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Judicial Watch • Judicial Watch Opposition to IRS SJM – No. 13-1759

Judicial Watch Opposition to IRS SJM – No. 13-1759

Judicial Watch Opposition to IRS SJM – No. 13-1759

Page 1: Judicial Watch Opposition to IRS SJM – No. 13-1759

Category:IRS Scandal

Number of Pages:48

Date Created:October 23, 2014

Date Uploaded to the Library:November 06, 2014

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THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. l:13-cv-1759  

INTERNAL REVENUE SERVICE, Defendant. 

PLAINTIFF'S MEMORANDUM LAW OPPOSITION DEFENDANT'S 
MOTION FOR SUM.MARY JUDGMENT 

Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules 
Civil Procedure, respectfully submits this memorandum law opposition the motion for 
summary judgment Defendant Internal Revenue Service ("IRS''). grounds thereof, Judicial Watch states follows: Introduction. May 22, 2013, Plaintiff submitted Freedom Information Act ("FOIA") request 
Defendant seeking "any and all records and communications concerning, regarding, related 
the selection individuals for audit based information contained 501 tax exempt
applications" from January 2010 the date the request.Defendant's subsequent search 
efforts were unreasonably limited and did not satisfy its FOIA obligations. Although Plaintiffs 
request clearly included "communications" about the selection individuals for audit, Defendant 
limited its search efforts databases and recordkeeping systems that would only identify records actual, formal audit referrals particular individuals, not communications discussions about 

Plaintiffs request does not seek information about any individual taxpayer, any individual taxpayer's tax "return," any "return information" about individual taxpayers. 
using 501 tax exempt applications for audit referrals generally. Put simply, Defendant did not search locations where stores communications. Because Defendant's search was unreasonably limited, its motion for summary judgment should denied and Defendant must undertake proper search. 
II. Argument. Summary Judgment Standard. FOIA litigation, all litigation. summary judgment appropriate only when the pleadings and declarations demonstrate that there genuine issue material fact and that the moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477 
U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). reviewing motion for summary judgment under FOIA, the court must view the facts the light most favorable the requester. Weisberg U.S. Dep'tq{Justice, 145 F.2d 1476, 1485 (D.C. Cir. 1984). 
Also FOIA litigation, but unlike most other federal litigation, the defending agency, not the plaintiff, bears the burden proof. U.S.C.  552(a)(4)(B) ("the burden the agency sustain its action"); accord Military Audit Project Casey, 656 F.2d 724, 739 (D.C. Cir. 1981). the summary judgment phase, "the agency must demonstrate beyond material doubt that its search was 'reasonably calculated uncover all relevant documents."' Nation Magazine US. Customs Serv., F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt U.S. Dep State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Defendant Has Failed Conduct Adequate Search for Documents. 
Defendant did not "make good faith effort conduct search for the requested records, using methods which [were] reasonably expected produce the information requested." Id. Defendant's search efforts were limited databases and recordkeeping systems that would only
identify records actual, formal audit referrals particular individuals, not communications discussions about using 50l(c)(4) tax exempt applications for audit referrals generally. Nor would the databases Defendant searched identify records informal referrals based information 501 applications. Defendant did not search any databases recordkeeping systems that would likely contain internal directives, memorandums, meeting notes, agendas, etc., responsive Plaintiffs request. Defendant also did not search any databases recordkeeping systems for emails responsive Plaintiffs request. Simply put, Defendant did not search any recordkeeping systems that would likely produce communications concerning, regarding, related the selection individuals for audit clearly described Plaintiffs FOIA request. 
Limiting the search this narrow maIUler was unreasonable. Defendant's own memorandum and declarations admit that the database systems searched only record individual taxpayer's confidential identification information and internal project codes regarding audit referrals. There indication that such recordkeeping systems include refer communications regarding whether use application information basis for audits much less the selection individuals for audit based information the IRS discovers through the 501 (c)(4) application process. Defendant must show that set proper scope for its search tailored identify all relevant documents responsive Plaintiffs request Campbell US. Dep Justice, 164 F.3d 20, (D.C. Cir. 1998). 
While Defendant offers declarations describing detail search selected databases that record actual, formal audits and individual's personal taxpayer documents (information that Plaintiff not seeking), provides explanation for excluding databases and recordkeeping systems that retain communications, emails, discussions, and directives (information that Plaintiff expressly seeking). The IRS has protocols place for searching databases and recordkeeping 
systems for electronically stored information requested litigation discovery pursuant FOIA. Declaration ofNe!:,ruicl Hicks Judicial Watch, Inc. Internal Revenue Service, Case No. 
14-1039 (RMC) (D. District Columbia), attached Exhibit Plaintiffs' Response Defendant's Statement Material Facts Not Dispute and Plaintiffs Separate Statement Additional, Material Facts ("Plfs Resp. Defs Stmt. Facts"), paras. and 9-25. Logically, initial and obvious location search for communications would the IRS's centrally-managed Exchange Server Personal Storage Table ("PST"). "The Exchange Server PST stores, inter alia, the information contained employees' email mailboxes (i.e., inboxes, outboxes, sent items folders, etc.)." Id. Yet Defendant ignored this obvious source potentially responsive records and instead searched for actual, formal audit documents only. 
The inadequacy issue not the lack results, but rather the unreasonably limited scope the search. Plaintiff's FOIA request does not seek audit documents, but specifically asks for "communications" (i.e., emails, discussions, correspondences, directives, etc.). Defendant's restriction its search databases that not maintain conununications related documents plainly insufficient. plausible reading Plaintiff's FOIA request seeking "any and all records and communications concerning, regarding, related the selection individuals for audit" could justify Defendant's exclusion from its search systems that maintain email and other forms "communications." 
Emails produced response another Judicial Watch FOIA request reveal that top IRS officials conununicated with officials the U.S. Department Justice about criminally prosecuting signers applications for 501 tax exempt status based allegedly false infonnation contained applications. See Declaration Thomas Fitton ("Fitton Deel."), attached Exhibit Plf Resp. Def Stmt. Facts, para. Plaintiff does not presently
know whether the IRS actually referred specific individuals the Justice Department for criminal 
prosecution based information contained 501 applications, but the subject referrals 
was plainly discussed. Discussing criminal referrals generally and actually making criminal 
referrals are two separate subjects. Likewise, discussing audit rcfclTals generally and actually 
making formal audit referrals are two separate subjects. Defendant only searched for the latter, 
not the former, even though Plaintiff expressly requested the former. addition, the U.S. House Representatives' Committee Ways and Means 
determined that the IRS required certain applicants for 50l(c)(4) tax exempt status submit lists donors their organizations part the application process and that nearly one ten donors 
identified such donor lists were subject audit. See Fitton Deel. para. email 
communication produced Judicial Watch response another FOIA request, high level IRS 
official acknowledged that donor lists generally were neither needed nor used making 
determinations tax exempt status. See Fitton Deel. para. thus appears that, despite 
Defendant's assertion that did not locate any records actual, formal audit referrals based 
50l(c)(4) applications, such audits did indeed occur.2 The failure search email 
recordkeeping systems such the Exchange Server PST may well explain why responsive 
records were located. 
Plaintiff seeks more information related these facts that were discovered through the 
production emails, discussions, and communications records not included the strict parameter formal audit documentation. Defendant cannot, good faith, justify its exclusion the 
databases and recordkeeping systems that maintain these types communication adequate 
Defendant acknowledges that "application" includes "any papers submitted support such applications," which would include donor lists. Declaration Tamera Ripperda para. 
"effort conduct search for the requested records, using methods which [were] reasonably expected produce the infonnation requested." Nation Magazine, F.3d 890. 
There question that Defendant's search the specifically described systems was 
thorough_ However, thorough-but-plainly-too-narrow search does not meet FOIA's 
reasonableness standard. Weisberg, 705 F.2d 1351 ("'The adequacy agency's search measured standard reasonableness' and 'dependent upon the circumstances the case"') (quoting McGehee Central fntelligence Agency, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983) and Founding Church Scientology National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979)). agency "ca11not limit its search only one record system there are others that are likely turn the information requested." Nation Magazine, F.3d 890 (internal citations omitted) (emphasis added). Defendant's search, limited these specifically described systems and overlooking more relevant, essential databases, was unreasonably natrow and the IRS should have conducted broader search. Plaintiff does not seek "perfect search," only reasonable one required under the law. Defendant has not demonstrated that its search was reasonable. See McGehee, 697 F.2d 1101 (an agency "bears the burden establishing that any limitations the search undertakes particular case comport with its obligation conduct reasonably thorough investigation."). Summary judgment not warranted and should denied. 
III. Conclusion. 
For the foregoing reasons, Plaintiff respectfully requests that Defendant's motion for summary judgment denied and that the Court order the IRS engage reasonably adequate search for records and communications responsive Plaintiffs request.
Dated: October 22, 2014 Respectfully submitted, 
JUDICIAL WATCH, INC. 
Isl Ramona Cotca 
D.C. Bar No. 501159 

425 Third Street SW, Suite 800 
Washington, 20024 

(202) 646-5172 

ALLomey for Plaintiff THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. :13-cv-1759  

INTERNAL REVENUE SERVICE, 
Defendant. 
PLAINTIFF'S RESPONSE DEFENDANT'S STATEMENT 
MATERIAL FACTS NOT DISPUTE AND PLAINTIFF'S 
SEPARATE STATEMENT ADDITIONAL, MATERIAL FACTS 

Plaintiff Judicial Watch, counsel and pursuant Local Civil Rule 7.l(h), respectfully submits this response Defendant's Statement Material Facts Not Dispute and Plaintiff's Separate Statement Additional, Material Facts: Plaintiff's Response Defendant's Statement Material Facts Not Dispute. 
Undisputed. 
Undisputed. 

Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 

Undisputed. 
Undisputed. 
Undisputed. 

10. 
Undisputed. 

11. 
Undisputed. 

12. 
Undisputed. 

13. 
Undisputed. 

14. 
Undisputed. 

15. 
Undisputed. 

16. 
Undisputed. 

Undisputed. 
18. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Adm.in., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
19. Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
20. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Adm.in., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
21. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the ('asymmetrical distribution ofknowledge" between FOIA requester and agency FOIA cases). 
22. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the '"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

23. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOJA cases). 

24. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

25. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141. 145 (D.C. Cir. 2006) {noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

26. 	Undisputed. 
Undisputed. 

28. 	Undisputed. 
29. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 
 
"asymmetrical distribution knowledge" between FOJA requester and agency FOTA cases). 
30. Undisputed. Undisputed. 

32. 
Undisputed. 

33. 
Undisputed. 

34. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

35. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

36. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asynnnetrical distribution oflrnowledge" between FOIA requester and agency FOIA cases). 

37. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

38. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
39. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOlA requester and agency FOIA cases). 
40. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Dntg Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
41. Plaintifflacks knowledge confirm deny whethersuch event occurred. See 
.Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOlA requester and agency FOIA 
cases). 
43. 
Undisputed. 

44. 
Undisputed. 

45. 
Undisputed. 

Undisputed. 
Undisputed. 
48. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) {noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

49. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the ''asymmetrical distribution knowledge" between FOJA requester and agency FOIA cases). 

50. 
Plaintiff lacks knowledge confirm deny whether such event occutTed. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 {D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). Plaintiff lacks knowledge confirm deny whether such event occutTed. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
52. 
Plaintiff lacks knowledge confinn deny whether such event occutTcd. See Judicial Watch, Inc. Food and Drug Admin 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

53. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOTA cases). 
54. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
55. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOTA requester and agency FOIA 
cases). 
56. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
57. Plaintiff lacks knowledge confmn deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 
"asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
58. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
59. Undisputed 
60. 
Undisputed. 

61. 
Undisputed. 

62. 
Undisputed. 

63. 
Undisputed. 

64. 
Undisputed. 

65. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

66. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

67. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOJA requester and agency FOIA cases). 

68. 
Plaintiff lacks knowledge confirm deny whether such event occuned. See Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution lrnowledge" between FOIA requester and agency FOIA cases). 

69. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
70. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

71. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

72. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution lrnowledge" between FOIA requester and agency FOIA 

cases). 
73. 
Plaintiff lacks lrnowlcdge confilm deny whether such event occWTed. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

74. 
Plaintiff lacks lrnowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

75. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See .Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 

cases).  
76.  Undisputed.  
77.  Undisputed.  
78.  Undisputed.  
79.  Undisputed.  
80.  Undisputed.  
81.  Undisputed.  
82.  Undisputed.  
83.  Undisputed.  
84.  Undisputed.  
85.  Plaintiff lacks knowledge confirm deny whether such event occurred. See  

Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
86. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

87. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
88. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, inc. Food and Drng Admin., 449 F.3d 1.41, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
89. Plaintiff lacks knowledge confirm deny whether such event occutTed. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
90. Plaintifflacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical disb;bution knowledge,, between FOIA requester and agency FOIA cases). 
91. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and DrugAdmin., 449 F.3d 41, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
92. Plaintiff lacks knowledge confinn deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOlA requester and agency FOIA cases). 
93. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge') between FOIA requester and agency FOIA cases). 

94. 
Plaintiff lacks knowledge confirm deny whether sucl1 event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOTA requester and agency FOTA cases). 

95. 
Plaintiff lacks knowledge confirm deny whether such event occwTed. See Judicial Watch, Inc. Food and Drug Admin.) 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

96. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

97. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

98. 
Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOlA cases). 
99. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 
"asymmetrical distribution knowledge" between FOlA requester and agency FOIA 
cases). 
100. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

101. 
Plaintiff lacks knowledge confian deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

102. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

103. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 04. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asynunetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
105. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOJA requester and agency FOIA 

cases). 

106. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

107. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

108. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asynunetrical distribution knowledge" between FOJA requester and agency FOIA cases). 

109. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
110. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin . 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical disttibution knowledge" between FOIA requester and agency FOIA cases). Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
112. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drng Admin . 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOTA cases). 

113. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

114. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

115. Plaintiff disputes that Employment Tax has records responsive this FOIA 
request. Plaintiff lacks knowledge confirm deny the remainder the paragraph. See Judicial 
Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOJA requester and agency FOIA cases). 
116. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 17. Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
118. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOTA cases). 

119. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asynunctrical distribution knowledge" between FOIA requester and agency FOTA cases). 

120. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

121. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 

"asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
122. Plaintiff lacks knowledge confirm deny whether such event occurred. See 
Judicial Watch. Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the 
"asymmetrical distribution knowledge" between FOIA requester and agency FOIA 
cases). 
123. Plaintiff lacks knowledge confinn deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution of.knowledge" between FOIA requester and agency FOIA cases). 
124. Plaintiff lacks knowledge confirm See deny whether such event occurred. Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 
125. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

126. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

127. 
Plaintiff lacks knowledge confim1 deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

128. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" between FOIA requester and agency FOIA cases). 

129. 
Plaintiff lacks knowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution knowledge" betveen FOIA requester and agency FOIA cases). 

130. 
Plaintiff lacks lmowledge confirm deny whether such event occurred. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the "asymmetrical distribution oflmowlcdge" between FOIA requester and agency FOIA cases). 

II. Plaintiff's Separate Statement Additional, Material Facts. According records produced obtained Judicial Watch response Freedom oflnfo1mation Act ("FOIA") request, top IRS officials communicated with officials the U.S. Department Justice about criminally prosecuting signers applications for 501 c)( tax exempt status based allegedly false infotmation contained applications. See Declaration Thomas Fitton, attached Exhibit para. According records obtained response Judicial Watch FOIA request, 
high level IRS official acknowledged that donor lists generally were neither needed nor used 
making determinations tax exempt status. See Declaration Thomas Fitton, para. According the U.S. House ofRepresentatives' Committee Ways and Means, the IRS required certain applicants for 50l(c)( tax exempt status submit lists donors their organizations part the application process, and nearly one ten donors identified such donor lists were subject audit. See Declaration ofThomas Fitton, para. Defendant has protocols place for searching databases and recordkeeping 
systems for electronically stored information requested litigation discovery pursuant 
FOIA. See Declaration ofNeguiel Hicks Judicial Watch, Inc. internal Revenue Service, Case No. 14-1039 (RMC) (D. District Columbia), attached Exhibit paras. and 9-25. Defendant did not search any databases recordkeeping systems that would likely contain internal directives, memorandums, meeting notes, agendas, etc., responsive Plaintiff's request. Nor did Defendant search any databases recordkeeping systems for responsive emails. See Declaration Tamera Ripperda para. Declaration ofDagoberto Gonzalez paras. 6-7; Declaration David Horton paras. 4-6; Declaration Cheryl Claybough paras. 4-6; Declaration Karen Schiller paras. 5-9. Defendant limited its search actual, formal audit referrals the Exempt 
Organization Unit and the three divisions within the IRS that conduct audits individuals. See Declaration Tamera Ripperda para. Declaration ofDagoberto Gonzalez paras. 6-7; Declaration David Horton paras. 4-6; Declaration Cheryl Claybough paras. 4-6; Declaration Karen Schiller paras. 5-9. 
The databases and recordkeping systems searched would only identify records actual, formal audit referrals particular individuals, not communications discussions about using 50l(c)(4 tax exempt applications for audit referrals generally. Nor would identify records informal referrals based information 501 )(4) applications. See Declaration Tamera Ripperda para. Declaration Dagoberto Gonzalez paras. 6-7; Declaration David Horton paras. 4-6; Declaration Cheryl Claybough paras. 4-6; Declaration 
Karen Schiller paras. 5-9.  
Dated:  October 22, 2014  Respectfully submitted,  
JUDICIAL WATCH, INC.  
IslRamona Cotca D.C. Bar No. 501159 425 Third Street SW, Suite 800 Washington, 20024 (202) 646-5172  
Attorney for Plaintiff  

EXHIBIT THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. 13-cv-1759  

INTERNAL REVENUE SERVICE, 
Defendant. 
DECLARATION THOMAS FITTON Thomas Fitton, declare follows: the President Judicial Watch, Inc. ("Judicial Watch'') and have personal 
knowledge the matters set forth below. Judicial Watch has filed multiple Freedom oflnformation Act ("FOIA' requests 
with the Internal Revenue Service ("IRS") and other federal agencies seeking records about the 
IRS's targeting of"conservative'' and "Tea Party" groups seeking 50l(c)(4) tax exempt status. 
According record obtained Judicial Watch response one these FOIA requests, top 
IRS officials communicated with officials the U.S. Department Justice about criminally 
prosecuting signers applications for 501 tax exempt status based allegedly false 
information contained applications. true and correct copy this record attached 
Exhibit According another record obtained response Judicial Watch FOIA 
request, high level IRS official aclmowledged that donor lists generally were neither needed 
nor used making determinations tax exempt status. true and correct copy this record attached Exhibit President Judicial Watch, regularly monitor congressional hearings and 
other official investigations concerns subjects related ongoing Judicial Watch FOIA requests 
and litigation which Judicial Watch involved. Included among the congressional hearings 
have monitored are hearings related the TRS's targeting of"conservative" and "Tea Party', 
groups seeking 50l(c)(4) tax exempt status. According the U.S. House Representatives' 
Committee Ways and Means, the IRS required certain applicants for 501 tax exempt 
status submit lists donors their organizations part the application process, and 
nearly one ten donors identified such donor lists were subject audit. true and correct 
copy May 2014 opening statement Charles BoustanyJr., Chairman the House 
Ways and Means Committee, attached Exhibit declare under penalty perjury the laws the United States that the foregoing 
true and correct. Executed this 22nd day October, 2014 Washington, D.C. 

Thomas Fitton 
EXHIBIT DECLARATION THOMAS FITTON 
From:  Flax Nikole  
Sent:  Thursday, May 09, 2013 8:04  
To:  Lerner Lois  
Cc:  Grant Joseph Marks Nancy Vozne Jennifer  
Subject:  RE: DOJ Call think should -also need include Cl, which can help coordinate. Also, need reach out FEC. Does make sense consider including them this keep separate? 
From: Lerner Lois Sent: Wednesday, May 08, 2013 5:30 To: Flax Nikole Cc: Grant Joseph Marks Nancy Subject: DOJ Call 
Importance: High got call today from Richard Pilger Director Elections Crimes Branch DOJ. know him from contacts from days there. wanted know who IRS the DOJ folk could talk about Sen. Whitehouse idea the hearing that DOJ could piece together false statement 
cases about applicants who "lied" their 1024s--saying they weren't planning doing political activity, and then turning around and making targe vis ible political expenditures. DOJ feeling like needs respond, but want talk the right folks IRS see whether there are impediments from our side and what, any damage this might IRS programs. told him that sounded like might need several folks from IRS. out town all next 
week, wanted reach out and see who you think would right for such meeting and 
also hand this off Nan contact person things need happen while gone 
Thanks 
Director Exempt Organizations 
JW1559-000105 
EXHIBITB DECLARATION THOMAS FITTON 
From:  Lerner Lois  
Sent:  Monday, May 21, 2012 9:57  
To:  f>az HollyO  
Cc:  Flax Nikole Marks Nancy Grant Joseph  
Subject:  FW:  Donorlnformation  

Looks like can We'll need carefu 
drafted letter describe what are doing. Perhaps best send past Disclosure. 
Aw?-
Director Exempt Organizations 
From: Stevens Margo 
Sent: Monday, May 21, 2012 10:50 To: Lerner Ulis Cc: WitterKirsten Subject: 
Lois, wanted get back with you with respect your question whether TEGE could return those organizations from whom donor names were solicited questionnaires following their submission applications for recogniti their tax exempt status (under 501 (c)(4)), now that TEGE has reviewed those files and determined that such information was not 
needed across-the-board and not used making the ency's determination status. noted, 
Thus, wanted touch base with Kirsten Witter, GLS, with respect any Federal Records Act ("FRA") implications 
decision TEGE Kirsten, and Beth Levine her this Based 
upon our understanding what occurred here, they have advised that the 
Accordingly, would seem follow that, 
Thanks Kirsten and Beth for their quick analysis and response back, that could provide you what think good 
news. 
Margo Stevens Deputy Associate Chief Counsel for Legislation Privacy Procedure Administration  
Telephone: (202) 622-3400 Fax: (202) 622-6292 
JW1559-003827 
EXHIBITC DECLARATION THOMAS FITTON 
10/8/2014 Boustany Opening Statment: Hearing Internal Revenue Service Operations and the 2014 Tax Return Filing Season House Committee ... 

Opening Statements 
Boustany Opening Statement: Hearing Internal Revenue Service Operations and the 2014 Tax Return Filing Season 

(Remarks Prepared) 
Washington, May 

Good morning and welcome the Subcommittee Oversight's hearing the Internal Revenue Service's operation and budget. 
This filing season, million taxpayers across America have struggled meet their tax filing obligations. Doing has become harder over time, the tax code grows complexity, forcing taxpayers spend over billion h,...11r 
and $160 billion every single year comply with its filing requirements. the IRS, hardworking public servants also 
bear the weight America's outdated tax code. 
Despite these challenges, and another late start the filing season, the IRS appears have carried out the 2014 tax-filing season with success. Initial reports suggest the 2014 filing season was free the problems that have marred previous filing seasons. earty April, the Service processed over million returns, issued million refunds, and responded nearly milllon calls with lower wait times. All these are improvements over last year. 
The Members the Subcommittee and congratulate Commissioner Koskinen and the thousands dedicated career IRS employees successful filing season. thank them for their hard work under difficult circumstances. IRS offices across the country, public servants work hard administer the natlon's tax laws fairly and accurately. This not easy task, and thank them for their service. 
However, these successes have occurred against the backdrop the ongoing investigation into the agency's targeting conservative groups applying for tax-exempt status. the agency works recover from the scandal, these kinds successes will help the agency regain the trust the American people. will long road. and how the IRS responds the ongoing investigation will affect the pace the recovery for better worse. still have serious concerns about the integrity the agency based three findings: 
First: Lerner Defied Internal IRS Controls Target Certain Taxpayers. April the Committee sent letter referring former Executive Organization Division Director Lois Lerner 
Attorney General Holder for potentially engaging criminal wrong doing her capacity Director. One 
these actions, particular, has serious implications for the IRS rebuilds from the scandal. 
The Committee uncovered evidence that shows Ms. Lerner acted defiance intemal controls developed 
ensure that single IRS employee could target organization for adverse determination exam. Ms. Lerner was not only famlliar with these internal controls, but they were policies she created and touted publicly way 
http:flwaysanclmeans.house.gov/newsldoCJmentsingle.aspx?DocumentlD=379183 
10/6/2014 Boustany Opening Statement: Hearing Internal Revenue Service Operations and he 2014 Tax Return Filing Season House Committee ... 
commending her agency' impartiality. The evidence shows that Ms. Lerner knowingly bypassed these controls. 
reached into her division, and directed that specific organizations subjected audit. 
And yet, official IRS report declared that. "we have not found evidence intentional wrongdoing IRS 
pers onnel. Given the evidence the Committee has uncovered the contrary, call the IRS review the agency's internal controls ensure that targeting cannot happen again. 
Second: Donors Whose Names Were Inappropriately Requested the IRS Were Audited. 
Equally troubling new evidence uncovered the Committee that shows the IRS's exam function may have been used for political purposes. well known that the IRS improperly requested donor information from scores 
conservative groups. For months, this Committee has asked the IRS what did with these improperly obtained lists 
and whether those lists were used target individual donors right-leaning groups. Recently, the Committee uncovered new information indicating that, after groups provided the information the IRS, nearly one ten donors were subject audit. Any abuse discretion audit selection must identified and stopped. 
Because failures IRS policy exploited Lois Lerner and the possible targeting conservative donors, have requested that the Government Accoun tability Office undertake thorough review the policies and procedures for audit selection the IRS's Small Business/Self Employed Division. Last year, made similar request that the GAO audit the Exempt Organizations Division. understand that audit already underway. Commissioner Koskinen, call you give the GAO your unqualified cooperation these audits. Only sunshine can begin restore public confidence the IRS. 
Third: The IRS Has Denied. Some Applicants for Exempt Status Their Right Independent Appeal. 
Through the Committee's investigation, have also found that the IRS was, un1il very recently, denying certain applicants for tax exempt status their right independent appeal process guaranteed the IRS Restructuring and Reform Act 1998. Ordinarily, applicant for exempt status denied, the applicant can appeal independent appeals division that was mandated the 1998 IRS Restructuring Act However, Washington, D.C. selected applicant for additlonal review, adverse determination was not appealab1e. The most disappointed applicant could was "protest" the very same officials that denied the group the first place. Noteworthy that all the applicants that were subject extra scrutiny based the name "Tea Party" the pol icy objective "make America better place ve" also had their appeal rights taken away. 
Thls practice would never have come light but for this Committee's thorough oversight the agency, and consequence, the IRS has now pledged change this practice. are gratified this change, but Mr. Koskinen, 
call the IRS today ensure that all applicants who were denied their right fair, independent appeal receive 
one and receive soon. 
The IRS cannot agency which one senior executive can easily circumvent policies designed safeguard taxpayers' due process rights. cannot agency which taxpayers are denied their right appeal based the location their file. And cannot agency that audits taxpayers based improperly obtained information. 
Commissioner Koskinen, appreciate your hard work under difficult circumstances, but this Subcommittee cannot 
simply take the IRS's assurances face value. The IRS's problems must addressed with through frank, serious 
conversations, look forward discussing these matters and more during today's hearing. Again, applaud the 
Commissioner and the IRS for its good work during the 2014 filing season and hope the agency win continue with 
this success begins regain the trust the American people. 
http://waysandmeal'ls.house.gov/newsJdocumentsingle.aspx?Doc:umentlD=379183 
101812014 Boustany Opening Statement: Hearing Internal Revenue Service Operations and the 2014 Tax Return Filing Season House Commillea  

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http://waysandmeans.house.gov/news/documentslngle .aspx?Document1D=3791 
EXHIBIT THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Case No: 1:14-cv01039-RMC  
INTERNAL REVENUE SERVICE,  

Defendant. 
DECLARATION NEGUIEL HICKS Neguiel Hicks1 pursuant the provisions U.S.C.  1746, declare follows: the Senior Level Counsel and Director the Electronically Stored Information (ESI) group within the Internal Revenue Service (IRS) Office Associate Chief Counsel, Procedure and Administration. responsible within the Office Chief Counsel for the initiation, management, preservation, and production ESI, including email, which subject litigation discovery Freedom Information Act (FOIA) requests. aware two FOIA requests submitted Judicial Watch, Inc. (JW) which impact all emails sent received the approximately two thousand two hundred (2,200) IRS employees assigned five (5) regional offices (Dallas, Texas; Seattle, Washington; Montgomery, Alabama; Dayton, Ohio; and Hartford, Connecticut) between August 2012, and November 2012. understand that JW's FOIA requests seek emails sent received any IRS employee any one those five offices between August 2012, and November6, 2012, 

11907496.1 

containing any the following terms: "Obama," "Romney," "election" 
"campaign." response this lawsuit, about July 21, 2014, approximately two thousand two hundred (2,200) IRS employees were notified email the need preserve any email sent received between August 2012, and November 2012. 	
Neither the IRS Information Technology E-discovery Office (IRS-IT EDO) nor any other component the IRS has place method which allows simultaneously search all ESI' the custody the approximately two thousand two hundred (2,200) IRS employees the five (5) identified regional offices, even simultaneously search all emails the custody the approximately two thousand two hundred (2,200) IRS employees the five (5) identified regional offices. addition the concerns identified paragraphs and below, the IRS-IT EDO presently unable simultaneously search all emails the custody the approximately two thousand two hundred (2,200) IRS employees the five (5) identified regional offices because, inter alia: the Microsoft Exchange Server which administers and manages email services currently used the IRS does not have search capabilities; the IRS network bandwidth would not support such searches being conducted; and such searches would interrupted IRS employees logging and off the network. 	
Personal Storage Table (PST) files are compressed files that are commonly used for archiving and maintaining otherwise loose email messages and attachments. matter internal IRS policy, IRS employee's centrally-managed Exchange Server Personal Storage Table (PST) (which includes, inter alia, the information contained the employee's emailmailbox) subject five hundred (500) megabyte (MB) size limitation, which translates approximately six thousand (6,000) emails. employee's centrally-managed Exchange Server PST approaches this file size limitation . prompt issued encouraging 

him her reduce the centrally-managed file size archiying emails and attachments. Once archived, PST files are then solely the possession and control the IRS employee and are stored the employee's IRSissued desktop computer, IRS-issued laptop computer, centrally-managed network share peripheral device. 	
The concerns identified paragraphs through above prevent IRS  information technology specialist from simultaneously searching all emails the custody the approximately two thousand two hundred (2,200) IRS employees the five (5) identified regional offices due the likelihood that information from the relevant period maintained the individual custodians rather than the centrally-administered Exchange Server systems coupled with the fact that the current version Exchange Server lacks the capability conduct the type searches requested. 	
Therefore, the IRS-IT EDO collects ESI, including emails, custodian-bycustodian basis (i.e., one employee time) follows: collects the information using copy and search utilities designed preserve metadata (i.e., data about data, suh when the data was created, who formatted the data. etc.) and prevent unintended alteration; uploads that information central space electronic server; and then processes the ESI discussed below.
11907496.1 19()7496.1 
10.Because of, inter alia, the presence compressed and encrypted files, the IRSIT EPMO does not have place method which allows selectively and efficiently collect ESI from custodians limited (a) only emails; (b) only files sent received during particular time period; and/or only files containing particular terms. This due the prerequisite collection and preservation encryption certificates from the individual custodian computers which are then used decrypt all custodian-managed PST files. Instead, the IRS first collects all ESI from custodians and then subsequently processes and searches discussed below. 
11. Once collected, preserved and accounted for described above, all ESI filtered identify system files, which are not considered user-created files. System files are files which are located custodian's computer partition that the Operating System (OS) and other computer operating programs rely upon for normal operation. Under normal operating conditions, custodians not directly access create system files.

11907496.1 

12. 
Once system files are identified, they are removed from the ESI pool and not subject further processing searches. 

13. 
Once system files have been removed from the ESI pool, the remaining ESI pool filtered identify files which need subjected additional processing before being searched. For JW's FOlA requests, which seek files associated with email repositories, there are three such categories files: corrupt, compressed, and encrypted. 

14.Corrupt files are files which (a) are incapable being rendered searchable standard attorney review platforms; (b) are damaged some. way that makes impossible render them searchable standard attorney review platforms. 
15. Once corrupt flies are identified, they are removed from the ESI pool and no.t subject further processing searches. 
16.Compressed files are archive files that contain one more files which the data has been truncated for faster transmission over computer network reduce the amount physical space required for storage. example compressed file PST file which contains multiple Message (MSG} files. MSG file individual email file containing all header information, message content, recipient information, and attachments. Nearly all archived email files are compressed using the PST format; however, there are those instances where for more granular records purposes custodian may store the individual MSG files. 
17. Once compressed files are identified, they are processed extract the truncated

files within for further processing searches. 
18. the case emails stored PST files, the emails are first processed identify whether they are encrypted contain compressed files which are encrypted. Encrypted files are flies that have been subjected encryption encoding algorithm render them unreadable without the use certificate credentials, which intended prevent unintended third party recipients from viewing the contents. The files can rendered readable only removing the security parameters with proper credentials, such entry password use security certificates. internal IRS policy requires employees transmit taxpayer identification information using encrypted emails, large amount custodians' email files encrypted. 

19. 
Once encrypted files are identified, they are decrypted (i.e., processed remove the security parameters) using Zeva Sectool the files can rendered searchable. 

20. 
Custodians' emails and attachments are searched using predetermined criteria ranges only after: system files and corrupt files have been removed from the ESI pool, compressed files have been extracted, and encryption security parameters have been removed. 

21.A criteria range search search based file attributes such the date file was sent the date file was received coupled with keywords. 

22. The process identifying, collecting and preserving ESI from IRS-issued
11907496.J 
computer assets and centrally-managed repositories takes between ten (10) and forty five (45) days average, depending. inter alia, the number custodians, scheduling conflicts, access restriction, staffing, network connectivity, and the availability information technology specialists particular geographic locations. 

23. 
Once identified, collected and preserved, the process filtering and processing ESI into searchable format takes ten (10) days per ten (10) gigabytes (GB) data average, depending staffing, software malfunction, prioritized cases, and/or credential compatibility. 

24. 
Once filtered and processed into searchable format, ESI searched using search terms and/or criteria range search. Depending the amount ESI and the complexity the search terms and criteria range, the process takes between one (1) and three (3) days per one hundred gigabytes (100) average. 

25. 
Once searching comp!ete, responsive files are advanced IRS Chief Counsel attorneys for manual review determine whether the files are responsive and whether some all the information the responsive files exempt from disclosure. 

26. not aware any prior instance which the IRS has undertaken ESI collection and review process involving large number geographicallydispersed employees would required respond JW's FOIA requests. Therefore, difficult estimate with precision how long would take collect, 

-:7

11907496.1 
process, search, and review documents respond JW's FOIA requests. 
27. Assuming that the IRS had sufficient resources hire information technology 
specialists dedicated each phase the identification, collection, preservation and processing full-time.basis (which does not), would likely take several years fully respond JW's FOIA request. declare under penalty perjury that the foregoing true and correct the best knowledge and belief.
11907496.J THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, TNC.  
Plaintiff;  Civil Action No. 13-1759-EGS  
INTERNAL REVENUE SERVICE  

Upon consideration Defendant's Motion for Summary Judgment, Judicial Watch, lnc.'s Opposition Defendant's Motion for Summary Judgment, any replies thereto, any oral argument and the record herein, hereby 
ORDERED that Defendant's Motion for Summary Judgment DENIED, and further 
ORDERED that Defendant IRS engage reasonably adequate search for records and communications responsive Plaintiff's request and produce all such responsive, non-exempt documents Plaintiff within thirty (30) days entry this Order. 
Dated: 
U.S. District Court Judge Cc: All counsel record