Cause of Action v. Treasury Inspector General for Tax Administration
70 F. Supp. 3d 45
D.D.C.2014Background
- Cause of Action submitted a FOIA request (Oct. 9, 2012) to the IRS; the IRS referred the portion seeking TIGTA records about investigations into unauthorized disclosures of 26 U.S.C. § 6103 "return information" to the Treasury Inspector General for Tax Administration (TIGTA).
- TIGTA issued a Glomar response (neither confirm nor deny existence) on Nov. 30, 2012; plaintiff administratively appealed and then sued in federal court seeking declaration that Glomar was improper.
- TIGTA invoked FOIA Exemptions 3 (statutory prohibition, citing § 6103), 6, and 7(C) to justify its Glomar response; it also filed sealed materials addressing Exemptions 6 and 7(C).
- The Court held TIGTA’s Exemption 3 justification failed because the mere existence of investigations into unauthorized disclosures to unnamed EOP recipients is not "return information" under § 6103 as interpreted by D.C. Circuit precedent.
- The Court found Exemption 7(C) would apply as to privacy interests (notably Austan Goolsbee, whom plaintiff publicly identified), but TIGTA waived its Glomar protection because it had officially acknowledged the existence of an investigation in public correspondence and an internal email.
- Result: defendant’s Glomar response is improper; the case is remanded to TIGTA to process the FOIA request and determine whether the contents (distinct from existence) of the acknowledged records are exempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TIGTA may issue a Glomar response by invoking Exemption 3 (§ 6103) | Existence of an investigation into unauthorized disclosures is not § 6103 "return information" because request does not seek taxpayer‑specific data | Existence of such investigations is "data" about determinations of liability and thus falls within § 6103 and Exemption 3 | Rejected: Exemption 3 does not cover mere existence of investigations into unnamed EOP recipients; TIGTA did not meet its burden |
| Whether Chevron deference binds the Court to TIGTA’s interpretation of "return information" | N/A (plaintiff relies on precedent construing § 6103 narrowly) | TIGTA’s interpretation entitled to deference | Court declined Chevron deference to TIGTA; only Skidmore weight applies because TIGTA made no formal rulemaking/adjudication |
| Whether Exemption 7(C) justifies Glomar (privacy vs. public interest) | Public interest in oversight of investigations of highest‑level officials outweighs privacy | Confirming existence would associate individuals with law‑enforcement inquiries and engender stigma; privacy interest controls | Exemption 7(C) could apply as to identified individual (Goolsbee), but separate waiver issue controlled |
| Whether TIGTA waived Glomar protections by official acknowledgment | TIGTA previously disclosed on the public record that it reviewed/investigated related matters; thus plaintiff may compel disclosure of existence | TIGTA contends certain internal disclosures do not waive FOIA exemptions and some statements used terms like "review" rather than "investigation" | Waiver found: combination of Inspector General letter and special agent email officially acknowledged existence of an investigation into Goolsbee, so Glomar cannot be sustained |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir.) (Glomar/official‑acknowledgment framework)
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (procedural requirements for Glomar affidavits)
- Tax Analysts v. I.R.S., 117 F.3d 607 (D.C. Cir. 1997) (limits on § 6103 "data" as return information; focus on taxpayer‑specificity)
- Landmark Legal Found. v. I.R.S., 267 F.3d 1132 (D.C. Cir. 2001) (Chevron deference and § 6103 interpretation principles)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations based on persuasiveness)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency deference framework)
- Reporters Comm. for Freedom of the Press v. DOJ, 489 U.S. 749 (1989) (public interest balancing for privacy exemptions)
- Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612 (D.C. Cir. 2011) (official‑acknowledgment waiver doctrine)