Sea Shepherd Conservation Soc'y v. IRS, No. 14-1322, 2016 WL 5108009 (D.D.C. Sept. 20, 2016) (Jackson, J.)
Re: Request for certain records concerning plaintiff
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: First, "[t]he Court concludes that [defendant's] searches of OCC were 'reasonably calculated to uncover all relevant documents'" and "identified the relevant database that was reasonably likely to contain all records concerning Sea Shepherd within the time period at issue." "[Defendant] described the search methodology – plaintiff’s name." "And [defendant] contacted all of the employees who were listed as having worked on the case, and tracked down any additional leads that flowed from those contacts." Second, "the Court finds that the search of R & A was reasonably calculated to find all responsive documents." The court explains that defendant "concluded that all locations likely to return responsive records were searched, and [the division] did not contain any other records system which might return responsive results." Third, the court finds that two other "searches were reasonably calculated to uncover all relevant documents" and even though defendant "does not describe in detail the search methods of the branch chiefs, 'where documents are collected from several different offices, unit-specific descriptions are not required.'" Responding to plaintiff's arguments, the court finds that "[i]t appears that plaintiff is arguing that the destruction of the file in question ought to cast doubt on the adequacy and good faith of defendant's search generally, but plaintiff has offered little to rebut the presumption of good faith that attaches to agency declarations[,]" especially in light of defendant's explanation for why the record was destroyed.
However, regarding one search, the court finds that "[d]efendant's supplemental search is markedly better than the first because it details the locations searched and the search terms used." "However, the affidavits submitted still do not describe an adequate search." "First – and most important – none of the declarations provide an explanation for why it was likely that only [two] email accounts would include responsive records." "Second, it is unclear why . . . different terms [were used] when searching [one] email and the referral database, and why those search terms were not the same as those utilized [in the search of the second e-mail account]."
- Exemption 7, Threshold: "[T]he Court finds that 'there is a rational nexus between the investigation' of plaintiff’s tax-exempt status 'and the agency's law enforcement duties.'" The court explains that "[b]ecause the records withheld relate to an audit of plaintiff to determine whether it qualifies for tax-exempt status, the records were compiled for a law enforcement purpose."
- Exemption 7(D): First, "[b]ased on the facts set forth in the ex parte declaration, the Court is satisfied that the government has met its burden to show that the source of the first and third referrals 'spoke with an understanding that the communication would remain confidential,' . . . and that the source received express assurances that its statements would be kept confidential." "Therefore, the Court finds that Exemption 7(D) applies, and that the government can properly withhold from plaintiff documents regarding the first and third referrals." However, the court finds that "[t]here is . . . no evidence tying express assurances to [another] source." The court finds that "the existence of a policy that could be found on the agency's public website" "does not even rise to the level of contemporaneous records discussing the policy with the source or with similarly situated sources[.]" "But the Court does find that the source received an implied assurance of confidentiality." "The Court concludes that the source provided ongoing information about serious crimes, and that its repeated expressions of a need for confidentiality were made in the context of the agency's publicly announced policies."
- Exemption 3: "[T]he Court concludes that the agency's reliance on Exemption 3 in connection with 26 U.S.C. § 6103(e)(7) is justified." The court finds that "[it] has had an opportunity to review the documents that the IRS seeks to withhold in camera." "Its review reveals that the return information contained in the documents is intertwined with information that may reveal the identity of the sources[,]" and, therefore, would "seriously impair federal tax administration[,]" the requirement for withholding under this statute.
However, the court finds that while "[i]t may be true, as the IRS argues, that any responsive records from the Whistleblower Office – should they exist – could be withheld under Exemption 3 and 26 U.S.C. § 6103(e)(7)[,]" "the agency has done little to explain with any specificity why the disclosure of the fact of the existence or non-existence of any records – as opposed to the records themselves – would cause harm to the interests protected by the FOIA exemptions cited, particularly given the fact that in this case, in connection with this particular taxpayer, the defendant has already publicly acknowledged that whistleblowers or confidential informants provided information to other components of the agency."