Kalu v. IRS, No. 14-998, 2015 WL 4077756 (D.D.C. July 1, 2015) (Boasberg, J.)

Kalu v. IRS, No. 14-998, 2015 WL 4077756 (D.D.C. July 1, 2015) (Boasberg, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that, "[a]s [plaintiff] has thus failed to submit a perfected request, her claim against the IRS will be dismissed."  First, the court notes that "[c]ourts thus typically evaluate FOIA-exhaustion claims under Rule 12(b)(6)[,]" not, as defendant suggests, "under Rule 12(b)(1)."  The court then analyzes the substance of this issue and finds that defendant's "regulations provide, in pertinent part, that '[i]n the case of a request for records the disclosure of which is limited by statute or regulations,' the request must 'establish the identity and the right of the person making the request to the disclosure of the records in accordance with paragraph (c)(5)(iii) of this section.' 26 C.F.R. § 601.702(c)(4)(i)(E)."  "That paragraph provides, in turn, that '[i]n the case of an attorney-in-fact, or other person requesting records on behalf of or pertaining to other persons, the requester shall furnish a properly executed power of attorney, Privacy Act consent, or tax information authorization, as appropriate.' Id., § 601.702(c)(5)(iii)(C)."  The court finds that at least one of the two required "form[s] was incomplete and thus inadequate."
   
• Exemption 3, Glomar:  The court finds that TSA's Glomar response was proper.  The court relates that "TSA invoked Exemption 3 as the basis for its response" relying on 49 U.S.C. § 114(r)(1) and "agency issued regulations that prohibit the disclosure of 'Sensitive Security Information' . . . includ[ing] '[s]ecurity screening information,' such as '[i]nformation and sources of information used by a passenger or property screening program or system, including an automated screening system.'"  The court notes that "[plaintiff] does not challenge the government's assertion of Glomar on the basis of Exemption 3 and 49 U.S.C. § 114(r)(1)."  "She argues, instead, that a Glomar response does not excuse the agency from 'its statutory duty to perform a search for all responsive records' and to 'review each record individually[ ] to determine if its 'Glomar' response is in fact appropriate as to each responsive record.'"  The court finds that "[plaintiff's] argument misunderstands Glomar, which 'narrows the FOIA issue' to whether an agency must disclose 'the existence of records vel non.'"  "If the mere fact that records do or do not exist is protected by a FOIA exemption, that ends the inquiry."  "No actual search or record review is required."

Regarding the FBI's similar use of Exemption 3, the court finds that, "[a]lthough [plaitniff's] arguments would appear to lack merit for the reasons discussed in upholding TSA's Glomar response, the Court cannot definitively conclude this without knowing whether the Bureau is still asserting Glomar and, if it is, the basis for that response."  The court explains that "[defendant] does not address its Glomar response in its briefs here."

• Procedural Requirements, Searching for Responsive Records:  Regarding the TSA, "[t]he Court . . . cannot conclude that the agency's decision to restrict [plaintiff's] request to documents pertaining to credential problems, flight issues, and TSA employee issues was reasonable."  The court notes that "[i]t is easy to see that aspects of [plaintiff's] request may have been too broad – in addition to seeking records that 'list' her name, she sought all records that 'otherwise describe[e] or discuss[ ]' her."  However, the court finds that defendant "failed to adequately explain why the limiting principles it applied to Plaintiff's request were reasonable under the circumstances."  "[T]he Court cannot discern the connection between the vast number of offices and TSA's decision to restrict its search based on subject matter – that is, to records pertaining to credential problems, flight issues, and TSA employee issues."
   
• Litigation Considerations, Adequacy of Search:  "[E]ven assuming that the [TSA] was allowed to narrow the request as it did, TSA would still have failed to establish the adequacy of its search."  The court explains that defendant "did not aver that the agency searched all of the FOIA offices likely to contain relevant documents."