POWELL v. INTERNAL REVENUE SERVICE et al
MEMORANDUM OPINION re 50 Motion for Summary Judgment. Signed by Judge James E. Boasberg on 12/4/2017. (lcjeb3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM E. POWELL,
Civil Action No. 16-1682 (JEB)
INTERNAL REVENUE SERVICE,
Pro se Plaintiff William E. Powell describes this Freedom of Information Act suit as a
“long journey” to obtain his own tax records and those relating to his grandfather, father, and his
family’s printing businesses. See ECF No. 46 (Opposition to MTD/MSJ). That journey has
yielded some, but not all, of the documents he seeks. In a prior Opinion, this Court concluded
that, while the Internal Revenue Service had provided numerous records, it needed to search for
others. Powell v. IRS, 255 F. Supp. 3d 33, 47-48 (D.D.C. 2017). Believing its task now
accomplished, the IRS renews its Motion to Dismiss or for Summary Judgment. It contends both
that certain of Powell’s claims are currently moot, given that the records have been produced,
and that the Service’s search was adequate as to the others. Agreeing, the Court will grant the
Plaintiff seems to have been propelled on this quest by the distribution of assets following
the death of his father, William A. Powell, in 1992. See ECF No. 26 (Amended Complaint) at 23, 7 n.3; ECF No. 49 (Surreply) at 2. Powell believes that the probate trustees charged with this
distribution may have breached their fiduciary duties and that certain tax records will help him
determine whether to sue them. See Am. Compl. at 3; ECF No. 26-28 (July 5, 2016, RAIVS
Request). He seeks his own tax records, as well as those regarding his father, grandfather, and
trusts and printing companies that those two men created. See ECF No. 41 (Motion to Dismiss
and for Summary Judgment), Exhs. 1-4 (RAIVS Requests); Am. Compl. at 14-15; Opp. at 1-2.
Plaintiff desires four general types of documents: Master file-complete transcripts,
Master file-specific transcripts, TXMOD(A) transcripts, and Non-Master Files. See Am. Compl.
at 14-15. A primer for the tax layperson: Master-file transcripts are “the official repository of all
taxpayer data extracted from magnetic tape records, paper and electronic tax returns, payments,
and related documents.” ECF No. 31, Exh. 2 (Declaration of Joy E. Gerdy Zogby), ¶ 9. A
“complete” transcript contains “all entity and tax module data associated with” a particular
Taxpayer Identification Number for all years relevant to the taxpayer. Id., ¶ 11. The IRS can
also search more narrowly for Master file-specific transcripts that contain information related to
a specific tax period or type of tax return. See ECF No. 34, Exh. 2 (First Declaration of William
J. White IV), ¶ 19; MTD/MSJ, Exh. 7 (Second Declaration of William J. White IV), ¶ 6.
TXMOD(A) transcripts, the third type, contain information about “active taxpayer accounts” that
have “ongoing tax liability issues associated with them.” Second White Decl., ¶ 16. In addition,
there is a Non-Master File system for “certain types of tax assessments that cannot be
implemented by Master File processing.” Zogby Decl., ¶¶ 10, 18.
In pursuit of these records, Powell certainly cannot be accused of lacking effort; in fact,
he has filed around 89 FOIA requests. See First White Decl., ¶ 3. He has challenged
Defendant’s responses to his requests in several suits in federal court in Michigan, as well as in
this Court. See Powell v. IRS, 255 F. Supp. 3d 33 (D.D.C. 2017); Powell v. IRS, No. 15-11033,
2016 WL 7473446 (E.D. Mich. Dec. 29, 2016); Powell v. IRS, No. 15-11616, 2016 WL 5539777
(E.D. Mich. Sept. 30, 2016); Powell v. IRS, No. 14-12626, 2015 WL 4617182 (E.D. Mich. July
31, 2015). In this suit, he takes issue with the IRS’s responses to FOIA requests that he made on
July 5, 15, and 19, 2016. See Am. Compl. at 14-15. In so doing, Plaintiff asserts both Privacy
Act and FOIA causes of action. Id. at 1-2, 4-5.
Responding to prior defense motions in this case, the Court offered partial victories to
each side. Powell, 255 F. Supp. 3d at 48. More specifically, the motions were denied without
prejudice as to Powell’s Privacy Act claims because he had not exhausted his administrative
remedies. Id. at 40-42. As to his FOIA claims, the Court interpreted Plaintiff’s Complaint as
requesting the following specific documents for certain years between 1988 and 2005:
Master file-specific for “06”
Master file-specific for Form 1065
Master file-specific for Form 1120
Master file-specific for Form 1041
Master file-specific for Form 706
Master file-specific for Form 1041
Master file-specific for Form 1040
Master file-specific for Form 1040
July 15 RAIVS Request 1
William A. Powell
Estate of William
William A. Powell
William E. Powell
July 15 RAIVS Request 2
July 5 RAIVS Request
July 15 RAIVS Request 2
July 5 RAIVS Request
July 15 RAIVS Request 2
July 19 RAIVS Request
July 19 RAIVS Request
Id. at 44.
The Court dismissed several of the FOIA claims as moot because the IRS had already
given Powell certain requested documents – namely, the Individual Master file-complete for
William E. Powell, the Business Master file-complete for the Estate of William A. Powell, and
the Business Master file-complete for the Powell Printing Company. Id. at 46. Claims regarding
Non-Master files also were dismissed because Plaintiff had not alleged or provided records to
show that he had requested any from the IRS. Id. at 45. The Court denied the motion, however,
as to several other claims because there was not enough evidence to determine, as the IRS urged,
that Powell had failed to provide appropriate documentation authorizing him to receive certain
records or that he had abandoned some of his requests. Id. at 46-48.
After the issuance of the Opinion, Defendant conducted a new search for records
responsive to the remaining claims. IRS Senior Disclosure Specialist William J. White IV, who
was tasked with this effort, first realized that the IRS had already released the following
documents to Plaintiff on January 15, 2015:
Master file-specific transcript for Form 1120 for the Powell Printing Company for tax
Master file-specific transcript for Form 1041 for the William A. Powell Agreement of
Trust for tax year 2005;
Master file-specific transcripts for Form 1040 for William E. Powell for tax years
Microfilm versions of the Master file-specific transcripts for Form 1120 for the
Powell Printing Company for tax years 1990-92.
Second White Decl., ¶¶ 9-11; id., Exh. A (January 15, 2015, Letter to William Powell).
To search for the remaining records, White used a database called the Information Data
Retrieval System (IDRS). See Second White Decl., ¶ 6. IRS employees use the IDRS to request
Master-file and TXMOD(A) transcripts. Id. White searched this database for Powell’s
requested records, using various command codes and identification numbers “depending on the
type of record sought.” Id. Specifically, he searched using the following command codes and
information: (1) “TXMOD(A), [Social Security Number/Employer Identification Number],
[Type of tax return], [Specific tax period]” to find TXMOD(A) transcripts; (2) “MFTRA, [Social
Security Number/Employer Identification Number]” for complete transcripts; and (3) “MFTRA,
[Social Security Number/Employer Identification Number], [Type of tax return], [Specific tax
period]” for specific transcripts. Id.
These searches turned up several responsive documents. White found the Master filecomplete transcript for the William A. Powell Agreement of Trust, a Master file-specific
transcript for Form 1040 for William E. Powell for tax year 1992, and a Master file-specific
transcript for Form 706 for the Estate of William A. Powell for tax year 1993. Id., ¶¶ 12-13. On
August 25, 2017, these records were released to Plaintiff. See Motion, Exh. 5 (August 25, 2017,
Letter to Powell).
The above-described searches did not, however, locate the following: (1) any records for
the Andrew Powell Printing Company or William A. Powell; (2) any TXMOD(A) transcripts for
any entity or individual; (3) Master file-specific transcripts for Form 1041 for the William A.
Powell Agreement of Trust for tax years 1992, 1995, 2000; (4) Master file-specific transcripts for
Form 706 for the Estate of William A. Powell for tax years 1992, 1994, and 1995; or (5) Master
file-specific transcripts for Form 1041 for the Estate of William A. Powell for tax years 1992-95.
See Second White Decl., ¶¶ 15-17.
These searches having now been accomplished, Defendant again moves to dismiss or for
summary judgment. The IRS argues that several of Powell’s claims are moot because it has
already given him the requested records. MTD/MSJ at 4-7. As to the rest of the requests, it
argues that its search was adequate. Id. at 7-11; ECF No. 47 (Reply) at 4-10.
As the Court decides the matter under the summary-judgment standard, it lays out the law
relating only to that type of motion. Summary judgment may be granted if “the movant shows
that 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). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,
477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of materials in the record” or “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The
moving party bears the burden of demonstrating the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In the event of conflicting evidence on a
material issue, the Court is to construe the conflicting evidence in the light most favorable to the
non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they “describe the justifications for nondisclosure with
reasonably specific detail . . . and are 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 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., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” U.S. Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5
U.S.C. § 552(a)(4)(B)).
FOIA provides 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). Defendant maintains that,
because it has complied with these disclosure obligations, Plaintiff’s suit should be dismissed.
Specifically, the IRS contends that (A) it has already released some of the requested documents,
rendering several claims moot; and (B) its search was adequate as to the others. The Court
considers each argument in turn.
Article III of the Constitution restricts federal-court jurisdiction to “actual and concrete
disputes, the resolutions of which have direct consequences on the parties involved.” Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). “If an intervening circumstance deprives
the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the
action can no longer proceed and must be dismissed as moot.” Id. (internal quotation marks
omitted). The government’s disclosure of records in a FOIA case is such a circumstance and
renders requests for those records moot. Williams & Connolly v. SEC, 662 F.3d 1240, 1243-44
(D.C. Cir. 2011).
Several of Powell’s requests are moot for this reason. Three of them were already
determined to be moot in the Court’s prior Opinion because Defendant had released the
documents – namely, requests for the Master file-complete transcript for William E. Powell, the
Master file-complete transcript for the Estate of William A. Powell, and the Master file-complete
for the Powell Printing Company. Powell, 255 F. Supp. 3d at 46. Since this Court’s last
Opinion, Defendant found and turned over additional documents, rendering requests for them
moot as well – specifically, the Master file-complete transcript for the William A. Powell
Agreement of Trust, a Master file-specific transcript for William E. Powell for tax year 1992,
and the Master file-specific transcript for Form 706 for the Estate of William A. Powell for tax
year 1993. See Second White Decl., ¶¶ 12-13; August 25, 2017, Letter to Powell. Also since the
Opinion, the IRS realized that it had already provided Powell the following documents in 2015:
the Master file-specific transcript for Form 1120 for the Powell Printing Company for tax year
1993, the Master file-specific transcript for Form 1041 for the William A. Powell Agreement of
Trust for tax year 2005, and the Master file-specific transcripts for Form 1040 for William E.
Powell for tax years 1989-91. See Second White Decl., ¶¶ 8, 11; January 15, 2015, Letter to
Plaintiff does not dispute the receipt of these documents, see Opp. at 2-7, 10-11; Surreply
at 10, 16, except perhaps his own Master file-specific transcripts (although his argument is
unclear), see Opp. at 3, but nonetheless argues that the IRS has concealed “vital” information
that should have appeared on them. See Opp. at 3-8, 17; Surreply at 8, 10. The Court already
rejected this argument, however, as to the three previously mooted requests because Powell
never supported his assertions that Defendant had somehow altered the transcripts. Powell, 255
F. Supp. 3d at 46. In this second go-round, he still has not provided anything more than his own
speculative belief that the IRS tampered with the documents. He contends, for example, that
Defendant is hiding information such as the Employer Identification Numbers (EIN) for the
parent entities of the Powell Printing Company, the Estate of William A. Powell, and the
William A. Powell Agreement of Trust. See Opp. at 18; Surreply at 8. But Powell does not
argue that the IRS redacted this information; instead, he suspects that Defendant possesses it
elsewhere and should have put it on the transcripts: “Plaintiff desires this Honorable Court to
acknowledge, Defendant is not redacting the information from the transcripts Plaintiff is
requesting, the transcripts are being provided as a shell without any information illustrated.”
Opp. at 19. This hunch does not overcome the presumption of good faith afforded the
government’s declarations. See SafeCard, 926 F.2d 1200.
Because requests for the following records are moot, the Court grants Defendant’s
Motion for Summary Judgment as to them: the Master file-complete transcript for William E.
Powell, the Master file-complete transcript for the Estate of William A. Powell, the Master filecomplete for the Powell Printing Company, the Master file-complete transcript for the William
A. Powell Agreement of Trust, a Master file-specific transcript for William E. Powell for tax
year 1992, and the Master file-specific transcript for Form 706 for the Estate of William A.
Powell for tax year 1993.
Adequacy of Search
As to what remains, the IRS argues that its search for responsive records was adequate.
The Court agrees and will thus grant summary judgment for Defendant as to these claims as
well. “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 Steinberg v. DOJ, 23 F.3d 548, 551-52 (D.C. Cir.
1994). The adequacy of an agency’s search for documents under FOIA “is judged by a standard
of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. DOJ,
745 F.2d 1476, 1485 (D.C. Cir. 1984). “When a plaintiff questions the adequacy of the search an
agency made in order to satisfy its FOIA request, the factual question it raises is whether the
search was reasonably calculated to discover the requested documents, not whether it actually
uncovered every document extant.” SafeCard, 926 F.2d at 1201.
To meet its burden, the agency may submit affidavits or declarations that explain the
scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C.
Cir. 1982). As part of this explanation, a defendant must, at a minimum, aver that “all files
likely to contain responsive materials . . . were searched.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). Agency 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, 926 F.2d at 1200 (citation omitted). Unrebutted
affidavits or declarations can prove that an agency met its FOIA obligations. Perry, 684 F.2d at
127. “If, however, the record leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
Defendant’s declarations describe the search for Plaintiff’s requested records “in
reasonable detail” and are accordingly afforded a presumption of good faith. Senior Disclosure
Specialist White attests that he searched for the records on the “Information Data Retrieval
System (‘IDRS’),” which is the database “used by IRS employees to request these kinds of
records for all taxpayers.” Second White Decl., ¶ 6; see also First White Decl., ¶ 22. He used
command codes that varied based on the type of transcript and taxpayer. See Second White
Decl., ¶ 6. Specifically, he searched for TXMOD(A) transcripts using the command code
“TXMOD(A, [Social Security Number/Employer Identification Number], [Type of tax return],
[Specific tax period]”; for complete transcripts using “MFTRA, [Social Security
Number/Employer Identification Number]”; and for specific transcripts using “MFTRA, [Social
Security Number/Employer Identification Number], [Type of tax return], [Specific tax period].”
Id.; see also Zogby Decl., ¶ 11. These queries located some, but not all, of the outstanding
requested records. See Second White Decl., ¶¶ 12-14.
He makes the key assertion, moreover, that “[b]esides IDRS, there is no other IRS system
or database in which the records requested by Plaintiff would likely be located.” Id., ¶ 19.
White even lays out the likely reasons why some documents were not located. It makes sense,
for instance, that there was only one transcript available for the Estate of William A. Powell – for
the year after his death when the estate tax return was filed. Id., ¶ 18. And the lack of
TXMOD(A) transcripts is reasonable, White explains, because Powell seeks transcripts for tax
years so long past that there are likely no more active accounts for those years and, consequently,
no TXMOD(A) transcripts. Id., ¶ 16.
White’s declaration thus contains three essential statements that courts require: the search
terms used, the database or location searched, and an averment that all locations likely to contain
responsive records were searched. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 200 (D.C.
Cir. 2015) (affirming adequacy of search based on affidavit containing these required assertions);
Looks Filmproduktionen GmbH v. CIA, 199 F. Supp. 3d 153, 164-69 (D.D.C. 2016) (finding
search adequate based on affidavit containing required assertions); Rollins v. U.S. Dep’t of State,
70 F. Supp. 3d 546, 549-50 (D.D.C. 2014) (same); Citizens for Responsibility & Ethics in
Washington v. Nat’l Archives & Records Admin., 583 F. Supp. 2d 146, 167-68 (D.D.C. 2008)
(same) (citing Weisberg v. DOJ, 705 F.2d 1344, 1348 (D.C. Cir. 1983)).
Yes, the IRS declarations could have included more details, including more particulars on
how IDRS functions. But the core principle is whether a defendant has provided enough
information for a plaintiff to be able to challenge the adequacy of the search: “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, is necessary to afford a
FOIA requester an opportunity to challenge the adequacy of the search.” Oglesby, 920 F.2d at
68. The IRS declarations provide Powell this opportunity. Based on the information provided,
he could challenge the search’s scope by arguing, for instance, that more or different terms and
databases should have been used.
Indeed, Powell does exactly that. Most of his contentions about the adequacy of the
search terms, however, are based solely on speculation that hidden documents and information
exist. Although “positive indications of overlooked materials” may raise “substantial doubt”
about the adequacy of a search and render summary judgment “inappropriate,” Valencia-Lucena,
180 F.3d at 326 (citation omitted), guesses about the existence of documents do not overcome
the good-faith presumption afforded government declarations. See SafeCard, 926 F.2d at 1200.
Plaintiff attempts to establish “positive indications of overlooked materials,” but these arguments
– that the IRS has repeatedly changed the filing requirements for partnerships, corporations, and
estates in order to conceal records, see Surreply at 19; Opp. at 19 n.21, and that, if complete
transcripts for an entity were found, specific ones exist and should have been located as well –
are unsupported guesses. See Opp. at 6-7.
Powell’s second attack on the search is that the IRS should have used an additional
database, the Automated Non-Master File (ANMF) system. See Opp. at 9. He argues that
certain codes on the released transcripts indicate that further records exist there. Id. at 18. For
example, he argues that the “LARGE CORP” designation means that certain tax filings would
have been too large for the Master-file system and would therefore be Non-Master files located
on the ANMF. Id. This Court already has held, however, that Plaintiff has not perfected a
request for any Non-Master Files, Powell, 255 F. Supp. 3d at 45, so there was no need for
Defendant to search for such documents.
In sum, because Defendant demonstrated the adequacy of its search with declarations
afforded a presumption of good faith that Plaintiff has not rebutted, it is entitled to summary
As several of Plaintiff’s FOIA claims are moot and Defendant has conducted an adequate
search as to others, its Motion for Summary Judgment will be granted. A separate Order so
stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 4, 2017
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