United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE
IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO.
Ted Moskowitz, United States District Court Chief 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.
29.) 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.
Smart-Tek Service Solutions Corp. (“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 September 29, 2014, the IRS allegedly
sent a response to Plaintiff acknowledging 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 1, 598 pages in full, and 369 pages in part, of
non-exempt documents responsive to Plaintiff's FOIA
request. 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 No. 31.)
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).
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 in support of its
contention that it conducted an adequate search for records
responsive to Plaintiff's FOIA request. (ECF No. 29-4.)
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. ¶¶ 1-2.
states she was not initially assigned to respond to
Plaintiff's FOIA request, but she familiarized herself
with the steps taken prior to her involvement by reviewing
the case notes of disclosure specialist Edward Pullman, who
was initially assigned to the case. Id. She relates
that on May 29, 2014, the IRS received a written FOIA request
from a representative of Plaintiff seeking “a complete
copy of the administrative file” for Plaintiff.
Id. ¶ 9. Pullman deemed this request overly
broad, and on June 17, 2014, contacted Plaintiff's
representative, who agreed to narrow its scope to
“records regarding forms 940, 941 and 1120 for the
years 2007 through 2014.” Id. ¶ 11.
the case notes, Thomas determined that on June 20, 2014,
Pullman used the IRS's Integrated Data Retrieval System
(“IDRS”), an electronic system that
“manages data that has been retrieved from the Master
File System” which is “the Service's
nation-wide electronic information system containing
permanent taxpayer account information, ” to locate
documents within the scope of plaintiff's FOIA request by
entering the taxpayer identification number (TIN) into IDRS
in conjunction with certain command codes to retrieve
information pertaining to the relevant tax years 2007-2014
(command code BMFOLT). Id. ¶¶ 4-6, 12.
While completing his IDRS search, Pullman received an email
from Tax Law Specialist Athena Amparano, who advised that
“the requested administrative file was in the
possession of Revenue Officer (“RO”) John Black,
who was assigned to a collection matter involving the
Smart-Tek entities.” Id. ¶ 14. The files
of “20 different related entities” had been
“commingled in one large file” consisting of 65
boxes of documents totaling “around 140, 000
pages.” Id. ¶¶ 14-15.
contacted Plaintiff's representative to discuss
“further limiting the scope of the request, ” but
Plaintiff's representative refused and took the position
that “plaintiff was requesting the entire
administrative file.” Id. ¶ 17. Thomas,
Pullman, and Amparano, later joined by “attorneys and
law clerks in the Office of Chief Counsel, ” worked
from August 2014 through fall 2015 to “search for
documents responsive to plaintiff's FOIA request within
the commingled administrative file of the Smart-Tek
entities.” Id. ¶ 26. Thomas does not
indicate when the search was completed; she simply concludes,
“[t]o my knowledge, there are no other records
responsive to Plaintiff's request.” Id.
argues Thomas's declaration is insufficient to prove the
adequacy of the IRS's search, because it fails to explain
what documents the commingled files contained, the
methodology used to review the 65 boxes of documents,
criteria for selecting responsive documents, and because it