330 F. Supp. 3d 161
D.C. Cir.2018Background
- Thomas and Beth Montgomery engaged in partnerships that the IRS later found to be sham tax shelters; they settled prior tax litigation with the IRS via a global settlement.
- After settlement, the Montgomerys submitted FOIA requests for twelve categories of IRS records: requests 1–5 sought forms related to a confidential informant; requests 6–12 sought lists, documents, or correspondence between the IRS and third parties about the plaintiffs or partnerships.
- The IRS initially responded that no documents existed for requests 6–12 and relied on Exemption 7(D) (and later asserted a Glomar response) for requests 1–5; plaintiffs administratively appealed and then sued under FOIA and the APA.
- The Court previously rejected the IRS' procedural defenses (global settlement and preclusion) and proceeded to merits briefing on cross-motions for summary judgment.
- The Court reviewed the IRS’s public and in camera submissions and (a) upheld the agency’s Glomar response for requests 1–5 under Exemption 7(D) and (b) found the agency’s search for requests 6–12 inadequate because it failed to explain (publicly or in camera) why certain systems and litigation files were not searched.
- The Court dismissed the APA claim because FOIA provides an adequate remedy for the plaintiffs’ challenge to the IRS’s Glomar practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Glomar response for forms re: confidential informant (requests 1–5) | Glomar waived or estopped because prior court found no informant and agency language in administrative appeal acknowledged "withheld material" | IRS: acknowledging existence would risk revealing informant; Glomar necessary to protect identities; misphrasing in appeal was clerical | Court upheld Glomar under Exemption 7(D); estoppel and waiver/official-acknowledgment arguments rejected; in camera review supported agency position |
| Whether Exemption 7(D) applies to existence/nonexistence of records | Montgomerys: 7(D) requires proof that source expected confidentiality; existence/nonexistence should not be shielded | IRS: confirming existence/nonexistence could itself reveal identity; 7(D) properly invoked to protect potential sources | Court found 7(D) applicable where agency showed protection was necessary; granted summary judgment to IRS on requests 1–5 after in camera review |
| Adequacy of search for records responsive to requests 6–12 | Search was inadequate; IRS should have searched CIMIS, Whistleblower Office databases, and prior litigation files | IRS: searched IDRS and exam files; no criminal indicators so CIMIS unnecessary; other systems not likely to produce responsive records | Court held the search inadequate as to Whistleblower Office and litigation files (IRS failed to explain why they were not searched); denied agency summary judgment and granted plaintiffs’ cross-motion on search adequacy |
| APA claim challenging IRS Glomar policy | APA challenge to Glomar as an unpromulgated rule; seeks review of policy | IRS: FOIA provides an adequate remedy; APA review barred where another adequate remedy exists | Court dismissed APA count because FOIA provides adequate relief; granted summary judgment to IRS on Count II |
Key Cases Cited
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar response doctrine)
- Landano v. DOJ, 508 U.S. 165 (1993) (standard for inferring confidentiality under Exemption 7(D))
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (standards for agency affidavits supporting Glomar responses)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (official-acknowledgment test to defeat Glomar)
- Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (requirements for affidavits describing scope and method of FOIA searches)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (agency affidavits can support summary judgment if detailed and uncontroverted)