United States District Court, S.D. California
TRUCEPT, INC. fka SMART-TEK SOLUTIONS INC., Plaintiff,
UNITED STATES INTERNAL REVENUE SERVICE, Defendant.
ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE
IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO.
Ted Moskowitz, Chief Judge United States District Judge.
United States Internal Revenue Service (“IRS”)
has filed a motion for summary judgment as to Plaintiff's
claims under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, et seq. (ECF No.
25.) For the reasons discussed below, the IRS's motion
will be granted in part and denied without prejudice in part.
one of five actions filed by related entities against the
Each case is based on the claim that the IRS failed to comply
with its obligations under 5 U.S.C. § 552 to respond to
FOIA requests submitted by the plaintiffs. Plaintiffs contend
they submitted their requests after the IRS filed a series of
liens against them between 2011 and 2013 holding them liable
for payroll tax liabilities of other corporations under alter
ego and/or successor liability theories.
Trucept, Inc., fka Smart-Tek Solutions Inc.
(“Plaintiff”) alleges it sent a written FOIA
request to the IRS on May 12, 2014. Compl. (ECF No. 1) ¶
10. Under 5 U.S.C. § 552(a)(6)(A)(i), an agency has 20
business days following receipt of a FOIA request to
determine whether to comply with the request and must
“immediately” notify the requester of its
determination. 5 U.S.C. § 552(a)(6)(A)(i). On June 26,
2014, the IRS allegedly sent a response to Plaintiff in which
it acknowledged receipt of the request but “failed to
make any determination about the request.” Compl.
¶ 11. On February 27, 2015, having received no further
response from the IRS, Plaintiff initiated this action.
October 7, 2016, the IRS filed the instant motion. It
indicates it has now completed its search for records and
released 2, 319 pages in full, and 617 pages in part, of
non-exempt documents responsive to Plaintiff's FOIA
request. Mot. Summ. J. at 1:9-15. It seeks summary judgment
on the ground that it has fully discharged its obligations
under 5 U.S.C. § 552. Plaintiff opposes the motion. (ECF
FOIA Summary Judgment Standard
judgment is appropriate if the evidence, when viewed in the
light most favorable to the non-moving party, demonstrates
“there is no genuine dispute as to any material
fact.” Fed.R.Civ.P. 56(a); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of showing there is no material
factual dispute and he or she is entitled to prevail as a
matter of law. Celotex, 477 U.S. at 323. If the
moving party meets its burden, the nonmoving party must go
beyond the pleadings and identify specific facts which show a
genuine issue for trial. Id. at 324.
courts are directed to conduct a de novo review of
the adequacy of an agency's response to a FOIA request. 5
U.S.C. § 552(a)(4)(B); U.S. Dep't of
Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 755 (1989). Because FOIA cases rarely involve
material factual disputes, they “are typically and
appropriately decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 97 (D.D.C. 2009); see
Shannahan v. Internal Revenue Serv., 637 F.Supp.2d
902, 912 (W.D. Wash. 2009). Courts “follow a two-step
inquiry when presented with a motion for summary judgment in
a FOIA case.” Shannahan, 637 F.Supp.2d at 912.
the district court must determine whether the agency has
established that it fully discharged its obligation under
FOIA to conduct an adequate search for responsive records.
Zemansky v. U.S. Envtl. Prot. Agency, 767 F.2d 569,
571 (9th Cir. 1985). To meet this burden, the agency must:
demonstrate that it has conducted a “search reasonably
calculated to uncover all relevant documents.” Further,
the issue to be resolved is not whether there might exist any
other documents possibly responsive to the request, but
rather whether the search for those documents was adequate.
The adequacy of the search, in turn, is judged by a standard
of reasonableness and depends, not surprisingly, upon the
facts of each case. In demonstrating the adequacy of the
search, the agency may rely upon reasonably detailed,
nonconclusory affidavits submitted in good faith.
Id. (quoting Weisberg v. U.S. Dep't of
Justice (“Weisberg II”), 745 F.2d 1476, 1485
(D.C. Cir. 1984)).
agency satisfies its initial burden, the court proceeds to
the second step and considers “‘whether the
agency has proven that the information that it did not
disclose falls within one of nine FOIA
exemptions.'” Shannahan, 637 F.Supp.2d at
912 (quoting Los Angeles Times Commc'ns, LLC v.
Dep't of the Army, 442 F.Supp.2d 880, 894 (C.D. Cal.
2006)). Agencies seeking to withhold documents pursuant to a
FOIA exemption “have been required to supply the
opposing party and the court with a ‘Vaughn
index, ' identifying each document withheld, the
statutory exemption claimed, and a particularized explanation
of how disclosure of the particular document would damage the
interest protected by the claimed exemption.”
Wiener v. Fed. Bureau of Investigation, 943 F.2d
972, 977 (9th Cir. 1991); see Vaughn v. Rosen, 484
F.2d 820, 823-25 (D.C. Cir. 1973). “The purpose of a
Vaughn index ‘is … to afford the
requester an opportunity to intelligently advocate release of
the withheld documents and to afford the court the
opportunity to intelligently judge the contest.'”
Shannahan, 637 F.Supp.2d at 912 (quoting
Wiener, 943 F.2d at 979).
“even if the agency satisfies the two-part test, it
generally must still disclose any reasonably segregable
portions of the withheld documents.” Id.; 5
U.S.C. § 552(b) (“Any reasonably segregable
portion of a record shall be provided to any person
requesting such record after deletion of the portions which
are exempt under this subsection.”). “‘The
burden is on the agency to establish that all reasonably
segregable portions of a document have been segregated and
disclosed.'” Id. (quoting Pac.
Fisheries Inc. v. United States, 539 F.3d 1143, 1148
(9th Cir. 2008).
Reasonableness of Search
contends it has conducted an adequate search for records
responsive to Plaintiff's FOIA request. To fulfill its
obligations under FOIA, “the agency must show that it
made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably
expected to produce the information requested.”
Oglesby v. U.S. Dep't of the Army, 920 F.2d 57,
68 (D.C.Cir.1990). The agency must show “[w]hat records
were searched, by whom, and through what process.”
Steinberg v. U.S. Dep't of Justice, 23 F.3d 548,
552 (D.C. Cir. 1994). An agency can meet its burden by
submitting a “reasonably detailed, nonconclusory”
affidavit “in good faith.” Id. at 551
(quoting Weisberg II, 745 F.2d at 1485). Agency
affidavits that “do not denote which files were
searched or by whom, do not reflect any systematic approach
to document location, and do not provide information specific
enough to allow the plaintiff to challenge the procedures
utilized” are insufficient to fulfill the agency's
burden. Weisberg v. U.S. Dep't of Justice, 627
F.2d 365, 371 (D.C. Cir. 1980). In determining whether an
agency has met its burden to prove an adequate search,
“the facts must be viewed in the light most favorable
to the requestor.” Zemansky, 767 F.2d at 571
(citing Weisberg II, 745 F.2d at 1485).
submits the declaration of Delphine Thomas as proof it
conducted an adequate search for records responsive to
Plaintiff's FOIA request. (ECF No. 25-5.) Thomas is a
Senior Disclosure Specialist whose duties include responding
to FOIA requests for IRS records, which requires her to
“have knowledge of the types of documents created and
maintained by the various divisions and functions of the
Service and an understanding of the provisions of the
FOIA.” Thomas Decl. ¶ 1.
states that the disclosure specialists initially assigned to
respond to Plaintiff's FOIA are now retired or in
different positions and are thus “unavailable to
declare.” Id. ¶ 3. To familiarize herself
with the search conducted prior to her involvement, ...