Stonehill v. DOJ Tax Div., No. 19-03770, 2022 WL 407145 (D.D.C. Feb. 10, 2022) (Contreras, J.)

Stonehill v. DOJ Tax Div., No. 19-03770, 2022 WL 407145 (D.D.C. Feb. 10, 2022) (Contreras, J.)

Re:  Request for records concerning plaintiff's spouse, Tax Division's action against plaintiff's spouse, certain Philippine National Bureau of Investigation personnel, and a specific Tax Division consultant

Disposition:  Granting defendant's motion for leave to file amended answer; granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for partial summary judgment; granting plaintiff's motion for Vaughn index; denying defendant's motion to submit sampling Vaughn index

• Litigation Considerations, Pleadings:  "First, the Tax Division seeks to amend its Answer to [plaintiff's] Amended Complaint 'to admit the factual allegations contained in [certain] paragraphs . . .' and 'to include res judicata as an affirmative defense.'"  "[Plaintiff] does not object to the former of these proposed amendments, but she opposes the Tax Division's assertion of res judicata as 'futile and prejudicially belated.'"  "While [plaintiff's] frustration is understandable, that long history does not make the delay in adding this specific affirmative defense prejudicial to her."  "The timing of the proposed amendment did not deprive [plaintiff] of a right to respond to that argument and it did not delay adjudication of the parties’ cross motions for summary judgment, which addressed the issue as if it had been included in the answer."  "The Court will therefore deem the proposed amended answer to be operative and address the res judicata effect of the 2000 settlement agreement on the merits in the following section."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  "The Tax Division maintains that [the request for records concerning plaintiff's spouse] is a 'duplicate request[ ] for records the Tax Division released throughout several decades up to the year 2000,' specifically the 1979 and 2000 FOIA requests, [] and therefore that the 2000 settlement and stipulated dismissal bars the current action through res judicata."  The court relates that "[t]he prior litigation at issue here is the settlement agreement of the 2000 FOIA request. . . ."  "Because the parties settled and filed that stipulation before the court addressed any issues on the merits, 'claim preclusion' provides the appropriate framework here."  "[I]t is undisputed that the 2000 request was filed on [plaintiff's spouse's] behalf and that [plaintiff] is in privity with [plaintiff's spouse] as the representative of his estate, satisfying the identity of parties element."  "Nor does either party argue that a court in this district was not competent to hear the FOIA action in 2000, satisfying the fourth element."  "Next, the weight of authority in this district suggests that a stipulation of dismissal with prejudice under [Federal Civil Procedure] Rule 41(a) is a final judgment on the merits for the purpose of claim preclusion." 
  
  "Rather than arguing that the 2000 Settlement was not a final judgment on the merits, [plaintiff] points out that because the stipulated dismissal is based on a settlement, it is the terms of the settlement rather than the original complaint that define the outer limits of the preclusive effect."  "[Plaintiff] contends that the seven-year limitation on FOIA requests agreed to in the settlement left her free to request the same documents again, and challenge any asserted exemptions, after seven years had elapsed."  "The Tax Division unsurprisingly disagrees, saying it 'did not leave room for Plaintiff to submit duplicative FOIA requests after seven years.'"  The court notes that "[t]he agreement is silent on whether [plaintiff and spouse] can re-request the same documents after seven years, making both interpretations plausible."  "Although it would normally be illogical in most causes of action to re-allow the same claim after a certain number of years, it is at least possible that the Tax Division perceived a benefit from kicking the can several years down the road and reprocessing a preexisting request in the meantime."  "And FOIA is unlike other causes of action in that 'the records maintained by an [agency] may change over time' meaning that even 'a renewal of a previous request inevitably raises new factual questions.'"
  
  "The Tax Division's res judicata argument also falters at the final element:  whether both cases are for the 'same claims or cause of action.'"  "While the requests are admittedly quite similar, the Court believes there is sufficient nuance between the two to caution against treating them as the same cause of action."  "[T]he time period requested in [this request] was more condensed, [but] the subject matter was slightly broader."  "Given those nuances and the material disagreement between the parties about what the 2000 settlement agreement even precluded, the Court determines that summary judgment is not appropriate . . . ."
  
  "The Tax Division did not process [the request for records concerning the named Philippine National Bureau of Investigation personnel] because it considered it a subset of the broader request [for records concerning plaintiff's spouse]" "and asserted the same res judicata argument [as above]."  "Although overlap between the requests is highly likely, the assumption that the overlap was complete was unwarranted based on the language of the request, which the Tax Division had a duty to construe 'liberally.'"  "While the litigation files would certainly be a logical place to look for responsive records, it does not follow that it was the only possible place to look, or that there might be documents within those files responsive to one request but not the other."  "Perhaps that will eventually turn out to be the case, but it does not relieve the Tax Division of its obligation to look." 
   
• Procedural Requirements, Searching for Responsive Records:  "In its Reply and Opposition to [plaintiff's] cross motion, the Tax Division recognized for the first time that [one of the requests] was a two-part request."  "It now concedes that the second half of that request . . . falls outside the scope of its res judicata defense and asks the Court to remand this sub-section of the request to the agency to process in the first instance, but also stated that it would begin searching for those records immediately."  "The Court is also mindful here of the considerable time that has already elapsed since this request was submitted . . . ."  "Whether the Tax Division's failure to read an entire paragraph of the request was a careless or willful mistake is immaterial—either is unacceptable."  "Therefore, . . . the Court orders the Tax Division to complete its search and release responsive documents on or before the date that its renewed motion for summary judgment is submitted."
  
  "Finally, the Court addresses the search that the Tax Division did conduct:  [records concerning the consultant and plaintiff's spouse's prior tax action]."  "The Tax Division reprocessed the prior corresponding [third party] request [requesting similar records] in order to respond and also conducted two additional searches during the course of this litigation that identified a total of 7,982 responsive pages."  The court relates that "[w]hile relying on a prior, broader request to facilitate the search for a narrower request may be a perfectly reasonable method in theory, it necessarily requires that the prior search also have been adequate—and there is considerable doubt as to whether that was the case."  "Most significantly, the Tax Division 'became aware that it may be necessary to conduct an additional search' of a previously unsearched electronic database and did so only after submitting its summary judgment brief."  "Considering the initial and supplemental searches together, the Tax Division's search in response to [this request] was reasonably calculated to uncover all responsive documents, and the declarations are sufficiently detailed regarding the steps that the agency took."  "The Court sympathizes that [plaintiff] is skeptical of the Government after such a contentious history, [] but 'earlier intransigence ought not count against [the agency] if their later behavior was characterized by cooperation.'"  "[Plaintiff] does not point to any additional steps that the Tax Division should have taken beyond the supplemental searches, and speculation alone that more documents may exist does not make the search inadequate."  "The Court will therefore grant partial summary judgment to the Tax Division on the issue of the adequacy of the search."  However, the court relates that "the Tax Division's errors . . . are troubling" and that "[s]uch mistakes should have been rectified long before the agency was hauled into court and asked to prepare an affidavit of its efforts."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  "The Tax Division invokes both the deliberative process privilege and attorney work product privilege to withhold a draft letter . . . authored by [the consultant] . . . addressed to [a district court judge] and discussing 'a phone conversation [the consultant] had with the Judge . . . .'"  "[The judge] was not connected to the [] proceedings . . . ."  The court finds "[t]he Tax Division's [] assertion that the letter was predecisional . . . is unconvincing."  "The Tax Division also asserts the attorney work product privilege to withhold this letter in its reply, and that assertion has more merit."  "The agency has identified the draft letter's author, . . . and described both its contents and the circumstances around its creation:  seeking the recollection and input of a former Tax Division supervisor familiar with the underlying case."  "It is also undisputed that the letter was drafted as part of the preparation for litigation in the 60(b) proceedings."  The court holds that "[t]hese showings are sufficient to establish that the work-product privilege applies."
  
  "Next, the Tax Division asserts attorney work product to withhold 'a two-page letter and its attachment . . . .'"  "[Plaintiff] does not appear to object to the withholding of the letter itself, but claims that the Tax Division has not met its burden for withholding the attachment."  "The Court agrees."  "While the context of the document as being attached to the letter suggests that it was indeed prepared for use in the [Federal Rules of Civil Procedure] 60(b) litigation, the Tax Division omits significant other relevant detail, including who authored it or even the most high-level description of its contents."  "Out of an abundance of caution the Court will stop short of ordering release, instead ordering the Tax Division to submit the two-page attachment to the [] letter for in camera review."
  
  "The Tax Division withheld 'a two-page record [the consultant] authored setting forth his views pertaining to one of the defendant's exhibits' under both attorney work-product and deliberative process privilege" as well as "the attachment to a second fax."  "The Tax Division has provided the necessary basic information regarding the content, nature, author, and circumstances surrounding the creation of this document, and it is undisputed that it was used in connection with ongoing litigation."  The court notes that "[b]oth parties indicate that the attachment [to the second fax] should have been four pages, but [defendant's declarant] only identified and discussed three."  "The Court will therefore grant summary judgment to the Tax Division with respect to the three-page attachment discussed here [as well as the two-page record], but it expresses no opinion as to the potentially missing fourth page."   
  
  "[Plaintiff] argues that any privilege that could have applied should be overridden by the unethical conduct of the government, and most specifically, by [the consultant's] actions in helping to prepare briefs in the 60(b) proceedings that contained information he knew to be false."  "[Plaintiff's] broad—and disputed—claims that [the consultant] engaged in unethical conduct during the 60(b) proceeding appear to boil down to the assumption that his misrepresentations in the original tax proceeding must have contaminated his conduct in the 60(b) proceeding."  The court notes "[t]his inferential leap is insufficient to draw a connection between any specific misconduct and the withheld documents."  "While the Tax Division's processing of this request has hardly been a model of bureaucratic efficiency, [plaintiff's] speculation about the agency's nefarious motivations for its delay and mistakes are both unconvincing and insufficient to implicate the Tax Division itself in any wrongdoing by [the consultant] even if it did occur."
  
  "In [one] email, [a Tax attorney] explains to Executive Officer [] the need to contract [the consultant] as a litigation consultant in the 60(b) proceedings, including his opinion of why [the consultant's] services were needed on the trial team."  "The information provided suggests that this email was predecisional, because a decision to hire [the consultant] had not been made, and [the attorney's] perspective was aimed at 'assist[ing] an agency decisionmaker in arriving at' that decision."  "It is also clear that the type of statement made by [the attorney], as described by the Tax Division, is the kind of 'give-and-take of the consultative process' that makes a document deliberative."  "Because the Tax Division has only partially withheld the relevant section and released the nonexempt factual information, the Court will grant the Tax Division summary judgment on that email chain."
   
• Exemption 5, Attorney-Client Privilege:  "[T]he Tax Division asserts the attorney-client privilege as to 'one e-mail between DOJ-Tax attorneys and an Internal Revenue Service employee' without providing additional detail on the subject matter of the email."  "Although the Court could assume that the DOJ Tax attorneys on the email were members of the bar, there is nothing indicating that the IRS employee was a client or the attorneys were acting in their capacity as lawyers, or that the communication was confidential or even legal in nature."  "Such a lack of detail falls far short of the Tax Division's burden, and the Court will deny summary judgment to the Tax Division for this record."
   
• Exemptions 6 & 7(C):  "[Plaintiff] . . . argues that '"activity" information relating to [the consultant's] retention as a consultant' should not have been redacted, and lists several specific examples including start date, initiate date, category, end date, and activity descriptions."  "The Tax Division's response is that [plaintiff] has 'mischaracterized the withheld information,' which in fact pertains only to [the consultant's] 'security clearance activity.'"  The court finds that "there is a genuine dispute of material fact about what the information to be disclosed even is."  "The Tax Division fails to show how those categories relate to any security clearance process rather than dates of employment or employment duties . . ." and "provides no reason that disclosing those exact dates would be an 'unwarranted invasion of privacy,' clear or otherwise."  "The Court will therefore deny summary judgment . . . ."
  
  "[T]he Tax Division also asserts Exemption 6 to justify withholding 'the names of two individuals who appear to be lower-level staff' from an email chain . . . ."  "[Plaintiff] appears not to contest the withholding of those names, and the Court agrees."  "The identity of the two low-level employees in the email does not 'shed light on' the activities of the Tax Division."  "Because their connection to the [previous] litigation or [the consultant] was tangential at best, there is no public interest in the release of their identities, and the Court grants summary judgment to the Tax Division . . . ."
   
• Litigation Considerations, Vaughn Index/Declarations:  "[Plaintiff] has [filed] a motion to compel a Vaughn index for the approximately 360 newly discovered documents, arguing that '[a] general declaration about categories of withholdings is manifestly insufficient to permit the Court to evaluate whether the agency has properly invoked FOIA exemptions.'"  The court finds that "the agency's description of the categories here is [] deficient . . . ."  "While the list provides the function of some records, such as a draft privilege log or legal brief, other categories such as 'emails between DOJ-Tax attorneys' and 'internal DOJ-Tax memoranda' do not even supply the function of the document."  "Nor do any of the categories identify the deliberative process or the decisionmaking authority."  "All drafts are in some sense deliberative; there must be more detail provided regarding the actual decisionmaking process and authority, including the roles that 'the document's author and recipient' played in that process."  The court further finds that "[t]he detail provided is likewise insufficient to determine whether the documents are protected attorney work product."  "[While] [m]ost of the categories described in the Tax Division's list have some connection to litigation, . . ."  "[a] mere connection to litigation is not enough; the document must have been created because of it."  "Given the inadequacy of the Tax Division's asserted exemptions . . . , the Court will grant [plaintiff's] motion to compel a Vaughn Index." 
  
  " [T]he Tax Division has suggested . . . 'that a sampling Vaughn index would be [a] more appropriate and efficient mechanism to test the government's exemption 5 withholdings.'"  "The voluminous nature of the pages to be indexed is [a] proper consideration, but there is no magic number or sampling ratio that automatically makes a sample appropriate; rather, the determination must always be made with reference to the particular facts of the case."  "Here, a sampling index would be insufficient to establish the correctness of the Tax Division's asserted exemptions."  "As [plaintiff] points out, while the number of pages is relatively large, the number of documents is much more manageable."  "Not only does the lower number of documents with many pages make a complete Vaughn Index more feasible, it also means that any random page selected for a sample is less likely to contain enough context to meaningfully evaluate the whole."  "Accordingly, the Court . . . den[ies] the Tax Division's cross motion for a sampling Vaughn index."