Sea Shepherd Conservation Soc'y v. IRS, No. 13-1422, 2015 WL 1450289 (D.D.C. Mar. 31, 2015) (Jackson, J.)

Sea Shepherd Conservation Soc'y v. IRS, No. 13-1422, 2015 WL 1450289 (D.D.C. Mar. 31, 2015) (Jackson, J.)

Re: Request for records concerning plaintiff

Disposition: Denying defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that defendant's declarations are deficient on several grounds."  "First, none of the declarations adequately addresses plaintiff's request for 'any and all documents' related to it within the designated time period, or even indicates that a search for 'any and all documents' related to plaintiff was actually conducted."  "Second, none of the declarations describes defendant's overall 'rationale for searching certain locations and not others.'"  "And, third, the individual declarations suffer from numerous other deficiencies," including that defendant does not "meet[] the basic requirement of 'averring that all files likely to contain responsive materials ... were searched'" and that defendant "fails to describe any other details of her search, such as the relevant file systems or search terms that [it] may have employed."
   
• Exemption 7(A):  "[T]he Court finds that defendant has not carried its burden to show that Exemption 7(A) applies to any of the withholdings it has made in this case."  The court holds that "the IRS's statement that the release of the records 'could reasonably be expected to interfere with enforcement proceedings,' . . . is no longer sufficient to justify their retention because the investigation of plaintiff has now closed."  Specifically, the court finds that "the IRS has not provided any authority for the proposition that the possibility that another investigation might be launched in the future is sufficient to give rise to the risk that disclosure of records of the previous investigation would 'interfere with enforcement proceedings.'"
   
• Exemptions 6 and 7(C):  "The Court finds that these withholdings have not been justified on this record."  "Whether or not these records meet the threshold requirements of Exemptions 6 and 7, and whether or not the private interests asserted by defendant outweigh the public interest identified by plaintiff, the Court finds that plaintiff has pointed to a public interest in disclosure that the IRS did not consider in the balancing test."  The court relates that "plaintiff has pointed to the public interest in knowing whether the IRS's audit was in any way related to the statements revealed by the Wikileaks cables, which indicate that United States government officials discussed the IRS's investigation of plaintiff's tax-exempt status with Japanese government officials who were concerned about plaintiff's activities."  "Accordingly, the Court will remand the case to the IRS so that it may weigh the privacy interest in non-disclosure against the public interest in the release of the records."
   
• Exemption 7(D):  The court holds that "[t]he IRS has also failed to justify its reliance on Exemption 7(D)."  The court finds that "the IRS has entirely failed to carry its burden to show that its sources 'did in fact receive an express grant of confidentiality,' and it has also failed to articulate circumstances that would 'support the inference of confidentiality.'"  "Defendant merely states that 'the confidential sources[ ] requested anonymity,' without anything more."
   
• Exemption 3:  The court holds that some of defendant's withholdings are not justified.  The court relates that "[d]efendant withheld several records, in part and in full, under FOIA Exemption 3 in conjunction with 26 U.S.C. § 6013(a) and 26 U.S.C. § 6103(e)(7)."  "Section 6103(a) requires that tax returns and 'return information' be kept confidential subject to certain exceptions."  "The Court has reviewed the two pages in camera and finds that, under the circumstances of this case—where the information withheld does not appear to relate to the individual's status as a taxpayer in any way—the IRS has not carried its burden to establish that the redacted information qualifies as 'return information' under section 6103."  "Section 6013(e)(7) states that '[r]eturn information with respect to any taxpayer may be open to inspection by or disclosure to any person authorized by this subsection to inspect any return of such taxpayer if the Secretary determines that such disclosure would not seriously impair Federal tax administration.'"  The court holds that "[a]lthough the D.C. Circuit has not provided specific guidance as to how the IRS may show that the release of certain records would compromise federal tax administration, FOIA requires more than the conclusory assertions presented here."
   
• Exemption 5, Deliberative Process Privilege, Attorney-Client Privilege:  "[T]he Court finds that Exemption 5 justifies some, but not all, of the agency's redactions."  The court reviewed defendant's application of the deliberative process and attorney-client privileges in camera.