40 F.4th 702
D.C. Cir.2022Background
- Thomas and Beth Montgomery ran a tax-shelter scheme in the 2000s; the IRS disallowed reported losses and the parties later entered a global settlement resolving outstanding disputes.
- In May 2016 the Montgomerys submitted 12 FOIA requests to the IRS: Requests 1–5 sought whistleblower-related records (e.g., award applications); Requests 6–12 sought IRS communications with third parties about the Montgomerys.
- The IRS responded to Requests 1–5 with a Glomar (neither confirm nor deny) response grounded in FOIA Exemption 7(D); initial searches for Requests 6–12 produced no records and the Montgomerys administratively appealed.
- The district court required renewed searches for Requests 6–12 (initial searches were inadequate); after multiple rounds the IRS located over 1,000 pages and eventually the court found the searches adequate except for a minor email-search omission which the IRS cured.
- The district court reviewed the IRS’s in camera declarations supporting the Glomar/7(D) claim for Requests 1–5, rejected the Montgomerys’ procedural estoppel and official-acknowledgment arguments, denied APA relief, and granted summary judgment to the IRS on all claims.
- The Montgomerys appealed; the D.C. Circuit affirmed the district court in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural preclusion (collateral estoppel / judicial estoppel / official acknowledgment) to bar IRS Glomar for Requests 1–5 | Montgomerys: prior Fifth Circuit litigation and IRS statements preclude or estop the IRS from now asserting Glomar or claiming withheld records exist | IRS: prior litigation determinations about existence of an informant differ from existence of whistleblower records; prior statements are not inconsistent or sufficiently specific to waive exemptions | Court: rejected all procedural-preclusion claims — prior issues differ and prior statements did not officially acknowledge the specific records sought |
| Validity of Glomar response and use of Exemption 7(D) for Requests 1–5 | Montgomerys: 7(D) protects identity and content, not the mere existence of whistleblower records; IRS may not refuse to confirm existence | IRS: confirming existence would itself risk revealing informant identity; 7(D) and Treasury regs support withholding or Glomar where acknowledgement would jeopardize sources | Court: affirmed Glomar and 7(D) use — agency may refuse to confirm existence when confirmation would reasonably risk identifying a confidential source |
| Use of in camera declarations instead of public disclosure | Montgomerys: in camera declarations are improper and deny testing of exemptions | IRS: declarations necessary to protect secrecy; district court properly reviewed them in camera under controlling tests | Court: affirmed district court discretion to use in camera declarations and review; procedures followed precedent and balanced secrecy with requester rights |
| Adequacy of searches for Requests 6–12 | Montgomerys: IRS searches missed hundreds of documents and failed to search likely locations early on | IRS: conducted good-faith, reasonably calculated searches across relevant systems and explained missing documents (destroyed or consolidated) | Court: after multiple ordered renewals IRS searches were adequate; plaintiffs’ assertions about missing documents did not show inadequate search |
| APA claim that Glomar policy is a rule requiring notice-and-comment | Montgomerys: IRS policy of Glomar for whistleblower records is a substantive rule subject to APA rulemaking | IRS: FOIA provides an adequate remedy (release of records) so APA review is not available; policy application is adjudicative | Court: APA review unavailable because FOIA provides an adequate alternative remedy; claim dismissed |
Key Cases Cited
- Phillippi v. C.I.A., 546 F.2d 1009 (D.C. Cir. 1976) (origin of the Glomar "neither confirm nor deny" response)
- Dep’t of Justice v. Landano, 508 U.S. 165 (1993) (rejected presumption of confidentiality for informants)
- Roth v. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (agencies must explain confidentiality assurances but may rely on in camera review when public explanation would reveal withheld information)
- Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C. Cir. 1984) (affidavits and in camera material may be used but with caution and as much public disclosure as possible)
- Fitzgibbon v. C.I.A., 911 F.2d 755 (D.C. Cir. 1990) (three-part test for official acknowledgment waiver of exemptions)
- Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462 (D.C. Cir. 1983) (test for when in camera inspection is required to evaluate exemption claims)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (adequacy of FOIA search judged by good-faith, reasonably calculated methods)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (search adequacy judged by methods, not solely by search fruits)