356 F. Supp. 3d 74
D.C. Cir.2019Background
- Plaintiffs (the Montgomerys) sought IRS records (whistleblower forms) potentially relating to tax investigations and challenged the IRS's Glomar response and assertion of FOIA Exemption 7(D).
- The IRS responded with a Glomar refusal and invoked Exemption 7(D) to protect identities of confidential sources; it filed a declaration and submitted material in camera to support nondisclosure.
- Plaintiffs argued the IRS had officially acknowledged there was no confidential informant (waiving Glomar/Exemption 7(D)), and relied on prior statements and a prior decision in Bemont Investments to estop the IRS.
- The Court previously upheld the IRS’s Glomar and Exemption 7(D) assertions; Plaintiffs moved for reconsideration advancing similar arguments.
- The Court reconsidered and again concluded plaintiffs failed to meet the burden for official-acknowledgement or collateral estoppel and that Exemption 7(D) properly applies to records that could reveal confidential-source identities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior IRS statements waived Glomar via official acknowledgement | Montgomerys: IRS statements that there was "no informant" amount to official acknowledgement, so Glomar waived | IRS: Statements were limited/mischaracterized and did not match the specific records sought; clerical errors are not acknowledgements | Court: No waiver; plaintiffs failed to identify an official record matching the request |
| Whether prior IRS statements waived Exemption 7(D) by officially disclosing protected info | Montgomerys: public statements that there was no informant mean Exemption 7(D) inapplicable | IRS: Prior statements were narrower in scope/time and do not preclude Exemption 7(D) application to requested records | Court: Exemption 7(D) still viable; plaintiffs did not show the exact protected information is publicly disclosed |
| Whether a prior judicial decision estops the IRS from claiming confidential sources exist | Montgomerys: Bemont decision ("no informant") collaterally estops IRS now | IRS: Bemont addressed different litigation/timeframe and did not decide presence of confidential sources in Montgomerys' requests | Court: No estoppel; Bemont did not resolve existence of responsive Exemption 7(D) records |
| Proper scope/interpretation of Exemption 7(D) here (confidentiality, "attempted" sources, existence vs identity) | Montgomerys: Exemption 7(D) shouldn't protect persons who lacked express assurances or whose identities aren't at risk; it protects identity only, not existence | IRS: Exemption 7(D) covers sources who provided info under express or implied assurances; existence can reveal identity in context | Court: Exemption 7(D) properly applied; implied assurances and records revealing existence may also disclose identity, so nondisclosure justified |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir.) (official-acknowledgement waiver test)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir.) (requirement to pinpoint public record matching the FOIA request to overcome Glomar)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir.) (clerical mistakes in processing do not constitute official acknowledgment)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir.) (three-part official-acknowledgement test)
- Landano v. United States, 508 U.S. 165 (1993) (confidentiality may be express or reasonably inferred)
- Roth v. DOJ, 642 F.3d 1161 (D.C. Cir.) (agencies must publicly explain why sources are deemed confidential)
- FBI v. Abramson, 456 U.S. 615 (1982) (Exemption 7's purpose: protect flow of information to law enforcement)
- James Madison Project v. Dep't of Justice, 302 F. Supp. 3d 12 (D.D.C.) (discussion of overcoming Glomar via official acknowledgement)