Stonehill v. DOJ Tax Div., No. 19-3770, 2023 WL 4174329 (D.D.C. June 26, 2023) (Contreras, J.)

Stonehill v. DOJ Tax Div., No. 19-3770, 2023 WL 4174329 (D.D.C. June 26, 2023) (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:  Denying plaintiff’s motion for production schedule; denying defendant’s cross-motion to dismiss

• Litigation Considerations, Standing:  The court holds that “[plaintiff] is the ‘proper and appropriate party to invoke federal judicial power’ in this FOIA suit.”  The court relates that “[t]he Tax Division asserts that [plaintiff’s] counsel . . . made the three FOIA requests at issue here, and therefore that [plaintiff] herself ‘lacks standing because she was not the FOIA requester at the administrative level.’”  “Two critical factors in determining whether a FOIA request submitted by counsel was made on behalf of a client are whether the request ‘(1) indicated that counsel was requesting the documents in connection with and for use in the representation of plaintiff, and (2) contained release forms signed by plaintiff authorizing and requesting the release of records to counsel.’”  First, “the Court finds that the FOIA requests here clearly indicated that they were made on behalf of [plaintiff].”  “[T]he face of each request explains that it ‘attach[es] a . . . Power of Attorney and Declaration of Representative . . . signed by [plaintiff], the wife and Co-Administrator of [the estate of the original plaintiff in this case, plaintiff’s deceased husband].’”  “And those attached power of attorney forms each identify ‘[plaintiff’s attorney] as Mrs. Stonehill's ‘attorney[] in fact.’”  “The Tax Division accurately points out that the power of attorney forms are Internal Revenue Service (‘IRS’) forms that ‘allows an individual to represent a taxpayer before the IRS.’”  “From there, the Tax Division argues that, because the form was created ‘for the use and control of another agency’ it is ‘only . . . controlling on [the IRS].’”  “It also claims that, because the form ‘appears to only authorize tax periods from 1958 to 1961,’ it ‘does not match the scope of the . . . FOIA requests.’”  “Finally, it points out that Section II of the form, which requires the named attorney to make certain certifications, appears to be unsigned, and contends that the lack of signature would cause the IRS to reject the document.”  “These would all be persuasive arguments if the relevant question was whether the power of attorney forms entitled [plaintiff] or [plaintiff’s attorney] to some privilege or bound the IRS or the Tax Division to some obligation.”  “But the relevant inquiry here is whether the FOIA request ‘indicated that counsel was requesting the documents in connection with and for use in the representation of plaintiff.’”  “The references to [plaintiff] and the power of attorney forms on the face of the FOIA requests, together with the fact that those attached forms identify [plaintiff’s attorney] as [plaintiff’s] attorney, are facial indications that [plaintiff’s attorney] submitted the requests on [plaintiff’s] behalf.”
  
  “Turning to the second factor – whether the FOIA requests ‘contained release forms signed by plaintiff “authorizing and requesting” the release of records to counsel,’ . . . it is undisputed that each of the three FOIA requests attaches both a Tax Division ‘Privacy Act Release Form’ and a Department of Justice ‘Certification of Identity’ form.”  “While ‘mere execution of a waiver of privacy interests likely does not itself render the request one of the third party,’ it is ‘relevant and highly probative to the issue of whether the request was made on behalf of the client.’”  “[H]ere the requests name [plaintiff] on their face and incorporate by reference and attachment power of attorney forms that identify [plaintiff’s attorney] as her attorney.”  Additionally, the court finds that “record evidence that the Tax Division understood that [plaintiff’s attorney] represented [plaintiff] overwhelmingly corroborates the facial indicia that he made the requests on her behalf.”  “The Tax Division’s summary judgment motion makes clear that it was aware that [plaintiff’s] attorney] represented [plaintiff and her deceased husband] in this string of related FOIA actions going back decades.”  “[T]he record concerning the specific FOIA requests at issue here establishes that, at all relevant times during this longstanding dispute until the Tax Division filed its cross-motion to dismiss in October 2022, the Tax Division understood that [plaintiff’s attorney] submitted the requests on behalf of [plaintiff].”
   
• Litigation Considerations, Preliminary Injunctions:  The court considers “[plaintiff’s] motion for an order requiring production of non-exempt documents within 120 days.”  First, the court finds that “Plaintiff’s motion and reply are notably devoid of any reference to the authority on which the Court should grant her request or cases in which courts in analogous situations have entered orders similar to what she requests here.”  “Accordingly, consistent with [plaintiff’s] abandonment of any present claim that she is entitled to expedited processing under § 552(a)(6)(E), the Court construes [plaintiff’s] motion as a request to exercise its general authority to ‘regulate practice in any manner consistent with federal law.’”
  
  Second, the court finds that plaintiff has not “successfully puncture[d] the ‘presumption of good faith,’ . . . accorded to [defendant’s] averment that, ‘[g]iven the volume of records, the age of the records sought, the complexity of the requests, and the limited resources of the Tax Division, that [a 120-day] timeline is impossible to meet and would cause harm to the agency,’ including forcing it to ‘reallocate time and other resources from other pending FOIA requests,’ of which the Tax Division received 104 during fiscal year 2021 alone.”  “However, as stated in its prior opinion, the Court is ‘mindful . . . of the considerable time that has already elapsed since this request was submitted in September 2018’ – time that has enlarged by nearly a year and a half since the Court made that observation.”  “Moreover, because it seems that a very large percentage of the pages reviewed are either duplicates or non-responsive, . . .  which inherently take less time to process than responsive records, the Tax Division must continue to process records at a rate far greater than 500 pages per month.”  “Accordingly, while the Court denies Plaintiff’s present motion for an order requiring the Tax Division to do the seemingly impossible and produce all responsive and non-exempt documents within 120 days, Plaintiff may renew a request for a reasonable production schedule, by motion citing to relevant authority, should the Tax Division’s rate of processing decrease or other arising circumstances warrant.”