AGRAMA v.INTERNAL REVENUE SERVICE
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/20/2017. (lcrmc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INTERNAL REVENUE SERVICE,
Case No. 1:16-cv-751-RMC
Jehan Agrama is facing a $900,000 tax penalty from the Internal Revenue
Service, allegedly based on an expert report prepared by an Italian criminal prosecutor
concerning her foreign income. Ms. Agrama wants to know how IRS received the report so that
she can convince the Service that Italy violated her rights and the report is inadmissible in the
United States. Thus, she submitted a FOIA request asking, in part, for records from any country
outside the U.S. contained in her IRS file. None of the records produced by IRS provides a
paper trail indicating how IRS agents in this country received the Italian report. Ms. Agrama
sues, arguing that IRS conducted an inadequate search.
Both IRS and Ms. Agrama have moved for summary judgment, contesting
whether IRS fulfilled its FOIA obligations. Upon review of the entire record, the Court will
grant judgment in favor of IRS.
I. BACKGROUND FACTS
A. Ms. Agrama’s FOIA Request
On October 28, 2015, the IRS issued two (2) letters to [Jehan Agrama]
entitled “Failure to File Form 5471.” These letters claim [she] had an
obligation to file Forms 5471 regarding a foreign corporation, Byram
Enterprises Limited[,] for the years 1982 through 2004. Moreover, these
letters propose continuation delinquency penalties . . . if the subject
returns are not filed . . . .
[Ms. Agrama] does not have an ownership interest in Byram Enterprises
Limited that would obligate her to file Forms 5471.
Complaint [Dkt 1] ¶¶ 5, 8.
A sensible woman, Ms. Agrama would prefer to persuade IRS to withdraw its
intention to penalize her for unpaid taxes rather than be required to pay the penalty and late taxes
and sue to recover her money. To this end, she submitted a request on February 16, 2016 under
the Freedom of Information Act, 5 U.S.C. § 552 et seq., (2012) asking IRS to release to her
“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 Jehan Agrama . . . for taxable years 1982-2004.” Compl. Ex. C, FOIA Disclosure
Request (FOIA Request) [Dkt. 1-3] at 1. The Request specifically sought records received “from
any jurisdiction, country, principality or other entity outside the United States.” Id. ¶ 2. IRS
received the Request on February 18, 2016. Def.’s Mot. Summ. J. (IRS MSJ) Ex. C, Declaration
of Karen Coen (Coen Decl.) [Dkt. 10-3] ¶ 6.
Over the course of the administrative processing of Ms. Agrama’s FOIA request
and this litigation, IRS has conducted multiple searches for responsive records.
First, IRS Disclosure Specialist Karen Coen searched the IRS Integrated Data Retrieval
System (IDRS), a database allowing access to data retrieved from IRS’s Master File, the
nationwide electronic information system containing taxpayer account information. Id.
¶¶ 8, 9. Ms. Coen used Ms. Agrama’s unique taxpayer identification number (TIN),
provided by Ms. Agrama, to conduct this search. Id. ¶¶ 10, 11. This initial search
yielded a single possible examination activity from 2002. Id. ¶ 12. Inasmuch as this
activity had occurred more than ten years earlier, any records would have been destroyed
under the IRS record retention policy. Id. Because Ms. Coen found no other entries
related to Ms. Agrama’s TIN in the IDRS system, she determined that IRS had no records
responsive to Ms. Agrama’s FOIA request, and informed Ms. Agrama of that fact by
letter on February 25, 2016. Id. ¶¶ 12-13.
Ms. Coen’s letter prompted counsel for Ms. Agrama to contact Ms. Coen on March 2,
2016, to inform her that Ms. Agrama had already been contacted by two IRS Revenue
Agents from Los Angeles, California, Bernard Trapp and James Pack, concerning the tax
penalty. Id. ¶ 14. Upon Ms. Coen’s request, these two agents searched for records that
might be responsive to Ms. Agrama’s FOIA request. Id. They forwarded the records
they located to Ms. Coen, who determined that 89 pages of records were responsive to
Ms. Agrama’s request. Id. ¶¶ 15-16. Of those records, Ms. Coen determined that three
pages could be released to Ms. Agrama and the remaining 86 pages needed to be
withheld in full. Id. ¶ 16. Ms. Coen so informed Ms. Agrama of this assessment on
March 7, 2016. Id. ¶ 18. This decision was upheld on administrative appeal. Compl. Ex.
G, IRS FOIA Appeals Response [Dkt. 1-7].
When Ms. Agrama filed the immediate Complaint in April 2016, Attorney Christopher
Valvardi of the IRS Office of Chief Counsel was assigned as agency counsel to work
with the Department of Justice on the case. IRS MSJ Ex. 4, Declaration of Christopher
Valvardi (Valvardi Decl.) [Dkt. 10-5] ¶ 5. His DOJ colleague told Mr. Valvardi on
August 25, 2016, presumably based on information from Ms. Agrama’s counsel, that Ms.
Agrama had possession of an 83-page document known as the “Chersicla Report,”
described by Ms. Agrama as “a ‘rough translation’ of a non-public Italian expert witness
report,” Pl.’s Am. Reply [Dkt. 26] at 1, of Italian origin for apparent use in Italian courts.
Upon inquiry by Mr. Valvardi, Revenue Agent Pack and Supervisory Revenue Agent
Steven Lepore confirmed that they had provided the Chersicla Report to Ms. Agrama.
Valvardi Decl. ¶ 8. When Mr. Valvardi received Ms. Agrama’s copy of the Chersicla
Report, he determined that it was substantively identical to 83 pages of the 86 pages that
Ms. Coen had earlier withheld from release to Ms. Agrama. Id. IRS then withdrew its
reliance on any FOIA exemption to withhold those 83 pages and disclosed its version of
the Chersicla Report to Ms. Agrama on September 16, 2016. Id. ¶¶ 9-10.
Perhaps informed by this experience, Mr. Valvardi undertook an independent review of
the records that had been provided by Agents Trapp and Pack to Ms. Coen. Id. ¶ 11.
That review demonstrated that some of the records were incomplete. Agent Pack was
queried and explained that some of the responsive records were commingled in a larger
file of records that was being reviewed as part of an investigation into another taxpayer.
Mr. Valvardi asked Agent Pack to search the larger file manually to identify fully any
responsive records, which he did. Id. Agent Pack sent 27 additional potentiallyresponsive pages to Mr. Valvardi. Id. ¶ 12. After review on September 6, 2016, Mr.
Valvardi determined that the additional pages were responsive to Ms. Agrama’s request,
but were all exempt from disclosure.
In sum, IRS identified a total of 116 pages of responsive records. Of those pages,
86 have been released to Ms. Agrama in whole. The remaining 30 pages, constituting four
separate documents, have been withheld in their entirety. IRS relies on FOIA Exemptions 7(A)
and 3 to assert that these records are wholly exempt and Exemptions 6 and 7(C) to assert that
they are exempt in part.
As the parties note, this particular FOIA lawsuit is just one of many legal
proceedings touching on the question of IRS penalties. Ms. Agrama’s father, Frank Agrama, has
also sought IRS records under FOIA, see Agrama v. IRS, 16-cv-716, and Ms. Agrama forecasts
that she may seek redress in the courts for other matters concerning the IRS penalty proceeding.
See Pl.’s Opp’n [Dkt. 11] at 1. The document most at issue here, the Chersicla Report, was
apparently prepared at the behest of Italian prosecutors for a criminal prosecution in that country.
Pl.’s Am. Reply at 7. Ms. Agrama protests that in that process, the Italian prosecutors violated
her rights to confidential communications with her attorney and that, as a result, the Chersicla
Report is inadmissible in a U.S. court. See Pl.’s Opp’n Ex. 1, 1st Decl. of Dennis L. Perez (1st
Perez Decl.) [Dkt. 11] ¶ 17. She submitted the Request to, inter alia, discover exactly how the
Report came to be in the possession of IRS. Pl.’s Opp’n at 1.
This suit was filed on April 22, 2016. See Compl. IRS moved for summary
judgment on November 1, 2016, see IRS MSJ [Dkt. 10]; Ms. Agrama opposed, see Pl.’s Opp’n
[Dkt. 11], and filed a Cross-Motion for Summary Judgment, Pl.’s MSJ [Dkt. 12]. IRS
responded, see Def.’s Combined Reply and Opp’n [Dkts. 17 and 18], and Ms. Agrama replied,
see Pl.’s Reply [Dkt. 19]. Soon after, Ms. Agrama moved to supplement her reply. See Pl.’s
Mot. to Amend Reply [Dkt. 21] at 1. This request was granted, and Ms. Agrama duly filed her
Amended Reply. See Am. Reply [Dkt. 26]. In response, IRS requested leave to file an in
camera affidavit and supporting brief, which was granted. See Def.’s Notice of Compliance
[Dkt. 30]. The matter is now ripe for decision.
II. VENUE AND JURISDICTION
Section 552(a)(4)(B) of the U.S. Code grants this Court 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) (“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 applies. 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); 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 a “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.
The gravamen of Ms. Agrama’s complaint is that IRS did not search well enough
because it has failed to release records that show the provenance of the Chersicla Report, that is,
how that Report came into the hands of U.S. tax agents. She questions the legitimacy of such a
search and asks the Court to question it as well.
In support, Ms. Agrama submits an affidavit from Dennis Perez, a principal in the
law firm of Hochman Salkin Rettig Toscher & Perez, P.C., which represents both Ms. Agrama
and her father, Frank Agrama. See Am. Reply, Ex. 1, 2d Declaration of Dennis L. Perez (2d
Perez Decl.), [Dkt. 26-1]. Mr. Perez submits records produced to Frank Agrama, in response to
Mr. Agrama’s IRS FOIA request, which contain repeated references to written Exchange of
Information (EOI) requests in connection with the examination of Frank Agrama’s tax returns.1
She also notes that the Internal Revenue Manual (IRM), which guides the conduct of tax
examinations, cautions IRS agents that “there are no legal provisions for any ‘informal’
exchange of” taxpayer-specific information outside prescribed offices within IRS. Pl.’s Am.
Reply at 5 (quoting IRM § 126.96.36.199.2.1.5). In further support, Ms. Agrama points out agent
notes in Frank Agrama’s file “demonstrate the IRS’s interest in Italy and the Italian prosecution
for which the Chersicla [R]eport was produced.” Id. at 6. In addition, she contends that
“Supervisory Revenue Agent Steven Lepore did note that the local IRS agents were in contact
with the IRS’s tax attaché responsible for Italy. Id. at 5. She argues, “This paper trail of EOIs to
other countries, particularly when combined with the IRS’s admission in Jehan Agrama’s
investigation that it was in contact with its tax attache, makes it nearly certain that the IRS
obtained the Chersicla [R]eport through its tax attache’s submission of an EOI to Italy.” Id. at 6.
The immediate Request occurs in the context of a much larger dispute between
the IRS and Ms. Agrama and the merits of that dispute are important to her. However, the
purpose, creation, and use of agency records are beyond the scope of a FOIA suit, as is the
records’ intended use by Ms. Agrama. At issue before the Court is the very narrow question of
whether IRS met its FOIA obligations in responding to the Request.
As. Ms. Agrama indicates, “The Internal Revenue Manual defines an ‘EOI’ request as an
‘Exchange of Information’ request, referring to ‘the sharing of tax‐related information between
two or more countries for tax administration and enforcement purposes.’” Am. Reply at 6 n.1
(quoting Internal Revenue Manual § 188.8.131.52 (revised 09‐19‐2014)).
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.
2001)). Ms. Agrama does not challenge the adequacy of the searches IRS actually conducted or
the good faith efforts of its Agents. Am. Reply at 7 (“Ms. Agrama Does Not Claim the Searches
Were in Bad Faith.”). Instead, she contends that IRS failed to contact employees tasked with
retaining EOI records to find out if they possessed responsive records and that this glaring failure
demonstrates the inadequacy of the search as a whole.
IRS responds that Ms. Agrama merely speculates that more records exist. It
asserts, in both its public-facing and in camera submissions, that its multiple searches were
adequate to identify all responsive records and it submitted affidavits to that effect. See Def.’s
Combined Reply and Opp’n at 2-6; IRS MSJ Ex. 4, Declaration of Stephen Lepore Decl. (Lepore
Decl.) [Dkt. 10-4] ¶ 10.
The operative question is not whether additional records exist, or whether other
possible search avenues were available, but whether the IRS searches were “reasonably
calculated to uncover all relevant documents.” Nation Magazine, 71 F.3d at 890. Notably, the
Request was for documents contained in the “administrative files of the Internal Revenue Service
related to proposed Form 5471 penalty liabilities of Jehan Agrama.” FOIA Request at 1. IRS
searched its own internal database for Ms. Agrama’s TIN, and, upon learning that relevant
records may be folded into the investigative file on another taxpayer, its lawyer directed the
agents to perform a manual search for responsive records, which was done.
Ms. Agrama’s argument is based on a logical syllogism: (1) there must be a
“paper trail” behind the Chersicla Report; (2) no such record was released; therefore, (3) there
must be some unsearched further records somewhere. See Pl.’s Am. Reply at 6. Although her
Opposition appeared to challenge the good faith of IRS searches, see Pl.’s Opp’n at 4, she has
dropped that argument in her Amended Reply and says good faith is irrelevant when a search is
obviously inadequate. See Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 468 (D.C. Cir. 1993)
(“A finding of no bad faith does not necessarily equate with a finding that the search was
adequate.”). She offers two pieces of evidence to support her argument: (1) at one time,
Supervisory Internal Revenue Agent Lepore referenced contact with a tax attaché, see 1st Perez
Decl. ¶ 22; and (2) records received in response to Frank Agrama’s separate FOIA request
reference multiple foreign EOI requests to unidentified nations. Pl.’s Am. Reply at 6. Neither of
these points is availing.
Ms. Agrama’s Request was limited to records “relating to proposed Form 5471
penalty liabilities of Jehan Agrama.” FOIA Request at 1. Her Request does not seek records
related to IRS’s separate investigation of her father. Ms. Agrama argues that the investigations
of father and daughter “significantly overlap—according to the Cheriscla Report” because she
“is purported to have an interest in one foreign company, to which Frank Agrama allegedly was
also connected.” Pl.’s Am. Reply at 6 (emphasis added). Notably, Ms. Agrama does not cite
IRS itself as a source for this alleged overlap. In any event, overlap or no, each person is an
individual taxpayer with individual tax responsibilities. Records directly relevant to one may be
relevant to the other— thus, perhaps, the commingling of records that Revenue Agent Pack
manually searched—or not. EOIs to foreign nations relating to the examination of Frank
Agrama’s taxes may have resulted in the release of the Cheriscla Report which was then properly
shared among examining revenue agents in this country.
The Court’s speculation is no better than Ms. Agrama’s. Her insistence that there
must be a paper trail in her IRS file to detail how the Cheriscla Report reached the revenue
agents looking at her taxes does not suffice to overcome the declarations of Service personnel or
cast doubt upon the adequacy of its searches in light of the Request.
The Court concludes that the IRS searches were adequate.
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.”2 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)).
Only 30 pages of records have been withheld from Ms. Agrama, constituting four
separate documents. See Valvardi Decl. ¶ 15a-d. Ms. Agrama argues that these records were
improperly withheld, and further that the IRS description of them in the Valvardi Declaration is
insufficiently detailed to meet its disclosure obligations.
IRS asserts that all four records are entirely exempt from disclosure under
Exemption 7(A).3 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 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 relying on Exemption 7 must show that disclosure could reasonably be expected to cause
harm to a pending investigation. 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)
Typically, agencies provide to courts an itemized description of all withheld and redacted
documents, with a brief description of the document, the exemptions claimed, and the bases for
the claimed exemptions. This index, known as a Vaughn Index, allows courts to adequately
assess the validity of an agency’s withholdings. See Vaughn v. Rosen, 484 F. 2d 820, 827 (D.C.
IRS also asserts that all withheld records are exempt under Exemption 3, and that portions of
them are exempt under Exemptions 6 and 7(C). Because the Court finds that all documents are
appropriately withheld under Exemption 7(A), it does not further analyze the remaining
proffered exemptions. See Utahamerican Energy, Inc. v. U.S. Dep’t of Labor, 685 F.3d 1118,
1123 (D.C. Cir. 2012) (explaining that the government need only prevail on one exemption).
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. 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).
As this precedent makes clear, Exemption 7(A) is designed to allow law
enforcement agencies to avoid premature disclosure of their evidence. It is a wide-ranging
exemption that is intended to protect not only evidence contained in a record, but also its
intended use in enforcement proceedings. Because of its breadth, Exemption 7(A) is limited to
pending enforcement actions. See Robbins Tire, 437 U.S. at 234-35.
IRS tax examinations constitute “law enforcement” investigations, see 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.”). Ms. Agrama does not
contest that the IRS examination of her taxes and potential penalties was currently pending at the
time of the Request. She argues, however that the Chersicla Report, already released by IRS,
itself identifies and substantively describes the four records withheld by the Service. Thus, she
contends that IRS must either demonstrate that the four withheld records are not those identified
in the Chersicla Report, or disclose them. See Pl.’s Opp’n at 12-13.
This argument also fails. First, it relies solely on the fact that the Chersicla
Report describes four documents and IRS withheld four documents; no further evidence exists
that they are the same, and Ms. Agrama admits it may simply be a coincidence. Id. Only her
speculation connects the two groups.
Further, even if the documents were the same, the fact that they are described in
the Chersicla Report does not invalidate reliance on an applicable FOIA Exemption by IRS. It is
true that records that have entered the public domain, such as through disclosure in a public trial,
may not be protected by Exemption 7(A). Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999)
(“Under our public-domain doctrine, materials normally immunized from disclosure under FOIA
lose their protective cloak once disclosed and preserved in a permanent public record.”).
However, that is not the case here; Ms. Agrama asserts only that they have been substantively
described by the Chersicla Report. The burden of showing that the contested records have
entered into the public domain falls on the requesting party, see id., and Ms. Agrama “has the
burden of showing that there is a permanent public record of the” records she seeks. Davis v.
U.S. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992). Even if the gist of the documents
were described by the Chersicla Report, that would not be sufficient to trigger the public-domain
doctrine. Ms. Agrama has not met her burden, and the government is not obligated to “prove the
negative.” Id. It would also not mean that the government did not have a valid law enforcement
interest in withholding the full documents themselves, which may contain much more
information than just a summary included in another report. Ms. Agrama’s argument is therefore
The Court further concludes that the records have been properly withheld under
Exemption 7(A), and that no Vaughn Index or more detailed declarations are necessary. Ms.
Agrama is quite candid: she wants access to records related to an ongoing IRS investigation of
herself in order to quash any penalties before they are assessed. IRS withheld four records on the
ground that disclosing them would interfere with that investigation. This justification falls well
within the boundaries of Exemption 7(A). 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, 218 F.3d at 762. Disclosure of the
contested documents may do harm to IRS’s investigation in ways that do not relate to the
substantive content possibly summarized in the Chersicla Report. Ms. Agrama’s call for a
Vaughn Index, or more detailed descriptions of the withheld records, is not supported by FOIA.
The Court concludes, based on the public and in camera submissions by the IRS, that such
further detail is unwarranted. To require further disclosure of information would destroy the
purpose of the Exemption.
While an agency may properly withhold records or parts of records under one or
more FOIA exemptions, it must release “any reasonably segregable portions” of responsive
records that do not contain exempt 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 states that it has “attempted to make available to the plaintiff every
reasonably segregable non-exempt potion of every responsive record.” Valvardi Decl. ¶ 12. No
evidence casts doubt on this sworn statement, and the Court finds that IRS has satisfied its
obligation to release all segregable factual information.
For reasons stated above, the Court will grant the IRS Motion for Summary
Judgment [Dkt. 10], and deny Ms. Agrama’s Cross-Motion for Summary Judgment [Dkt. 12].
Judgment will be entered in favor of the IRS. A memorializing order accompanies this
Date: October 20, 2017
ROSEMARY M. COLLYER
United States District Judge
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