Agrama v. IRS, Nos. 17-5256, 17-5270, 2019 U.S. App. LEXIS 11560, 2019 U.S. App. LEXIS 12024 (D.C. Cir. Apr. 19, 2019) (per curiam)

Agrama v. IRS, Nos. 17-5256, 17-5270, 2019 U.S. App. LEXIS 11560, 2019 U.S. App. LEXIS 12024 (D.C. Cir. Apr. 19, 2019) (per curiam)

Re:  Request for records concerning requester's "proposed Form 5471 penalty liabilities"

Disposition:  Affirming district court's grant of government's motion for summary judgment and denial of requester's cross-motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the District of Columbia Circuit relates that "[the requester] specifically challenges the district court's decision not to review the actual documents that were withheld, but to instead review an IRS brief and a declaration from an IRS agent describing the documents and the search that he conducted, both of which were filed ex parte."  The court holds that "the district court acted within its discretion in concluding that there was good cause for permitting ex parte submissions, as requiring the IRS to produce further 'public justification would threaten to reveal the very information for which a FOIA exemption is claimed.'"
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that, "based on detailed public and ex parte declarations that describe the scope and nature of the IRS's search for responsive documents, [the court is] satisfied that the agency made its search in 'good faith' and 'using methods which can be reasonably expected to produce the information requested.'"  "Agencies are not, however, 'required to speculate about potential leads.'"
   
• Exemption 7(A):  The Court of Appeals for the District of Columbia Circuit holds that, "[b]ased on the IRS's public and ex parte disclosures, [the court is] satisfied that the IRS has met its burden of demonstrating that disclosure of the withheld records might 'reveal the scope and direction of the investigation and could allow the target to destroy or alter evidence, fabricate fraudulent alibis, and intimidate witnesses.'"  The court relates that "[the requester] resists this conclusion by arguing that the IRS notices asserting her interest in a foreign corporation are evidence that the agency has completed its investigation."  The court finds that "[t]his argument lacks merit."  "Even if the investigation has progressed to the point that the IRS can assert [the requester] needs to file a particular form, this does nothing to rebut or undermine the IRS's declaration that the investigation remains active."