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Judicial Watch • Order – Mem Opinion Granting Def SJM 1759 (7-3-2015)

Order – Mem Opinion Granting Def SJM 1759 (7-3-2015)

Order – Mem Opinion Granting Def SJM 1759 (7-3-2015)

Page 1: Order – Mem Opinion Granting Def SJM 1759 (7-3-2015)

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Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
________________________________
JUDICIAL WATCH, INC.,
Plaintiff, Civil Action No. 13-1759 (EGS)
INTERNAL REVENUE SERVICE,
Defendant.
________________________________)
MEMORANDUM OPINION
Judicial Watch requested information from the Internal Revenue
Service IRS under the Freedom Information Act FOIA
U.S.C. 552. The IRS conducted what considers have been
reasonable search response that request, but found
responsive records. The IRS therefore moves for summary
judgment, arguing that has discharged its FOIA
responsibilities. Judicial Watch opposes this motion and
proposes ways which the IRS could have conducted more
appropriate search. Upon consideration the motion, the
response and reply thereto, the applicable law, and the entire
record, the Court GRANTS the motion for summary judgment.
Background
The May 22, 2013 FOIA Request and this Lawsuit. May 22, 2013, Judicial Watch submitted the IRS FOIA
request for:
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
Any and all records and communications concerning,
regarding, related the selection individuals
for audit based information contained 501(c)(4)
tax exempt applications.
Compl., ECF No. The time frame the request was
identified being January 2010 the present. Id. June 25, 2013, the IRS acknowledged that had received
the request and advised that would unable finish
processing the request time and therefore had extended the
response date August 16, 2013. Id. August 13, 2013
letter from the IRS indicated that the IRS required additional
time and would contact Judicial Watch September 27, 2013 remained unable complete processing the request. See
id. Having received further response, Judicial Watch
filed suit November 2013. See id.
After the case was filed, the parties submitted series
status reports. See Meet and Confer Report, ECF No. 11; Status
Report, ECF No. 12. August 2014, they filed joint status
report indicating that the IRS believed that had conducted
reasonable search which did not locate any responsive records,
while Judicial Watch felt that there genuine issue
material fact regarding whether the Service has satisfied its
obligations. Status Report, ECF No. the parties
request, the Court set schedule for the briefing motion
for summary judgment. See Minute Order August 2014.
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page September 22, 2014, the IRS filed its motion for summary
judgment. See Mot. for Summ. Mot. ECF No. 19. The IRS
also submitted statement facts support that motion.
See IRS Statement Facts Def. SMF ECF No. 19-1.
October 22, 2014, Judicial Watch filed its opposition the
motion for summary judgment along with response the IRS
statement facts. See Opp. Mot. Opp. ECF No. 20;
Judicial Watch Statement Facts Pl. SMF ECF No. 20-1. November 21, 2014, the IRS filed reply brief, along with
brief response Judicial Watch statement facts. See Reply Supp. Mot. Reply ECF No. 23; IRS Reply SMF, ECF No.
23-1. The IRS motion ripe for adjudication.
Organization the IRS. understand the search conducted the IRS response
Judicial Watch FOIA request, necessary describe the
structure the IRS. The IRS mainly organized around four
distinct operating divisions. Def. SMF Pl. SMF
These divisions are: (1) the Wage and Investment Division, which
serves individual taxpayers with wage and investment
income only (2) the Small Business/Self-Employed Division,
which focuses taxpayers that are either small businesses
self-employed; (3) the Large Mid-Size Business Division, which
works with corporations with assets greater than $10 million well business and individuals with certain international
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
focuses; and (4) the Tax Exempt and Government Entities
Division, which serves three distinct taxpayer segments:
Employee Plans, Exempt Organizations, and Government Entities.
Def. SMF Pl. SMF
All applications for tax exempt status under Section
501(c)(4), are processed the Rulings and Agreements Office
within the Exempt Organizations Unit [the Tax Exempt and
Government Entities Division]. Def. SMF Pl. SMF
The Tax Exempt and Government Entities Division does not conduct
any audits individuals, however. See Def. SMF Pl.
SMF Individual audits are conducted one the three
other divisions. See Def. SMF 10; Pl. SMF 10. Naturally,
then, information 501(c)(4) application caused the Tax
Exempt and Government Entities Division think that
individual audit was warranted, the Division would need refer
the individual another division for such audit. See Def.
SMF 35, 50, 68, 86; Declaration Dagoberto Gonzalez Gonzalez Decl. ECF No. 19-3 Declaration David
Horton Horton Decl. ECF No. 19-4 Declaration Cheryl
Claybough Claybough Decl. ECF No. 19-5 Declaration
Karen Schiller Schiller Decl. ECF No. 19-6
The IRS Search for Records. keeping with Judicial Watch request for [a]ny and all
records and communications concerning, regarding, related
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
the selection individuals for audit based information
contained 501(c)(4) tax exempt applications, Compl., ECF No. the IRS began its search discerning whether any
individuals ever were selected for audit based upon information application for tax-exempt status under Section 501(c)(4).
The IRS began with the Tax Exempt and Government Entities
Division the recipient and reviewer all applications under
Section 501(c)(4) searching for records the recordkeeping
systems for examination referrals maintained the Exempt
Organizations Unit, which would contain all referrals arising
from records organizations that have applied for tax exempt
status. Def. SMF 18-21; Declaration Tamera Ripperda Ripperda Decl. ECF No. 19-2 The IRS retrieved from
this recordkeeping system list all referrals arising out applications for tax-exempt status, reviewed that list
manually identify all taxpayer names that were not clearly
organizations (creating list potential individuals), and
finally obtained and reviewed the referral documentation for
these individuals determine any referral arose from
information contained application under [Section
501(c)(4)]. Def. SMF 21-24; Ripperda Decl.
referrals any individual for audit due information
contained such application were found. See Def. SMF
19, 25; Ripperda Decl.
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
Having found that the Tax Exempt and Government Entities
Division had record ever referring individual for audit
based upon information contained 501(c)(4) application, the
IRS then conducted searches records within the other three
divisions. These searches confirmed the lack records
regarding any such referral during the relevant time period. See
Def. SMF 42, 58, 75, 130; Gonzalez Decl. Horton Decl. Claybough Decl. Schiller Decl.
Wage and Investment Division: Because the Wage and Investment
Division would not have received 501(c)(4) applications
directly, the IRS searched this division records for any
referrals from the Tax Exempt and Government Entities Division.
Such referrals would have been sent the Wage and Investment
Division Compliance Office. See Def. SMF 36; Gonzalez
Decl. The Wage and Investment Division records [a]ll cases individual audits opened based upon referral from
another business unit the Audit Information Management
System. See Def. SMF 37; Gonzalez Decl. search the
Audit Information Management System for any audits based upon
referrals during the relevant timeframe revealed only audits
that concerned tip income received casino employees. Def.
SMF 41; Gonzalez Decl.
Small Business/Self-Employed Division: Three offices within
this division may audit individual: Campus Compliance
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
Services, Specialty Programs, and Examination Field. See Def.
SMF 87; Schiller Decl. Because this division would not
receive 501(c)(4) applications directly, the IRS searched for
instances which these offices received referrals
individuals for audit from the Tax Exempt and Government
Entities Division. See Def. SMF 88; Schiller Decl. the Campus Compliance Services office, all audit referrals
are recorded the Audit Information Management System. See
Def. SMF 89; Schiller Decl. search this system for
any audit individual arising from referral from [the
Tax Exempt and Government Entities Division] during the
relevant period revealed that [n]o project code specifically
identifying referrals from [that division] has been used the
last years and that open closed cases had project
codes indicating connection [that division matters. See
Def. SMF 93; Schiller Decl. the Specialty Programs office, different units record their
audit referrals different ways (the Excise Tax Unit
recording the Specialist Referral System; the Estate and Gift
Tax Unit tracking referrals spreadsheet; and the
Employment Tax Unit through computerized listing open and
closed examinations See Def. SMF 98, 100, 105;
Schiller Decl. manual review these systems revealed:
(1) that the Excise Tax Unit system contained referrals
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
individuals from the Tax Exempt and Government Entities
Division; (2) that the Estate and Gift Tax Unit spreadsheet
recorded audits referred the Tax Exempt and Government
Entities division, but the referrals all arose out
information the organization annual tax return, not
501(c)(4) application; and (3) that the Employment Tax Unit
list included open audits referred the Tax Exempt and
Government Entities Division and that many closed
audits were associated with miscellaneous code that did not
identify which division referred them, but that obtaining more
information would require several months and significant
amount time conduct manual review. See Def. SMF 99,
101 04, 106-12; Schiller Decl. 7.1 the Examination Field, audit referrals are processed
seven different offices. See Def. SMF 116; Schiller Decl. One these offices maintains copies all referrals sent it, conducted manual review all the referrals
received during the relevant time period, and found
The Employment Tax Unit also proffers that unlikely that
these closed audits were referred the Tax Exempt and
Government Entities Division because the Unit rarely receives
referrals from that division, has open audits that were
referred that division, and [t]he employee who receives and
reviews all referrals Employment Tax, and who has been
this position for years had recollection ever
seeing referral from [the Tax Exempt and Government Entities
Division] arising from information 501(c)(4)
application]. Def. SMF 113 14; Schiller Decl.
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
referrals individuals received from [the Tax Exempt and
Government Entities Division] based information contained 501(c)(4) application]. Def. SMF 117-19; Schiller Decl. The other offices maintain electronic spreadsheets all
referrals. See Def. SMF 120; Schiller Decl. Two
these spreadsheets record the source the referral, and
review these spreadsheets identified referrals from the
Tax Exempt and Government Entities Division based information 501(c)(4) application. See Def. SMF 121; Schiller Decl. the other four, each office contacted the Exam Group
Manager responsible for each open examination that was based referral and was pending February 2014 and asked
whether the referral came from the Tax Exempt and Government
Entities Division and, so, whether was based upon
information 501(c)(4) application. See Def. SMF 122;
Schiller Decl. such cases were identified. See Def.
SMF 122; Schiller Decl. 8.2
Large and Mid-Size Business Division: Outside individual
audits based upon preexisting audits corporations
For closed audits those four offices, the only way obtain
information the source the referral would take months and
involve many hours review, and would unlikely succeed open audits exist that meet the same criteria, the offices
that track closed audits had none that meet the relevant
criteria, and group managers the offices not remember any
referrals that would meet the criteria. See Def. SMF 123 29;
Schiller Decl.
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
partnerships, only two offices within this division have the
authority commence audit individual: the
International Individual Compliance Function and the Global High
Wealth Function. See Def. SMF 48; Horton Decl. n.1.
Because this division would not receive 501(c)(4) application
directly, the IRS searched for instances which either office
received referrals individuals for audit from the Tax Exempt
and Government Entities Division. See Def. SMF 50,
68; Horton Decl. Claybough Decl. the International Individual Compliance Function, the IRS
searched the audit-tracking database the Planning and Special
Programs Office, which the office which all referrals
would have been sent. See Def. SMF 55; Horton Decl. That search revealed list all cases referred the
office, and manual review the list and information
pertaining each entity the list revealed that only one
referral came from [the Tax Exempt and Government Entities
Division referral that related pension distribution.
Def. SMF 57; Horton Decl. the Global High Wealth Industry Group, all audit referrals
are recorded database. See Def. SMF 70; Claybough
Decl. search that database revealed that only one
referral for audit had come from the Tax Exempt and
Government Entities Division during the relevant time period,
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
and that dealt with defined retirement plan. Def. SMF 75; Claybough Decl.
Based upon these searches, the IRS concluded that audit
referrals individuals had been made during the relevant time
period based upon any information contained 501(c)(4)
application.
The IRS Supplemental Searches. November 2014, response concerns raised Judicial
Watch opposition the IRS motion for summary judgment, the
IRS conducted supplemental search for internal directives and
guidelines regarding the selection individuals for audit
based 501(c)(4) applications. Def. Reply SMF The
Director the Exempt Organizations Unit the Tax Exempt and
Government Entities Division indicated that [a]ny such
documents would generally located the IRS [Tax Exempt and
Government Entities] intranet website sections the
Internal Revenue Manual applicable [the Tax Exempt and
Government Entities Division]. Second Declaration Tamera
Ripperda Second Ripperda Decl. ECF No. 23-2 Ms.
Ripperda directed review the guidance, resources, and
reference materials maintained the intranet website for
any material pertaining referrals individuals for audit
based information [501(c)(4)] applications. Id.
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
Although the search located documents related the referral
for audit entities that have applied for recognition [under
Section 501(c)(4)], located documents relating
referring individuals for audit based information
[501(c)(4)] applications. Id. (emphasis original). The
search also involved review sections the Internal
Revenue Manual applicable the division, but that review
located provisions that specifically address referrals individuals based information contained [501(c)(4)]
applications. Id. Finally, the IRS contacted all senior
managers the unit that processes 501(c)(4) applications and
those with oversight responsibilities for audit selection
and/or referrals attempt determine they have any
recollection any internal directives guidance during the
relevant period. Id. None these individuals had any memory any internal directives guidance related referring
individuals for audit based information contained
[501(c)(4)] applications. Id.
II.
Summary Judgment FOIA Case
Summary judgment granted when there genuine issue
material fact and the movant entitled judgment matter law. Fed. Civ. 56; Celotex Corp. Catrett, 477 U.S.
317, 325 (1986); Waterhouse District Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). determining whether genuine
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
issue fact exists, the court must view all facts the light
most favorable the non-moving party. See Matsushita Elec.
Indus. Co. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Under FOIA, all underlying facts and inferences are analyzed
the light most favorable the FOIA requester; such, only
after agency proves that has fully discharged its FOIA
obligations summary judgment appropriate. Moore Aspin, 916 Supp. 32, (D.D.C. 1996) (citing Weisberg U.S. Dept
Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). FOIA cases
typically and appropriately are decided motions for summary
judgment. Gold Anti-Trust Action Comm. Bd. Governors
Fed. Reserve Sys., 762 Supp. 123, 130 (D.D.C. 2011)
(quotation marks omitted). considering motion for summary judgment under FOIA, the
court must conduct novo review the record. See U.S.C.
552(a)(4)(B). The court may award summary judgment the
basis information provided the agency affidavits. See
Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); Vaughn Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).
Agency affidavits must relatively detailed and nonconclusory. SafeCard Servs. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quotation marks omitted). Such affidavits are
accorded presumption good faith, which cannot rebutted purely speculative claims about the existence and
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
discoverability other documents. Id. (quotation marks
omitted).
III. Analysis
The IRS motion based entirely upon its claim have
conducted adequate search response Judicial Watch
FOIA request. Because the IRS uncovered responsive records
during that search, finding that the search was adequate would
end this case.
Law Regarding the Adequacy Search.
The standard for assessing the adequacy agency search response FOIA request familiar one: prevail motion for summary judgment regarding
the adequacy search, agency must show beyond
material doubt that has conducted search
reasonably
calculated
uncover
all
relevant
documents. The issue not whether any further
documents might conceivably exist but rather whether the
government search for responsive documents was
adequate. The standard one reasonableness, and
dependent upon the circumstances the case.
establish the adequacy its search, agency may rely affidavits and declarations which are relatively
detailed and nonconclusory and submitted good
faith.
Shurtleff U.S. Environmental Protection Agency, 991 Supp. (D.D.C. 2013) (quoting Weisberg, 705 F.2d 1351)
(alterations original). There requirement that
agency search every record system, but the agency cannot limit
its search only one record system there are others that
are likely turn the information requested. Oglesby
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
U.S. Dep Army, 920 F.2d 57, (D.C. Cir. 1990).
Additionally, the mere speculation that yet uncovered
documents may exist does not undermine the finding that the
agency conducted reasonable search for them. DeSilva U.S.
Dep Hous. Urb. Dev., Supp. 65, (D.D.C. 2014)
(quoting SafeCard, 926 F.2d 1201) (alteration omitted).
Consistent with the need for reasonable search, the cost burden potential search also factor evaluating
whether the search conducted was adequate. FOIA was not
intended reduce government agencies full-time
investigators behalf requesters. Cunningham U.S.
Dep Justice, Supp. 71, (D.D.C. 2014) (quoting
Judicial Watch Export-Import Bank, 108 Supp. 19,
(D.D.C. 2000)). For that reason, agency not required
undertake search that broad unduly burdensome.
Id. (citing Nation Magazine U.S. Customs Serv., F.3d 885,
891 (D.C. Cir. 1995)); see also Freedom Watch CIA, 895
Supp. 221, 228 (D.D.C. 2012) agency need not honor
FOIA request that requires unreasonably burdensome search.
(quotation marks and alteration omitted). costly and timeconsuming search with minimal chance revealing responsive
records may not necessary. See, e.g., Ancient Coin Collectors
Guild U.S. Dep State, 866 Supp. 28, (D.D.C.
2012) (search was adequate despite agency failure search
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
backup recordings where the cost would prohibitive and the
likelihood uncovering responsive information was low);
Schrecker Dep Justice, 217 Supp. 29, (D.D.C.
2002) [T]o require agency hand search through millions documents not reasonable and therefore not necessary,
agency already had searched the most likely place responsive
documents would located. aff 349 F.3d 657 (D.C. Cir.
2003).
Judicial Watch Largely Conceded that the IRS Initial
Search Was Sufficient Show that Referrals
Individuals for Audits Took Place.
The IRS asserted its motion that its various searches fully
discharged its responsibilities under FOIA because
determining that the Tax Exempt and Government Entities Division
had not referred any individual for audit based upon information
contained 501(c)(4) application, the IRS could reasonably
conclude that records exist that are responsive Judicial
Watch request. See Mot. 14-19. Judicial Watch did not
controvert these assertions directly; rather, expressed
suspicion this finding, implying that communications,
informal referrals, guidelines must exist. This suspicion
raises three issues: (1) whether the IRS explanation its
audit-referral process its search records regarding that
process may inaccurate incomplete; (2) whether the IRS
needed search for internal directives, memorandums, meeting
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
notes, agendas, etc that might also responsive, Opp.
and (3) whether the IRS was required conduct searches
obtain communications discussions about using 501(c)(4) tax
exempt applications for audit referrals generally. Id. the first issue, Judicial Watch bases its suspicion that
referrals nonetheless occurred handful concerns.
Judicial Watch has allegedly learned connection with
different FOIA request that IRS officials communicated with the
Department Justice about criminally prosecuting signers
applications for 501(c)(4) tax exempt status based allegedly
false information contained applications. Pl. SMF How that bears whether the IRS referred individuals
internally for audit based information contained
501(c)(4) application entirely unexplained. Judicial Watch
also claims that IRS official acknowledged that donor lists
generally were neither needed nor used making determinations tax exempt status, but the IRS required certain applicants
for 501(c)(4) tax exempt status submit lists donors
their organizations part the application process, and
nearly one ten donors identified such donor lists were
subject audit. Id. The IRS asserts that even
assuming this evidence admissible, proving that individuals
who happened listed 501(c)(4) donor lists were selected
for audit would not demonstrate that the IRS selected the
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
individual for audit based upon her presence such list. See
Reply Donor lists, moreover, are submitted the IRS
for other purposes, meaningless that they may have been
received IRS officials. See id. Any correlation between name donor list and audit cannot, without more,
overcome the presumption that the IRS detailed explanation
its audit-referral processes and its search thereof was complete
and correct determining that responsive referrals occurred
during the relevant time period. Accordingly, Judicial Watch
indirect attack the IRS search all locations which
record referral individual for audit based upon
information gleaned from 501(c)(4) application rejected,
and Judicial Watch failed directly challenge cast doubt
the adequacy the search recounted the IRS motion.
The IRS Supplemental Search for Guidance Directives
Was Adequate.
The second issue raised Judicial Watch the possible
existence internal guidance regarding the use 501(c)(4)
application information prompt individual audits. Although
the IRS may not have been required search for such records
because its searches the records various divisions
concluded that such referrals had been made, the Court need
not address this issue because the IRS conducted search for
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
such documents.3 The Court accepts the good faith and detailed
declaration the Director the Exempt Organizations Unit
the Tax Exempt and Government Entities Division, who stated that
any guidance similar records would either the
Division intranet website would found applicable
sections the Internal Revenue Manual. Second Ripperda Decl. Ms. Ripperda directed review the various materials
that portion the intranet website, well the relevant
sections the Internal Revenue Manual, but the search
uncovered nothing regarding the referral individuals. Id. Ms. Ripperda also oversaw survey senior managers the
units that process 501(c)(4) applications and that oversee audit
selections and referrals. See id. one could recall the
existence any internal directives guidance related
referring individuals for audit based information contained [501(c)(4)] applications. Id. The IRS therefore determined
that such guidance materials exist. Absent any reason
doubt the declaration which accorded presumption good
Judicial Watch has not challenged the IRS submission
supplemental materials regarding additional search conducted
while summary-judgment briefing was ongoing. The Court presumes
that Judicial Watch silence neither seeking file surreply
nor otherwise asking the Court for relief means that has
objection the Court consideration these supplemental
materials. See DeSilva, Supp. (citing Judicial
Watch FDA, 514 Supp. 84, n.1 (D.D.C. 2007); Vest
Dep Air Force, 793 Supp. 103, 121 (D.D.C. 2011)).
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
faith, see SafeCard, 926 F.2d 1200 the Court finds that the
IRS identified all record-keeping systems that might contain the
guidance documents sought Judicial Watch and searched them
thoroughly.
The IRS Need Not Search for Communications because
Reasonably Concluded that Relevant Referrals Had
Occurred and Further Searches Would Unduly Burdensome.
The IRS argues that its findings that there are neither
official directives nor guidance regarding the use
information Section 501(c)(4) application and that
individual audit referrals took place based upon information
gleaned from Section 501(c)(4) application make unnecessary search for further documents, including communications,
the subject. See Reply The IRS has also indicated that
any search the email accounts its employees for
communications that might pertain decision select not select individual for audit based upon information
501(c)(4) application would require the search approximately
16,000 employee email accounts (of individuals 442 different
cities), between individuals who worked offices that process
501(c)(4) applications, those who conduct individual audits, and
those who have policy-making authority over audit decisions. See
Declaration Elise Hellmuth Hellmuth Decl. ECF No. 23-4 Judicial Watch correct that the IRS has central server
for the storage employee emails, but that server has
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
approximate limit 6,000 emails per employee any email over
that limit may archived and saved locally. See Declaration
Neguiel Hicks Judicial Watch IRS, No. 14-1039, Ex.
Pl. Opp. (hereinafter Hicks Decl. These archived
emails would solely control the individual employee
wherever she may located. See id. the
declaration relied upon Judicial Watch notes, there
method for the IRS search these locally saved emails for
16,000 employees, the IRS would need collect files from
each employee individually. See id. 10. The declaration
relied upon Judicial Watch was filed case which
approximately 2,200 employees would have been implicated; there,
the estimate was that few years would have been needed
respond, using multiple full-time employees. See id. 27.
The burden here would greater.
The IRS argues that this incredible burden especially undue
because the unlikelihood that anything responsive would
uncovered. The IRS other searches establish and Judicial
Watch evidence has not controverted that individuals were
referred for audit based upon information gleaned from Section
501(c)(4) application. Therefore, speculation best
say that there exist communications discussing decisions
audit individual based upon 501(c)(4) applications. And
well-established that agency not required expend its
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
limited resources searches for which clear the
outset that search would produce the records sought.
Cunningham, Supp. 83. Even there were small
likelihood success, the Court, according the IRS affidavits
the appropriate presumption good faith, finds that the IRS
has established very significant burden that would render
Judicial Watch proposed search unreasonable. See, e.g., Wolf CIA, 569 Supp. (D.D.C. 2008) (search microfilm
files that would take estimated 3,675 hours and cost $147,000
was unreasonably burdensome, especially light the fact
that responsive films might not exist); People for the Am. Way U.S. Dep Justice, 451 Supp. (D.D.C. 2006)
(searching 44,000 files manually and expending least 25,000
hours work would unduly burdensome).4
Judicial Watch also appeared seek broaden its initial
FOIA request that would uncover communications that may
pertain decisions not audit individuals based
information contained 501(c)(4) application. See Opp. The initial request was for [a]ny and all records and
communications concerning, regarding, related the
selection individuals for audit based information
contained 501(c)(4) tax exempt applications. Compl., ECF No. The IRS correctly notes that the phrase selection
individuals for audit most naturally reads describing those
situations which individual was chosen audited; not include decisions not audit particular individual. See
Reply 17. Nor does the use the broadening words
concerning, regarding, related transform the request
into one for any records related any way information
501(c)(4) application and decisions not audit particular
individual. Such reading, moreover, would begin render
Judicial Watch request unduly vague. Cf. Sack CIA,
Case 1:13-cv-01759-EGS Document Filed 07/03/15 Page
IV.
Conclusion
For the foregoing reasons, the Court GRANTS the IRS motion
for summary judgment. appropriate Order accompanies this
Memorandum Opinion.
Signed:
Emmet Sullivan
United States District Judge
July 2015
Supp. 154, 164 (D.D.C. 2014) (use the phrase pertaining whole part rendered FOIA request unduly vague
record may pertain something without specifically mentioning
it, making impossible for the responding agency know what actually sought).