Hardimon v. United States ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN HARDIMON, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-0971 (RJL)
)
UNITED STATES OF AMERICA, )
)
Defendant. ) F I L E D
NOV 26 2018
MEMORANDUM OPINION Clerk, U.S. District & Bankruptcy
¢V Courts for the District of Columbia
Novemberl/ , 2018 [Dkt. # 23]
Plaintiff, appearing pro se, has sued the United States under the Freedom of lnformation
Act (“FGIA”). The complaint stems from plaintiffs FOIA requests submitted to the Intemal
Revenue Service (“IRS”) and the Executive Office for United States Attorneys (“EOUSA”),
which yielded no responsive records. On March 7, 2016, l granted summary judgment to
defendant on the claim against EOUSA and denied summary judgment on the claim against the
IRS. See generally Mem. Order [Dkt. # 20] (“Mem.”). This matter is back before me on the
IRS’s supplemental motion for summary judgment, supported by the Declaration of IRS
Attorney Michael Franklin (“Franklin Decl.”) [Dkt. # 23»-2].l Plaintiff has opposed the motion
and the IRS has replied. For the reasons explained belovv, the Court GRANTS the supplemental
motion.
Plaintiff had requested information pertaining to visitors at the IRS’s office in Fairview
Heights, lllinois. See Mem. at 3. l could not assess, however, the IRS’s search on the meager
1 The declarant is an attorney assigned to “one of two branches” of the IRS “with jurisdiction .
. . over disclosure matters, Whether arising in the context of tax litigation, the FOIA . . ., or
summons enforcement.” Franklin Decl. jj l.
record. See id. at 8. Additional facts and the applicable legal standard are set out in the initial
ruling and need not be repeated here. See ial. at 3-5, 7-8.
ln the supplemental record, the declarant describes his “independent search,” id. '{l 6,
which located “no records responsive to Mr. Hardimon’s request created or maintained in the
Fairview Heights IRS office and no records systems that would have contained any responsive
records.” Franklin Decl. 1 9. The declarant explains:
Because the IRS does not have universal procedures for maintaining visitor
logs for all of its offices, l queried employees of the Fairview Heights IRS
office to describe the methods, procedures, and any systems in which those
records are maintained in that particular office. lbegan by contacting
Supervisory Criminal Investigator (Special Agent) Scott Lindauer at the
Fairview Heights IRS office and asked him to describe the office and sign-
in process. Mr. Lindauer confirmed to me the procedures described in AM
Gulas’ October 14th declaration I also contacted Jamie Beisner, a
Management and Program Assistant at the Fairview Heights IRS Office in
Large Business and lnternational, a civil function of the IRS. l\/ls. Beisner
confirmed Mr. Lindauer’s statement Both explained that the building was
a stand-alone IRS building leased from GSA, not a large federal building
with multiple agencies. The public area is accessed by the West Entrance
of the building The public area is primarily a taxpayer assistance center
(TAC) for taxpayers to walk in and get tax forms and publications, or
assistance with tax matters In the public area, there is a security guard,
who is not an IRS employee, but a contractor. lf a visitor were to come into
the building through the West Entrance into the public area, the security
guard has a telephone with which the guard may call an IRS employee from
Criminal Investigation or one of the civil functions to come down to get the
visitor. However, there is no visitor log or sign-in sheet maintained in this
area. There is no place for visitors to “sign in. ” The guard does not
otherwise maintain a visitor log or sign-in sheet
Franklin Decl. 11 6 (emphasis added).
Our Circuit observed long ago: “It is well Settled that an agency is not required by FOIA
to create a document that does not exist iri order to satisfy a request[,] and a requester is entitled
only to records that an agency has in fact chosen to create and retain.” Y eager v. Drug Enft
Aa’min., 678 F.Zd 315, 321 (D.C. Cir. 1982) (citing NLRB v. Sears, Roeback & Co., 421 U.S.
l32, 161-62 (1975)). An agency has no obligation to “answer questions disguised as a FOIA
request,” to “create documents or opinions in response to an individual’s request for
information,” Dagan v. Dep 't of Justice, 82 F. Supp. 3d 485, 497 (D.D.C. 2015) (quoting Aa’arns
v. FBI, 572 F. Supp. 2d 65, 68 (D.D.C. 2008)), or “to conduct research,” Nat’l Sec. Counselors v.
CIA, 898 F. Supp. 2d 233, 269 (D.D.C. 2012) (citation omitted).
Franklin’s declaration establishes, consistent with the lRS’s response at the
administrative level, that the requested information was never maintained in an IRS filing system
to trigger FOIA’s disclosure requirements2 Plaintiff has adduced no evidence to the contrary.
Nor has he rebutted the “presumption of good faith” accorded the agency’s adequately detailed
declaration, SafeCara’ Servs., lnc. v. SEC, 926 F.2d ll97, 1200 (D.C. Cir. 1991) (internal
quotation marks and citation omitted), which confirms “the Service’s original conclusion that the
records requested by Plaintiff do not exist.” Franklin Decl. ‘|l 5. Consequently, l find that
defendant is entitled to summary judgment on the claim against the IRS. A final order will issue
~;¢¢.W
RICHA J. EON
United State ' ict Judge
separately
2 In the administrative response, the Disclosure Manager wrote: “The records you are seeking
are not IRS agency records. IRS agency records are retrieved by a unique identifier. The IRS does
not have jurisdiction over the records you are seeking.” [Dkt. # 11-4 at ECF p. 20].