Janangelo v. Treasury Inspector General for Tax Administration

Filing 24

ORDER that 12 defendant TIGTA's Motion for Summary Judgment is GRANTED. FURTHER ORDERED that 14 plaintiff Janangelo's Motion for Summary Judgment is DENIED. FURTHER ORDERED that plaintiff Janangelo's complaint (ECF No. 1 ) be, and the same hereby is, DISMISSED with prejudice. The clerk is instructed to enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 3/29/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PETER JANANGELO, JR.,

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Plaintiff(s),

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Case No. 2:16-CV-906 JCM (GWF)
ORDER

v.
TREASURY INSPECTOR GENERAL FOR
TAX ADMINISTRATION,
Defendant(s).

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Presently before the court is defendant Treasury Inspector General for Tax

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Administration’s (“TIGTA”) motion for summary judgment. (ECF No. 12). Plaintiff Peter
Janangelo, Jr. (“Janangelo”) filed a response (ECF No. 13), to which TIGTA replied (ECF No.
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Also before the court is Janangelo’s motion for summary judgment. (ECF No. 14). TIGTA

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filed a response (ECF No. 18), to which Janangelo replied (ECF No. 23).
I.

Background
The present case stems from a letter Janangelo filed with TIGTA on November 3, 2015,

detailing a Freedom of Information Act (“FOIA”) request. (ECF No. 12). The FOIA request
sought “a copy of the TIGTA Report concerning . . . TIGTA Complaint #55-1409-0099-C.” (ECF
No. 12-2 at 6).1

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James C. Mahan
U.S. District Judge

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TIGTA complaints, investigations, and reports are terms of art that describe specific
internal TIGTA documents. (ECF No. 12-1 at 2). A TIGTA complaint refers to “an allegation of
criminal or administrative misconduct.” (ECF No. 12-1 at 2). Once received, the TIGTA
complaint is assigned to a special agent who gathers evidence in order to make a “determination
whether the information supports the need to convert the complaint into an investigation.” (ECF
No. 12-1 at 2). If an investigation is warranted, the special agent will continue collecting evidence

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The TIGTA complaint #55-1409-0099-C (“TIGTA complaint”) came as a result of a

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congressional inquiry from Representative Joseph Heck (“Heck”). (ECF No. 12-2 at 2). Janangelo

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prompted Heck’s inquiry by representing to him alleged misconduct of an IRS employee, Debra

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W. Thompson (“Thompson”). (ECF No. 12-2 at 6).

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On December 9, 2015, TIGTA responded to Janangelo’s FOIA request with a Glomar

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response, which stated that “[t]o the extent you are requesting documents pertaining to a third-

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party, TIGTA can neither admit nor deny the existence of responsive records.” (ECF No. 12-2 at

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7). TIGTA asserted this Glomar response because the “request seeks access to the types of

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documents for which there is no public interest that outweighs the privacy interests established

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and protected by the FOIA (5 U.S.C. §§ 552(b)(7)(C) and (b)(6)).” (ECF No. 12-2 at 7).

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On December 29, 2015, Janangelo appealed TIGTA’s Glomar response and asserted that

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he “require[d] a copy of TIGTA’s Report of TIGTA Complaint#: 55-1409-009-C to defend

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[himself] against Debra W. Thompson’s July 13, 2015 proposal to terminate [his] employment

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with the Internal Revenue Service.” (ECF No. 12-2 at 11). Janangelo argued that the § 522(b)(6)

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exception was inapplicable because the FOIA request did not seek personnel files. (ECF No 12-2

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at 12). Janangelo also argued that the § 522(b)(7)(C) exception was similarly inapplicable because

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the FOIA request sought “a copy of TIGTA’s Report” regarding the TIGTA complaint—a

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document not compiled for law enforcement purposes. (ECF No. 12-2 at 12).
On February 5, 2016, TIGTA affirmed its original denial of Janangelo’s FOIA request,

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again citing the § 522 (b)(6) and (b)(7)(C) exemptions. (ECF No. 12-2 at 13).
Janangelo filed the underlying complaint on April 20, 2016, asserting one claim for

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violation of FOIA. (ECF No. 1).

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II.

Legal Standard & Discussion

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A.

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Because the facts are rarely in dispute in FOIA cases, courts need not analyze whether a

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genuine issue of material fact exists to grant summary judgment. Minier v. Central Intelligence

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Agency, 88 F.3d 796, 800 (9th Cir. 1996). Rather, the court views the facts in a light most favorable

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and create a report, which includes a summary of the investigation and a list of evidentiary support
to prove or disprove the allegations. (ECF No. 12-1 at 3).

James C. Mahan
U.S. District Judge

Summary Judgment in FOIA Cases

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to the requestor and applies a two-step inquiry whereby it must (1) determine whether the agency

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has conducted a search “reasonably calculated to uncover all relevant documents,” and (2) examine

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whether the withheld information falls within one of the nine FOIA exemptions. Zemansky v. U.S.

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E.P.A., 767 F.2d 569, 571 (9th Cir. 1985) (quotation marks and citation omitted). “The agency

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resisting disclosure of requested information has the burden of proving the applicability of an

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exemption.” Minier, 88 F.3d at 800 (citing Church of Scientology v. United States Dep’t of the

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Army, 611 F.2d 738, 742 (9th Cir. 1979)).

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Moreover, a government agency may refuse to confirm or deny the existence of records

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through a Glomar response if the claimed “exemption would itself preclude the acknowledgment

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of such documents.” Id. (citing Hunt v. Central Intelligence Agency, 981 F.2d 1116, 1118 (9th

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Cir. 1992)).

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B.

Reasonably Calculated Search

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For an agency to have satisfied its initial burden, the court must find that an adequate search

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was conducted. Zemansky, 767 F.2d at 571. “In demonstrating the adequacy of the search, the

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agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.” Id.

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(citing Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The court must

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give “substantial weight” to agency affidavits so long as the “justifications for nondisclosure ‘are

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not controverted by contrary evidence in the record or by evidence of [the agency’s] bad faith.’”

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Minier, 88 F.3d at 800 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

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However, the adequacy of a search is “irrelevant to [a] ‘Glomar’ response because the issue

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is whether the [a]gency has given sufficiently detailed and persuasive reasons for taking the

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position that it will neither confirm nor deny the existence or non-existence of any responsive

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records.” Wheeler v. C.I.A., 271 F. Supp. 2d 132, 141 (D.D.C. 2003). In circumstances where the

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agency offers a Glomar response, the court need only examine the affidavits which explain the

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agency’s refusal. Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1018 (D.C. Cir. 1976).

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Here, TIGTA gave a Glomar response to Janangelo’s FOIA request. (ECF No. 12-2 at 7).

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TIGTA argues that its Glomar response was necessary to protect Thompson’s privacy interest in

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connection with a criminal or administrative investigation. (ECF No. 12 at 7). Janangelo contests

James C. Mahan
U.S. District Judge

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TIGTA’s Glomar response, claiming that TIGTA has already acknowledged the existence of a

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TIGTA report. (ECF No. 13 at 10). The court disagrees.

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Janangelo claims TIGTA acknowledged the report on two separate occasions; however,

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the court finds neither instance a valid acknowledgment. The first instance is an email chain

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between Janangelo and special agent Ronald Moller. (ECF No. 13-2 at 19). Janangelo requests

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that Moller “send [him] a copy of TIGTA’s report to U.S. Rep. Joe Heck, D.O. concerning [his]

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above referenced TIGTA Complaint (#55-1409-0099-C).” (ECF No. 13-2 at 19). In response,

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Moller states that he “won’t be able to provide the information directly to [Janangelo].” (ECF No.

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13-2 at 19). The court disagrees with Janangelo’s interpretation that the phrase, “the information,”

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is an acknowledgment of an existing report. Rather, as is the case here, “the information” is that

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a privacy interest is at issue and cannot be disclosed barring an outweighing public interest.

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The second instance is contained in Daphne S. Levitas’ declaration in support of TIGTA’s

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motion for summary judgment, wherein she states that she is “familiar with the document plaintiff

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seeks and issues in this lawsuit.” (ECF No. 12-2 at 1). The declaration continues to detail the

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process by which TIGTA conducts investigations and compiles reports. (ECF No. 12-2 at 2). The

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context within which Levitas’ statement is made tends to support TIGTA’s position that it was not

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acknowledging the existence of a particular report, but rather it was acknowledging the existence

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of TIGTA reports generally. This is clarified in Levitas’ second declaration, wherein she states,

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in relevant part, that she “intended to merely convey that [she is] generally familiar with the

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purpose and nature of TIGTA Reports of Investigations. The statement . . . was not meant to state

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that [she] was familiar with the specific [report] sought in this case, to the extent that such [a report]

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exists.” (ECF No 17-1 at 1–2).

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Accordingly, the court finds that neither of these instances constitute an acknowledgement

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by TIGTA regarding the existence of a report. Because the requested information’s existence has

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not yet been acknowledged, a Glomar response would be valid so long as it sufficiently details a

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persuasive reason for claiming the FOIA exemptions.

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James C. Mahan
U.S. District Judge

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C.

FOIA Exemptions

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TIGTA argues that disclosure of the sought documents would be an invasion of personal

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privacy without sufficient public interest and is exempt pursuant to 5 U.S.C. § 552(b)(6) and

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(b)(7)(C). (ECF No. 12 at 11). To satisfy its burden, the agency may rely on detailed affidavits

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showing that the information “logically falls within the claimed exemptions.” Hunt, 981 F.2d at

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1119.

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To fall within the § 552(b)(6) exemption, TIGTA must show (1) that the information is

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contained in “personnel and medical files and similar files,” and (2) that disclosure of that

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information would be a “clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

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Records that contain information about a particular individual satisfy the first requirement. Forest

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Serv. Emp. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008) (citing Van

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Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1273 (9th Cir. 1984) (quotation

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omitted)).

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In determining whether the invasion of personal privacy invokes the protections of an

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exemption, the personal privacy interest at stake must be weighed against the public interest in

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disclosure. Hunt, 972 F.2d at 287. “[T]he only relevant public interest in the FOIA balancing

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analysis is the extent to which disclosure of the information sought would shed light on an agency’s

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performance of its statutory duties or otherwise let citizens know what their government is up to.”

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Bibles v. Nat. Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curium) (citing Dep’t of Defense v.

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FLRA, 510 U.S. 487, 497 (1994)).

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Government employees have a privacy interest in “any file that reports on an investigation

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that could lead to the employee’s discipline or censure.” Hunt, 972 F.2d at 287 (citing Dep’t of

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Air Force v. Rose, 425 U.S. 352, 376–77 (1976)). Allegations of sexual and professional

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misconduct, that are associated with the employee’s name, can cause “great personal and

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professional embarrassment.” Id.

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Here, because the TIGTA complaint involved Thompson individually, any further

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investigation or report would necessarily be a personnel or similar file. See Forest Serv. Emp. for

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Envtl. Ethics, 524 F.3d at 1024.

James C. Mahan
U.S. District Judge

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For the personnel or similar file to be exempt, it must contain information that is a “clearly

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unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The TIGTA complaint alleges

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that Thompson “provid[ed] sexual service to [her current husband] while she was married to

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another man, in a quid pro quo agreement to advance her IRS career.” (ECF No. 12-2 at 11). The

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complaint revolves around Janangelo’s allegations of Thompson’s sexual and professional

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misconduct.

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Though these are the specific circumstances the law seeks to protect in providing an

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exemption for personnel and similar files that contain private, personal information, the court must

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weigh the privacy interest against the public interest. Janangelo argues that the public has interest

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in exposing criminal activity including nepotism and retaliation for whistle blowing, and a

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“scandal worthy” story of discrimination from superiors at the IRS. The court disagrees.

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In Janangelo’s initial FOIA request letter and in his administrative appeal, he sought the

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report “to defend [him]self against [Thompson’s] . . . proposal to terminate [his] employment with

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the Internal Revenue Service.” (ECF No. 12-2 at 11). Personal interests are given no weight in

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the balancing of public interest. See Cameranesi v. Dep’t of Defense, 839 F.3d 751, 765 (9th Cir.

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2016).

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The remaining allegations of public interest do not suffice to preclude exemption.

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Exposing criminal activity, including nepotism and retaliation for whistle blowing, is one of the

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functions of TIGTA. (ECF No. 12-2 at 2). Approving Janangelo’s FOIA request based on the

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stated public interests, which seem pretextual, would bypass the function of internal criminal

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investigations that allow for protections from unwarranted allegations. Moreover, the privacy

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interest at stake here is great as the allegations are of a single individual and regard intimate topics

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which, if disclosed, could cause severe professional and personal embarrassment. See Hunt, 972

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F.2d at 287.
Because the balance of interests weighs heavily in favor of Thompson’s privacy interest,

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the court finds TIGTA’s application of the § 552(b)(6) exemption to be warranted.

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James C. Mahan
U.S. District Judge

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III.

Conclusion

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In sum, the court finds that TIGTA’s denial of Janangelo’s FOIA request was appropriate

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under 5 U.S.C. § 552(b)(6). TIGTA’s Glomar response was similarly appropriate in its effort to

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protect the privacy interest and apply § 552(b)(6). The claimed public interest does not outweigh

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the great private interest; therefore, the exemption applies. Further, the court will dismiss the

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complaint with prejudice because any amendment to the complaint or claims brought would be

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futile as the exemption applies to the document and not to Janangelo individually.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant TIGTA’s

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motion for summary judgment (ECF No. 12) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that plaintiff Janangelo’s motion for summary judgment
(ECF No. 14) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff Janangelo’s complaint (ECF No. 1) be, and
the same hereby is, DISMISSED with prejudice.

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The clerk is instructed to enter judgment accordingly and close the case.

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DATED March 29, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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