Citizens for a Strong New Hampshire, Inc. v. IRS, No. 14-487, 2015 WL 5098536 (D.N.H. Aug. 31, 2015) (McCafferty, J.)

Citizens for a Strong New Hampshire, Inc. v. IRS, No. 14-487, 2015 WL 5098536 (D.N.H. Aug. 31, 2015) (McCafferty, J.)

Re: Request for correspondence between two New Hampshire politicians and certain high-ranking IRS officials

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

• Litigation Considerations, Adequacy of Search:  The court finds that "there exist genuine issues of material fact as to whether the IRS conducted an adequate search, and the record does not entitle either party to summary judgment on this issue."  The court relates that defendant's declarant "does not fully describe the breadth of the correspondence that [the system of records defendant searched] contains, nor does [defendant's declarant] provide assurances of any kind that a search of [this system], alone, would be likely to turn up all responsive records."  Additionally, defendant's declarant "does not include the specific search terms [were] employed" and "does not discuss the feasibility of searching other potential sources of responsive documents."  However, the court also finds that "neither has [plaintiff] established that the search was unreasonable."
   
• Litigation Considerations, Time Limits:  In response to plaintiff's arguments, "[t]he court finds that an agency's failure to comply with FOIA's timeliness requirements, alone, does not entitle the requesting party to summary judgment."  "Rather, such failure merely entitles [plaintiff] to seek judicial relief."
   
• Exemption 3:  "[T]he court agrees with the IRS's determination that [certain] pages are exempt from disclosure."  "Furthermore, because the documents consist almost exclusively of confidential 'return information,' disclosure in redacted form is not feasible."  "The IRS took the position that the applicable statute barring disclosure was 26 U.S.C. § 6103(a), which provides that a citizen's tax return 'shall be confidential ... [and] no officer or employee of the United States ... shall disclose any return or return information obtained by him in any manner....'"  "The court has completed its in camera review and can confirm that the IRS properly withheld all 51 pages of materials."