United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE
IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF,
Ted Moskowitz, Chief judge United States District Court
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.
26.) 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 Automated Services 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 14, 544 pages in full, and 3, 479 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).
the IRS submits the declaration of Delphine Thomas to support
its contention that it conducted an adequate search for
records in response to Plaintiff's FOIA request. (ECF No.
26-5.) 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 Ed Pullman, the disclosure specialist initially
assigned to process Plaintiff's FOIA request, now has a
different role with the IRS and is “unavailable to
declare in this case.” Id. ¶ 3. She was
assigned to respond to Plaintiff's request on October 17,
2014, and thereafter familiarized herself with the search
conducted before she was involved by talking to Pullman and
reviewing his case file. Id. ¶ 4.
states that the IRS Disclosure Office received a written FOIA
request from Plaintiff on May 29, 2014, seeking
“‘a complete copy of the administrative
file'” for Plaintiff. Id. ¶
Pullman found the request overbroad, so he contacted
Plaintiff's representative and suggested narrowing its
scope. Id. ¶ 7. Plaintiff's representative
thereafter left Pullman a voicemail “clarifying that
the request was for the administrative files for the tax
forms 940, 941, and 1120 for tax years 2007-2014.”
Id. ¶ 8.
to Thomas, Pullman thereafter searched for
“files” using 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.” Id.
¶¶ 9-12. His IDRS search showed there was
collection activity related to Plaintiff, and he thereafter
learned from Tax Law Specialist Athena Amparano that the
collection matter was assigned to Revenue Officer John Black
(“RO Black”) Id. ¶ 13.
indicates that on July 16, 2014, “the Disclosure Office
learned from RO Black that documents responsive to
[Plaintiff's] requests would be located within the
commingled files maintained by RO Black on these entities and
over twenty (20) related entities.” Id. ¶
15. RO Black had “started a collection proceeding on
one of the entities and, as he progressed, realized that all
the entities were related, ” had the other
entities' files transferred to him and “started
working the case as one large case.” Id. As he
received new documents, “he added them to the boxes in
chronological order, not based on any particular entity,