on this point,” that does not alter the Court’s

finding that defendant properly withheld the “tax checks” and related records under Exemption 3

and section 6103. See Landmark, 267 F.3d at 1136–37 (finding that “the term ‘data’ is correctly

understood to cover the identity of third parties who urge the IRS to withdraw or reexamine an

entity’s tax-exempt status,” even though the IRS had released the names of Members of Congress

who had conveyed constituent concerns or written similar letters themselves).

C. Other records responsive to items three and four of plaintiff’s FOIA do not

necessarily constitute “return information.”

The determination set forth above relates to the “tax check” records only. Plaintiff broadly

sought “[a]ny communications by or from anyone in the Executive Office of the President

constituting requests for taxpayer or ‘return information’ . . . that were not made pursuant to

§ 6103(g)” and related records, FOIA Req. at 2, and the Court does not accept the agency’s

17 Rather, plaintiff argues that the IRS’s prior release of similar records is “proof that the

IRS’s current view of Section 6103 must be flawed, in that it has historically treated Section 6103

in a narrower fashion.” Pl.’s Reply at 3.

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assertion that any and all documents that might be responsive to items three and four of the request

would be exempt as a matter of law.

First, it is not clear that all records related to requests for “taxpayer or ‘return information’”

would necessarily constitute information received or compiled “with respect to a return” or “with

respect to . . . a determination” of liability under Title 26, as was the case with the “tax checks.”

See 26 U.S.C. § 6103(b)(2)(A). We don’t know what the Executive Office may have asked for.

So whether a particular request from that office is itself return information, as opposed to a record

containing return information, is a determination that must be made on a case-by-case basis in light

of the nature and content of the request.

It is true that there is some language in Landmark that could be read to suggest that any

request for return information, by anyone, itself constitutes “data.” But that interpretation does

not sit well with this Court since the mere making of a request, even if it is taxpayer-specific, may

not be factual in nature. 18 There seems to be something fundamentally different between the

Landmark scenario – an outside entity submitting information to the IRS with the request that it

be considered as part of the totality of the information contained in the metaphorical file marked

“X’s Return Information,” upon which a determination of liability is based – and a simple request

for the file itself by someone in the Executive Office of the President. (“Can I see ‘X’s Return

Information?’”) A simple request for information might do nothing to alter or add to the content

of the file, and it might have no bearing upon the outcome of the IRS’s review of the file, so it

18 The Court further notes that although “data” must be “taxpayer-specific,” see Landmark,

267 F.3d at 1138, citing Tax Analysts, 117 F.3d at 614, it does not follow that all information that

is “taxpayer-specific” must be “data.” See Church of Scientology, 792 F.2d at 151 (“Congress

would not have adopted such a detailed definition of return information in Section 6103 if it had

simply intended the term to cover all information in IRS files . . . .”).

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might not be “factual in nature” like the other items in the series contained in the statutory

definition of “return information,” 19 see Tax Analysts, 117 F.3d at 614, and it might not assert any

factual proposition under the Landmark precedent. Indeed, the Landmark Court was careful to

carve out “non-cognitive” material that was neither factual nor legal – which a simple request for

information might be. See 267 F.3d at 1138 (declining to determine “whether propositions that

were neither factual nor legal qualified as ‘data’”).

Finally, the Court observes that the Court in Tax Analysts modeled an approach that can be

instructive here when it measured the agency’s interpretation of the statutory phrase against the

congressional purpose underlying the confidentiality provision. See 117 F.3d at 615. As that

Court noted, Congress amended section 6103 in 1976 “in the wake of Watergate and White House

efforts to harass those on its ‘enemies list,’” in order to “restrict[] government officers and

employees from revealing ‘any return’ or ‘return information,’” id. at 611, and its “core purpose”

is to “protect[] taxpayer privacy.” Id. at 615. So, this Court questions whether section 6103 should

or would shield records that indicate that confidential taxpayer information was misused, or that

government officials made an improper attempt to access that information.

The IRS argues that “section 6103’s definition of ‘return information’ . . . makes no

distinction based on the purpose for which a person might seek disclosure of the documents.”

Def.’s Reply at 15. But accepting this argument would require a finding that even requests for

return information that could involve a violation of section 6103 constitute “return information”

that is exempt from disclosure under FOIA Exemption 3 and section 6103. The Court is unwilling

19 It would be tautological to hold that the mere fact that a request was made conveys the fact

that a request was made and therefore the request itself is factual in nature.

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to stretch the statute so far, and it cannot conclude that section 6103 may be used to shield the very

misconduct it was enacted to prohibit.

Accordingly, the Court finds that defendant has not established that every record it could

conceivably uncover that responds to items three and four of the FOIA request would fall within

the definition of “return information” as clarified by Tax Analysts and Landmark. For that reason,

and in light of the Court’s finding that the search for records responsive to items three and four of

the request was inadequate, the Court will remand those portions of the request to defendant so

that it may conduct an adequate search, provide a more detailed declaration, and release any

reasonably segregable, non-exempt information to plaintiff.

D. Records responsive to items five and six of plaintiff’s FOIA request do not

necessarily constitute “return information.”

Items five and six of plaintiff’s FOIA request sought records related to “requests for

disclosure by any agency pursuant to” sections 6103(i)(1), (i)(2), and (i)(3)(A). FOIA Req. at 2.

Defendant argues that any records responsive to these portions of the request would constitute

confidential “return information,” and so it did not conduct a search. Def.’s Mem. at 21; see also

Higley Decl. ¶ 24. The Court disagrees that all records responsive to these portions of the request

would necessarily be exempt, and so it will remand this aspect of the case to defendant.

Section 6103(i)(1) provides for the disclosure of “any return or return information . . .

pursuant to and upon the grant of an ex parte order by a Federal district court judge or magistrate

judge . . . [to] officers and employees of any Federal agency who are personally and directly

engaged in” activities related to the adjudication or investigation of a crime “not involving tax

administration.” 26 U.S.C. § 6103(i)(1)(A). Section 6103(i)(2) provides that the Secretary of the

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Treasury shall disclose “return information (other than taxpayer return information)” 20 to certain

agencies to facilitate the adjudication or investigation of a crime not involving tax administration,

or a grand jury proceeding not involving tax administration, 21 upon receipt of a request that meets

specified requirements. 26 U.S.C. § 6103(i)(2)(A)–(B). And section 6103(i)(3)(A) provides that

the Secretary of the Treasury may disclose “return information (other than taxpayer return

information) . . . which may constitute evidence of a violation of any Federal criminal law (not

involving tax administration) to the extent necessary to apprise the head of the appropriate Federal

agency charged with the responsibility of enforcing such law,” including the taxpayer’s identity.

Id. § 6103(i)(3)(A). Subsections (i)(2)(C) and (i)(3)(A)(ii) both provide that, for purposes of those

provisions, a taxpayer’s identity may also be disclosed. Id. § 6103(i)(2)(C), (3)(A)(ii).

Defendant contends that there could be no records to produce of “requests for disclosure

by any agency” under the first and third of these provisions – sections 6013(i)(1) and

6013(i)(3)(A) – because these provisions do not supply any mechanism for agencies to “request”

information from the IRS in the first place. Def.’s Mem. at 18. Plaintiff did not respond to this

argument in either its opposition brief or its cross-reply, and so the Court considers it to be

conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25

(D.D.C. 2003), aff’d 98 F. App’x 8 (D.C. Cir. 2004). As for section 6103(i)(2), defendant argues

that any agency requests for return information under this provision, and any related documents,

20 “The term ‘taxpayer return information’ means return information as defined in [26 U.S.C.

§ 6103(b)(2)] which is filed with, or furnished to, the Secretary by or on behalf of the taxpayer to

whom such return information relates.” 26 U.S.C. § 6103(b)(3).

21 Section 6103(i)(2)(A) expressly incorporates the requirement set forth in 6103(i)(1)(A) that

the enforcement action, investigation, or grand jury proceeding in question must involve “a

specifically designated Federal criminal statute (not involving tax administration).” See 26 U.S.C.

§ 6103(i)(1)(A), (2)(A)(i)–(iii).

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are necessarily exempt from disclosure under Exemption 3 and section 6103 because, like the “tax

check” documents, they fall under the catchall “other data” portion of the definition of “return

information.” Def.’s Mem. at 20; see also 26 U.S.C. § 6103(b)(2)(A).

But even if these requests lodged by agencies in connection with the investigation of a

crime qualify as “data” under section 6103(b)(2)(A), would they be data “with respect to a return

or with respect to the determination of the existence, or possible existence, of liability . . . 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) (emphasis added). A request for “return information (other

than taxpayer return information),” id. § 6103(i)(2)(A), is not necessarily a request “with respect

to a return.” See id. § 6103(b)(2)(A), (b)(3). And a request made in connection with an

investigation of “a specifically designated Federal criminal statute (not involving tax

administration),” id. § 6103(i)(1)(A), (2)(A)(i)–(iii) (emphasis added), would not be “with respect

to” a determination of actual or potential liability under Title 26, the Internal Revenue Code. See

id. § 6103(b)(2)(A). Thus, records related to requests for return information under section

6103(i)(2) are not definitively, themselves, “return information.” Accordingly, the Court cannot

conclude that any and all records responsive to items five and six of plaintiff’s request would be

fully exempt from disclosure under Exemption 3 and section 6103.

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IV. Defendant has not established that Exemptions 6 and 7(C) apply to the records

responsive to items five and six of plaintiff’s FOIA request.

Defendant claims, in the alternative, that records responsive to items five and six of

plaintiff’s FOIA request were properly withheld under FOIA Exemptions 6 and 7(C). 22 Def.’s

Mem. at 21–26. Exemption 6 shields from mandatory disclosure “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects information that was (1) compiled for

law enforcement purposes, if (2) the disclosure “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). To determine whether either

Exemption 6 or 7(C) applies in a case, a court balances the defendant’s asserted privacy interest

against the public interest in disclosure of information. See DOJ v. Reporters Comm. for Freedom

of Press, 489 U.S. 749, 758–59 (1989).

In items five and six of its request, plaintiff sought “requests for disclosure by any agency”

pursuant to sections 6103(i)(1), (i)(2), and (i)(3)(A) of the Internal Revenue Code, and all

documents relating to those requests. FOIA Req. at 2. Plaintiff has conceded defendant’s

22 Defendant also claims that records responsive to items three and four of the request were

subject to withholding under Exemption 6. Def.’s Mem. at 26–28. But the Court has already

found that the only records that defendant has identified, at this time, as responsive to items three

and four of the request – the “tax check”-related records – are exempt from disclosure under

Exemption 3 in conjunction with section 6103, and so it need not determine whether any other

exemptions might apply. The Court observes, however, that much of the information contained

within the “tax check”-related records seems to be precisely the type of information that has been

deemed exempt under Exemption 6 in other cases. See Nat’l Ass’n of Retired Fed. Emps. v.

Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (“The Supreme Court has made clear that Exemption

6 is designed to protect personal information in public records, even if it is not embarrassing or of

an intimate nature,” including “‘[i]nformation such as place of birth, date of birth, date of marriage,

employment history, and comparable data,’” if the public release of that information would

constitute a “clearly unwarranted invasion of personal privacy”), quoting Dep’t of State v. Wash.

Post Co., 456 U.S. 595, 600 (1982).

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argument that there are no responsive records related to sections 6103(i)(1) and (i)(3)(A), see supra

§ III(D), and so the only provision at issue here is section 6103(i)(2). That section of the Internal

Revenue Code provides that, upon receipt of a request that comports with the statutory

requirements, the Secretary of the Treasury “shall” disclose return information to certain agencies

to facilitate the adjudication or investigation of a federal crime not involving tax administration,

or a grand jury proceeding with respect to a federal crime not involving tax administration. 26

U.S.C. § 6103(i)(1)(A)(i), (2)(A)(i)–(iii).

Defendant has not conducted a search for records responsive to items five and six of

plaintiff’s FOIA request, see Def.’s Mem. at 21; Higley Decl. ¶ 24, so the Court cannot yet

determine whether any responsive records could be redacted to avoid an “unwarranted invasion of

personal privacy” under Exemptions 6 or 7(C). Defendant asked the Court “to remand the matter

to the [IRS] to examine the records and make appropriate withholdings or redactions,” in the event

that the Court determined that Exemption 3 and section 6103 did not completely shield these

records from disclosure, Def.’s Reply at 5 n.3, and that is the appropriate course of action.

Defendant is instructed to search for records responsive to items five and six of the request that

relate to section 6103(i)(2), to release any reasonably segregable, non-exempt portions of the

responsive records to plaintiff, and to supply a Vaughn index specifically identifying any material

that has been withheld and the grounds for those withholdings.

CONCLUSION

For the reasons stated above, the Court finds that defendant has established that it

conducted an adequate search for records responsive to items one and two of plaintiff’s FOIA

request, but not for records responsive to items three and four. The Court further finds that

defendant has shown that “tax checks” and related records are exempt from disclosure under FOIA

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Exemption 3 in conjunction with 26 U.S.C. § 6103, but that it has not shown that any and all

records responsive to items three, four, five, and six of plaintiff’s FOIA request would necessarily

be exempt. Therefore, each party’s motion for summary judgment will be granted in part and

denied in part, and the Court will remand the case to defendant so that it may conduct an adequate

search for records responsive to items three through six of plaintiff’s FOIA request and release all

reasonably segregable, non-exempt information to plaintiff. A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: August 28, 2015

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