ALLIANCE DEFENDING FREEDOM v. INTERNAL REVENUE SERVICE

Filing 31

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 27, 2017. (lcegs2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ALLIANCE DEFENDING FREEDOM,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 15-525 (EGS)
)
INTERNAL REVENUE SERVICE,
)
)
Defendant.
)
______________________________)
MEMORANDUM OPINION
Plaintiff Alliance Defending Freedom ("ADF") sued the
Internal Revenue Service ("IRS") to obtain records under the
Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Currently
pending before the Court are both parties' motions for summary
judgment. Upon consideration of the motions, the responses and
replies thereto, the applicable law, and the entire record, the
Court GRANTS the IRS's motion for summary judgment and DENIES
ADF's cross-motion for summary judgment.
I.

Background
On July 22, 2014, ADF submitted a FOIA request to the IRS

for the following records:
(1)

All documents related to any existing, proposed,
new, or adopted procedures for church tax
inquiries or examinations from January 2009 to
the present;

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(2)

All documents related to proposed or adopted
changes to Treasury Regulations §301.7611-1 ("§
7611 regulation") from January 2009 to the
present; and

(3)

All documents related to new IRS policies or
procedures referenced in Freedom From Religion
Foundation's ("FFRF") July 17, 2014 press
release.

IRS's Statement of Undisputed Material Facts ("IRS SUMF") ¶ 1,
ECF No. 25-2; ADF's Resp. to IRS SUMF and Statement of
Undisputed Material Facts ("ADF SUMF") ¶ 1, ECF No. 26-2. The
IRS acknowledged receipt of ADF's request on August 28, 2014.
IRS SUMF ¶ 2; ADF SUMF ¶ 2. Between August 2014 and the
initiation of the instant litigation, the IRS sent ADF a series
of letters in which it asked for more time to respond to ADF's
FOIA request. IRS SUMF ¶ 2; ADF SUMF ¶ 2. Having not received
any substantive response from the IRS, ADF filed this suit on
April 9, 2015, approximately eight months after it made its
initial request. IRS SUMF ¶ 2; ADF SUMF ¶ 2.
Prior to ADF filing suit, the IRS had initiated its search
for documents responsive to ADF's FOIA request. Specifically,
the IRS searched the legal file created for the § 7611
regulation project, the file associated with the Notice of
Proposed Rulemaking for the § 7611 regulation, the archive for
the revision of the section of the Internal Revenue Manual
related to church tax inquiries and examinations, and the files
of custodians it determined could have responsive materials. IRS
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SUMF ¶¶ 10-17; ADF SUMF ¶¶ 10-17. Through these searches, the
IRS identified 16,439 pages of documents responsive to ADF's
request. IRS's Mot. for Summ. J., Declaration of Brittany
Harrison ¶ 12, ECF No. 25-4. Of those, the IRS withheld in full
10,672 pages and released, either in whole or in part, the
remainder. Id. ADF subsequently moved to compel a detailed
Vaughn index. See Mot. to Compel Detailed Vaughn Index, ECF No.
16. The Court denied that motion, permitting the IRS to instead
produce a randomly-selected sample constituting two percent of
the pages withheld in full. See Order Denying Motion to Compel
Full Vaughn Index (Dec. 22, 2016), ECF No. 23.
The parties now both move for summary judgment. The IRS
asserts that it is entitled to summary judgment because there is
no genuine dispute of material fact as to whether (1) the agency
conducted an adequate search for records, and (2) the documents
withheld by the IRS fall under one of FOIA's exemptions from
disclosure. IRS Mem. in Supp. of Mot. for Summ. J. at 2-3, ECF
No. 25-1. In support of its motion, the IRS has submitted two
declarations. The first declaration is from Scott A. Hovey, an
attorney in the IRS's Office of Chief Counsel, Office of
Division Counsel for Small Business/Self-Employed. IRS's Mot.
for Summ. J., Declaration of Scott A. Hovey ¶ 1, ECF No. 25-3.
Mr. Hovey was the attorney assigned to the instant litigation
who initiated, supervised, or was otherwise involved in the
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searches for records responsive to ADF's request. Id. ¶¶ 1-3.
The second declaration is from Brittany Harrison, an attorney in
the Associate Chief Counsel's Procedure and Administration
Office. IRS's Mot. for Summ. J., Declaration of Brittany
Harrison ¶ 1, ECF No. 25-4. Ms. Harrison's office "provides
subject matter experts for disclosure and privilege matters" in,
inter alia, FOIA litigation. Id. Ms. Harrison was responsible
for determining which responsive records were exempt from
disclosure. Id. ¶ 1. In addition, she was responsible for
creating the sample Vaughn index ordered by the Court. Id. ¶¶ 411.
In its opposition, ADF does not challenge the IRS's
withholdings pursuant to FOIA exemptions. See ADF's Mem. in Opp.
to IRS Mot. for Summ. J. and Cross-Motion for Summ. J. ("ADF
Opp.") at 1, ECF No. 26-1 (ADF "has chosen not to challenge the
IRS's withholdings under 5 U.S.C. § 552(b)(5) asserted in the
agency's limited Vaughn index"). Nor does ADF focus on the
portions of its FOIA request seeking documents pertaining to
"existing, proposed, new, or adopted procedures for tax
inquiries" or "records related to new IRS policies referenced in
the Freedom From Religion Foundation's July 14, 2014 press
release." See id. Instead, ADF's opposition is focused on the
sufficiency of IRS's search with respect to documents related to
the § 7611 regulation, see id. at 2-3, arguing that the IRS's
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search for such documents was unreasonably narrow in scope and
that the IRS's declarations failed to adequately describe the
agency's search methods, id. at 2-6. In particular, ADF asserts
that the IRS only searched the records of employees "involved in
the nuts and bolts of drafting, editing, and revising § 7611" –
and that it should have also searched the records of "higher
level IRS policymakers." Id. at 3. ADF further claims that the
IRS's declarations are insufficient because they "provided
almost no information about the actual searches it conducted,
making it virtually impossible for ADF or the Court to evaluate
the sufficiency of [the IRS's] search method." Id. at 4. For
example, according to ADF, the declarations fail to provide
information about the IRS's filing and record retention systems
or the search terms used by the custodians in collecting
responsive records. Id. at 5.
To cure these alleged deficiencies, the IRS attached a
third declaration to its reply brief. See IRS Reply in Supp.
Mot. for Summ. J. ("IRS Reply"), Declaration of Kirk Paxson
("Paxson Decl."), ECF No. 28-2. Mr. Kirk Paxson – Deputy
Division Counsel in the Tax-Exempt and Governmental Entities
("TE/GE") Division – was responsible for facilitating the
process of searching for responsive documents. Paxson Decl. ¶ 5.
In his declaration, Mr. Paxson explained that a Tax Law
Specialist in the IRS Office of Disclosure first identified
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TE/GE as "the function in the Service most likely to have
responsive documents because all matters relevant to tax-exempt
organizations, including churches and religious organizations,
fall within" that office's domain. Id. ¶ 4. Mr. Paxson then
identified the employees involved in drafting the regulations
and asked them to search their files for responsive records. Id.
¶¶ 4-5. Mr. Paxson also provided additional details regarding
the searches for responsive documents, including the search
terms used by the custodians and the universe of files searched.
See id. ¶¶ 6-21.
Mr. Paxson further explained that records relevant to new
and proposed regulations are maintained in accordance with the
Chief Counsel Regulation Handbook located in the Chief Counsel
Directives Manual ("CCDM"). See Paxson Decl. ¶¶ 8-9; see also
CCDM 32.1, available at https://www.irs.gov/irm/ (last accessed
September 12, 2017). The CCDM directs the drafting team
responsible for a particular regulation to begin creating a
"legal file . . . as soon as the regulation project is opened."
CCDM 32.1.2.1. Each legal file should "contain all relevant
documents and correspondences related to a regulation project."
Paxson Decl. ¶ 9 (emphasis added). Mr. Paxson affirms that the §
7611 regulation file was searched in response to ADF's FOIA
request. Id. ¶¶ 8-9.

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ADF acknowledges that the IRS's reply memorandum and the
Paxson Declaration "offer[] some clarification of [the IRS's]
search methods." ADF's Reply in Supp. of ADF's Cross-Motion
("ADF Reply") at 1, ECF No. 30. As such, ADF submits that only
one issue remains on summary judgment: the scope of the IRS's
search. Id. Specifically, ADF contends that the IRS improperly
limited its search to custodians located within the Office of
the Chief Counsel. Id. at 1-2. According to ADF, the IRS should
have also searched the records of IRS and Treasury "policymakers
and leadership" who presumably have been involved in the "yearslong process of revising this regulation." Id. This issue is
ripe for the Court's consideration.
II.

LEGAL STANDARD
FOIA requires that "each agency, upon any request for

records which (i) reasonably describes such records and (ii) is
made in accordance with published rules . . . shall make the
records promptly available to any person." 5 U.S.C. §
552(a)(3)(A). "To fulfill its disclosure obligations, an agency
must conduct a comprehensive search tailored to the request and
release any responsive material not protected by one of FOIA's
enumerated exemptions." Tushnet v. United States Immigration &
Customs Enf't, No. 1:15-CV-00907 (CRC), 2017 WL 1208397, at *4
(D.D.C. Mar. 31, 2017).

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The "vast majority" of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may
grant summary judgment only if there is "no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep't of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citation omitted). Under FOIA, the underlying facts and
inferences drawn from them are analyzed in the light most
favorable to the FOIA requester, and summary judgment is
appropriate only after the agency proves that it has fully
discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp.
32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice,
705 F.2d 1344, 1350 (D.C. Cir. 1983)).
When considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B). The court may grant summary judgment
based on information provided in an agency's affidavits or
declarations when they are "relatively detailed and nonconclusory," SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197,
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1200 (D.C. Cir. 1991) (citation and internal quotation marks
omitted), and "not controverted by either contrary evidence in
the record nor by evidence of agency bad faith," Larson v. Dep't
of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation and
internal quotation marks omitted). Such affidavits or
declarations are "accorded a presumption of good faith, which
cannot be rebutted by 'purely speculative claims about the
existence and discoverability of other documents.'" SafeCard
Servs., 926 F.2d 1197 at 1200 (citation omitted).
III.

ANALYSIS
The sole issue remaining for summary judgment is whether

the scope of the IRS's search for records responsive to ADF's
FOIA request was adequate. Specifically, the Court must decide
whether the IRS's search of the paper files concerning the §
7611 regulation project and records of certain staff members in
the Office of the Associate Chief Counsel was reasonably
calculated to discover the documents requested by ADF pertaining
to "proposed or adopted changes" to the § 7611 regulation.
Where a plaintiff challenges the adequacy of an agency's
search, the question for the court is "'whether the search was
reasonably calculated to discover the requested documents, not
whether it actually uncovered every document extant.'" Judicial
Watch, Inc. v. United States Dep't of State, 681 F. App'x 2, 4
(D.C. Cir. 2017) (quoting SafeCard Servs., 926 F. 2d at 1201).
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The adequacy of an agency's search is "measured by a 'standard
of reasonableness' and is 'dependent upon the circumstances of
the case.'" Weisberg, 705 F.2d at 1351(citations omitted). To
meet its burden at summary judgment, an agency may provide "'a
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials ... were searched.'"
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C.
Cir. 2003) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). Any factual assertions in such an
affidavit will be accepted as true unless the requesting party
submits affidavits or other documentary evidence contradicting
those assertions. Wilson v. U.S. Dep't of Transp., 730 F. Supp.
2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453,
456-57 (D.C. Cir. 1992)).
Here, the IRS has submitted three declarations in support
of its motion for summary judgment. 1 These declarations list the
names and positions of the custodians whose files were searched

1

Although one of these declarations was attached to the
IRS's reply memorandum in support of its motion for summary
judgment, see Paxson Decl., the Court can "'rel[y] on
supplemental declarations submitted with an agency's reply
memorandum to cure deficiencies in previously submitted
declarations'" where a plaintiff has not challenged the
supplemental declaration. See Walston v. United States Dep't of
Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017) (citing DeSilva v.
U.S. Dep't of Housing and Urban Dev., 36 F. Supp. 3d 65, 72
(D.D.C. 2014)).
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and explain the parameters of the search along with the search
terms that were used. For example, the Paxson Declaration
includes a separate paragraph for each of the eight custodians
whose records were searched. Paxson Decl. ¶¶ 10-20. Each
paragraph sets forth the folders or systems that the custodian
searched and outlines the search terms that were used. Id.
ADF argues that the IRS's search for records was unduly
narrow in scope. ADF asserts that the IRS's declarations make
clear that the agency only searched the records of custodians
who work in the Office of Associate Chief Counsel. ADF Reply at
1-2. According to ADF, the IRS should have also searched the
records of "the IRS's policymakers and leadership." Id. at 2.
ADF also points to the CCDM – which states that regulation files
can only be opened with the approval of both the Associate Chief
Counsel and Treasury – to argue that IRS should have searched
Treasury files for relevant records. Id. As explained more fully
below, neither argument renders the IRS's search inadequate.
First, the fact that the IRS only searched the files of
custodians in the Office of Associate Chief Counsel for records
relating to the § 7611 regulation does not render the IRS's
search insufficient. Courts have consistently held that an
agency is not required to search every record system for
responsive records. See, e.g., Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 68 (D.C. Cir. 1990) ("There is no requirement that
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an agency search every record system."); Perry v. Block, 684
F.2d 121, 128 (D.C. Cir. 1982)(agency need not demonstrate that
all responsive documents were found and that no other relevant
documents could possibly exist). While an agency "cannot limit
its search to only one record system if there are others that
are likely to turn up the information requested," it may so
limit its search where it "explain[s] in its affidavit that no
other record system [i]s likely to produce responsive
documents." Oglesby, 920 F.2d at 68.
When faced with ADF's concern that additional documents may
exist outside of the IRS Office of Associate Chief Counsel, the
IRS explained in its affidavit that the IRS Office of Associate
Chief Counsel is "solely responsible for issuing published
guidance, including regulations." IRS Reply at 3; Paxson Decl. ¶
8. Moreover, as the CCDM makes clear, the Associate Office
responsible for drafting the particular regulation is also
responsible for creating a legal file that contains "all
documents related to the publication of the regulation." CCDM
32.1.2.1 (emphasis added). Here, because the § 7611 regulation
fell within the jurisdiction assigned to the Associate Chief
Counsel Office, TE/GE Division, that office was responsible for
maintaining the legal file associated with that regulation. IRS
Reply at 3; Paxson Decl. ¶¶ 8-9. Amy Giuliano, a Senior
Technical Reviewer in the TE/GE Division Counsel/Associate Chief
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Counsel office, is the custodian of the § 7611 regulation file,
and she verified that the file was maintained in accordance with
the directives set forth in the CCDM. Paxson Decl. ¶¶ 6, 10. Mr.
Paxson avers that the "paper file contains all relevant
documents and correspondence related to a regulation project"
and therefore a search of the regulation file would "locate
records responsive to ADF's FOIA request." Paxson Decl. ¶ 9.
Moreover, the IRS did more than simply search for documents
within the legal file. In addition to providing the contents of
the file for processing, Ms. Giuliano also searched Microsoft
Outlook and Microsoft Word to verify that any responsive
documents contained in those systems were duplicative of
documents contained in the legal file. Id. ¶ 10. The IRS also
searched the files of other personnel located within the Office
of Chief Counsel, TE/GE Division, that were assigned to the §
7611 regulation project. Id. ¶ 11; see also id. ¶ 5 (explaining
that he identified custodians who, based on his knowledge of the
Freedom From Religion Foundation litigation and the revised
regulations drafted under § 7611, he believed were "most likely
to have documents responsive" to ADF's FOIA request). The
identity of the individuals whose files were searched – and the
parameters of those searches – are described in detail in the
Paxson Declaration. See id. ¶¶ 11-21.

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Second, ADF's amorphous claims that the IRS should have
searched the files of unspecified policymakers does not render
the IRS's search inadequate either. According to ADF, because
Treasury's "authorization is required to even undertake a
regulation revision project," the IRS should have searched the
files of Treasury officials for responsive records. ADF Reply at
2. But any such files, if they exist, should be in the legal
file, which must contain, inter alia, "briefing memoranda,
briefing confirmation, [] Conference Reports," "IRS and Treasury
memos, transmittal and policy memos, and internal comments"
related to the regulation. CCDM 32.1.2.1. The fact that no such
memoranda were found, absent some other compelling evidence that
the documents exist or of bad faith on the part of the agency,
"does not undermine the finding that the agency conducted a
reasonable search for them." Safecard Servs., 926 F.2d at 1201.
Moreover, to the extent that ADF's contention that other
custodians are likely to have responsive record rises beyond
mere speculation, the Court finds that Mr. Paxson's attestation
that he is "not aware of any other custodian or system of
records likely to maintain records responsive to plaintiff's
FOIA request," Paxson Decl. ¶ 22, to be sufficient.
In short, the Court is satisfied, based on the three
detailed declarations submitted by the IRS, that the agency
conducted an adequate search for responsive documents.
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IV.

Conclusion
For the foregoing reasons, the Court concludes that there

is no genuine dispute of material fact as to the adequacy of the
IRS's search for documents responsive to ADF's FOIA request.
Accordingly, the IRS's motion for summary judgement is GRANTED,
and ADF's cross-motion for summary judgment is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
September 27, 2017

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