Montgomery v. IRS, No. 17-918, 2020 WL 1451597 (D.D.C. Mar. 25, 2020) (Boasberg, J.)

Montgomery v. IRS, No. 17-918, 2020 WL 1451597 (D.D.C. Mar. 25, 2020) (Boasberg, J.)

Re:  Requests for records concerning alleged whistleblower and investigation

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

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court holds that [certain] "aspects of the agency's response leave 'substantial doubt' as to the adequacy of its search, foreclosing summary judgment."  The court finds that "[t]he agency . . . 'cannot limit its search to only one record system if there are others that are likely to turn up the information requested.'"  The court holds that "Defendant's submissions here leave the Court uncertain as to whether there are other potentially relevant databases, rendering summary judgment inappropriate."  "First, the IRS has yet again failed to provide an 'assertion that [Defendant] searched all locations likely to contain responsive documents.'"  "Beyond the agency's failure to invoke the 'magic words,' Plaintiffs have provided 'countervailing evidence' as to the inadequacy of the search at issue here."  "Specifically, they point to a location – the Office of Tax Shelter Analysis – that would seem to be a natural location for responsive documents."  The court finds that "[t]he agency's renewed search, moreover, resulted in 'positive indications of overlooked materials.'"  "Even if an agency 'start[s] with [a] reasonable assumption that only . . . [searching certain locations] would be necessary,' 'it must revise its assessment of what is "reasonable" in a particular case to account for leads that emerge during its inquiry.'"  The court explains that "[p]erhaps the revelation of a trove of over 1,000 pages of responsive documents upon searching just one additional database should have caused the agency to 'revise its assessment.'"  "Perhaps not."  "The agency, however, did not explain its reasoning . . . ."
   
• Exemption 7(D), Glomar; Litigation Considerations, In Camera Inspection; Waiver:  "[T]he Court is finally satisfied as to its search of the Whistleblower Office and its reliance on Glomar."  "The Court previously rejected the IRS's position on this issue because of three deficiencies in its submissions, all of which the agency has satisfactorily remedied here."  "First, Defendant has finally 'tethered' its Glomar response to an applicable FOIA exemption."  The court finds that "Defendant has now satisfied that obligation, relying on FOIA Exemptions 3, 7(D), and 7(E) and offering declarations in support of that reliance."  "Second, the IRS has followed the Court's directive by explaining and justifying its reliance on Exemption 7(D)."  The court finds that "Defendant has justified its reliance on 7(D) with regard to its search of the Whistleblower Office, providing a public memorandum and an in camera declaration explaining that dependence in detail."  "The Court acknowledges, however, that because the agency largely justifies its search via in camera submissions, Plaintiffs have been substantially left in the dark as to its analysis."  "Given the fact that the in camera declaration contains 'substantial information that would not compromise the IRS's previous Glomar position,' the Court therefore orders the Government to file a redacted copy on the public docket."  "Finally, the Court rejects Plaintiffs' argument that the agency cannot invoke Glomar here because Defendant has already 'officially acknowledged' that there are no records responsive to Requests 6-12."  The court finds that "the IRS's vague 'equivocation[ ] in the administrative process' does not amount to official acknowledgment."  "[T]he agency's partial Glomar response is not even inconsistent with its previous responses."  "It states, as it did before, that its search of the Whistleblower Office has failed to yield documents 'specifically responsive' to Requests 6-12, and it only invokes Glomar to the extent that Requests 6-12 overlap with Requests 1-5."