ECF No. 49 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAUSE OF ACTION, ) )

Plaintiff, ) ) Case No.: 1:13-cv-1225-ABJ

v. ) ) TREASURY INSPECTOR GENERAL ) FOR TAX ADMINISTRATION, ) )

Defendant. ) __________________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The central question in this case is whether 26 U.S.C. § 6103, a law passed to protect

taxpayers’ confidential information to prevent political targeting and abuse, should be construed

to protect the political officials who violate its provisions.

Plaintiff Cause of Action filed a Freedom of Information Act (“FOIA”) request with the

Internal Revenue Service (“IRS”) seeking records pertaining to, among other things,

investigations by Defendant Treasury Inspector General for Tax Administration (“TIGTA”) into

the unauthorized disclosures of confidential tax return information to the Executive Office of the

President. Unauthorized disclosure violates § 6103(a), is a crime under 26 U.S.C. §§ 7213 and

7213A, and triggers potential civil damages liability under 26 U.S.C. § 7431(a).

Cause of Action’s request did not call for disclosure of any taxpayer’s income, payment

history, deductions, net worth, or liability for an offense related to his own taxes. Nor did it call

for information about whether a particular taxpayer’s return has been or will be examined or

Case 1:13-cv-01225-ABJ Document 49 Filed 02/24/15 of 32

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subject to investigation. And, TIGTA had officially acknowledged the existence of at least one

such investigation to several U.S. Senators and to the General Counsel of a targeted taxpayer.

Nevertheless, TIGTA refused to disclose the existence of records relating to any

investigations into “unauthorized disclosure” – that is, violations – of taxpayer privacy laws by

individuals in the Executive Office of the President, claiming § 6103(b) prohibited the same.

Cause of Action v. v. Treasury Inspector Gen. for Tax Admin., No. 13-1225, 2014 U.S. Dist.

LEXIS 140595, at *7-8 (D.D.C. Sept. 29, 2014). The parties filed cross-motions for summary

judgment. The Court ruled for Cause of Action and ordered TIGTA to disclose. Id. at *25-26.

TIGTA admits having 2,509 pages of responsive records. However, it continues to

protect the Executive Office of the President by denying disclosure, using an unprecedented and

unsustainable construction to claim that § 6103(b) shields from disclosure government officials

who may violate § 6103(a). It then justifies FOIA exemptions using the remarkably circular

argument that because § 6103 prohibits disclosure, the exemptions apply and nothing more is

needed. Finally, it fails to carry its burden and prove an adequate search, privileges, compelling

privacy interests that outweigh public disclosure interests (to the extent not already waived), or

appropriate segregation.

The parties have again filed cross-motions for summary judgment. And again, the Court

should rule for Cause of Action and order TIGTA to disclose.

PROCEDURAL HISTORY

On October 9, 2012, Cause of Action filed a FOIA request with IRS for eight separate

items. Pl.’s Statement of Undisputed Material Facts (“SOF”) ¶ 1; Compl. Ex.1, ECF No. 1.

Item seven of the request (“Item Seven”) sought “[a]ll documents, including but not limited to

emails, letters, telephone logs, and reports pertaining to any investigation by the Treasury


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Inspector General for Tax Administration into the unauthorized disclosure of [26 U.S.C.] § 6103

‘return information’ to anyone in the Executive Office of the President.” SOF ¶ 4; Compl. Ex. 1.

The IRS referred this request to TIGTA for processing and a direct response. SOF ¶ 3;

Compl. Ex. 3. On November 30, 2012, TIGTA provided a Glomar response based on FOIA

Exemptions 6 and (7)(C). SOF ¶ 4; Compl. Ex. 7. Cause of Action appealed TIGTA’s

determination on June 12, 2013 because TIGTA’s Glomar response was unwarranted in light of

the scope of Cause of Action’s request, which did not identify a particular taxpayer. SOF ¶ 5;

Compl. Ex. 8. On July 10, 2013, TIGTA affirmed its initial determination, but also cited

Exemption 3 in conjunction with § 6103 as an additional basis for denial. SOF ¶ 6; Compl. Ex.

9.

Cause of Action sued on August 9, 2013. See Compl.

On November 18, 2013, TIGTA filed its first motion for summary judgment, arguing that

it properly issued a Glomar response pursuant to Exemptions 3, 6, and 7(C). Def.’s [Initial] Mot.

for Summ. J., ECF No. 17. TIGTA also filed a sealed motion seeking in camera review of

supplemental documents filed under seal. Def.’s Sealed Mot. to File Docs. Under Seal, ECF No.

18; Def.’s Notice of In Camera Submission, ECF No. 19.

On December 2, 2013, Cause of Action opposed TIGTA’s sealed motion, Pl.’s Opp. to

Def.’s Sealed Mot. to File Documents Under Seal, ECF No. 21, and on December 23, 2013,

Cause of Action opposed TIGTA’s motion for summary judgment, cross-moving for summary

judgment. Pl.’s [Initial] Opp. to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF

No. 27. In a Minute Order on February 3, 2014, the Court granted TIGTA leave to file its sealed

materials. Minute Order, Cause of Action v. Treasury Inspector Gen. for Tax Admin., No. 13-

1225 (D.D.C. order entered Feb. 3, 2013).


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On September 29, 2014, the Court issued a Memorandum Opinion, in which it granted

Cause of Action’s Cross-Motion for Summary Judgment, denied TIGTA’s Motion for Summary

Judgment and remanded the matter to TIGTA for processing of Cause of Action’s FOIA request.

SOF ¶ 15; Mem. Op., ECF No. 38; Cause of Action, 2014 U.S. Dist. LEXIS 140595 at *1.

Upon remand, on December 1, 2014, TIGTA identified 2,509 “pages of documents

potentially responsive to your request” and said 2,043 of those pages, which were found to be

actually responsive were collected by the “Secretary of the Treasury with respect to the

determination of possible liability under Title 26[,]” were “return information protected by 26

U.S.C. § 6103 and may not be disclosed absent an express statutory exception.” SOF ¶ 16, Ex.

9. TIGTA anticipated providing a response regarding the remaining 466 pages “that may be

responsive” to Item Seven of Cause of Action’s FOIA request on December 15, 2014. Id.

On December 5, 2014, TIGTA “clarif[ied]” that the “records referenced in the previous

partial determination are TIGTA records[,]” that it “exercises authorities delegated by the

Secretary of the Treasury when it investigates allegations of unauthorized disclosure of return

information or makes determinations regarding the release of TIGTA records under the FOIA,

and any such investigations or determinations are performed solely by TIGTA.” SOF ¶ 17, Ex.

10.

On December 15, 2014, TIGTA advised that of the remaining 466 pages “of responsive

records[,]” 433 pages were being withheld in full under Exemption 3 in conjunction with § 6103,

two (2) pages were being withheld in full pursuant to Exemption 5, four (4) pages were being

withheld in part pursuant to Exemption 5, and twenty-seven (27) pages were being released in

full. SOF ¶ 18, Ex. 11. In total, then, TIGTA produced only about 1% of documents (some with

redactions) in response to Cause of Action’s FOIA request.


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The thirty-one (31) pages TIGTA produced were transmitted via e-mail in three separate

Adobe PDF files titled: (1) “Grady Files,” SOF Ex. 12; (2) “Hurley Files,” SOF Ex. 13; and, (3)

“DECOS Cases,” SOF Ex. 14. The Grady Files consist of ten (10) pages released in full,

presumably originating from a search conducted by “former Senior Advisor and Congressional

Liaison, Judy Grady (pages 2500-2509)[.]” Decl. of Gregory M. Miller (“Miller Declaration”)

¶ 9, ECF No. 46-3; SOF Ex. 12. In particular, the Grady Files contain five (5) two-page

unsigned identical letters from TIGTA to then-Senate Finance Committee Member-Senators

Bunning, Cornyn, Enzi, Ensign, and Grassley dated September 28, 2010. SOF ¶¶ 8, 19, Exs. 2,

12; Pl.’s Statement of Undisputed Material Facts in Supp. [Initial] Cross-Mot. for Summ. J.

(“Pl.’s Initial SOF”), ECF No. 25, ¶ 8, Ex. 2. Copies of the September 28, 2010 letter to two

addressees, Member-Senators Kyl and Roberts, are not contained in the Grady Files. See SOF

Ex. 2 (describing recipients of seven “[i]dentical letters”).

The Hurley Files consist of seventeen (17) pages released in full, presumably originating

from a search conducted by “former Special Assistant to the Inspector General, Ryan Hurley

(2468-2484).” Miller Decl. ¶ 9; SOF Ex. 13. The first fourteen (14) pages contain signed

versions of the Grady Files letters, but with all seven two-page signed identical letters included

in the production. SOF ¶¶ 8, 20, Exs. 2, 13; Pl.’s Initial SOF ¶ 8, Ex. 2. The final three (3)

pages contain a September 23, 2010 letter from the aforementioned seven Senators to TIGTA.

SOF ¶¶ 8, 20, Exs. 2, 13; Pl.’s Initial SOF ¶ 7, Ex. 1.

The DECOS Cases file consists of two four (4) pages withheld in part under Exemption 5

deliberative process privilege, of which the first two (2) pages presumably originate from a

TIGTA document management system and the second two (2) pages are e-mails, which may be

part of such database. SOF Ex. 14; see Miller Decl. ¶ 18(a) (“Portions of pages 232, 233, 234,

and 236 are being withheld . . . based upon . . . the deliberative process privilege”).


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On January 30, 2015, TIGTA filed its second motion for summary judgment, arguing that

it conducted an adequate search for responsive documents and it properly withheld responsive

documents under FOIA Exemption 3 in conjunction with § 6103, Exemption 5, 6, and 7(C).

Def.’s [Second] Mot. for Summ. J. (“TIGTA’s Motion”), ECF No. 46; Def.’s Mem. and Points

of Authorities In Support of [] Motion for Summ. J. (“TIGTA’s Brief”), ECF No. 46-1.1

TIGTA’s Motion is supported by the Miller Declaration and the Declaration of Diane K. Bowers

(“Bowers Declaration”) (ECF No. 46-4).

This Opposition and Cross-Motion follow.

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency’s action de novo and the burden is

on the agency to sustain its action. FOIA cases are typically and appropriately decided on

motions for summary judgment, with the Court viewing the evidence in the light most favorable

to the nonmoving party, drawing all reasonable inferences in his favor, and eschewing credibility

determinations or weighing the evidence. If the plaintiff does not provide evidence that an

agency acted in bad faith, then a court may rely on agency declarations. Cause of Action, 2014

U.S. Dist. LEXIS 140595, at *3-4 (citations omitted).

FOIA exemptions are construed narrowly. Id. at *4. TIGTA bears the burden of

supporting each exemption. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 755 (1989). TIGTA also bears the burden of demonstrating beyond

“material doubt” that its search was “reasonably calculated to uncover all relevant documents.”

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted).

1 Though TIGTA’s Motion heading is properly styled as “Motion For Summary Judgment of Treasury Inspector General For Tax Administration,” ECF No. 46, its memorandum in support erroneously states “Memorandum And Points Of Authorities In Support Of The Internal Revenue Service’s Motion For Summary Judgment.” ECF No. 46-1 (emphasis added).


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This case substantially turns on § 6103’s proper construction.

Section 6103(a) provides “[r]eturns and return information shall be confidential, and

except as authorized by this title – (1) no officer or employee of the United States . . . shall

disclose any return or return information obtained by him in any manner in connection with his

service as such an officer or an employee or otherwise or under the provisions of this section.”

Section 6103(b)(1) defines a “return” as “any tax or information return, declaration of

estimated tax, or claim for refund required by, or provided for or permitted under, the provisions

of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and

any amendment or supplement thereto, including supporting schedules, attachments, or lists

which are supplemental to, or part of, the return so filed.”

Section 6103(b)(2) defines “return information” as:

[A] taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense . . . but such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.

These terms must be read in context and to give effect to the meaning Congress

intended. Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 134 S. Ct. 2427, 2441 (2014);

United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371

(1988) (“A provision that may seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme – because the same terminology is used elsewhere in a

context that makes its meaning clear[.]”). TIGTA’s statutory construction is not owed


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Chevron deference. Whatever weight it might have is derived entirely from its power to

persuade. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *9.

ARGUMENT

I. SECTION 6103 DOES NOT BAR DISCLOSURE OF RECORDS SHOWING WHO MADE AND RECEIVED UNAUTHORIZED TAX DISCLOSURES.

Section 6103 does not, as TIGTA claims, bar disclosure in this case.

Section 6103’s core purposes are protecting taxpayer privacy, id. at *13 (citations

omitted), and regulating and restricting Executive Branch access to tax returns and return

information to prevent government officials from targeting political opponents or government

critics. S. Rep. No. 938, 94th Cong., 2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. &

Admin. News 3747-48, 3774-75; accord Tax Reform Research Grp. v. Internal Revenue Serv.,

419 F. Supp. 415, 418 (D.D.C. 1976) (pre-amendment case holding that “serious abuses of an

essentially political nature” are not “protected from disclosure”).2 FOIA’s core purpose is to

2 See generally Office of Tax Policy, Dep’t of the Treasury, Report to The Congress on Scope and Use of Taxpayer Confidentiality and Disclosure Provisions, vol. 1, 20 (Oct. 2000), available at http://www.treasury.gov/resource-center/tax-policy/documents/confide.pdf. The second of the Articles of Impeachment of President Nixon, as adopted by the House of Representatives Judiciary Committee, provided:

He has, acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.

Art. 2, Sec. 1, Articles of Impeachment of Richard M. Nixon, H.R. Rep. No. 93-1305 (1974), available at http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc3/pdf/GPO-CDOC-106sdoc3-19-3.pdf.; see also David Burnham, Misuse of the I.R.S.: The Abuse of Power, N.Y. Times (Sept. 3, 1989), http://www.nytimes.com/1989/09/03/magazine/ misuse-of-the-irs-the-abuse-of-power.html (detailing political abuse by successive administrations).


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ensure the informed citizenry required to check corruption and hold the governors accountable to

the governed. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *4 (citations omitted).

Circuit precedent holds that § 6103 is the sort of nondisclosure statute contemplated by

FOIA Exemption 3. Id. at *6. Properly construed, § 6103 and FOIA should harmonize to

protect taxpayer privacy and prevent government abuse. However, TIGTA asks this Court to do

something unprecedented: scissor § 6103(a) from § 6103(b), create an unnecessary conflict with

FOIA, and hold that when Congress enacted legislation defining “return information” broadly to

protect taxpayers’ confidential information from political depredations, it also intended to protect

government officials from public disclosure of their wrongs. See TIGTA Br. at 8 (disclosure

barred because § 6103(b)(2)(A)’s definition of “return information” extends to the identities of

“third party” government employees who violated the law) (citation omitted). This is not a

permissible construction of the statute in light of its language, structure, and purpose. Cause of

Action, 2014 U.S. Dist. LEXIS 140595, at *12-13 (citations omitted). Cause of Action’s FOIA

request does not implicate any taxpayer’s tax liability, id. at *10 n.3 (distinguishing cases), and

so an order harmonizing § 6103 and FOIA, and granting the requested relief, is appropriate.

A. Even If § 6103 Applies Here, TIGTA Has Waived Its § 6103/Exemption 3 Bar To Disclosure.

Section 6103(p)(3)(C) requires the Secretary of the Treasury to report, in relevant part, all

disclosures of return information to the Executive Office of the President, including unauthorized

disclosures, to the Joint Committee on Taxation. No reports of unauthorized disclosure were

made during the relevant time.3 This highlights a critical inconsistency in TIGTA’s position:

3 Joint Comm. on Taxation, Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C) for Calendar Year 2012 (JCX-8-13), Apr. 15, 2013, available at https://www.jct.gov/publications.html?func=startdown&id=4514; Joint Comm., Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C) for Calendar Year 2011 (JCX-38-12), Apr. 24, 2012, available at


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Either the Secretary of the Treasury violated his § 6103(p) reporting requirement, thereby hiding

political overreach and abuse of protected confidential taxpayer information, or TIGTA’s

§ 6103/Exemption 3 claim is of no moment because there is no tax return or return information

in the subject records.4

But even assuming arguendo that there is tax return and/or return information in the

subject records (meaning that § 6103(p) has been repeatedly violated), the fact is that TIGTA has

waived all applicable exemptions, at least regarding the acknowledged investigation into the

unauthorized disclosure of confidential Koch Industries, Inc. return information to and by the

then-Chairman of the Council of Economic Advisors, Austan Goolsbee. This Court correctly

held that TIGTA waived Exemptions 6 and 7 with respect to these records and that it did not

need to reach whether TIGTA waived § 6103 because the information protected by TIGTA was

https://www.jct.gov/publications.html?func=startdown&id=4424; Joint Comm. on Taxation, Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C) for Calendar Year 2010 (JCX-26-11), May 5, 2011, available at https://www.jct.gov/publications.html?func=startdown&id=3786; Joint Comm. on Taxation, Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C) for Calendar Year 2009 (JCX-25-10), Apr. 15, 2010, available at https://www.jct.gov/publications.html?func=startdown&id=3680. 4 For example, the U.S. House of Representatives Committee on Oversight and Government Reform (“OGR”) received § 6103-redacted e-mail communications between employees of the IRS and the Executive Office of the President. E.g., E-mail from Sarah Hall Ingram, Internal Revenue Serv., to Jeanne Lambrew, Deputy Dir., White House Office of Health Reform, and Ellen Montz, White House Health Policy Advisor (July 19, 2012), available at http://issa.house.gov/wp-content/uploads/2013/10/Hall-Ingram-WH.pdf; see Patrick Howley, White House, IRS exchanged confidential taxpayer info, The Daily Caller (Oct. 9, 2013), http://dailycaller.com/2013/10/09/white-house-irs-exchanged-confidential-taxpayer-info/ (citing series of e-mails between employees of IRS and Executive Office of the President obtained and published by OGR). If such e-mail communications involve § 6103 return information, then IRS unlawfully transmitted return information in communications with the White House, ignoring the procedures set forth in § 6103(g) and the resultant reporting obligation to the Joint Committee on Taxation under § 6103(p). Alternatively, the redactions purportedly under § 6103 are not actually return information under § 6103(b)(2)(A) and the documents should never have been redacted on that basis.


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not “return information.” Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *19-22

(“[D]efendant has waived” Glomar “by officially acknowledging the existence of an

investigation . . . on the public record”).

Once again, the Court need not reach whether § 6103 is waived to grant Cause of Action

the requested relief because the information TIGTA is shielding – who requested, made or

received unauthorized disclosure – cannot be “return information” under any rational

construction of the term.5 See 26 U.S.C. § 6103(b)(2); Church of Scientology v. Internal

Revenue Serv., 484 U.S. 9, 14-15 (1987) (“We are told by the IRS that, as a practical matter,

‘return information’ might include the report of an audit examination, internal IRS

correspondence concerning a taxpayer’s claim, or a notice of deficiency issued by the IRS

proposing an increase in the taxpayer’s assessment.”) (citation omitted).6 No case or

interpretative canon justifies TIGTA’s classifying the names of government officials who

violated the law by seeking or obtaining unauthorized disclosure as “return information” as if

5 Arguably, TIGTA’s conduct here was not authorized by statute. Section 6103(k)(6) distinguishes between an “internal revenue officer or employee and” and “an officer or employee of the Office of Treasury Inspector General for Tax Administration.” However, neither § 6103(h) nor § 6103(k) explicitly authorize disclosure to TIGTA for investigation of § 7213 and § 7213A violations, and TIGTA’s organic statute does not confer § 6103(h) or (k) authority. 5 U.S.C. App. § 8D. Therefore, TIGTA’s reliance on § 6103 in conjunction with Exemption 3 may be problematic. See Ryan v. United States, 74 F.3d 1161, 1163 (11th Cir. 1996) (citing Stokwitz v. United States, 831 F.2d 893, 897 (9th Cir. 1987)) (“Section 6103 of Title 26 protects only information filed with and disclosed by the IRS, not all information relating to any tax matter.”) (emphasis added). The production of the redacted emails to OGR, see supra note 4, concretely acknowledges this rule. 6 TIGTA “acknowledges that the FOIA request at issue here does not call for the disclosure of any taxpayer’s income, payment history, deductions, net worth, or liability. And the request does not call for information about whether a particular taxpayer’s return has been or will be examined or subject to investigation.” Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *7. But even if this information could somehow be construed as “return information,” TIGTA has waived the right to hide behind its provisions. See supra Part I.A.


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these were of the same nature and kind as income, payment history, deductions, net worth, or

liability, and Congress intended no such thing. Church of Scientology, 484 U.S. at 17 (“The

Senate’s purpose in revising § 6103 was, as we have noted, to impose greater restrictions on the

disclosure of tax data[.]”); see also Abramski v. United States, 134 S. Ct. 2259, 2272 n.10 (2014)

(“Although the text creates some ambiguity, the context, structure, history, and purpose [of the

statute] resolve it.”).

B. TIGTA’s § 6103 Construction Fails.

TIGTA asks this Court to construe § 6103(b)(2) as defining the identities of “third party”

government employees and political officials who violate taxpayer privacy to be protected

“return information.” TIGTA Br. at 7-8. Citing only Landmark Legal Found. v. Internal

Revenue Service, 267 F.3d 1132 (D.C. Cir. 2001), TIGTA claims that it is prohibited from

disclosing under FOIA all information that “directly or indirectly identifies third party taxpayers”

that was “‘received by’ or ‘prepared by’ TIGTA in connection with the determination of a

potential liability” under Title 26, and that disclosing the identities of those who requested or

obtained unauthorized disclosures is therefore barred. TIGTA Br. at 8.

Of course, the best public officials are “taxpayers”7 and records of government abuse of

taxpayer privacy could be “received by” or “prepared by” TIGTA in connection with the

determination of potential liability. But whether a public official is a “taxpayer” and the records

demonstrating his or her lawlessness are “return information” for purposes of this particular

statute and FOIA request presents an entirely separate issue. TIGTA’s reading creates a conflict

7 But see “Uncle Sam Wants YOU...to pay your taxes, Federal workers who owed money to the Internal Revenue Service in 2009,” Wash. Post, http://www.washingtonpost.com/wp-srv/politics/irs-federal-workers/index.html.


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between § 6103(b), on the one hand, and § 6103(a) and the statutory purpose, on the other.

Therefore, TIGTA’s construction fails.

1. TIGTA’s construction is contrary to controlling interpretative canons.

TIGTA’s construction is contrary to controlling interpretative canons requiring

“taxpayer” and “data” to be read in the context and with the meaning Congress intended in the

overall statutory scheme. See Util. Air Regulatory Grp., 134 S. Ct. at 2441; United Sav. Ass’n of

Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provision that may

seem ambiguous in isolation is often clarified by the remainder of the statutory scheme-because

the same terminology is used elsewhere in a context that makes its meaning clear[.]”). “The

presumption of consistent usage ‘readily yields’ to context, and a statutory term” – even one

defined in the statute – “‘may take on distinct characters from association with distinct statutory

objects calling for different implementation strategies.’” Util. Air Regulatory Grp., 134 S. Ct. at

2441 (citation omitted).

A contextual reading of § 6103 leaves no room for TIGTA’s construction, which elevates

the rights of an offending government official to the same level as those of an aggrieved

taxpayer. Section 6103’s manifest purpose is to protect taxpayers and provide the means for

punishing the political officials who abuse their privacy rights.8 S. Rep. No. 938, 94th Cong.,

2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. & Admin. News 3747-48, 3774-75. Yet

8 Section 6103’s legislative history indicates that Congress’s overriding purposes for enactment were to prevent the IRS from being a “lending library” of tax information to other government agencies and to end “the highly publicized attempts to use the Internal Revenue Service for political purposes.” See 122 Cong. Rec. 24013 (1976) (remarks by Sen. Weicker and Sen. Dole); see also Joint Comm. on Taxation, General Explanation of the Tax Reform Act of 1976, H.R. 10612, Pub. L. No. 94-455 (JCS-33-76), 313-16 (1976), available at https://archive.org/stream/generalexplanati3376unit#page/n0/mode/2up. In short, § 6103 was aimed at curtailing abuse by government agencies of information filed with the IRS. Stokwitz, 831 F.2d at 894.


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TIGTA’s construction wrongly transforms § 6103 from a privacy sword for taxpayers into an

accountability shield for political wrongdoers, setting the statute at odds with itself. This narrow,

hyper-technical construction is inappropriate. Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.

1944) (L. Hand, J., concurring) (“literal meaning” constructions that contradict Congress’s

manifest statutory purpose should be avoided).

The statutory text supports the statutory purpose. For example, Congress’s definition of

“return information” is quite specific. See § 6103(b)(2). Lawbreaking government officials, not

surprisingly, are missing from the list. 26 U.S.C. § 7217 prohibits “executive branch influence

over taxpayer audits and other investigations.” 26 U.S.C. § 7521(d) differentiates between

taxpayer interviews and interviews “relating to the integrity of any officer or employee of the

Internal Revenue Service” – in other words, an IRS employee that violates the law does not have

the same rights as a taxpayer. TIGTA’s flawed construction of § 6103(b) in this case thus

tortures the statute into irreconcilable internal conflicts.

Additionally, TIGTA’s interpretation prevents a taxpayer from confirming through FOIA

that an unauthorized inspection or disclosure of his or her return or return information has

occurred and so TIGTA’s construction wrongly renders the civil remedy for unauthorized

disclosure, 26 U.S.C. § 7431, functionally inert. Such a construction is unsupportable. See

Duncan v. Walker, 533 U.S. 167, 174 (2001) (declining to adopt a “construction of the statute,

[that] would render [a term] insignificant”); Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)

(“every part of a statute must be construed in connection with the whole, so as to make all the

parts harmonize, if possible . . .”).

2. TIGTA’s construction is contrary to persuasive precedent.

This Court has previously determined requests for taxpayer return information by the

Executive Office of the President to IRS were not protected by § 6103, but it allowed redaction


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of identifying information under Exemption 7(C). Tax Reform Research Grp., 419 F. Supp. at

419-20. Tax Reform Research Group predates the 1976 amendments. However, those

amendments did not change § 6103’s general character, instead targeting specific problems such

as Executive Branch abuse of taxpayer privacy during the Nixon administration. Office of Tax

Policy, Dep’t of the Treasury, Report to The Congress on Scope and Use of Taxpayer

Confidentiality and Disclosure Provisions, vol. 1, 20-22. Therefore, Tax Reform Research

Group remains persuasive precedent and it should control here.

Tax Reform Research Group offers the common-sense recognition that “serious abuses of

an essentially political nature” are not protected from disclosure simply because a portion of the

evidence of wrongdoing might contain of return information. Tax Reform Research Grp., 419 F.

Supp. at 418. Instead, the solution is reasonable segregation and redaction to balance and

harmonize § 6103 privacy interests with FOIA disclosure and government accountability. See

e.g., Decl. of Allan Blutstein, Ex. 4 at 1-2, Cause of Action v. Internal Revenue Serv., No. 13-

920-ABJ, ECF No. 22-1 (Letter from Ava F. Littlejohn, Disclosure Manager, Internal Revenue

Serv., to David G. Frantz, Dep’t of Energy (“Letter from Ava F. Littlejohn”) (Jan. 26, 2011)

(demonstrating partial production of non-§ 6103 information possible through redactions of

otherwise protected information)).

3. TIGTA’s construction leads to absurd results.

It is axiomatic that statutes should be construed to avoid absurd results. Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). TIGTA’s construction scissors § 6103(a)

and § 6103(b)(2) by turning the identities of government officials that violate the law into

protected return information. This detaches statutory language from Congress’s manifest

purpose and effectively does away with 26 U.S.C. § 7431 in its entirety, leading to an outcome


16

Congress could not have intended. See Corley v. United States, 556 U.S. 303, 314-17 (2009)

(application of absurdity canon).

4. Landmark does not support TIGTA’s construction.

TIGTA relies solely on Landmark Legal Foundation to block disclosure. TIGTA Br. at

8. Landmark, however, has no application here because the “third parties” in that case were not

lawbreaking government officials. Instead, they were citizens who requested audits or

investigations of tax-exempt organizations. 267 F.3d at 1135. Extending Landmark and § 6103

to shield lawbreaking government officials and White House political officials requires a

massive analytic leap over statutory language, structure and purpose. See § 6103(a)-(b); S. Rep.

No. 938, 94th Cong., 2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. & Admin. News

3747-48, 3774-75; see also 26 U.S.C. § 7217 (prohibiting “executive branch influence over

taxpayer audits and other investigations”); 26 U.S.C. § 7521(d) (demonstrating that an IRS

employee who violates the law does not have the same rights as a taxpayer). This Court should

decline TIGTA’s invitation to do so.

II. TIGTA HAS NOT CONDUCTED A REASONABLE SEARCH FOR DOCUMENTS RESPONSIVE TO ITEM SEVEN OF CAUSE OF ACTION’S FOIA REQUEST.

TIGTA relies on the declarations Gregory M. Miller and Diane K. Bowers to support its

claim that it conducted an adequate search for responsive records to Item Seven. TIGTA Br. at

4-6; Miller Decl.; Bowers Decl. TIGTA’s argument fails because declarants do not describe

search terms and specific files searched to locate responsive records and to account for several

known and existing records that went missing in TIGTA’s search.

TIGTA 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.”

Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (citation omitted).


17

To satisfy this burden, it must submit “a reasonably detailed affidavit, setting forth the search

terms and the type of search performed[.]” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990); see Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007)

(“The court applies a ‘reasonableness’ test to determine the ‘adequacy’ of a search

methodology[.]”) (citation omitted).

This affidavit or declaration must be detailed enough to “afford a FOIA requester an

opportunity to challenge the adequacy of the search and to allow the district court to determine if

the search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68. While

the court may rely on the agency’s affidavit or declaration in determining the adequacy of the

agency’s search, Founding Church of Scientology, Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836

(D.C. Cir. 1979), “such reliance is only appropriate when the agency’s supporting affidavits are

‘relatively detailed’ and nonconclusory.” Morley, 508 F.3d at 1116 (citation omitted).

A. The Miller And Bowers Declarations Fail To Describe Search Terms And Specific Files Searched To Locate Responsive Records.

TIGTA’s explanation of its search fails because the declarations do not reasonably detail

search methodology. For instance, Ms. Bowers indicated she issued “search memoranda” to

several offices, “request[ing] each office conduct a manual and electronic search of its files to

identify and locate any records that might be responsive to [Cause of Action’s] request.” Bowers

Decl. ¶ 5. However, neither Ms. Bowers nor Mr. Miller identify what search terms, if any, were

used to locate records that “might be responsive,” or the specific files searched aside from the

generic “manual and electronic search of . . . files.” Id.; Miller Decl. ¶ 6. This failure, alone, is

sufficient to warrant the denial of summary judgment in TIGTA’s favor. Maydak v. U.S. Dep’t

of Justice, 362 F. Supp. 2d 316, 326 (D.D.C. 2005) (denying summary judgment because “the


18

record provides no information about the search terms and the specific files searched for each

request”).

Neither Bowers nor Miller ever indicated whether TIGTA searched all files likely to

contain relevant documents, contrary to the requirements of this Court. See Am. Immigration

Council v. U.S. Dep’t of Homeland Sec., 21 F. Supp. 3d 60, 71 (D.D.C. 2014) (stating that the

agency “would, at a minimum, have to aver that it has searched all files likely to contain relevant

documents”). They did not conduct their own search. Instead, they each requested that

individuals in the Office of Investigations, the Office of Chief Counsel, and the Front Office to

“conduct a manual and electronic search” of their respective files “to identify and locate any

records the might be responsive to [Cause of Action’s] request[,]” and the “Front Office, in turn,

referred the search request to the Office of Communications, and the Office of Audit.” Bowers

Decl. ¶ 5; see Miller Decl. ¶ 6 (indicating subsequent circulation of “original search

memorandum” to TIGTA’s Director of Communications, Media Liaison, Counselor to the

Inspector General, and Executive Assistant to the Inspector General). However, the declarations

fail to explain how these other offices and individuals conducted their searches, including what

search terms were used or what databases were searched.

The only indication of a database search is based on TIGTA’s release of at least two

pages presumably from its DECOS database. See SOF Ex. 14 at 1-2. Nor do the declarations

reveal what instructions Ms. Bowers search memoranda contained. Bowers Decl. ¶ 5; Miller

Decl. ¶ 6. Without this information, it is impossible to judge the reasonableness of TIGTA’s

search. Therefore, TIGTA has failed to bear its burden and demonstrate it conducted an adequate

search.


19

B. TIGTA Fails To Account For Several Existing Records That Were Not Found Through Its Search For Responsive Records.

TIGTA’s failure to identify known documents strongly suggests its search was

inadequate. See Boyd v. U.S. Marshal Serv., No. 99-2712, 2002 U.S. Dist. LEXIS 27734, at *4

(D.D.C. Mar. 15, 2002) (stating that an agency’s declaration should have explained why a

particular report, which was known to exist, was not located, and requiring the agency to

“explain its failure to locate this report in a future motion”).

First, TIGTA’s declarations do not indicate whether it searched for documents related to

TIGTA’s “investigation of Austan Goolsbee’s press conference remark” relating to Koch

Industries, Inc.’s tax structure. Pl.’s Initial SOF ¶¶ 7-9, Exs. 1-3; SOF ¶¶ 7-9, Exs. 1-3; Pl.’s

[Initial] Mem. Supp. Summ. J at 6-9 (“Pl.’s Initial Mem.”), ECF No. 23. The existence of this

investigation is beyond dispute. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *24-26

(“But the email from the TIGTA Special Agent fills in the gap. It expressly confirms the

existence of records about an investigation that meets all of the parameters of plaintiff’s FOIA

request.”); Pl.’s Initial Mem. at 6-9. Yet, TIGTA has not revealed even whether TIGTA Special

Agent Daniel K. Carney – who e-mailed Mark V. Holden, General Counsel and Senior Vice

President, Koch Industries, Inc. – was contacted regarding Item Seven. Pl.’s Initial SOF ¶ 9, Ex.

3; SOF ¶ 9, Ex. 3; see Bowers Decl. ¶¶ 5, 9; see also Miller Decl. ¶ 6.

Second, TIGTA’s declarations do not indicate whether it searched for its follow-up

communication to its September 28, 2010 letter to then-Ranking Member of the Senate Finance

Committee, Senator Charles Grassley, and six other Members of the Committee. Cause of

Action, 2014 U.S. Dist. LEXIS 140595, at *23-24; SOF ¶ 8, Ex. 2; Pl.’s Initial SOF ¶ 8, Ex. 2;

Pl.’s Initial Mem. at 7. TIGTA sent the September 28, 2010 letter in response to a September 23,

2010 letter from the seven Senators, which asked him to “investigate a very serious allegation


20

that Administration employees may be have improperly accessed and disclosed confidential

taxpayer information” based on the Goolsbee press conference statement. Cause of Action, 2014

U.S. Dist. LEXIS 140595, at *23-24; SOF ¶ 7, Ex. 1; Pl.’s Initial SOF ¶ 7, Ex. 1; Pl.’s Initial

Mem. at 7.9

The silence of the Bowers Declaration and Miller Declaration regarding TIGTA’s follow-

up is additional evidence that TIGTA has not conducted a reasonable search. Boyd, 2002 U.S.

Dist. LEXIS 27734, at *4. And while it is possible that TIGTA never sent a follow-up

communication to its September 28, 2010 letter, the onus is on TIGTA to “demonstrate beyond

material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’”

Valencia-Lucena, 180 F.3d at 325 (citation omitted).

Third, TIGTA was inconsistent in the documents it did release. TIGTA released only

five of seven unsigned copies of the September 28, 2010 letter in the Grady Files – all identical

with the exception of the named Senator-addressees – while it released all seven of the signed

copies of such letters in the Hurley Files. Compare Grady Files, SOF Ex. 12, with Hurley Files,

SOF Ex. 13. Considering TIGTA’s overall threadbare release of documents and its failure to

produce the two unsigned letters to then-Committee Member-Senators Kyl and Roberts, which

were readily searchable and producible, TIGTA has failed in its burden to conduct a reasonable

search. In light of the above, the Court should conclude that TIGTA failed to conduct an

adequate search.

9 The September 28, 2010 letter thanks Senator Grassley “for bringing this matter to my attention” and confirming the Treasury Inspector General for Tax Administration had “ordered the commencement of a review into the matters alleged.” SOF ¶¶ 8, 19-20, Exs. 2, 12-13; Pl.’s Initial SOF ¶¶ 8, Exs. 2; Pl.’s Initial Mem. at 7. The letter also states that “[a]fter completing this review, I will advise [each of the seven Senators] of the results to the extent allowable by law.” SOF ¶ 8, Ex. 2; Pl.’s Initial SOF ¶ 8, Ex. 2; Pl.’s Initial Mem. at 7.


21

III. TIGTA HAS WRONGLY CLAIMED EXEMPTIONS TO AVOID DISCLOSURE. TIGTA wrongly claims Exemption 3 in conjunction with § 6103, Exemption 5 under the

deliberative process privilege, Exemption 5 under the attorney-client privilege, Exemption 6

personal information, and Exemption 7(C) personal information in law enforcement records. Its

reliance on § 6103, in conjunction with Exemption 3 or otherwise, is misplaced. Supra Part I.

Also, the Miller Declaration fails to establish its exempted withholdings with sufficient detail

and specificity because it hides behind its claim of Exemption 3 as an aegis for non-disclosure.10

A. TIGTA’s Fails To Satisfy Its Burden Of Establishing A Basis For Each Of Its Purported Exemptions Because The Miller Declaration Lacks Sufficient Detail And Specificity.

With the exception of four pages withheld in part and two pages withheld in full under

the deliberative process privilege, TIGTA improperly dovetails the large majority of its non-

Exemption 3 withholdings, perhaps covering more than 2,000 pages, under a § 6103 umbrella.

Miller Decl. ¶ 16. This nondisclosure is particularly egregious because TIGTA uses § 6103 via

Exemption 3 and then claims, with remarkable circularity, other exemptions without providing

the information normally needed to invoke them, ostensibly because of § 6103. Compare Miller

Decl. ¶ 14, 15, with ¶ 16; TIGTA Br. at 10 n.1.

TIGTA structures its justifications of these exemptions under the same paragraph:

“Certain pages exempt from disclosure under FOIA subsection (b)(3) in conjunction with 26

U.S.C. § 6103 also contain information that is exempt from disclosure under one or more of

FOIA subsections (b)(5), (b)(6), and (b)(7)(C).” Miller Decl. ¶ 16. TIGTA cites no authority

supporting its assertion that it may end-run non-Exemption 3/§ 6103 withholdings in such a

cursory way. Accordingly, the exemptions claimed in the Miller Declaration must fail.

10 The Bowers Declaration does not invoke FOIA exemptions; TIGTA’s Motion exclusively relies on the Miller Declaration for its purported exemptions. TIGTA Br. at 7-15.


22

A declaration purporting to justify the invocation of FOIA Exemptions must be

“sufficient to ‘afford the FOIA requestor a meaningful opportunity to contest, and the district

court an adequate foundation to review, the soundness of the withholding.’” See Campbell v.

U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (citation omitted). Here, TIGTA’s

exemptions deprive Cause of Action and the Court of such an opportunity due to their lack of

detail, formulaic recitation of the statutory standards, and overbroad application. See id.

The Miller Declaration fails to even identify the number of responsive documents to

which it is asserting the deliberative process privilege, attorney-client privilege, and Exemptions

6 and 7(C). Miller Decl. ¶ 16. Paragraph 16 references “certain pages” exempt from disclosure

under § 6103. That narrows the universe of the amount of pages subject to each exemption to

between one page and 2,243 pages. Id. ¶ 14. However, Cause of Action is left to assume that

“certain pages” may mean “many pages” based TIGTA’s mischaracterization of its own

declaration. TIGTA Br. at 11-13, 15 (conflating “certain pages exempt” language of Miller

Declaration ¶ 16 as “many pages of records that are exempt”).

TIGTA should have no qualms about disclosing the amount of pages subject to certain

exemptions, in light of the fact that it did disclose how many pages it believes are subject to

§ 6103. TIGTA’s brief nestles a footnote explaining its illogical view:

TIGTA notes that 26 U.S.C. § 6103 prohibits TIGTA from describing that [sic] some of the records withheld pursuant to FOIA exemptions 5, and the records withheld pursuant to FOIA exemptions 6 and 7C because those documents that are withheld under exemption 3 in conjunction with section 6103 [sic]. Describing the documents that are withheld under both exemption 3 and one or more of the other exemptions would disclose return or return information under 6103, thwarting the protections provided by exemption 3. TIGTA further notes that where it is not withholding documents under exemption 3 but [sic] TIGTA is asserting exemption 5 as deliberative process, TIGTA describes the documents with particularity.


23

TIGTA Br. at 10 n.1. Accordingly, the Court should reject TIGTA’s refusal to provide the

number of pages subject to each exemption. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.

Cir. 1973).

Moreover, TIGTA’s statement that it describes its non-Exemption 3 deliberative process

assertions “with particularity” is similarly incorrect. TIGTA Br. at 10 n.1. The documents it

references are contained, in part, in the DECOS Cases file. SOF ¶ 21 Ex. 14; Miller Decl. ¶ 18.

The DECOS Cases file includes four pages, which the agency withheld in part under the

deliberative process privilege. SOF ¶ 21. However, the declaration only describes three of the

four pages with any particularity at all and, as explained below, fails to properly invoke the

privilege as a matter of law. Miller Decl. ¶ 18. Thus, the Court should set aside the Miller

Declaration and the exemptions it seeks to invoke due to its lack of detail and specificity under

Campbell. 164 F.3d at 30.

B. Exemption 3 In Conjunction With 26 U.S.C. § 6103.

Contrary to TIGTA’s claims, § 6103 does not shield the identities of the subject

individuals in the IRS and the Executive Office of the President from disclosure. See supra Part

I. Nor may TIGTA claim that the presence of any § 6103-protected information, properly

construed, in a record somehow renders the entire record subject to a disclosure bar, for the law

is non-return information must be segregated and released. See Tax Analysts v. Internal Revenue

Serv., 117 F.3d 607, 611 (D.C. Cir. 1997); Church of Scientology, 484 U.S. at 14-16; see also 5

U.S.C. § 552(b). In other words, the mere presence of return information within a record does

not transform the entire record into return information. If non-return information, including the

identities of the subject individuals in the IRS and the Executive Office of the President, exists in

responsive records, then it must be disclosed. See Tax Analysts, 117 F.3d at 611; see infra Part

III.F; see also, e.g., Letter from Ava F. Littlejohn.


24

C. Exemption 5 And Deliberative Process Privilege. Both TIGTA’s § 6103-related attempt to invoke the deliberative process privilege and its

non-§ 6103-related attempt to invoke the privilege for withholding six (6) documents should fail.

Miller Declaration ¶¶ 16(a), 17-18.

To invoke the deliberative process privilege, an agency must establish that the withheld

material is both “predecisional” and “deliberative.” Access Reports v. U.S. Dep’t of Justice, 926

F.2d 1192, 1194 (D.C. Cir. 1991). A record is “deliberative” to the extent it forms a “direct part

of the deliberative process” by which agencies “make[] recommendations or express[] opinions

on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). An

agency bears the burden of demonstrating whether withheld documents are properly exempt

from disclosure. Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir.

2011). It must provide “specific and detailed proof that disclosure would defeat, rather than

further, the purposes of the FOIA,” and thereby injure the deliberative processes of the agency.

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977); see

Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980).

TIGTA has failed to articulate with any specificity the deliberative nature of the redacted

records that are also purportedly subject to withholding under Exemption 3 in conjunction with

§ 6103 at issue in this case. Miller Decl. ¶ 16(a). As to the remaining documents, the Miller

Declaration fails to justify the withholding of two pages in full and four pages in part of the

DECOS Cases file. Miller Decl. ¶ 18; SOF Ex. 14. All six pages do not qualify for the privilege

because they relate to the drafting of a press release. Taking into account that the Miller

Declaration fails to describe one of the four DECOS Cases file pages (page 236), the partially


25

withheld pages all relate to the drafting of a press release, incidentally involving attorneys.11

Miller Decl. ¶ 18(a); SOF Ex. 14. The two pages withheld in full contain a draft press release.

Miller Decl. ¶ 18(b).

TIGTA’s drafting of a press release and its mere coordination of a media response does

not implicate a core mission. Records of such decision-making processes would not appear to

“reveal the status of internal agency deliberations on substantive policy matters,” but only

concern “‘how best to present [an agency’s] position’” or image. Fox News Network, LLC v.

U.S. Dep’t of the Treasury, 911 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2012) (finding that “the

deliberative process privilege was inapplicable to e-mails concerning press releases that

‘consist[ed] entirely of . . . advice regarding messaging, or related to the massaging of [the

entity’s] public image’”) (citations omitted and emphasis added). Accordingly, TIGTA has

failed to meet its burden in all aspects of its attempt to invoke the deliberative process privilege.

Miller Decl. ¶¶ 16(a), 18; SOF Ex. 14.

D. Exemption 5 And Attorney Client Privilege.

TIGTA has failed to justify its reliance on the attorney-client privilege because the

declaration fails to disclose the underlying facts surrounding the purported privilege and because

providing legal advice does not appear to be a primary purpose of the communications loosely

described in the declaration. Miller Decl. ¶ 16(b). In its nondescript invocation of the

generalized privilege, TIGTA indicates “[i]nformation protected by the attorney-client privilege,

including confidential communications between TIGTA employees and attorneys in TIGTA’s

Office of Chief Counsel made for the purpose of obtaining or providing legal advice regarding

federal disclosure and administrative law, are exempt from disclosure[.]” Id.

11 TIGTA does not claim the attorney-client privilege over the documents described in Miller Declaration ¶ 18.


26

The attorney-client privilege concerns “confidential communications between an attorney

and his client relating to a legal matter for which the client has sought professional advice.”

Mead, 566 F.2d at 252 (emphasis added). While the privilege is “not limited to communications

made in the context of litigation or even a specific dispute,” it must nevertheless reflect a client’s

request for his “attorney’s counsel . . . on a legal matter.” Coastal States Gas Corp., 617 F.2d at

862. As the D.C. Circuit recently observed, the attorney-client privilege “only protects

disclosure of communications; it does not protect disclosure of the underlying facts by those who

communicated with the attorney.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 764 (D.C.

Cir. 2014) (citation omitted), cert. denied, No. 14-637, 2015 U.S. LEXIS 668 (Jan. 20, 2015).

Here, the Miller Declaration’s bald statement of the privilege omits the subject-matter

that is not covered by the privilege, such as the specific facts that underlie the communications,

the subject of the communication, or the form of the communication. See Miller Decl. ¶ 16(b).

In addition, the communications of “employees and attorneys” regarding the remarkably broad

topics of administrative law and federal disclosure fail to satisfy the significant purpose test, as

described in Kellogg, where “obtaining or providing legal advice [must be] one of the significant

purposes of the attorney-client communication.” Kellogg, 756 F.3d. at 760 (emphasis added).

E. Exemptions 7(C) And 6.

TIGTA alternatively relies on Exemptions 6 and 7(C) to withhold records that it claims

are also exempt from disclosure under Exemption 3 in conjunction with § 6103. Miller Decl.

¶ 16(c)-(d). The Court has concluded that TIGTA waived its reliance on these exemptions under

Glomar by officially acknowledging its investigation related to Austan Goolsbee. Cause of

Action, 2014 U.S. Dist. LEXIS 140595, at *21-22. Because of such official acknowledgment of

an investigation, and the acknowledgment of a conclusion to the investigation, any cognizable

interest Mr. Goolsbee may have is sufficiently diminished to permit disclosure. See Kimberlin v.


27

U.S. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998); Stern v. Fed. Bureau of Investigation,

737 F.2d 84, 92 (D.C. Cir. 1984) (holding that “the status . . . of individuals . . . as federal

employees diminishes their privacy interests”). Additionally, the Miller Declaration does not

justify with adequate specificity its reliance on the privileges. Miller Decl. ¶ 16(c)-(d). And, as

explained below, TIGTA has failed to establish cognizable substantial privacy interests or,

alternatively, that they outweigh the strong public interest in disclosure.

1. TIGTA Failed To Identify Cognizable Privacy Interests Implicating Exemption 7(C).

Exemption 7(C) bars disclosure of personal information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(7)(C). It exempts only those records pertaining to investigations undertaken

by an agency for “law enforcement purposes,” that is, for those investigations that focus “directly

on specifically alleged illegal acts, illegal acts of particular identified officials, [those] which

could, if proved, result in civil or criminal sanctions.” Nat’l Whistleblower Ctr. v. U.S. Dep’t of

Health & Human Servs., 849 F. Supp. 2d 13, 27 (D.D.C. 2010) (citations omitted). Exemption

7(C) is triggered whenever potentially responsive records “‘relate to anything that can fairly be

characterized as an enforcement proceeding.’” Id. (citation omitted).

In determining the applicability of Exemption 7(C), courts must balance the public

interest in disclosure against any alleged privacy interests. Cause of Action, 2014 U.S. Dist.

LEXIS 140595, at *17-18. The Exemption 7(C) balancing test is similar to, but “not

coterminous” with, the balancing test undertaken for an Exemption 6 analysis. Schoenman v.

Fed. Bureau of Investigation, 575 F. Supp. 2d 136, 159 (D.D.C. 2008) (citation omitted).

Nevertheless, because Exemption 7(C) “provides protection for a somewhat broader range of


28

privacy interests than Exemption 6,” the Court should first consider the application of Exemption

7(C). Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *17.

TIGTA has waived Exemption 7(C) regarding the Goolsbee matter. Id. at *25. It has

failed to sufficiently demonstrate how any particular individual privacy interests would be

implicated by the release of responsive records here. In fact, TIGTA fails even to attempt to

identify any privacy interests; it assumes the existence of such interests, but does not argue why

the mere alleged presence of information that may be protected by Exemption 7(C) would justify

the withholding of responsive records in their entirety. Miller Decl. ¶ 16(d).

Cause of Action seeks information concerning the Executive Office of the President’s

attempts, if any, to obtain taxpayer return information. At least with respect to Goolsbee,

TIGTA has already acknowledged responsive records exist. Therefore, it is difficult to imagine

how such records require the wholesale and unjustified application of Exemption 7(C). See

Rosenberg v. U.S. Dep’t of Immigration & Customs Enforcement, 13 F. Supp. 3d. 92, 106-08

(D.D.C. 2014) (ordering FBI to revise redactions withholding information that did not identify

third parties).

2. TIGTA Failed To Identify Cognizable Privacy Interests Implicating Exemption 6.

Where, as here, an agency fails to meets its burden as to Exemption 7(C) – which

requires an agency to show that disclosure “could reasonably be expected to” constitute an

unwarranted invasion of privacy, 5 U.S.C. § 552(b)(7)(C) – it rarely meets the stricter standard

of Exemption 6, which applies only if disclosure “would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 6 applies “[w]hen disclosure of

information which applies to a particular individual is sought from Government records.” U.S.

Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (emphasis added). TIGTA has


29

waived exemptions with respect to Goolsbee-related information. Cause of Action, 2014 U.S.

Dist. LEXIS 140595, at *25. It bears the burden of showing that Exemption 6 applies to other

named individuals, a burden it has not carried to date.

3. The Public Interest In Disclosure Outweighs Any Alleged Privacy Concerns.

Even assuming TIGTA had satisfactorily identified cognizable individual privacy

interests with respect to records other than the Goolsbee case, its reliance on Exemptions 6 and

7(C) still fails because the public interest in the requested records outweighs the putative privacy

interests. Exemptions 6 and 7(C) require a balancing analysis that requires TIGTA to

demonstrate how disclosure “‘would compromise a substantial, as opposed to a de minimis

privacy interest,’ because ‘[i]f no significant privacy interest is implicated . . . [the] FOIA

demands disclosure.’” Multi AG Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1230 (D.C.

Cir. 2008). If TIGTA meets its burden by identifying a substantial privacy interest, Cause of

Action must then establish a “sufficient reason for disclosure” by showing that “the public

interest sought to be advanced is a significant one, an interest more specific than having the

information for its own sake.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172

(2004). If the requester can assert a public interest justifying disclosure, the court proceeds to

weigh the third-party privacy interests against the public interest in disclosure. Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 230-31 (D.D.C.

2012).

i. Any implicated privacy interests are insubstantial.

Under Exemption 6, a substantial privacy interest would likely exist in “avoiding

embarrassment, retaliation, or harassment and intense scrutiny by the media.” Judicial Watch,

Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012). Under Exemption 7(C),


30

“[i]ndividuals involved in law-enforcement investigations . . . have a privacy interest in the non-

disclosure of their names and identifying information,” Nat’l Whistleblower Ctr., 849 F. Supp.

2d at 28, and have a “strong interest in not being associated unwarrantedly with alleged criminal

activity.” Stern, 737 F.2d at 91-92. TIGTA has failed to identify with any level of specificity

the substantive quality of the individual privacy rights at stake in this litigation. Miller Decl.

¶ 16(c), (d).

ii. The public interest in disclosure outweighs any conceivable individual privacy interests.

The relevant inquiry regarding the public interest is based on the “core purpose of the

FOIA as ‘contribut[ing] significantly to public understanding of the operations or activities of

the government.’” Reporters Comm., 489 U.S. at 775. Further, Item Seven pertains to activities

of the government – specifically, illegal activities and the response, if any, of the government

agency responsible for investigating such activities. Thus, the requested records would reveal

whether the Executive Office of the President has abused its authority by illegally accessing

taxpayer return and return information, whether IRS officials are complicit with this abuse of

authority, and whether TIGTA is properly reviewing credible allegations of violations of § 6103.

Records pertaining to these important issues would not merely serve an interest in

obtaining “information for its own sake,” Favish, 541 U.S. at 172, but would alert the general

public to the possibility that taxpayer information was illegally accessed at the highest levels of

the Executive Branch. When there is an alleged Exemption 7(C) privacy interest and the

requester’s asserted public interest is based on wrongdoing by federal government employees,

requesters must “produce evidence that would warrant a belief by a reasonable person that the

alleged Government impropriety might have occurred.” Id. at 174.


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The Court has already undertaken this analysis with respect to Special Agent Carney’s e-

mail to Koch Industries and found waiver. SOF Ex. 3; Cause of Action, 2014 U.S. Dist. LEXIS

140595, at *23-25. Unless and until TIGTA carries its burden of proof and demonstrates that

individual privacy rights predominate with respect to each specific potential disclosure, it may

not withhold responsive records. See Vaughn, 484 F.2d at 820 (citing 5 U.S.C. § 552(a)(3)).

F. TIGTA Has Failed To Release Segregable Portions Of Records. Notwithstanding TIGTA’s partial release of four pages of DECOS Cases documents that

should have been released in full, SOF Ex. 14, TIGTA has failed to comply with FOIA’s plain

requirement that “[a]ny reasonably segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b); see

Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“If a document contains

exempt information, the agency must still release ‘any reasonably segregable portion’ after

deletion of the nondisclosable portions.”) (quoting 5 U.S.C. § 552(b)); see supra Part III.B.

Section 6103(b)(2), properly construed, provides TIGTA ample guidance for doing so. See

§ 6103(b) (listing confidential information); see also, e.g., Letter from Ava F. Littlejohn; see

also, e.g., E-mail from Sarah Hall Ingram, Internal Revenue Serv., to Jeanne Lambrew, Deputy

Dir., White House Office of Health Reform, and Ellen Montz, White House Health Policy

Advisor (July 19, 2012), available at http://issa.house.gov/wp-content/uploads/2013/10/Hall-

Ingram-WH.pdf.

CONCLUSION

For the foregoing reasons, this Court should deny TIGTA’s motion for summary

judgment and grant Cause of Action’s cross-motion for summary judgment because Cause of

Action has demonstrated there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law.


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Dated: February 24, 2015 Respectfully submitted,

/s/ Daniel Z. Epstein DANIEL Z. EPSTEIN D.C. Bar No. 1009132 ARAM A. GAVOOR D.C. Bar No. 1023440 CAUSE OF ACTION 1919 Pennsylvania Ave., N.W. Suite 650 Washington, D.C. 20006 (202) 499-4232 (telephone) (202) 330-5842 (fax) [email protected] Attorneys for Plaintiff


ECF No. 49 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary...

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