AGRAMA v. INTERNAL REVENUE SERVICE
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/28/2017. (lcrmc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INTERNAL REVENUE SERVICE,
Case No. 16-cv-716-RMC
Frank Agrama filed a Freedom of Information Act request seeking records from
the Internal Revenue Service concerning a penalty examination undertaken by IRS into Mr.
Agrama’s tax payments. See Compl. [Dkt. 1] ¶¶ 5-8.
Unhappy with the IRS response, Mr. Agrama has sued. The IRS now moves for
summary judgment in its favor, arguing that it has met its FOIA obligations. Upon review of the
entire record, the Court agrees and will grant the motion, entering judgment in favor of IRS.
I. BACKGROUND FACTS
A. Mr. Agrama’s FOIA Request
Frank Agrama is an individual American citizen residing in Los Angeles,
California. Compl. ¶ 3. IRS, a constituent agency of the United States Department of Treasury,
is headquartered in Washington, D.C. On February 12, 2016, Mr. Agrama submitted a FOIA
request to IRS requesting “each and every document (exclusive of the filed tax [sic] income tax
returns) contained in the administrative files of the Internal Revenue Service relating to Form
5471 proposed penalty liabilities of Frank Agrama . . . for taxable years 1982-2014.” Compl. Ex.
B, FOIA Disclosure Request [Dkt. 1-2] at 1. Mr. Agrama listed several illustrative categories of
information sought, including, inter alia, Examination Division Administrative files related to
any audits; any and all documents received or otherwise requested pursuant to any U.S. tax
treaty; and documents maintained electronically. See id. at 1-2. IRS received Mr. Agrama’s
request on February 18, 2016, and assigned it to Cheri Rossi, a Disclosure Specialist. See IRS
Mot. Summ. J (IRS MSJ) Ex. C, Rossi Decl. [Dkt. 12-3] ¶¶ 6, 7.
Because Mr. Agrama’s request concerned an individual taxpayer, IRS began its
search for responsive documents by searching its Integrated Data Retrieval System (IDRS),
which is a database that manages data retrieved from IRS’s Master File, the IRS’s nationwide
electronic information system containing taxpayer account information. Id. ¶¶ 8, 9. Searching
this database, Ms. Rossi used a number of commands in conjunction with Mr. Agrama’s unique
taxpayer identification number. Id. ¶¶ 10, 11. Her search identified open examinations being
conducted by two IRS Revenue Agents for tax years 1997 to 2009, and 2011. Id. ¶ 9. Records
associated with these examinations were collected and reviewed, and responsive, non-exempt
records were produced to Mr. Agrama in the fall of 2016. IRS MSJ Ex. D, Valvardi Decl. [Dkt.
12-4] ¶ 10.
IRS released a total of 3,708 pages to Mr. Agrama, constituting 1,537 individual
records. Id. ¶ 11. Of these, 3,590 pages were released entirely and 118 were released in part. Id.
IRS withheld in full 1,055 pages, the contents of which are described in its affidavits submitted
to this Court. See generally id. IRS also withheld a total of 15,150 records—the total page
number also withheld—related to its ongoing penalty examination, as well as ongoing
examinations of other taxpayers. See id. ¶ 11.
Mr. Agrama filed this lawsuit on April 15, 2016. See Compl. Discussions
between the parties continued during this period, and, as previously stated, records responsive to
Mr. Agrama’s request were produced several months later, beginning in September 2016.
Valvardi Decl. ¶ 10. The production concluded by December 2016, and in February 2017 IRS
filed its Motion for Summary Judgment. IRS MSJ [Dkt. 12]. Mr. Agrama opposed this Motion,
Pl.’s Opp’n [Dkt. 16], and the IRS replied, IRS Reply [Dkt. 18]. The IRS also submitted an in
camera affidavit and addendum brief to the Court to provide further justification for its decision
to withhold the 15,150 records related to the ongoing penalty examination. See IRS Notice of
Compliance [Dkt. 19]. The matter is now ripe for the Court’s review.
II. VENUE AND JURISDICTION
Section 552(a)(4)(B) of the U.S. Code grants subject matter jurisdiction over all
actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C.
§ 552(a)(4)(B) (2012) (“On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant.”); see Jones v. Nuclear Regulatory Comm’n, 654 F. Supp. 130,
131 (D.D.C. 1987).
The Court’s jurisdiction under FOIA extends only to claims arising from the
improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. U.S.
Dep’t of Justice, 713 F. Supp. 2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095,
1105 (D.C. Cir. 1983)).
III. LEGAL STANDARDS
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.” Ctr.
for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA,
federal agencies must release records to the public upon request, unless one of nine statutory
exemptions apply. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C.
§ 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly
withheld agency records. See Odland v. FERC, 34 F. Supp. 3d 1, 13 (D.D.C. 2014). The
defending agency must demonstrate that its search for responsive records was adequate, that any
invoked exemptions actually apply, and that any reasonably segregable non-exempt information
has been disclosed after redaction of exempt information. See id.
FOIA cases are typically and appropriately decided on summary judgment. See
Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules
of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and
disclosure materials on file, and any affidavits, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving
for summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on
a motion for summary judgment, a court must draw all justifiable inferences in favor of the
nonmoving party and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at
255. The nonmoving party, however, must provide more than the “mere existence of a scintilla
of evidence . . . . [T]here must be evidence on which the jury could reasonably find for the
[nonmoving party].” Id. at 252.
A. Adequacy of the Search
The adequacy of an agency search is measured by its reasonableness, which quite
naturally depends on the individual circumstances of each case. See Sanders, 729 F. Supp. 2d at
154 (quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Under FOIA,
any “requester dissatisfied with the agency’s response . . . may challenge the adequacy of the
agency’s search by filing a lawsuit in the district court after exhausting any administrative
remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); see also
5 U.S.C. § 552(a)(4)(B). The defending agency then bears the burden of demonstrating “beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
An agency may show its search was reasonable, such that summary judgment in
its favor is warranted, through an affidavit by a responsible agency official, “so long as the
declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad
faith.” Sanders, 729 F. Supp. 2d at 155. Accordingly, affidavits that include “search methods,
locations of specific files searched, descriptions of searches of all files likely to contain
responsive documents, and names of agency personnel conducting the search are considered
sufficient.” Citizens for Responsibility & Ethics v. Nat’l Archives & Records Admin., 583 F.
Supp. 2d 146, 168 (D.D.C. 2008) (quoting Ferranti v. BATF, 177 F. Supp. 2d 41, 47 (D.D.C.
Mr. Agrama does not contest the adequacy of the IRS search for responsive
records. Pl.’s Opp’n at 1 (“Mr. Agrama does not dispute that the IRS has met its burden to show
that its search was reasonable . . . .”). Upon review of the affidavits submitted by IRS, the Court
concludes that IRS met its obligation to conduct a reasonable search. Mr. Agrama sought
records related to his ongoing penalty examination, and it is clear that IRS searched its internal
databases for exactly that, and followed up that initial search with agents involved in the case.
B. Reliance on FOIA Exemptions
To prevail on a summary judgment motion in a FOIA case, a defending agency
must demonstrate that any withheld information is exempt from disclosure, and that the agency
segregated non-exempt materials. See 5 U.S.C. § 552(a)(4)(B). To meet this standard, agencies
may provide “a relatively detailed justification through the submission of an index of documents,
known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both.” James
Madison Project v. U.S. Dep’t of Justice, 208 F. Supp. 3d 265, 285 (D.D.C. 2016) (quoting Ctr.
for Int’l Envtl. Law v. U.S. Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002)).
The records withheld by IRS can be separated into two categories: the 1,173
records withheld in full or in part and described in the supporting affidavits included with its
Motion for Summary Judgment, and the 15,150 records withheld and detailed only in its in
camera supporting documents. See Valvardi Decl. ¶ 11. Mr. Agrama does not contest the
adequacy of the withholdings made in the first category. See Pl.’s Opp. at 1 (“Mr. Agrama does
not dispute that the IRS has met its burden . . . to justify redactions made to the approximately
4000 documents it produced. This opposition focuses exclusively on the IRS’s failure to justify
its withholding of 15,150 documents.”).
Because the IRS’s decision to withhold those 15,150 records is the sole point of
contention between the parties, the Court focuses its analysis on that decision. IRS claims that
all these records may be fully withheld from disclosure under two statutory exemptions:
Exemption 7(A) and Exemption 3.1 Exemption 7(A) allows agencies to withhold records which
“could reasonably be expected to interfere with law enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). Exemption 3, 5 U.S.C. § 552(b)(3), allows agencies to withhold records as to
which disclosure is prohibited by another statute.
Exemption 7(A) is intended to “prevent disclosures which might prematurely
reveal the government’s cases in courts, its evidence and strategies, or the nature, scope, and
focus of investigations.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000).
An agency asserting this exemption must show that the disclosure could reasonably be expected
to cause harm to a pending investigation or law enforcement proceeding. See NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 224 (1978); see also Campbell v. HHS, 682 F.2d 256, 259
(D.C. Cir. 1982). “Exemption 7(A) permits the government to withhold ‘documents related to an
ongoing investigation from the investigation’s target because disclosure would reveal the scope
and direction of the investigation and could allow the target to destroy or alter evidence, fabricate
fraudulent alibis, and intimidate witnesses.’” EduCap Inc. v. IRS, No. 07-cv-2106, 2009 WL
416428, at *5 (D.D.C. Feb. 18, 2009) (quoting North v. Walsh, 881 F.2d 1088, 1098 (D.C. Cir.
1989)). “Under exemption 7(A) the government is not required to make a specific factual
showing with respect to each withheld document that disclosure would actually interfere with a
particular enforcement proceeding.” Id. (citing Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir.
IRS also asserts that certain parts of the records are subject to withholding under Exemptions 4,
5, 6, 7(C), and 7(E).
1980)); see also Robbins Tire, 437 U.S. at 234-35. “Rather, federal courts may make generic
determinations that, ‘with respect to particular kinds of enforcement proceedings, disclosure of
particular kinds of investigatory records while a case is pending would generally interfere with
enforcement proceedings.’” Barney, 618 F.2d at 1273 (quoting Robbins Tire, 437 U.S. at 236).
Here, the very records Mr. Agrama requests are those “relating to proposed Form
5471 penalty liabilities of Frank Agrama.” FOIA Disclosure Request at 1. “The very nature of
the documents sought implicates Exemption 7 [because] they were clearly compiled in the
course of an investigation into [Mr. Agrama’s] tax liability.” Vento v. IRS, 714 F. Supp. 2d 137,
148 (D.D.C. 2010); see also EduCap, 2009 WL 416428, at *4 (“An IRS audit is a ‘law
enforcement’ activity for purposes of Exemption 7.”). IRS asserts that it withheld these records
because “their disclosure would reveal the nature, direction, scope, focus and limitations of the
Service’s investigation into the potential liability of plaintiff and other taxpayers, and give
plaintiff and other taxpayers premature insight into the strength of the Service’s position and its
reliance on certain evidence.” IRS MSJ Ex. B, Lepore Decl. [Dkt. 12-2] ¶ 33. IRS has also
submitted in camera affidavits to the Court in further support of its position. See Def.’s Notice
of Compliance [Dkt. 19].
While these additional submissions provide additional context, fundamentally the
justifications undergirding the IRS arguments are apparent from the face of the public-facing
documents it has submitted. IRS is in the process of an investigation, the records of which Mr.
Agrama is seeking. IRS is withholding many of these records, as well as details regarding them,
on the grounds that doing so would prematurely disclose the fruits and direction of that
investigation. This justification falls well within the boundaries of Exemption 7(A), and Mr.
Agrama has given the Court no reason to believe that IRS has acted in bad faith. While Mr.
Agrama calls for further detailed descriptions of the documents as well as a Vaughn Index, such
detailed descriptions of withheld documents are not required under Exemption 7(A), and the
Court concludes that, based on the public and in camera submissions by IRS, that such further
detail is unwarranted. To require further disclosure of information would destroy the purpose of
the claimed exemption. The Court concludes that these records were adequately withheld under
Exemption 7(A), and that no further documentation from IRS is necessary.2
While an agency may properly withhold records or parts of records under FOIA
exemptions, it must release “any reasonably segregable portions” of responsive records that do
not contain exempted information. Schoenman v. FBI, 575 F. Supp. 2d 136, 155 (D.D.C. 2008);
5 U.S.C. § 552(b). An agency bears the burden of demonstrating that all reasonably segregable
portions of a record have been disclosed, and may do so by “offering an affidavit with
reasonably detailed descriptions of the withheld portions of the documents and alleging facts
sufficient to establish an exemption.” Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148
(9th Cir. 2008).
IRS asserts that it has “attempted to make available to the plaintiff every
reasonably segregable non-exempt portion of every responsive record.” Valvardi Decl. ¶ 12.
Mr. Agrama does not dispute the IRS’s segregability determinations, and the Court has no
evidence contradicting the IRS’s sworn statements.
As the material is adequately withheld in its entirety under Exemption 7(A), the Court does not
undertake further analysis of the remaining claimed exemptions. See Utahamerican Energy, Inc.
v. Dep’t of Labor, 685 F.3d 1118, 1123 (D.C. Cir. 2012) (explaining that the government need
only prevail on one exemption).
For reasons stated above, the Court will grant the IRS Motion for Summary
Judgment [Dkt. 12]. Judgment will be entered in favor of IRS. A memorializing order
accompanies this Memorandum Opinion.
Date: September 28, 2017
ROSEMARY M. COLLYER
United States District Judge
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