Cause of Action v. Internal Revenue Service ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
CAUSE OF ACTION INSTITUTE, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-1407 (EGS)
)
INTERNAL REVENUE SERVICE, )
et al. )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Cause of Action Institute (“Cause of Action”)
sued the Internal Revenue Service (“IRS”) to obtain records
under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”).
Currently pending before the Court are the parties’ cross-
motions for summary judgment. Upon consideration of the motions,
the responses and replies thereto, the applicable law, and the
entire record, the Court GRANTS the IRS’s motion for summary
judgment and DENIES Cause of Action’s cross-motion for summary
judgment.
I. BACKGROUND
In April 2009, White House Counsel Gregory Craig issued a
memorandum advising “all federal agency and department general
counsels to consult with the White House on all document
requests that may involve documents with ‘White House
1
equities.’” Compl., ECF No. 1 ¶¶ 1-3; Pl.’s Statement of
Undisputed Material Facts (“Pl.’s SUMF”), ECF No. 55-2 ¶ 1.
Concerned about the White House’s involvement in the FOIA
process, Cause of Action requested the following records from
the IRS:
All records, including but not limited to e-
mails, letters, meeting records, and phone
records, reflecting communications between
IRS FOIA staff or IRS Chief Counsel’s office
and the White House Counsel’s office
concerning records forwarded by the IRS for
White House review in connection with
document requests by Congress, the U.S.
Government Accountability Office, or FOIA
requesters.
Compl., ECF No. 1 ¶ 17; Pl.’s SUMF ¶ 2. 1 The request, which was
submitted on May 29, 2013, sought records from “January 2009 to
the present.” Id. The IRS acknowledged receipt of Cause of
Action’s request on June 25, 2013, but then proceeded to ask for
numerous extensions of time to respond. Compl., ECF No. 1 ¶¶ 18-
23; Pl.’s SUMF ¶¶ 3-4. When Cause of Action filed this action on
August 18, 2014, the IRS had not yet produced any responsive
records or provided a final determination as to plaintiff’s FOIA
request. Pl.’s SUMF ¶¶ 5, 7.
1 Cause of Action sent substantially similar FOIA requests to
eleven other government agencies as well. See Compl., ECF No. 1
¶ 16. Although this lawsuit initially included those agencies,
see generally id., Cause of Action eventually dismissed them
from this action after receiving the requested records, see
Stip. of Dismissal, ECF No. 57; Stip. of Dismissal, ECF No. 68.
2
According to the declarations submitted by the IRS in
support of its motion for summary judgment, the IRS first began
searching for records responsive to Cause of Action’s request on
August 21, 2013, approximately three months after the date of
plaintiff’s request. See Decl. of A.M. Gulas (“Gulas Decl.”),
Def.’s Mot. for Summ. J. Ex. 1, ECF No. 51-3 ¶ 5. The IRS
interpreted Cause of Action’s FOIA request as “seeking records
reflecting communications between the IRS FOIA staff, or Chief
Counsel, and the White House Counsel’s office, relating to
records forwarded by the IRS FOIA staff, or Chief Counsel, to
the White House Counsel’s office to review before such records
are provided to Congress, GAO or FOIA requesters.” Id. ¶ 4.
Based on this interpretation and her knowledge of “the IRS’s
functions and procedures,” Ms. Gulas determined that three
offices were the most likely to have potentially responsive
records: (1) the Office of the Chief Counsel; (2) the Executive
Secretariat Correspondence Office (“ESCO”); and (3) the Office
of Disclosure, which is within the Office of Privacy,
Governmental Liaison and Disclosure (“PGLD”). Id. ¶ 8. In
searching for records in these offices, the IRS generally
limited its search to records created through May 29, 2013, the
date on which Cause of Action made its FOIA request. Id. ¶ 3.
With respect to the Office of the Chief Counsel, the IRS
focused its search on the Office of the Associate Chief Counsel
3
(Procedure & Administration) because that office “has
responsibility for disclosure, privacy and FOIA issues.” Gulas
Decl., ECF No. 51-3 ¶ 27. Although the office has seven
branches, all of the attorneys “who handle matters involving
disclosure laws are located in branches 6 and 7.” Id. ¶ 28.
Accordingly, Ms. Gulas sent a request to “all attorneys and
branch chiefs in branches 6 and 7” asking them to search their
email for responsive records dated within the relevant time
period. Id. ¶ 29. Ms. Gulas directed these individuals to use
the following terms in conducting their searches: “White House,”
“WH,” “White House Counsel,” “WH Counsel,” “consultation,”
“consult,” “WH equities,” “EOP,” and “GAO.” Id. In addition, the
emails of two former attorneys — including the Deputy Associate
Chief Counsel for Procedure and Administration for disclosure
matters during most of the relevant time period — were also
searched. Id. ¶ 30. These searches did not yield any responsive
documents. Id. ¶¶ 29-31.
The IRS also searched ESCO, which is the office that
receives “all correspondence addressed to the Commissioner, as
well as correspondence referred to the IRS by the White House,
by the Office of Treasury Legislative Affairs, and by the
Treasury Executive Secretariat.” Id. ¶ 15. ESCO uses a document-
management system called E-Trak to store such correspondence.
Id. ¶ 16. To find documents responsive to Cause of Action’s
4
request, the IRS searched E-Trak using the following terms:
“White House,” “Craig,” “Obama,” “Executive Office of the
President,” “EOP,” “GAO,” “FOIA,” “Freedom of Information Act,”
“WH,” “WH equities,” “consultation,” and “consult.” Id. ¶¶ 21-
23. Although these searches yielded 4,627 hits, after further
review the IRS determined that none of those documents were in
fact responsive. Id. ¶¶ 24-25.
Finally, the IRS searched the Office of Disclosure, which
is the office responsible for responding to FOIA requests. Id. ¶
9. Although John Davis, the Deputy Associate Director of the
office, confirmed that the office “had not coordinated any
responses to FOIA requests with the White House Counsel’s
office” and that he was not “aware of a memorandum from White
House Counsel Gregory Craig,” see id. ¶¶ 12-13, the IRS
nonetheless searched two systems within the Office of
Disclosure: the Automated Freedom of Information Act System
(“AFOIA”) and the Electronic Disclosure Information System
(“EDIMS”), see Decl. of Jennifer Black (“Black Decl.”), Def.’s
Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 14. These databases are
used “to track and process all requests for agency records” made
pursuant to FOIA. Black Decl., ECF No. 51-4 ¶¶ 10-11. The IRS
searched the case history notes, “which should contain
references to any referral or consultation with another agency,”
using the following terms: “WH,” “EOP,” “White House,” “Obama,”
5
and “Executive Office of the President.” Id. ¶ 14. These
searches yielded 112 hits, none of which were deemed responsive
to Cause of Action’s FOIA request after further review. Id. ¶
17.
On April 3, 2015 — nearly two years after Cause of Action
sent its FOIA request — the IRS sent a “final response letter”
indicating that it had determined that it did not have any
responsive records. Def.’s Mot. for Summ. J. Ex. 3, ECF No. 51-
5; Pl.’s SUMF ¶ 7. The eleven other government agencies to which
Cause of Action had sent substantially similar FOIA requests all
ultimately produced responsive records. Pl.’s SUMF ¶ 8.
Both parties now move for summary judgment. The IRS asserts
that it is entitled to summary judgment because there is no
genuine dispute of material fact as to whether the agency
conducted an adequate search for records. See Def.’s Mem. in
Supp. of Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 51-1. In
support of its motion, the IRS offers declarations from two
individuals. The first declaration is from A. M. Gulas, a senior
counsel in the Office of the Associate Chief Counsel who was
assigned to assist the Department of Justice in litigating this
case. See Gulas Decl., ECF No. 51-3 ¶ 2. Ms. Gulas has served as
a disclosure attorney in the IRS’s Office of Chief Counsel for
over twenty-one years. Id. ¶ 1. The second declaration is from
Jennifer Black, the attorney who succeeded Ms. Gulas when she
6
retired in August 2015. See Black Decl., ECF No. 51-4 ¶ 1. These
declarations outline the searches undertaken by the IRS to
locate records responsive to Cause of Action’s FOIA request.
Cause of Action opposes the motion and moves for summary
judgment, arguing that the IRS’s search was unduly narrow for a
host of reasons. See Pl.’s Mem. in Opp. to IRS Mot, for Summ. J.
and Cross-Motion for Summ. J. (“Pl.’s Opp.”), ECF No. 55-1.
II. LEGAL STANDARD
FOIA requires 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). “To fulfill its disclosure obligations, an agency
must conduct a comprehensive search tailored to the request and
release any responsive material not protected by one of FOIA’s
enumerated exemptions.” Tushnet v. U.S. Immigration & Customs
Enf’t, 246 F. Supp. 3d 422, 430 (D.D.C. 2017).
The “vast majority” of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may
grant summary judgment only if 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). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
7
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citation omitted). Under FOIA, the underlying facts and
inferences drawn from them are analyzed in the light most
favorable to the FOIA requester, and summary judgment is
appropriate only after the agency proves that it has fully
discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp.
32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep’t of Justice,
705 F.2d 1344, 1350 (D.C. Cir. 1983)).
When considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B). The court may grant summary judgment
based on information provided in an agency’s affidavits or
declarations when they are “relatively detailed and non-
conclusory,” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197,
1200 (D.C. Cir. 1991) (citation and internal quotation marks
omitted), and “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 and
internal quotation marks omitted). Such affidavits or
declarations are “accorded a presumption of good faith, which
cannot be rebutted by ‘purely speculative claims about the
8
existence and discoverability of other documents.’” SafeCard
Servs., 926 F.2d 1197 at 1200 (citation omitted).
III. ANALYSIS
The central issue on summary judgment is the adequacy of
the IRS’s search.
“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. 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. Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). Where a plaintiff challenges the
adequacy of an agency’s search, the question for the court is
“‘whether the search was reasonably calculated to discover the
requested documents, not whether it actually uncovered every
document extant.’” Judicial Watch, Inc. v. United States Dep’t
of State, 681 Fed. Appx. 2, 4 (D.C. Cir. 2017) (quoting SafeCard
Servs., 926 F.2d at 1201). In other words, the adequacy of a
search is “generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003).
Because the adequacy of an agency’s search is “measured by
a ‘standard of reasonableness,’” it is necessarily “‘dependent
9
upon the circumstances of the case.’” Weisberg v. U.S. Dep’t of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citations
omitted). To meet its burden at summary judgment, an agency may
provide “‘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.’” Iturralde, 315 F.3d at 313-14 (citation omitted).
Any factual assertions in such an affidavit will be accepted as
true unless the requesting party submits affidavits or other
documentary evidence contradicting those assertions. Wilson v.
U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148 (D.D.C. 2010)
(citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992)).
Cause of Action challenges the adequacy of the IRS’s search
on numerous grounds. The Court examines each argument in turn.
A. The IRS’s Temporal Limitation Was Reasonable
Cause of Action argues that it was unreasonable for the IRS
to limit its search to records created through May 29, 2013, the
date on which Cause of Action made its FOIA request. Pl.’s Opp.,
ECF No. 55-1 at 6. 2 Cause of Action asserts that, instead, the
IRS should have set the cut-off date for its search to “no
earlier than August 23, 2013,” which was the date on which the
FOIA officer “started her search for responsive records.” Id.2 When citing electronic filings throughout this opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
10
According to Cause of Action, not doing so improperly permitted
the IRS “‘to withhold, with little or no justification, a
potentially large number of relevant documents.’” Id. (quoting
Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir.
2002)).
An agency’s decision to impose temporal limitations in
responding to a FOIA request “is only valid when the limitation
is consistent with the agency’s duty to take reasonable steps to
ferret out requested documents.” McGehee v. Cent. Intelligence
Agency, 697 F.2d 1095, 1101 (D.C. Cir. 1983). Indeed, the D.C.
Circuit has cautioned against a “reflexive application of the
cut-off policy to every request regardless of circumstance” and
has “expressly rejected the proposition that under FOIA, the use
of a time-of-request cut-off date is always reasonable.” Public
Citizen, 276 F. 3d at 643. Even so, “specific circumstances in
some agencies may render an across-the-board rule reasonable” so
long as the agency makes a “showing that warrants such an
approach in its case.” Id.Here, the IRS argues that its decision to limit its search
to records created “up to the date of the request” was
reasonable because it simply was imposing “the specific time
limit that the requester imposed on its own FOIA request.”
Def.’s Reply In Supp. of Mot. for Summ. J. and Opp. to Pl.’s
Cross-Motion for Summ. J. (“Def.’s Reply”), ECF No. 59 at 21. It
11
further argues that the fact that its interpretation was
reasonable is supported by Cause of Action’s “failure to raise
the issue in the parties’ meet and confer.” Id. at 22. In view
of this latter argument, the Court agrees with the IRS. In
particular, given that the IRS’s cut-off date was communicated
to Cause of Action during the agency’s negotiations with
plaintiff, and given Cause of Action’s failure to object to the
IRS’s temporal limitation, there is no indication that the IRS
improperly limited the scope of its searches under these
circumstances.
B. The IRS Properly Focused Its Search To The Relevant
Offices
Cause of Action next protests that the IRS’s decision to
limit its search to the Office of Disclosure, the Office of the
Associate Chief Counsel, and ESCO was improper. Pl.’s Opp., ECF
No. 55-1 at 7-8. In particular, Cause of Action notes that
“[t]here is no indication that search memoranda were sent to
[PGLD] – which serves as the IRS FOIA Office” or to “sub-
components of the Office of Chief Counsel.” Id.
An agency seeking summary judgment in a FOIA case may
provide “[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 (if such
records exist) were searched.” Oglesby v. U.S. Dep’t of Army,
12
920 F.2d 57, 68 (D.C. Cir. 1990). To allow a district court to
determine whether the search was adequate, the affidavit should
also include the agency’s “rationale for searching certain
locations and not others.” Defs. of Wildlife v. U.S. Border
Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009). Factual assertions
in such an affidavit will be accepted as true unless the
requesting party submits evidence contradicting those assertions
or rebutting the presumption that the agency’s search was made
in good faith. Coffey v. Bureau of Land Mgmt., 277 F. Supp. 3d
1, 7 (D.D.C. 2017).
The IRS’s declarations submitted in support of its motion
for summary judgment belie Cause of Action’s claim that the IRS
should have searched in additional locations for responsive
records. As an initial matter, although Cause of Action asserts
that the agency should have searched PGLD, the declarations make
clear that PGLD was searched for responsive records. As Ms.
Gulas explained, “[w]ithin PGLD, the Office of Disclosure is
responsible for responding to requests made pursuant to FOIA.”
Gulas Decl., ECF No. 51-3 ¶ 9. Accordingly, records within the
Office of Disclosure were searched. Moreover, the Deputy
Associate Director of the Headquarters Office of Disclosure —
who is the “highest ranking official within PGLD from the period
covered by plaintiff’s FOIA request” that has relevant knowledge
and is currently still employed at the agency — specifically
13
attested that the Office of Disclosure “would have handled any
FOIA request that impacted, in any way, ‘White House equities.’”
See Decl. of John H. Davis (“Davis Decl.”), Def.’s Reply Ex. 4,
ECF No. 59-2 ¶¶ 2-3. To the extent that Cause of Action intends
to argue that the IRS should have searched other components of
PGLD, Cause of Action fails to offer any factual basis that
other components would be reasonably likely to possess
responsive records.
Likewise, although Cause of Action complains that the IRS
did not search records contained by “sub-components of the
Office of Chief Counsel,” see Pl.’s Opp., ECF No. 55-1 at 7-8,
that argument also fails. After all, the IRS did search the
Office of the Associate Chief Counsel (Procedure and
Administration), which is a sub-component of the Office of Chief
Counsel. See Gulas Decl., ECF No. 51-3 ¶ 27. Moreover, as Ms.
Gulas attested, the Office of the Associate Chief Counsel
(Procedure and Administration) “has responsibility for
disclosure, privacy and FOIA issues.” Id. Although that office
has seven branches, the attorneys who handle matters involving
FOIA requests are “located in branches 6 and 7.” Id. ¶¶ 28-29.
Cause of Action offers no basis to suggest that other sub-
components of the Office of Chief Counsel may have had
responsive records. Accordingly, the Court concludes that the
IRS’s decision to limit its search to certain branches within
14
the Office of the Associate Chief Counsel was reasonably
calculated to discover responsive documents. 3
C. The IRS’s Searches Were Adequate
i. The IRS’s Search of the Office of Chief Counsel Was
Adequate
Cause of Action contends that the IRS’s search of the
Office of Chief Counsel was inadequate for two reasons: (1)
because the scope of the search was unduly constrained; and (2)
because the IRS confused the terms “coordination” and
“consultation.” Pl.’s Opp., ECF No. 55-1 at 8-9. Both arguments
are unpersuasive.
First, as previously explained, the affidavits submitted by
the IRS offer compelling justification for the agency’s decision
to limit its search to the Office of Associate Chief Counsel
(Procedure and Administration). See supra Part III.B. Likewise,
3 Cause of Action also points to the fact that the IRS was
“unaware” of the Craig Memo as evidence that the agency’s search
was not “robust[].” Pl.’s Opp., ECF No. 55-1 at 7-8. Cause of
Action does not offer any evidence to supports its inference,
and therefore fails to rebut the contrary evidence submitted by
the IRS. See, e.g., Gulas Decl., ECF No. 51-3 ¶ 33 (“Prior to
receiving CoA’s FOIA request, I had not been aware of a
memorandum from White House Counsel to agency general counsels
regarding consultation with the White House Counsel’s office on
document requests that may involve documents with White House
equities.”); Davis Decl., ECF No. 59-2 ¶ 5 (“To my knowledge, no
[policy or practice within the Office of Disclosure that would
lead the office to consult with the White House prior to
releasing IRS records responsive to any FOIA request] has
existed . . . at any point since January 1, 2012[.]”).
15
the agency explained why it chose to limit its search to two
branches of that division. Id. Ms. Gulas is a “technical expert”
on FOIA matters based on her twenty-one years of experience as a
disclosure attorney in the Office of Chief Counsel, see Gulas
Decl., ECF No. 51-3 ¶¶ 1, 32-33, and her affidavit is to be
accorded a “presumption of good faith” in the absence of
evidence to the contrary, SafeCard Servs., Inc. v. S.E.C., 926
F.2d 1197, 1200 (D.C. Cir. 1991).
Second, Cause of Action accuses the two senior counsels who
provided affidavits in support of IRS’s motion for summary
judgment of confusing the terms “coordination” and
“consultation” — which, according to plaintiff, have a different
“technical meaning” — in responding to plaintiff’s FOIA request.
According to Cause of Action, these declarations, which explain
that there was no “practice in the office to coordinate
responses to FOIA requests, GAO or Congressional inquiries with
the White House or White House Counsel’s office,” see Gulas
Decl., ECF No. 51-3 ¶ 33 and Decl. of Jennifer Black, Def.’s
Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 19, are inadequate to
establish that there was no practice to “consult” with the White
House. Pl.’s Opp., ECF No. 55-1 at 8-9. Ms. Gulas’s declaration,
however, confirms that she included the search terms
“consultation” and “consult” in searching for records responsive
to plaintiff’s FOIA request. See Gulas Decl., ECF No. 51-3 ¶¶
16
23, 29. As such, the Court concludes that any purported
confusion between “coordination” and “consultation” did not
affect the adequacy of the agency’s search for records.
ii. The IRS’s Search of the Executive Secretariat
Correspondence Office Was Adequate
With respect to the IRS’s search of ESCO, Cause of Action
complains that it is unable to determine whether the search was
adequate because the IRS’s affidavits contain insufficient
information regarding the E-Trak database, which is ESCO’s
document management system that tracks certain correspondence.
Pl.’s Opp., ECF No. 55-1 at 9-10. In particular, Cause of Action
states that it requires additional information regarding “the
individual employees or IRS components whose correspondence is
stored in E-Trak.” Id. at 10.
In response, the IRS offers the supplemental declaration of
Jennifer Black. See Supp. Decl. of Jennifer Black (“Black Supp.
Decl.”), Def.’s Reply Ex. 8, ECF No. 59-6. 4 Ms. Black explains
that “[a]ll communications” addressed to the Commissioner or
4 Although this declaration was attached to the IRS’s reply
memorandum in support of its motion for summary judgment, the
Court can “‘rel[y] on supplemental declarations submitted with
an agency’s reply memorandum to cure deficiencies in previously
submitted declarations’” where a plaintiff has not challenged
the supplemental declaration. See Walston v. United States Dep’t
of Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017) (citing DeSilva v.
U.S. Dep’t of Housing and Urban Dev., 36 F. Supp. 3d 65, 72
(D.D.C. 2014)).
17
Deputy Commissioner, as well as to the Director of Legislative
Affairs, were recorded in E-Trak. Id. ¶ 8. In addition,
correspondence addressed to, among others, the President and
then referred to the Office of the Commissioner or the Director
of Legislative Affairs was also recorded in E-Trak. Id.Cause of Action does not make any arguments with respect to
the adequacy of the IRS’s search in light of this information.
See Pl.’s Reply in Supp. of Cross-Motion for Summ. J. (“Pl.’s
Reply”), ECF No. 63 at 7-9. In any event, the Court notes that
Cause of Action only requested communications between the White
House and “IRS FOIA staff or IRS Chief Counsel’s office” — and
not with the Commissioner or others whose correspondence is
handled by ESCO. Accordingly, in light of the IRS’s searches in
E-Trak using appropriate terms, the Court concludes that the
agency has carried its burden to demonstrate that its search was
reasonably calculated to discover documents responsive to Cause
of Action’s FOIA request.
iii. The IRS’s Search of the Office of Disclosure Was
Adequate
Finally, Cause of Action argues that IRS’s search for
records within the Office of Disclosure was inadequate for two
reasons: (1) because of the IRS’s “unwillingness to search
individual employee e-mail from that office”; (2) because the
18
search terms used were “inadequate to capture potentially
responsive records.” Pl.’s Opp., ECF No. 55-1 at 10-15.
First, whether IRS was required to search the individual
email accounts of each employee in the Office of Disclosure
depends on whether such a search was reasonably necessary to
discover documents requested by Cause of Action’s FOIA request.
See Safecard Servs., 926 F.2d at 1201. As the IRS’s declarations
make clear, the agency determined that searching employee emails
was unnecessary in light of Deputy Associate Director Davis’s
representation that he was not aware of any consultations
between the Office of Disclosure and the White House Counsel’s
Office with respect to FOIA requests. See Gulas Decl., ECF No.
51-3 ¶ 13; see also Davis Decl., ECF No. 59-2 ¶ 5. 5 By insisting
that the IRS was required to search each employee’s individual
email account, Cause of Action misunderstands the standard for
adequacy of an agency’s search under FOIA. An agency is only
required to show that “it has conducted a search reasonably
calculated to uncover all relevant documents,” Weisberg v. U.S.
5 The IRS also states the conducting a search of employees’
email accounts would be unduly burdensome. See Gulas Decl., ECF
No. 51-3 ¶ 14 (attesting that it “would take one IRS IT person
at least 13 years . . . to capture all of the emails of the[]
165 employees” in the Office of Disclosure). The Court agrees
that such a search would impose an unreasonable burden on the
IRS in light of the agency’s declarations indicating that
responsive documents are unlikely to exist. See, e.g., Nation
Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885,
891 (D.C. Cir. 1995).
19
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (emphasis
added), and it need not search files or record systems that are
not “likely to contain responsive materials,” Oglesby v. U.S.
Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (emphasis
added). Here, the IRS has provided declarations explaining why
responsive records were unlikely to exist within the Office of
Disclosure. Moreover, Cause of Action has not pointed to any
evidence calling into question the testimony of those
declarants. Accordingly, the Court rejects Cause of Action’s
request that the IRS be required to search the individual email
accounts of each employee in the Office of Disclosure.
Second, agencies generally “have discretion in crafting a
list of search terms that ‘they believe[] to be reasonably
tailored to uncover documents responsive to the FOIA request.’”
Agility Pub. Warehousing Co. K.S.C. v. Nat’l Sec. Agency, 113 F.
Supp. 3d 313, 339 (D.D.C. 2015) (citation omitted). So long as
the “search terms are reasonably calculated to lead to
responsive documents, the Court should not ‘micro manage’ the
agency’s search.” Liberation Newspaper v. U.S. Dep’t of State,
80 F. Supp. 3d 137, 146 (D.D.C. 2015) (citation omitted); see
also Johnson v. Executive Office for U.S. Attorneys, 310 F.3d
771, 776 (D.C. Cir. 2002) (“FOIA, requiring as it does both
systemic and case-specific exercises of discretion and
administrative judgment and expertise, is hardly an area in
20
which the courts should attempt to micro manage the executive
branch.”).
Here, Cause of Action contends that the IRS’s search was
inadequate because the agency failed to search for the terms
“FOIA,” “consult,” “OHWC,” “Office of White House Counsel,”
“WHO,” and “White House Office.” Pl.’s Opp., ECF No. 55-1 at 15.
The IRS explains that its search of the term “White House”
renders two of plaintiff’s proposed terms — “Office of White
House Counsel” and “White House Office” — superfluous. Def.’s
Reply., ECF No. 59 at 13. In addition, the IRS avers that
requiring the agency to use the term “FOIA” and “consultation”
would “yield overbroad results” and that it was reasonable for
the agency to craft terms specifically directed at retrieving
communications with the White House. Id.; Black Supp. Decl., ECF
No. 59-6 ¶¶ 12-13. Finally, the IRS notes that the acronyms
“OHWC” and “WHO” do not appear anywhere in plaintiff’s FOIA
request, and plaintiff does not explain why these acronyms were
“obvious” search terms whose omission made the agency’s search
deficient. Def.’s Reply, ECF No. 59 at 13; Black Supp. Decl.,
ECF No. 59-6 ¶ 14. Based on the IRS’s representations, the Court
concludes that the IRS’s decision not to include Cause of
Action’s proposed additional search terms was reasonable.
21
IV. Conclusion
For the foregoing reasons, the Court concludes that there
is no genuine dispute of material fact as to the adequacy of the
IRS’s search for documents responsive to Cause of Action’s FOIA
request. Accordingly, the IRS’s motion for summary judgement is
GRANTED, and Cause of Action’s cross-motion for summary judgment
is DENIED. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 12, 2018
22