208 F. Supp. 3d 58
D.D.C.2016Background
- Sea Shepherd (tax-exempt 501(c)(3)) requested all IRS records related to it from Jan 1, 2006 to May 13, 2013, including examination files and complaints/referrals. The IRS produced >12,000 pages but withheld a subset under FOIA exemptions.\
- The District Court previously remanded (Mar 31, 2015) for supplemental searches and better Justifications for withholdings; the IRS conducted additional searches and submitted new declarations and a revised Vaughn index.\
- The IRS searched multiple components: TEGE National & Area Chief Counsel Offices (OCC), Exempt Organizations Rulings & Agreements (R&A), Exempt Organizations Examinations (EO Examinations) in Dallas, the Communications & Liaison Office, and the Whistleblower Office.\
- The IRS withheld certain documents under FOIA Exemptions 3 (statutory nondisclosure via 26 U.S.C. § 6103) and 7(D) (confidential source protection for law-enforcement-compiled records), and issued a Glomar (refuse to confirm or deny) response for the Whistleblower Office search.\
- The Court reviewed public declarations and ex parte/in camera submissions and addressed adequacy of renewed searches, the propriety of Exemptions 3 and 7(D) withholdings, and the Glomar response for the Whistleblower Office.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of renewed searches of IRS components | IRS searches remained incomplete/insufficiently documented; EO Examinations and other units not fully searched | IRS conducted coordinated supplemental searches, used relevant databases and personnel, and produced results or negative responses | Searches adequate for OCC/TEGE Chief Counsel, R&A, Communications & Liaison, and Whistleblower Office; EO Examinations search remained inadequate and case remanded for further search |
| Withholding under Exemption 7(D) (confidential sources) | IRS failed to show sources received express confidentiality assurances or circumstances supporting implied confidentiality | IRS submitted ex parte/in camera evidence and declarations showing requests for confidentiality, Form 13909 box checked, and facts supporting implied assurances and risk of retaliation | Withholdings under Exemption 7(D) justified: Court finds express or implied assurances supported for the sources at issue |
| Withholding under Exemption 3 in conjunction with 26 U.S.C. § 6103(e)(7) (return information) | Disclosure not justified because IRS had not shown statutory criteria met and prior record did not show confidentiality assurances | IRS argued withheld material is return information, disclosure would seriously impair federal tax administration and chill informants | Exemption 3 with § 6103(e)(7) applies: withheld material is return information and disclosure would seriously impair tax administration given assurances of confidentiality and in-camera review showing intertwined identifying material |
| Glomar response for Whistleblower Office (existence/nonexistence) | Glomar unjustified here because IRS already disclosed that referrals/whistleblowers existed in other components; Court should require public statement whether Whistleblower Office records exist and, if so, produce or justify withholding | IRS argued confirming existence would harm whistleblower program generally and create inference patterns (i.e., public learns a Glomar implies existence) | Glomar response not justified on these facts: because IRS already publicly acknowledged whistleblower/referral involvement elsewhere, IRS must state whether Whistleblower Office search yielded records and either produce them or justify withholdings |
Key Cases Cited
- Ancient Coin Collectors Guild v. United States Dep't of State, 641 F.3d 504 (D.C. Cir. 2011) (search must be reasonably calculated to uncover relevant documents)
- Oglesby v. United States Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must submit reasonably detailed affidavit describing search)
- Tax Analysts v. Internal Revenue Service, 294 F.3d 71 (D.C. Cir. 2002) (standards for Exemption 7 with mixed-function agencies)
- Landano v. Department of Justice, 508 U.S. 165 (Sup. Ct.) (express vs implied assurances for confidential sources)
- Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082 (D.C. Cir. 2014) (agency must present probative evidence of express confidentiality or narrowly defined circumstances supporting implied confidentiality)
- Jefferson v. Department of Justice, 284 F.3d 172 (D.C. Cir. 2002) (focus on how and under what circumstances files were compiled for law-enforcement purposes)