Kwoka v. Internal Revenue Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARGARET B. KWOKA,
Plaintiff,
v. Civil Action No. 17-cv-1157 (DLF)
INTERNAL REVENUE SERVICE,
Defendant.
MEMORANDUM OPINION
Professor Margaret Kwoka studies the Freedom of Information Act (FOIA) and how the
government administers it. She asked the Internal Revenue Service (IRS) for nine categories of
records relating to FOIA requests the IRS received during fiscal year 2015, including some
requesters’ names and all requesters’ organizational affiliations. The IRS invoked FOIA
exemptions 3 and 6 and withheld that information, and before the Court are the parties’ cross-
motions for summary judgment. For the reasons that follow, the Court will grant in part and
deny in part both motions.
I. BACKGROUND
Kwoka is a law professor whose research focuses on government secrecy and agencies’
administration of FOIA. Kwoka Decl. ¶ 1, Dkt. 10-1. On January 11, 2017, she submitted a
FOIA request to the IRS asking for “records reflecting a list or log of FOIA requests received in
Fiscal Year 2015.” FOIA Request, Dkt. 9-2 Ex. 1. She specified a list of nine categories of
information, including “[t]he name of the requester for any third-party request (for first-party
requests I accept this will be redacted)” and “[t]he organizational affiliation of the requester, if
there is one.” Id.
Using its Automated Freedom of Information Act (AFOIA) system, the IRS provided
some of the information Kwoka sought on March 8, 2017. Def.’s Statement of Facts & Pl.’s
Response ¶¶ 9, 12, Dkt. 10. That information did not include the names or organizational
affiliations of requesters. Id. Kwoka filed an administrative appeal and argued that the IRS
improperly withheld those two categories of information. Id. ¶ 17. On April 11, 2017, the
appeals office of the IRS found that the IRS had properly invoked exemptions 3 and 6 in
withholding the names and organizational affiliations of requesters. Id. ¶ 18. Kwoka sued on
June 14, 2017, id. ¶ 19, and in September and October of 2017, the parties cross-moved for
summary judgment, Dkts. 9, 10.
II. LEGAL STANDARDS
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant
summary judgment if the movant shows that 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). In FOIA
litigation, when a federal agency moves for summary judgment, all facts and inferences must be
viewed in the light most favorable to the requester, and the agency bears the burden of showing
that it complied with FOIA. Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir.
2009). To prevail under Rule 56, a federal agency “must prove that each document that falls
within the class requested either has been produced, is unidentifiable, or is wholly exempt from
[FOIA’s] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per
curiam) (quoting Nat’l Cable Television Ass’n, Inc. v. F.C.C., 479 F.2d 183, 186 (D.C. Cir.
1973)). The agency must explain in reasonable detail why an exemption applies to any withheld
records. See Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006).
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“[T]he 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).
Here, the IRS has invoked FOIA exemptions 3 and 6 to withhold the names and
organizational affiliations of past FOIA requesters. Exemption 3 allows an agency to withhold
matters that are “specifically exempted from disclosure by statute” under certain conditions, 5
U.S.C. § 552(b)(3), and the IRS points to another statute prohibiting disclosure of “any return or
return information,” 26 U.S.C. § 6103(a). “Return information” is broadly defined to include “a
taxpayer’s identity” and “whether the taxpayer’s return was, is being, or will be examined or
subject to other investigation or processing.” Id. § 6103(b)(2). “Taxpayer” is also broadly
defined to include corporations, trusts, estates, partnerships, and associations. See 26 U.S.C.
§ 7701(a)(1); id. § 7701(a)(14). Exemption 6 allows an agency to withhold “personnel and
medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The IRS bears the burden of establishing
that disclosure of the records is protected under exemptions 3 and 6. See U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991).
III. ANALYSIS
A. Exemption 3
The IRS argues that it need not reveal the names or organizational affiliations of FOIA
requesters because doing so could “reveal protected tax information about the requester
including, but not limited to[,] the identity of a taxpayer.” Def.’s Mot. at 10, Dkt. 9. The IRS
maintains a publicly accessible FOIA log that lists FOIA request numbers and other information,
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including a “request detail” column that lists the topic of the request. 1 The IRS argues that if
Kwoka were to receive the names and organizational affiliations of requesters, she could cross-
reference that information with the online log and deduce the identities of the taxpayers. Def.’s
Mot. at 10–12; Def.’s Reply at 3–6, Dkt. 14.
But the IRS’s conclusion does not follow from its premises. Even armed with the
information she requests and the publicly accessible FOIA log, in most cases Kwoka could not
know with any certainty the identity of particular taxpayers. Neither the log nor the information
Kwoka requests generally reveals the target of a FOIA request—i.e., the person whose tax
records the requester is seeking. Thus, for third-party requests in which a requester submits a
request for someone else’s information, knowing the name and organizational affiliation of the
requester (from her own FOIA request) in conjunction with the topic of the request (from the
publicly accessible log) would not reveal the identity of the target of the request.
The IRS pushes back, arguing that “there are many situations in which the disclosure of
the identities of FOIA requesters . . . , combined with the [topics] of their requests, could disclose
[protected information].” Def.’s Reply at 4. For example, when “a corporate shareholder who is
aware that a company is under examination by the IRS [] submit[s] a FOIA request for the
corporation’s examination files,” id. at 4, the IRS argues, “[a] quick search of the internet would
[be] enough to connect the corporate shareholder with the corporation whose examination files
he has requested, and to reveal that the corporation is under examination by the IRS,” id. at 5.
1
Kwoka has submitted a declaration with an exhibit containing the first five pages of the IRS’s
2015 FOIA log. See Llewellyn Decl. ¶ 1, Ex. 1, Dkt. 10-2. The full log is available online at
https://www.irs.gov/pub/irs-utl/2015-irs-foia-log.pdf. As the log reveals, most of the topics are
vaguely worded—for example, “1040,” “60 day letter,” “Account Transcript,”
“Collection/Examination,” etc. See id.
4
But again, that conclusion does not follow. In the IRS’s hypothetical, the “corporate
shareholder” might be requesting information about the corporation, but he might also be
requesting information about any number of other organizations (or individuals). 2 And
importantly, Kwoka would have no way of knowing. The same is true of the IRS’s other
example—“the request for records of an estate return or examination of an estate return by the
relative of a deceased taxpayer.” Id. Here again, Kwoka would have no way of knowing
whether the requester was indeed asking for tax information about the deceased relative or
whether the requester was asking about anyone else (and simply happened to have a recently
deceased relative).
In most cases, the same is true for first-party requesters who request their own tax return
information. Kwoka concedes that the IRS can redact the names of first-party requesters, see
FOIA Request; she asks only for their organizational affiliations. But because most
organizations have many affiliated individuals, knowing a requester’s organizational
affiliation—even in conjunction with the topic of the request—would not ordinarily reveal the
identity of the requester (and thus the identity of the taxpayer). There may be a few exceptions
where, for example, a particular organization has only one affiliate, or where a topic listed in the
publicly accessible FOIA log is so specific (in contrast to the majority of the entries) that it
would, in conjunction with the requester’s organizational affiliation, effectively reveal the first-
party requester’s identity. See Def.’s Reply at 8 (arguing that “a FOIA request made by the
2
True, a third-party requester must have either express authorization from a taxpayer or a
material interest in the information in order to receive tax return information about another
taxpayer. See 26 U.S.C. § 6103(c) (express authorization); id. § 6103(e) (material interest). But
knowing that information would still not reveal any taxpayer’s identity, because a third-party
requester like Kwoka would have no way of knowing which taxpayers a requester might have
express authorization from or a material interest in.
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owner of an individually held or closely held company, in concert with the subject of the request,
would be enough to reveal the identity of the individual making the request”). Kwoka also
concedes that “[w]here an individual requests tax records about the organization that is identical
to the individual’s organizational affiliation as recorded in the IRS’s records, . . . the
organizational affiliation would be subject to redaction.” Pl.’s Cross-Mot. at 9, Dkt. 10.
If these exceptions in fact exist, the IRS can make redactions. But it will have to justify
its withholding “with reasonably specific detail” to “demonstrate that the information withheld
logically falls within the claimed exemption.” Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981). Because of the logical problems with the IRS’s argument as identified
above, the IRS has failed to justify its blanket invocation of exemption 3.
B. Exemption 6
Exemption 6 employs a balancing test and allows agencies to withhold certain
information when disclosing it would result in a “clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). If disclosure would implicate only a de minimis privacy
interest, the information must be disclosed; if the privacy interest at stake is greater than de
minimis, the court must balance that privacy interest against the public interest in disclosure. See
Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006); Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
For many of the same reasons the IRS is not entitled to a blanket invocation of exemption
3, it is not entitled to one under exemption 6. The IRS argues that “third-party FOIA requesters
in this case [would] be subject to harassment, stigma, retaliation, or embarrassment if their
identities were revealed” and that “[t]he average citizen has ample reason not to want the world
to know that someone else has used the FOIA to obtain information regarding his federal tax
liabilities, or his tax examination status.” Def.’s Mot. at 14. But, as explained above, in most
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cases, revealing the organizational affiliations of first-party requesters and the names and
organizational affiliations of third-party requesters would not reveal the target of the request.
Moreover, FOIA requesters “freely and voluntarily address[] their inquiries to the IRS, without a
hint of expectation that the nature and origin of their correspondence w[ill] be kept confidential.”
Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981); see also Dep’t of Justice, Freedom of
Information Act Guide, Exemption 6 (2004), https://www.justice.gov/oip/foia-guide-2004-
edition-exemption-6 (“FOIA requesters, except when they are making first-party requests, do not
ordinarily expect that their names will be kept private; therefore, release of their names would
not cause even the minimal invasion of privacy necessary to trigger the balancing test.”) (citing
additional cases from this court). 3
As with exemption 3, there may be some exceptions. The IRS notes, for example, that
some topics on the publicly accessible FOIA log are sufficiently specific and personal such that
disclosure of the requester’s name would implicate more substantial privacy interests. See Def.’s
Mot. at 14 (highlighting requests about “innocent spouse relief or about tax fraud on individual
returns”). But, as Kwoka notes, she still would not know the purpose of the request. A person
3
The IRS’s counterarguments are unpersuasive. The IRS first argues that the privacy interest in
this case “does not encompass only the names and organizational affiliations of the FOIA
requesters; rather, it is the names of the requesters and their organizational affiliations in
conjunction with the subject matter of the requests they make.” Def.’s Reply at 9. But due to the
vague topic descriptions in the publicly accessible log, adding the topic does not add much at all
to the privacy interests at stake—and where the topic is more specific, the IRS can make case-
by-case redactions if necessary. The IRS also attempts to distinguish Stauss as being “before the
rise of the world-wide web.” Id. But the mere fact that Kwoka might be able to locate more
information about requesters that is already publicly accessible does not add to the privacy
interest. Nor does the ability to discover information about others through the internet instead of
traditional methods meaningfully distinguish Stauss—to say nothing of the Department of
Justice’s post-internet guidance indicating that FOIA requesters do not expect their names to be
kept private.
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requesting information about “innocent spouse relief,” for example, could be doing so because
he or she suspects a spouse of financial wrongdoing, but that person also could be interested in
the subject for other reasons. See Pl.’s Cross-Mot. at 15. And at any rate, the existence of a few
possible exceptions does not justify the IRS’s blanket withholding here. If the IRS identifies
specific instances where revealing a requester’s name or organizational affiliation could indeed
implicate substantial privacy interests, it can redact those portions, but it must justify its
redactions “with reasonably specific detail.” Casey, 656 F.2d at 738. 4
C. Other Bases for Withholding
The IRS raises two additional arguments to justify withholding the records Kwoka seeks:
first, the IRS argues that it cannot be required to create new records in response to a FOIA
request; and second, the IRS argues that complying with Kwoka’s request would require the
agency to conduct an unreasonably burdensome search. Neither argument is compelling.
1. New Records
The IRS argues that because it “does not separately track FOIA requests seeking tax
return information . . . and those seeking non-tax information” and because even some of the
non-tax-information-seeking requests could be exempt, disclosure here “would require the IRS to
manually access and review each of the electronic files of the 9,882 FOIA requests it received in
Fiscal Year 2015” and then “create a new document consisting only of [non-exempt] records.”
Def.’s Mot. at 7. Similarly, the IRS argues that its FOIA disclosure office “does not maintain a
log or list of third-party FOIA requests separate from first-party FOIA requests” and that “[t]o
4
As Kwoka points out, other agencies’ publicly accessible FOIA logs provide more detail about
topics and “proactively includ[e] the name of the requester.” Pl.’s Reply at 7, Dkt. 16. Thus, in
cases where a taxpayer’s identity is not revealed, it may be difficult for the IRS to justify
withholding the names of requesters based solely on the fact that they requested some particular
information from the IRS.
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generate such a list (and thereby to generate a record), the IRS would have to individually access
and review each of the 9,882 files that were responsive to [Kwoka’s] FOIA request, and
segregate those FOIA requests made by third parties.” Id.This argument fails because the IRS has admitted it has the information Kwoka seeks.
See Smith Decl. ¶ 9b, Dkt. 9-2 (“Ms. Love-Smith also explained to me that the IRS does not
have an automated process for distinguishing third-party requests (i.e., requests by those seeking
records not about themselves) from first-party requests. Ms. Love-Smith, therefore, provided me
with the requester name and organizational affiliation, if any, with respect to all 9,882 FOIA
requests . . . .”). Although IRS records, in their current form, contain some first-party requesters’
identities, the IRS can redact those portions of the records. “The argument that a document with
some information deleted is a ‘new document,’ and therefore not subject to disclosure, has been
flatly rejected.” Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D.C. Cir. 1982).
The IRS’s argument that the withheld records are not “reasonably segregable,” Def.’s
Mot. at 9, is similarly unpersuasive. The segregability analysis focuses on whether the non-
exempt portions of the document are “inextricably intertwined with exempt portions.” Johnson
v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b)
and Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). If
the IRS means to argue that the exempt and non-exempt portions of the records in this case are
“inextricably intertwined” in the sense that it would be impossible to produce meaningful
information while redacting the exempt portions, that is simply wrong: redacting individual
names and organizational affiliations of exempt entries (as assessed under the standards
articulated above) would not render the remaining record unintelligible. Cf. Mead Data Cent.,
566 F.2d at 261 n.55 (“[A] court may decline to order an agency to commit significant time and
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resources to the separation of disjointed words, phrases, or even sentences which taken
separately or together have minimal or no information content.”). If—as seems more likely—the
IRS means to argue that the process of redaction will be difficult and time-consuming, then this
argument simply merges with the IRS’s unreasonable burden argument and is addressed below.
2. Unreasonably Burdensome Search
Finally, the IRS argues that “[e]ven if the information [Kwoka] seeks could be segregated
and released without creating new records, requiring the IRS to conduct such an exercise would
be an unreasonable burden on the agency.” Def.’s Mot. at 9. “An agency need not honor a
request that requires ‘an unreasonably burdensome search.’” Am. Fed. of Gov’t Emps., Local
2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA,
607 F.2d 339, 353 (D.C. Cir. 1978)).
In support of its argument, the IRS asserts that—“largely due to the limitations of the
AFOIA system,” which is “designed for IRS personnel to work on one case at a time”—a
disclosure specialist could review only four or five requests per hour, which would require
almost 2,200 hours of work to review all 9,882 FOIA requests from fiscal year 2015. Def.’s
Mot. at 9–10; Rowe Decl. ¶¶ 14–15, Dkt. 9-3. Kwoka challenges this estimate, arguing that the
IRS could engage in more efficient methods of review and that, if computer lag time is the issue,
a disclosure specialist could multitask while records load. See Pl.’s Cross-Mot. at 21–23.
But even taking the IRS at its word, the Court does not find roughly 2,200 hours of
review time to constitute an “unreasonably burdensome search.” In fact, it is not a search at all:
as Kwoka points out, the cases the IRS rely upon focus on the feasibility of a search for
responsive records where the request is insufficiently specific. See id. at 20. Here, by contrast,
the IRS has already located the responsive records and thus need not conduct any additional
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search; the only issue is whether it must spend the time to review those records to make
redactions.
Even if reviewing an already-identified set of documents qualifies as a search, courts in
this Circuit have required production of records much more voluminous than the records
requested here. See, e.g., Pub. Citizen v. Dep’t of Educ., 292 F. Supp. 2d 1, 6 (D.D.C. 2003)
(concluding agency offered insufficient specificity to find that searching 25,000 paper files
would be unduly burdensome). When it comes to setting a production schedule, the IRS may
limit the amount of time spent on this particular request to a reasonable number of hours or
records per month. But, where the IRS already has all the requested records in its possession, the
Court will not allow it to withhold the documents wholesale simply because it will (potentially)
take 2,200 hours to review them for redactions.
CONCLUSION
The Court concludes that neither exemption 3 nor exemption 6 justifies a blanket
withholding of Kwoka’s request for FOIA requesters’ names and organizational affiliations. Nor
does the Court find that production of the information would require the IRS to create a new
record or be unreasonably burdensome. The Court does not, however, rule out the possibility
that the IRS may be able to justify redactions in individual cases. The Court thus grants in part
and denies in part both parties’ motions for summary judgment. A separate order consistent with
this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: September 28, 2018
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