514 F.Supp.3d 125
D.D.C.2021Background
- Thomas and Beth Montgomery submitted a FOIA request seeking twelve categories of IRS records related to a tax-shelter investigation; Requests 1–5 concerned confidential-informant materials and 6–12 concerned third-party communications and lists.
- The IRS issued a Glomar response for Requests 1–5 (and for any documents overlapping Requests 1–5 and 6–12); the court previously upheld the Glomar assertion for overlapping material.
- Earlier IRS searches produced 1,035 pages from Bemont and Southgate litigation files; the Court found prior searches inadequate for other repositories (notably OTSA) and ordered a renewed search or better affidavits.
- The IRS conducted renewed searches (including OTSA electronic databases and paper boxes), and submitted supplemental declarations by Amy Mielke describing the scope and results.
- Plaintiffs challenged the adequacy of the renewed searches, pointing to (a) lack of a public statement about non-overlapping 6–12 results, (b) alleged unretrieved documents known to exist, (c) certain administrative files, and (d) failure to search specific employees’ emails.
- The Court held the searches adequate in most respects but ordered the IRS to either search identified employees’ emails or better justify declining to do so; the IRS also publicly declared there are no additional non-overlapping 6–12 records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IRS must publicly state results for non-overlapping Requests 6–12 | Montgomery: IRS must publicly confirm whether its renewed search located any records responsive only to Requests 6–12 | IRS: Supplemental declaration now states no additional non-overlapping responsive records were found | Held: IRS cured the defect by publicly declaring no additional non-overlapping records exist |
| Adequacy of OTSA search | Montgomery: Prior declarations suggested only electronic OTSA files were searched; FOIA request not limited to electronic files | IRS: Searched OTSA electronic databases and six boxes of paper material-advisor lists and affirms no other OTSA repositories likely to contain responsive records | Held: OTSA search was reasonably calculated and adequate |
| Alleged existence of specific responsive documents not produced | Montgomery: Points to ten specific documents (material-advisor lists, treaty request, summonses) the IRS should have located | IRS: Missing items do not prove inadequacy; additional targeted inquiries were made and some records appear not to be in agency custody or were destroyed | Held: Failure to find specific items does not, by itself, render the overall search inadequate |
| Search of administrative files (Bemont/Southgate) | Montgomery: IRS did not search certain administrative files/boxes | IRS: Searched Bemont administrative folders and consolidated/searched Southgate boxes; some related files were destroyed previously | Held: IRS search of administrative files adequate; destroyed records do not obligate further production |
| Search of relevant employees’ emails | Montgomery: IRS should search emails of five employees involved in litigation likely to have responsive materials | IRS: Offered only limited explanations and relied on searches of other, peripheral employees | Held: IRS must either conduct email searches for the identified employees or provide a satisfactory declaration explaining why such searches are unnecessary |
Key Cases Cited
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency must show search reasonably calculated to uncover relevant documents)
- Truitt v. Dep’t of State, 897 F.2d 540 (D.C. Cir. 1990) (adequacy of search judged by reasonableness; summary judgment improper if substantial doubt remains)
- Weisberg v. DOJ, 745 F.2d 1476 (D.C. Cir. 1984) (adequacy standard depends on facts; reasonableness required)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (agency affidavits must describe search scope and method in reasonable detail)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must search all systems reasonably likely to produce responsive records)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits are presumed in good faith and not rebutted by mere speculation)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (failure to locate a specific document does not alone render a search inadequate)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (focus is on appropriateness of methods, not whether every document is found)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (search may be reasonable even if it fails to produce all relevant material)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (agency affidavits can suffice where they justify nondisclosure with reasonable specificity)
- Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521 (D.C. Cir. 2011) (FOIA cases are often decided on summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard for genuine disputes of material fact)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (FOIA does not require agencies to search for records not in their custody or control)