Cause of Action v. Internal Revenue Service
125 F. Supp. 3d 145
D.D.C.2015Background
- Cause of Action filed a FOIA request (Oct. 9, 2012) seeking records about IRS disclosures of confidential "return information" under 26 U.S.C. § 6103; six categories (items 1–6) were at issue.
- IRS produced 793 pages responsive to items 1–2 with redactions (citing FOIA Exemptions 5 and 6), but initially withheld records for items 3–6, asserting Exemption 3 (§ 6103) and other exemptions; it searched for items 1–4 but did not search for items 5–6.
- Plaintiff sued after exhausting administrative remedies; cross-motions for summary judgment followed.
- The IRS invoked Exemption 5 privileges (deliberative process, attorney-client, work product) for many redactions to items 1–2 and argued items 3–6 implicated § 6103 so no search/production was required.
- The Court reviewed the search adequacy and exemption claims, conducted in camera review of sample "tax check" records, and addressed whether Executive Branch requests for return information are themselves "return information."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for items 1–2 | IRS search was inadequate and declarations lack detail | IRS conducted a reasonable, documented search (AFOIA/E-DIMS plus targeted office inquiries) | Search for items 1–2 was adequate; summary judgment for IRS on search adequacy |
| Adequacy of search for items 3–4 | IRS failed to search properly and gave insufficient detail on searches for Executive Office requests | IRS conducted limited searches and treated "tax checks" as per se § 6103 return information, so broader search unnecessary | Search for items 3–4 was inadequate; remand for adequate search and further explanation |
| Withholdings under Exemption 5 for items 1–2 | Redactions not sufficiently justified; request in camera review | Redactions protected by deliberative process, work-product, attorney-client privileges | Court upheld Exemption 5 withholdings (deliberative process for media/litigation strategy materials; one portion protected as work product); in camera review not required |
| Whether Executive Branch requests (items 3–6) are themselves § 6103 "return information" | Many such requests are not inherently return information and may be non-factual or reveal potential misconduct; IRS cannot treat all such records as per se exempt | Requests and related "tax check" records fit within § 6103(b)(2)(A) "other data" and may be withheld under Exemption 3; thus limited searches justified | "Tax check" records (taxpayer-specific requests/responses) are § 6103 return information and exempt under Exemption 3; but IRS failed to show all records responsive to items 3–6 are per se exempt — remand to search and release reasonably segregable non-exempt material |
Key Cases Cited
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir.) (agency bears burden; FOIA review de novo)
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (Supreme Court) (FOIA disclosure purpose and public interest)
- FBI v. Abramson, 456 U.S. 615 (Supreme Court) (FOIA exemptions exist to protect legitimate government/private interests)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir.) (requirements for a reasonably detailed affidavit describing agency search)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.) (search must be reasonably calculated to uncover relevant documents)
- Klamath Water Users Protective Ass’n v. United States Dept. of Interior, 532 U.S. 1 (Supreme Court) (scope of Exemption 5 and privileges)
- Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C. Cir.) (interpretation of § 6103 "other data" and distinction between factual return information and non-taxpayer-specific legal analysis)
- Landmark Legal Found. v. IRS, 267 F.3d 1132 (D.C. Cir.) (third-party identities and taxpayer-specific communications can be § 6103 "data")
- Church of Scientology of Cal. v. IRS, 484 U.S. 9 (Supreme Court) (§ 6103 protects return information even if it does not identify a particular taxpayer)
- Weisberg v. DOJ, 705 F.2d 1344 (D.C. Cir.) (materials withheld must fall within FOIA exemptions)