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Case 1:13-cv-01225-ABJ Document 49 Filed 02/24/15 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION,

)
)
Plaintiff,
)
)
v.
)
)
TREASURY INSPECTOR GENERAL
)
FOR TAX ADMINISTRATION,
)
)
Defendant.
)
__________________________________________ )

Case No.: 1:13-cv-1225-ABJ

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO


DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The central question in this case is whether 26 U.S.C. 6103, a law passed to protect
taxpayers confidential information to prevent political targeting and abuse, should be construed
to protect the political officials who violate its provisions.
Plaintiff Cause of Action filed a Freedom of Information Act (FOIA) request with the
Internal Revenue Service (IRS) seeking records pertaining to, among other things,
investigations by Defendant Treasury Inspector General for Tax Administration (TIGTA) into
the unauthorized disclosures of confidential tax return information to the Executive Office of the
President. Unauthorized disclosure violates 6103(a), is a crime under 26 U.S.C. 7213 and
7213A, and triggers potential civil damages liability under 26 U.S.C. 7431(a).
Cause of Actions request did not call for disclosure of any taxpayers income, payment
history, deductions, net worth, or liability for an offense related to his own taxes. Nor did it call
for information about whether a particular taxpayers return has been or will be examined or

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subject to investigation. And, TIGTA had officially acknowledged the existence of at least one
such investigation to several U.S. Senators and to the General Counsel of a targeted taxpayer.
Nevertheless, TIGTA refused to disclose the existence of records relating to any
investigations into unauthorized disclosure that is, violations of taxpayer privacy laws by
individuals in the Executive Office of the President, claiming 6103(b) prohibited the same.
Cause of Action v. v. Treasury Inspector Gen. for Tax Admin., No. 13-1225, 2014 U.S. Dist.
LEXIS 140595, at *7-8 (D.D.C. Sept. 29, 2014). The parties filed cross-motions for summary
judgment. The Court ruled for Cause of Action and ordered TIGTA to disclose. Id. at *25-26.
TIGTA admits having 2,509 pages of responsive records. However, it continues to
protect the Executive Office of the President by denying disclosure, using an unprecedented and
unsustainable construction to claim that 6103(b) shields from disclosure government officials
who may violate 6103(a). It then justifies FOIA exemptions using the remarkably circular
argument that because 6103 prohibits disclosure, the exemptions apply and nothing more is
needed. Finally, it fails to carry its burden and prove an adequate search, privileges, compelling
privacy interests that outweigh public disclosure interests (to the extent not already waived), or
appropriate segregation.
The parties have again filed cross-motions for summary judgment. And again, the Court
should rule for Cause of Action and order TIGTA to disclose.
PROCEDURAL HISTORY
On October 9, 2012, Cause of Action filed a FOIA request with IRS for eight separate
items. Pl.s Statement of Undisputed Material Facts (SOF) 1; Compl. Ex.1, ECF No. 1.
Item seven of the request (Item Seven) sought [a]ll documents, including but not limited to
emails, letters, telephone logs, and reports pertaining to any investigation by the Treasury

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Inspector General for Tax Administration into the unauthorized disclosure of [26 U.S.C.] 6103
return information to anyone in the Executive Office of the President. SOF 4; Compl. Ex. 1.
The IRS referred this request to TIGTA for processing and a direct response. SOF 3;
Compl. Ex. 3. On November 30, 2012, TIGTA provided a Glomar response based on FOIA
Exemptions 6 and (7)(C). SOF 4; Compl. Ex. 7. Cause of Action appealed TIGTAs
determination on June 12, 2013 because TIGTAs Glomar response was unwarranted in light of
the scope of Cause of Actions request, which did not identify a particular taxpayer. SOF 5;
Compl. Ex. 8. On July 10, 2013, TIGTA affirmed its initial determination, but also cited
Exemption 3 in conjunction with 6103 as an additional basis for denial. SOF 6; Compl. Ex.
9.
Cause of Action sued on August 9, 2013. See Compl.
On November 18, 2013, TIGTA filed its first motion for summary judgment, arguing that
it properly issued a Glomar response pursuant to Exemptions 3, 6, and 7(C). Def.s [Initial] Mot.
for Summ. J., ECF No. 17. TIGTA also filed a sealed motion seeking in camera review of
supplemental documents filed under seal. Def.s Sealed Mot. to File Docs. Under Seal, ECF No.
18; Def.s Notice of In Camera Submission, ECF No. 19.
On December 2, 2013, Cause of Action opposed TIGTAs sealed motion, Pl.s Opp. to
Def.s Sealed Mot. to File Documents Under Seal, ECF No. 21, and on December 23, 2013,
Cause of Action opposed TIGTAs motion for summary judgment, cross-moving for summary
judgment. Pl.s [Initial] Opp. to Def.s Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF
No. 27. In a Minute Order on February 3, 2014, the Court granted TIGTA leave to file its sealed
materials. Minute Order, Cause of Action v. Treasury Inspector Gen. for Tax Admin., No. 131225 (D.D.C. order entered Feb. 3, 2013).

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On September 29, 2014, the Court issued a Memorandum Opinion, in which it granted
Cause of Actions Cross-Motion for Summary Judgment, denied TIGTAs Motion for Summary
Judgment and remanded the matter to TIGTA for processing of Cause of Actions FOIA request.
SOF 15; Mem. Op., ECF No. 38; Cause of Action, 2014 U.S. Dist. LEXIS 140595 at *1.
Upon remand, on December 1, 2014, TIGTA identified 2,509 pages of documents
potentially responsive to your request and said 2,043 of those pages, which were found to be
actually responsive were collected by the Secretary of the Treasury with respect to the
determination of possible liability under Title 26[,] were return information protected by 26
U.S.C. 6103 and may not be disclosed absent an express statutory exception. SOF 16, Ex.
9. TIGTA anticipated providing a response regarding the remaining 466 pages that may be
responsive to Item Seven of Cause of Actions FOIA request on December 15, 2014. Id.
On December 5, 2014, TIGTA clarif[ied] that the records referenced in the previous
partial determination are TIGTA records[,] that it exercises authorities delegated by the
Secretary of the Treasury when it investigates allegations of unauthorized disclosure of return
information or makes determinations regarding the release of TIGTA records under the FOIA,
and any such investigations or determinations are performed solely by TIGTA. SOF 17, Ex.
10.
On December 15, 2014, TIGTA advised that of the remaining 466 pages of responsive
records[,] 433 pages were being withheld in full under Exemption 3 in conjunction with 6103,
two (2) pages were being withheld in full pursuant to Exemption 5, four (4) pages were being
withheld in part pursuant to Exemption 5, and twenty-seven (27) pages were being released in
full. SOF 18, Ex. 11. In total, then, TIGTA produced only about 1% of documents (some with
redactions) in response to Cause of Actions FOIA request.

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The thirty-one (31) pages TIGTA produced were transmitted via e-mail in three separate
Adobe PDF files titled: (1) Grady Files, SOF Ex. 12; (2) Hurley Files, SOF Ex. 13; and, (3)
DECOS Cases, SOF Ex. 14. The Grady Files consist of ten (10) pages released in full,
presumably originating from a search conducted by former Senior Advisor and Congressional
Liaison, Judy Grady (pages 2500-2509)[.] Decl. of Gregory M. Miller (Miller Declaration)
9, ECF No. 46-3; SOF Ex. 12. In particular, the Grady Files contain five (5) two-page
unsigned identical letters from TIGTA to then-Senate Finance Committee Member-Senators
Bunning, Cornyn, Enzi, Ensign, and Grassley dated September 28, 2010. SOF 8, 19, Exs. 2,
12; Pl.s Statement of Undisputed Material Facts in Supp. [Initial] Cross-Mot. for Summ. J.
(Pl.s Initial SOF), ECF No. 25, 8, Ex. 2. Copies of the September 28, 2010 letter to two
addressees, Member-Senators Kyl and Roberts, are not contained in the Grady Files. See SOF
Ex. 2 (describing recipients of seven [i]dentical letters).
The Hurley Files consist of seventeen (17) pages released in full, presumably originating
from a search conducted by former Special Assistant to the Inspector General, Ryan Hurley
(2468-2484). Miller Decl. 9; SOF Ex. 13. The first fourteen (14) pages contain signed
versions of the Grady Files letters, but with all seven two-page signed identical letters included
in the production. SOF 8, 20, Exs. 2, 13; Pl.s Initial SOF 8, Ex. 2. The final three (3)
pages contain a September 23, 2010 letter from the aforementioned seven Senators to TIGTA.
SOF 8, 20, Exs. 2, 13; Pl.s Initial SOF 7, Ex. 1.
The DECOS Cases file consists of two four (4) pages withheld in part under Exemption 5
deliberative process privilege, of which the first two (2) pages presumably originate from a
TIGTA document management system and the second two (2) pages are e-mails, which may be
part of such database. SOF Ex. 14; see Miller Decl. 18(a) (Portions of pages 232, 233, 234,
and 236 are being withheld . . . based upon . . . the deliberative process privilege).
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On January 30, 2015, TIGTA filed its second motion for summary judgment, arguing that
it conducted an adequate search for responsive documents and it properly withheld responsive
documents under FOIA Exemption 3 in conjunction with 6103, Exemption 5, 6, and 7(C).
Def.s [Second] Mot. for Summ. J. (TIGTAs Motion), ECF No. 46; Def.s Mem. and Points
of Authorities In Support of [] Motion for Summ. J. (TIGTAs Brief), ECF No. 46-1.1
TIGTAs Motion is supported by the Miller Declaration and the Declaration of Diane K. Bowers
(Bowers Declaration) (ECF No. 46-4).
This Opposition and Cross-Motion follow.
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agencys action de novo and the burden is
on the agency to sustain its action. FOIA cases are typically and appropriately decided on
motions for summary judgment, with the Court viewing the evidence in the light most favorable
to the nonmoving party, drawing all reasonable inferences in his favor, and eschewing credibility
determinations or weighing the evidence. If the plaintiff does not provide evidence that an
agency acted in bad faith, then a court may rely on agency declarations. Cause of Action, 2014
U.S. Dist. LEXIS 140595, at *3-4 (citations omitted).
FOIA exemptions are construed narrowly. Id. at *4. TIGTA bears the burden of
supporting each exemption. See U.S. Dept of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 755 (1989). TIGTA also bears the burden of demonstrating beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted).

Though TIGTAs Motion heading is properly styled as Motion For Summary Judgment of
Treasury Inspector General For Tax Administration, ECF No. 46, its memorandum in support
erroneously states Memorandum And Points Of Authorities In Support Of The Internal
Revenue Services Motion For Summary Judgment. ECF No. 46-1 (emphasis added).
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This case substantially turns on 6103s proper construction.


Section 6103(a) provides [r]eturns and return information shall be confidential, and
except as authorized by this title (1) no officer or employee of the United States . . . shall
disclose any return or return information obtained by him in any manner in connection with his
service as such an officer or an employee or otherwise or under the provisions of this section.
Section 6103(b)(1) defines a return as any tax or information return, declaration of
estimated tax, or claim for refund required by, or provided for or permitted under, the provisions
of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and
any amendment or supplement thereto, including supporting schedules, attachments, or lists
which are supplemental to, or part of, the return so filed.
Section 6103(b)(2) defines return information as:
[A] taxpayers identity, the nature, source, or amount of his income, payments,
receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability,
tax withheld, deficiencies, overassessments, or tax payments, whether the
taxpayers return was, is being, or will be examined or subject to other investigation
or processing, or any other data, received by, recorded by, prepared by, furnished
to, or collected by the Secretary with respect to a return or with respect to the
determination of the existence, or possible existence, of liability (or the amount
thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture,
or other imposition, or offense . . . but such term does not include data in a form
which cannot be associated with, or otherwise identify, directly or indirectly, a
particular taxpayer.
These terms must be read in context and to give effect to the meaning Congress
intended. Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 134 S. Ct. 2427, 2441 (2014);
United Sav. Assn of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371
(1988) (A provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme because the same terminology is used elsewhere in a
context that makes its meaning clear[.]). TIGTAs statutory construction is not owed

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Chevron deference. Whatever weight it might have is derived entirely from its power to
persuade. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *9.
ARGUMENT
I.

SECTION 6103 DOES NOT BAR DISCLOSURE OF RECORDS SHOWING


WHO MADE AND RECEIVED UNAUTHORIZED TAX DISCLOSURES.
Section 6103 does not, as TIGTA claims, bar disclosure in this case.
Section 6103s core purposes are protecting taxpayer privacy, id. at *13 (citations

omitted), and regulating and restricting Executive Branch access to tax returns and return
information to prevent government officials from targeting political opponents or government
critics. S. Rep. No. 938, 94th Cong., 2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. &
Admin. News 3747-48, 3774-75; accord Tax Reform Research Grp. v. Internal Revenue Serv.,
419 F. Supp. 415, 418 (D.D.C. 1976) (pre-amendment case holding that serious abuses of an
essentially political nature are not protected from disclosure).2 FOIAs core purpose is to

See generally Office of Tax Policy, Dept of the Treasury, Report to The Congress on Scope
and Use of Taxpayer Confidentiality and Disclosure Provisions, vol. 1, 20 (Oct. 2000), available
at http://www.treasury.gov/resource-center/tax-policy/documents/confide.pdf. The second of the
Articles of Impeachment of President Nixon, as adopted by the House of Representatives
Judiciary Committee, provided:
He has, acting personally and through his subordinates and agents, endeavored to
obtain from the Internal Revenue Service, in violation of the constitutional rights
of citizens, confidential information contained in income tax returns for purposes
not authorized by law, and to cause, in violation of the constitutional rights of
citizens, income tax audits or other income tax investigations to be initiated or
conducted in a discriminatory manner.
Art. 2, Sec. 1, Articles of Impeachment of Richard M. Nixon, H.R. Rep. No. 93-1305
(1974), available at http://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc3/pdf/GPOCDOC-106sdoc3-19-3.pdf.; see also David Burnham, Misuse of the I.R.S.: The Abuse of
Power, N.Y. Times (Sept. 3, 1989), http://www.nytimes.com/1989/09/03/magazine/
misuse-of-the-irs-the-abuse-of-power.html (detailing political abuse by successive
administrations).
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ensure the informed citizenry required to check corruption and hold the governors accountable to
the governed. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *4 (citations omitted).
Circuit precedent holds that 6103 is the sort of nondisclosure statute contemplated by
FOIA Exemption 3. Id. at *6. Properly construed, 6103 and FOIA should harmonize to
protect taxpayer privacy and prevent government abuse. However, TIGTA asks this Court to do
something unprecedented: scissor 6103(a) from 6103(b), create an unnecessary conflict with
FOIA, and hold that when Congress enacted legislation defining return information broadly to
protect taxpayers confidential information from political depredations, it also intended to protect
government officials from public disclosure of their wrongs. See TIGTA Br. at 8 (disclosure
barred because 6103(b)(2)(A)s definition of return information extends to the identities of
third party government employees who violated the law) (citation omitted). This is not a
permissible construction of the statute in light of its language, structure, and purpose. Cause of
Action, 2014 U.S. Dist. LEXIS 140595, at *12-13 (citations omitted). Cause of Actions FOIA
request does not implicate any taxpayers tax liability, id. at *10 n.3 (distinguishing cases), and
so an order harmonizing 6103 and FOIA, and granting the requested relief, is appropriate.
A.

Even If 6103 Applies Here, TIGTA Has Waived Its 6103/Exemption 3


Bar To Disclosure.

Section 6103(p)(3)(C) requires the Secretary of the Treasury to report, in relevant part, all
disclosures of return information to the Executive Office of the President, including unauthorized
disclosures, to the Joint Committee on Taxation. No reports of unauthorized disclosure were
made during the relevant time.3 This highlights a critical inconsistency in TIGTAs position:

Joint Comm. on Taxation, Disclosure Report for Public Inspection Pursuant to Internal
Revenue Code Section 6103(p)(3)(C) for Calendar Year 2012 (JCX-8-13), Apr. 15, 2013,
available at https://www.jct.gov/publications.html?func=startdown&id=4514; Joint Comm.,
Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section
6103(p)(3)(C) for Calendar Year 2011 (JCX-38-12), Apr. 24, 2012, available at
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Either the Secretary of the Treasury violated his 6103(p) reporting requirement, thereby hiding
political overreach and abuse of protected confidential taxpayer information, or TIGTAs
6103/Exemption 3 claim is of no moment because there is no tax return or return information
in the subject records.4
But even assuming arguendo that there is tax return and/or return information in the
subject records (meaning that 6103(p) has been repeatedly violated), the fact is that TIGTA has
waived all applicable exemptions, at least regarding the acknowledged investigation into the
unauthorized disclosure of confidential Koch Industries, Inc. return information to and by the
then-Chairman of the Council of Economic Advisors, Austan Goolsbee. This Court correctly
held that TIGTA waived Exemptions 6 and 7 with respect to these records and that it did not
need to reach whether TIGTA waived 6103 because the information protected by TIGTA was

https://www.jct.gov/publications.html?func=startdown&id=4424; Joint Comm. on Taxation,


Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section
6103(p)(3)(C) for Calendar Year 2010 (JCX-26-11), May 5, 2011, available at
https://www.jct.gov/publications.html?func=startdown&id=3786; Joint Comm. on Taxation,
Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section
6103(p)(3)(C) for Calendar Year 2009 (JCX-25-10), Apr. 15, 2010, available at
https://www.jct.gov/publications.html?func=startdown&id=3680.
4

For example, the U.S. House of Representatives Committee on Oversight and Government
Reform (OGR) received 6103-redacted e-mail communications between employees of the
IRS and the Executive Office of the President. E.g., E-mail from Sarah Hall Ingram, Internal
Revenue Serv., to Jeanne Lambrew, Deputy Dir., White House Office of Health Reform, and
Ellen Montz, White House Health Policy Advisor (July 19, 2012), available at
http://issa.house.gov/wp-content/uploads/2013/10/Hall-Ingram-WH.pdf; see Patrick Howley,
White House, IRS exchanged confidential taxpayer info, The Daily Caller (Oct. 9, 2013),
http://dailycaller.com/2013/10/09/white-house-irs-exchanged-confidential-taxpayer-info/ (citing
series of e-mails between employees of IRS and Executive Office of the President obtained and
published by OGR). If such e-mail communications involve 6103 return information, then IRS
unlawfully transmitted return information in communications with the White House, ignoring the
procedures set forth in 6103(g) and the resultant reporting obligation to the Joint Committee on
Taxation under 6103(p). Alternatively, the redactions purportedly under 6103 are not
actually return information under 6103(b)(2)(A) and the documents should never have been
redacted on that basis.
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not return information. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *19-22
([D]efendant has waived Glomar by officially acknowledging the existence of an
investigation . . . on the public record).
Once again, the Court need not reach whether 6103 is waived to grant Cause of Action
the requested relief because the information TIGTA is shielding who requested, made or
received unauthorized disclosure cannot be return information under any rational
construction of the term.5 See 26 U.S.C. 6103(b)(2); Church of Scientology v. Internal
Revenue Serv., 484 U.S. 9, 14-15 (1987) (We are told by the IRS that, as a practical matter,
return information might include the report of an audit examination, internal IRS
correspondence concerning a taxpayers claim, or a notice of deficiency issued by the IRS
proposing an increase in the taxpayers assessment.) (citation omitted).6 No case or
interpretative canon justifies TIGTAs classifying the names of government officials who
violated the law by seeking or obtaining unauthorized disclosure as return information as if

Arguably, TIGTAs conduct here was not authorized by statute. Section 6103(k)(6)
distinguishes between an internal revenue officer or employee and and an officer or employee
of the Office of Treasury Inspector General for Tax Administration. However, neither
6103(h) nor 6103(k) explicitly authorize disclosure to TIGTA for investigation of 7213 and
7213A violations, and TIGTAs organic statute does not confer 6103(h) or (k) authority.
5 U.S.C. App. 8D. Therefore, TIGTAs reliance on 6103 in conjunction with Exemption 3
may be problematic. See Ryan v. United States, 74 F.3d 1161, 1163 (11th Cir. 1996) (citing
Stokwitz v. United States, 831 F.2d 893, 897 (9th Cir. 1987)) (Section 6103 of Title 26 protects
only information filed with and disclosed by the IRS, not all information relating to any tax
matter.) (emphasis added). The production of the redacted emails to OGR, see supra note 4,
concretely acknowledges this rule.
6

TIGTA acknowledges that the FOIA request at issue here does not call for the disclosure of
any taxpayers income, payment history, deductions, net worth, or liability. And the request
does not call for information about whether a particular taxpayers return has been or will be
examined or subject to investigation. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *7.
But even if this information could somehow be construed as return information, TIGTA has
waived the right to hide behind its provisions. See supra Part I.A.
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these were of the same nature and kind as income, payment history, deductions, net worth, or
liability, and Congress intended no such thing. Church of Scientology, 484 U.S. at 17 (The
Senates purpose in revising 6103 was, as we have noted, to impose greater restrictions on the
disclosure of tax data[.]); see also Abramski v. United States, 134 S. Ct. 2259, 2272 n.10 (2014)
(Although the text creates some ambiguity, the context, structure, history, and purpose [of the
statute] resolve it.).
B.

TIGTAs 6103 Construction Fails.

TIGTA asks this Court to construe 6103(b)(2) as defining the identities of third party
government employees and political officials who violate taxpayer privacy to be protected
return information. TIGTA Br. at 7-8. Citing only Landmark Legal Found. v. Internal
Revenue Service, 267 F.3d 1132 (D.C. Cir. 2001), TIGTA claims that it is prohibited from
disclosing under FOIA all information that directly or indirectly identifies third party taxpayers
that was received by or prepared by TIGTA in connection with the determination of a
potential liability under Title 26, and that disclosing the identities of those who requested or
obtained unauthorized disclosures is therefore barred. TIGTA Br. at 8.
Of course, the best public officials are taxpayers7 and records of government abuse of
taxpayer privacy could be received by or prepared by TIGTA in connection with the
determination of potential liability. But whether a public official is a taxpayer and the records
demonstrating his or her lawlessness are return information for purposes of this particular
statute and FOIA request presents an entirely separate issue. TIGTAs reading creates a conflict

But see Uncle Sam Wants YOU...to pay your taxes, Federal workers who owed money to the
Internal Revenue Service in 2009, Wash. Post, http://www.washingtonpost.com/wpsrv/politics/irs-federal-workers/index.html.
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between 6103(b), on the one hand, and 6103(a) and the statutory purpose, on the other.
Therefore, TIGTAs construction fails.
1.

TIGTAs construction is contrary to controlling interpretative canons.

TIGTAs construction is contrary to controlling interpretative canons requiring


taxpayer and data to be read in the context and with the meaning Congress intended in the
overall statutory scheme. See Util. Air Regulatory Grp., 134 S. Ct. at 2441; United Sav. Assn of
Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (A provision that may
seem ambiguous in isolation is often clarified by the remainder of the statutory scheme-because
the same terminology is used elsewhere in a context that makes its meaning clear[.]). The
presumption of consistent usage readily yields to context, and a statutory term even one
defined in the statute may take on distinct characters from association with distinct statutory
objects calling for different implementation strategies. Util. Air Regulatory Grp., 134 S. Ct. at
2441 (citation omitted).
A contextual reading of 6103 leaves no room for TIGTAs construction, which elevates
the rights of an offending government official to the same level as those of an aggrieved
taxpayer. Section 6103s manifest purpose is to protect taxpayers and provide the means for
punishing the political officials who abuse their privacy rights.8 S. Rep. No. 938, 94th Cong.,
2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. & Admin. News 3747-48, 3774-75. Yet

Section 6103s legislative history indicates that Congresss overriding purposes for enactment
were to prevent the IRS from being a lending library of tax information to other government
agencies and to end the highly publicized attempts to use the Internal Revenue Service for
political purposes. See 122 Cong. Rec. 24013 (1976) (remarks by Sen. Weicker and Sen. Dole);
see also Joint Comm. on Taxation, General Explanation of the Tax Reform Act of 1976, H.R.
10612, Pub. L. No. 94-455 (JCS-33-76), 313-16 (1976), available at
https://archive.org/stream/generalexplanati3376unit#page/n0/mode/2up. In short, 6103 was
aimed at curtailing abuse by government agencies of information filed with the IRS. Stokwitz,
831 F.2d at 894.
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TIGTAs construction wrongly transforms 6103 from a privacy sword for taxpayers into an
accountability shield for political wrongdoers, setting the statute at odds with itself. This narrow,
hyper-technical construction is inappropriate. Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.
1944) (L. Hand, J., concurring) (literal meaning constructions that contradict Congresss
manifest statutory purpose should be avoided).
The statutory text supports the statutory purpose. For example, Congresss definition of
return information is quite specific. See 6103(b)(2). Lawbreaking government officials, not
surprisingly, are missing from the list. 26 U.S.C. 7217 prohibits executive branch influence
over taxpayer audits and other investigations. 26 U.S.C. 7521(d) differentiates between
taxpayer interviews and interviews relating to the integrity of any officer or employee of the
Internal Revenue Service in other words, an IRS employee that violates the law does not have
the same rights as a taxpayer. TIGTAs flawed construction of 6103(b) in this case thus
tortures the statute into irreconcilable internal conflicts.
Additionally, TIGTAs interpretation prevents a taxpayer from confirming through FOIA
that an unauthorized inspection or disclosure of his or her return or return information has
occurred and so TIGTAs construction wrongly renders the civil remedy for unauthorized
disclosure, 26 U.S.C. 7431, functionally inert. Such a construction is unsupportable. See
Duncan v. Walker, 533 U.S. 167, 174 (2001) (declining to adopt a construction of the statute,
[that] would render [a term] insignificant); Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16 (1879)
(every part of a statute must be construed in connection with the whole, so as to make all the
parts harmonize, if possible . . .).
2.

TIGTAs construction is contrary to persuasive precedent.

This Court has previously determined requests for taxpayer return information by the
Executive Office of the President to IRS were not protected by 6103, but it allowed redaction
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of identifying information under Exemption 7(C). Tax Reform Research Grp., 419 F. Supp. at
419-20. Tax Reform Research Group predates the 1976 amendments. However, those
amendments did not change 6103s general character, instead targeting specific problems such
as Executive Branch abuse of taxpayer privacy during the Nixon administration. Office of Tax
Policy, Dept of the Treasury, Report to The Congress on Scope and Use of Taxpayer
Confidentiality and Disclosure Provisions, vol. 1, 20-22. Therefore, Tax Reform Research
Group remains persuasive precedent and it should control here.
Tax Reform Research Group offers the common-sense recognition that serious abuses of
an essentially political nature are not protected from disclosure simply because a portion of the
evidence of wrongdoing might contain of return information. Tax Reform Research Grp., 419 F.
Supp. at 418. Instead, the solution is reasonable segregation and redaction to balance and
harmonize 6103 privacy interests with FOIA disclosure and government accountability. See
e.g., Decl. of Allan Blutstein, Ex. 4 at 1-2, Cause of Action v. Internal Revenue Serv., No. 13920-ABJ, ECF No. 22-1 (Letter from Ava F. Littlejohn, Disclosure Manager, Internal Revenue
Serv., to David G. Frantz, Dept of Energy (Letter from Ava F. Littlejohn) (Jan. 26, 2011)
(demonstrating partial production of non- 6103 information possible through redactions of
otherwise protected information)).
3.

TIGTAs construction leads to absurd results.

It is axiomatic that statutes should be construed to avoid absurd results. Griffin v.


Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). TIGTAs construction scissors 6103(a)
and 6103(b)(2) by turning the identities of government officials that violate the law into
protected return information. This detaches statutory language from Congresss manifest
purpose and effectively does away with 26 U.S.C. 7431 in its entirety, leading to an outcome

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Congress could not have intended. See Corley v. United States, 556 U.S. 303, 314-17 (2009)
(application of absurdity canon).
4.

Landmark does not support TIGTAs construction.

TIGTA relies solely on Landmark Legal Foundation to block disclosure. TIGTA Br. at
8. Landmark, however, has no application here because the third parties in that case were not
lawbreaking government officials. Instead, they were citizens who requested audits or
investigations of tax-exempt organizations. 267 F.3d at 1135. Extending Landmark and 6103
to shield lawbreaking government officials and White House political officials requires a
massive analytic leap over statutory language, structure and purpose. See 6103(a)-(b); S. Rep.
No. 938, 94th Cong., 2nd Sess. 318-19, 345, reprinted in 1976 Code Cong. & Admin. News
3747-48, 3774-75; see also 26 U.S.C. 7217 (prohibiting executive branch influence over
taxpayer audits and other investigations); 26 U.S.C. 7521(d) (demonstrating that an IRS
employee who violates the law does not have the same rights as a taxpayer). This Court should
decline TIGTAs invitation to do so.
II.

TIGTA HAS NOT CONDUCTED A REASONABLE SEARCH FOR


DOCUMENTS RESPONSIVE TO ITEM SEVEN OF CAUSE OF ACTIONS
FOIA REQUEST.
TIGTA relies on the declarations Gregory M. Miller and Diane K. Bowers to support its

claim that it conducted an adequate search for responsive records to Item Seven. TIGTA Br. at
4-6; Miller Decl.; Bowers Decl. TIGTAs argument fails because declarants do not describe
search terms and specific files searched to locate responsive records and to account for several
known and existing records that went missing in TIGTAs search.
TIGTA must show that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (citation omitted).
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To satisfy this burden, it must submit a reasonably detailed affidavit, setting forth the search
terms and the type of search performed[.] Oglesby v. U.S. Dept of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990); see Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007)
(The court applies a reasonableness test to determine the adequacy of a search
methodology[.]) (citation omitted).
This affidavit or declaration must be detailed enough to afford a FOIA requester an
opportunity to challenge the adequacy of the search and to allow the district court to determine if
the search was adequate in order to grant summary judgment. Oglesby, 920 F.2d at 68. While
the court may rely on the agencys affidavit or declaration in determining the adequacy of the
agencys search, Founding Church of Scientology, Inc. v. Natl Sec. Agency, 610 F.2d 824, 836
(D.C. Cir. 1979), such reliance is only appropriate when the agencys supporting affidavits are
relatively detailed and nonconclusory. Morley, 508 F.3d at 1116 (citation omitted).
A.

The Miller And Bowers Declarations Fail To Describe Search Terms And
Specific Files Searched To Locate Responsive Records.

TIGTAs explanation of its search fails because the declarations do not reasonably detail
search methodology. For instance, Ms. Bowers indicated she issued search memoranda to
several offices, request[ing] each office conduct a manual and electronic search of its files to
identify and locate any records that might be responsive to [Cause of Actions] request. Bowers
Decl. 5. However, neither Ms. Bowers nor Mr. Miller identify what search terms, if any, were
used to locate records that might be responsive, or the specific files searched aside from the
generic manual and electronic search of . . . files. Id.; Miller Decl. 6. This failure, alone, is
sufficient to warrant the denial of summary judgment in TIGTAs favor. Maydak v. U.S. Dept
of Justice, 362 F. Supp. 2d 316, 326 (D.D.C. 2005) (denying summary judgment because the

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record provides no information about the search terms and the specific files searched for each
request).
Neither Bowers nor Miller ever indicated whether TIGTA searched all files likely to
contain relevant documents, contrary to the requirements of this Court. See Am. Immigration
Council v. U.S. Dept of Homeland Sec., 21 F. Supp. 3d 60, 71 (D.D.C. 2014) (stating that the
agency would, at a minimum, have to aver that it has searched all files likely to contain relevant
documents). They did not conduct their own search. Instead, they each requested that
individuals in the Office of Investigations, the Office of Chief Counsel, and the Front Office to
conduct a manual and electronic search of their respective files to identify and locate any
records the might be responsive to [Cause of Actions] request[,] and the Front Office, in turn,
referred the search request to the Office of Communications, and the Office of Audit. Bowers
Decl. 5; see Miller Decl. 6 (indicating subsequent circulation of original search
memorandum to TIGTAs Director of Communications, Media Liaison, Counselor to the
Inspector General, and Executive Assistant to the Inspector General). However, the declarations
fail to explain how these other offices and individuals conducted their searches, including what
search terms were used or what databases were searched.
The only indication of a database search is based on TIGTAs release of at least two
pages presumably from its DECOS database. See SOF Ex. 14 at 1-2. Nor do the declarations
reveal what instructions Ms. Bowers search memoranda contained. Bowers Decl. 5; Miller
Decl. 6. Without this information, it is impossible to judge the reasonableness of TIGTAs
search. Therefore, TIGTA has failed to bear its burden and demonstrate it conducted an adequate
search.

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B.

TIGTA Fails To Account For Several Existing Records That Were Not
Found Through Its Search For Responsive Records.

TIGTAs failure to identify known documents strongly suggests its search was
inadequate. See Boyd v. U.S. Marshal Serv., No. 99-2712, 2002 U.S. Dist. LEXIS 27734, at *4
(D.D.C. Mar. 15, 2002) (stating that an agencys declaration should have explained why a
particular report, which was known to exist, was not located, and requiring the agency to
explain its failure to locate this report in a future motion).
First, TIGTAs declarations do not indicate whether it searched for documents related to
TIGTAs investigation of Austan Goolsbees press conference remark relating to Koch
Industries, Inc.s tax structure. Pl.s Initial SOF 7-9, Exs. 1-3; SOF 7-9, Exs. 1-3; Pl.s
[Initial] Mem. Supp. Summ. J at 6-9 (Pl.s Initial Mem.), ECF No. 23. The existence of this
investigation is beyond dispute. Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *24-26
(But the email from the TIGTA Special Agent fills in the gap. It expressly confirms the
existence of records about an investigation that meets all of the parameters of plaintiffs FOIA
request.); Pl.s Initial Mem. at 6-9. Yet, TIGTA has not revealed even whether TIGTA Special
Agent Daniel K. Carney who e-mailed Mark V. Holden, General Counsel and Senior Vice
President, Koch Industries, Inc. was contacted regarding Item Seven. Pl.s Initial SOF 9, Ex.
3; SOF 9, Ex. 3; see Bowers Decl. 5, 9; see also Miller Decl. 6.
Second, TIGTAs declarations do not indicate whether it searched for its follow-up
communication to its September 28, 2010 letter to then-Ranking Member of the Senate Finance
Committee, Senator Charles Grassley, and six other Members of the Committee. Cause of
Action, 2014 U.S. Dist. LEXIS 140595, at *23-24; SOF 8, Ex. 2; Pl.s Initial SOF 8, Ex. 2;
Pl.s Initial Mem. at 7. TIGTA sent the September 28, 2010 letter in response to a September 23,
2010 letter from the seven Senators, which asked him to investigate a very serious allegation
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that Administration employees may be have improperly accessed and disclosed confidential
taxpayer information based on the Goolsbee press conference statement. Cause of Action, 2014
U.S. Dist. LEXIS 140595, at *23-24; SOF 7, Ex. 1; Pl.s Initial SOF 7, Ex. 1; Pl.s Initial
Mem. at 7.9
The silence of the Bowers Declaration and Miller Declaration regarding TIGTAs followup is additional evidence that TIGTA has not conducted a reasonable search. Boyd, 2002 U.S.
Dist. LEXIS 27734, at *4. And while it is possible that TIGTA never sent a follow-up
communication to its September 28, 2010 letter, the onus is on TIGTA to demonstrate beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.
Valencia-Lucena, 180 F.3d at 325 (citation omitted).
Third, TIGTA was inconsistent in the documents it did release. TIGTA released only
five of seven unsigned copies of the September 28, 2010 letter in the Grady Files all identical
with the exception of the named Senator-addressees while it released all seven of the signed
copies of such letters in the Hurley Files. Compare Grady Files, SOF Ex. 12, with Hurley Files,
SOF Ex. 13. Considering TIGTAs overall threadbare release of documents and its failure to
produce the two unsigned letters to then-Committee Member-Senators Kyl and Roberts, which
were readily searchable and producible, TIGTA has failed in its burden to conduct a reasonable
search. In light of the above, the Court should conclude that TIGTA failed to conduct an
adequate search.

The September 28, 2010 letter thanks Senator Grassley for bringing this matter to my
attention and confirming the Treasury Inspector General for Tax Administration had ordered
the commencement of a review into the matters alleged. SOF 8, 19-20, Exs. 2, 12-13; Pl.s
Initial SOF 8, Exs. 2; Pl.s Initial Mem. at 7. The letter also states that [a]fter completing
this review, I will advise [each of the seven Senators] of the results to the extent allowable by
law. SOF 8, Ex. 2; Pl.s Initial SOF 8, Ex. 2; Pl.s Initial Mem. at 7.
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III.

TIGTA HAS WRONGLY CLAIMED EXEMPTIONS TO AVOID DISCLOSURE.


TIGTA wrongly claims Exemption 3 in conjunction with 6103, Exemption 5 under the

deliberative process privilege, Exemption 5 under the attorney-client privilege, Exemption 6


personal information, and Exemption 7(C) personal information in law enforcement records. Its
reliance on 6103, in conjunction with Exemption 3 or otherwise, is misplaced. Supra Part I.
Also, the Miller Declaration fails to establish its exempted withholdings with sufficient detail
and specificity because it hides behind its claim of Exemption 3 as an aegis for non-disclosure.10
A.

TIGTAs Fails To Satisfy Its Burden Of Establishing A Basis For Each Of Its
Purported Exemptions Because The Miller Declaration Lacks Sufficient
Detail And Specificity.

With the exception of four pages withheld in part and two pages withheld in full under
the deliberative process privilege, TIGTA improperly dovetails the large majority of its nonExemption 3 withholdings, perhaps covering more than 2,000 pages, under a 6103 umbrella.
Miller Decl. 16. This nondisclosure is particularly egregious because TIGTA uses 6103 via
Exemption 3 and then claims, with remarkable circularity, other exemptions without providing
the information normally needed to invoke them, ostensibly because of 6103. Compare Miller
Decl. 14, 15, with 16; TIGTA Br. at 10 n.1.
TIGTA structures its justifications of these exemptions under the same paragraph:
Certain pages exempt from disclosure under FOIA subsection (b)(3) in conjunction with 26
U.S.C. 6103 also contain information that is exempt from disclosure under one or more of
FOIA subsections (b)(5), (b)(6), and (b)(7)(C). Miller Decl. 16. TIGTA cites no authority
supporting its assertion that it may end-run non-Exemption 3/ 6103 withholdings in such a
cursory way. Accordingly, the exemptions claimed in the Miller Declaration must fail.

10

The Bowers Declaration does not invoke FOIA exemptions; TIGTAs Motion exclusively
relies on the Miller Declaration for its purported exemptions. TIGTA Br. at 7-15.
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A declaration purporting to justify the invocation of FOIA Exemptions must be


sufficient to afford the FOIA requestor a meaningful opportunity to contest, and the district
court an adequate foundation to review, the soundness of the withholding. See Campbell v.
U.S. Dept of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (citation omitted). Here, TIGTAs
exemptions deprive Cause of Action and the Court of such an opportunity due to their lack of
detail, formulaic recitation of the statutory standards, and overbroad application. See id.
The Miller Declaration fails to even identify the number of responsive documents to
which it is asserting the deliberative process privilege, attorney-client privilege, and Exemptions
6 and 7(C). Miller Decl. 16. Paragraph 16 references certain pages exempt from disclosure
under 6103. That narrows the universe of the amount of pages subject to each exemption to
between one page and 2,243 pages. Id. 14. However, Cause of Action is left to assume that
certain pages may mean many pages based TIGTAs mischaracterization of its own
declaration. TIGTA Br. at 11-13, 15 (conflating certain pages exempt language of Miller
Declaration 16 as many pages of records that are exempt).
TIGTA should have no qualms about disclosing the amount of pages subject to certain
exemptions, in light of the fact that it did disclose how many pages it believes are subject to
6103. TIGTAs brief nestles a footnote explaining its illogical view:
TIGTA notes that 26 U.S.C. 6103 prohibits TIGTA from describing that [sic]
some of the records withheld pursuant to FOIA exemptions 5, and the records
withheld pursuant to FOIA exemptions 6 and 7C because those documents that are
withheld under exemption 3 in conjunction with section 6103 [sic]. Describing the
documents that are withheld under both exemption 3 and one or more of the other
exemptions would disclose return or return information under 6103, thwarting the
protections provided by exemption 3. TIGTA further notes that where it is not
withholding documents under exemption 3 but [sic] TIGTA is asserting exemption
5 as deliberative process, TIGTA describes the documents with particularity.

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TIGTA Br. at 10 n.1. Accordingly, the Court should reject TIGTAs refusal to provide the
number of pages subject to each exemption. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.
Cir. 1973).
Moreover, TIGTAs statement that it describes its non-Exemption 3 deliberative process
assertions with particularity is similarly incorrect. TIGTA Br. at 10 n.1. The documents it
references are contained, in part, in the DECOS Cases file. SOF 21 Ex. 14; Miller Decl. 18.
The DECOS Cases file includes four pages, which the agency withheld in part under the
deliberative process privilege. SOF 21. However, the declaration only describes three of the
four pages with any particularity at all and, as explained below, fails to properly invoke the
privilege as a matter of law. Miller Decl. 18. Thus, the Court should set aside the Miller
Declaration and the exemptions it seeks to invoke due to its lack of detail and specificity under
Campbell. 164 F.3d at 30.
B.

Exemption 3 In Conjunction With 26 U.S.C. 6103.

Contrary to TIGTAs claims, 6103 does not shield the identities of the subject
individuals in the IRS and the Executive Office of the President from disclosure. See supra Part
I. Nor may TIGTA claim that the presence of any 6103-protected information, properly
construed, in a record somehow renders the entire record subject to a disclosure bar, for the law
is non-return information must be segregated and released. See Tax Analysts v. Internal Revenue
Serv., 117 F.3d 607, 611 (D.C. Cir. 1997); Church of Scientology, 484 U.S. at 14-16; see also 5
U.S.C. 552(b). In other words, the mere presence of return information within a record does
not transform the entire record into return information. If non-return information, including the
identities of the subject individuals in the IRS and the Executive Office of the President, exists in
responsive records, then it must be disclosed. See Tax Analysts, 117 F.3d at 611; see infra Part
III.F; see also, e.g., Letter from Ava F. Littlejohn.
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C.

Exemption 5 And Deliberative Process Privilege.

Both TIGTAs 6103-related attempt to invoke the deliberative process privilege and its
non- 6103-related attempt to invoke the privilege for withholding six (6) documents should fail.
Miller Declaration 16(a), 17-18.
To invoke the deliberative process privilege, an agency must establish that the withheld
material is both predecisional and deliberative. Access Reports v. U.S. Dept of Justice, 926
F.2d 1192, 1194 (D.C. Cir. 1991). A record is deliberative to the extent it forms a direct part
of the deliberative process by which agencies make[] recommendations or express[] opinions
on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). An
agency bears the burden of demonstrating whether withheld documents are properly exempt
from disclosure. Am. Civil Liberties Union v. U.S. Dept of Justice, 655 F.3d 1, 5 (D.C. Cir.
2011). It must provide specific and detailed proof that disclosure would defeat, rather than
further, the purposes of the FOIA, and thereby injure the deliberative processes of the agency.
Mead Data Cent., Inc. v. U.S. Dept of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977); see
Coastal States Gas Corp. v. U.S. Dept of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980).
TIGTA has failed to articulate with any specificity the deliberative nature of the redacted
records that are also purportedly subject to withholding under Exemption 3 in conjunction with
6103 at issue in this case. Miller Decl. 16(a). As to the remaining documents, the Miller
Declaration fails to justify the withholding of two pages in full and four pages in part of the
DECOS Cases file. Miller Decl. 18; SOF Ex. 14. All six pages do not qualify for the privilege
because they relate to the drafting of a press release. Taking into account that the Miller
Declaration fails to describe one of the four DECOS Cases file pages (page 236), the partially

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withheld pages all relate to the drafting of a press release, incidentally involving attorneys.11
Miller Decl. 18(a); SOF Ex. 14. The two pages withheld in full contain a draft press release.
Miller Decl. 18(b).
TIGTAs drafting of a press release and its mere coordination of a media response does
not implicate a core mission. Records of such decision-making processes would not appear to
reveal the status of internal agency deliberations on substantive policy matters, but only
concern how best to present [an agencys] position or image. Fox News Network, LLC v.
U.S. Dept of the Treasury, 911 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2012) (finding that the
deliberative process privilege was inapplicable to e-mails concerning press releases that
consist[ed] entirely of . . . advice regarding messaging, or related to the massaging of [the
entitys] public image) (citations omitted and emphasis added). Accordingly, TIGTA has
failed to meet its burden in all aspects of its attempt to invoke the deliberative process privilege.
Miller Decl. 16(a), 18; SOF Ex. 14.
D.

Exemption 5 And Attorney Client Privilege.

TIGTA has failed to justify its reliance on the attorney-client privilege because the
declaration fails to disclose the underlying facts surrounding the purported privilege and because
providing legal advice does not appear to be a primary purpose of the communications loosely
described in the declaration. Miller Decl. 16(b). In its nondescript invocation of the
generalized privilege, TIGTA indicates [i]nformation protected by the attorney-client privilege,
including confidential communications between TIGTA employees and attorneys in TIGTAs
Office of Chief Counsel made for the purpose of obtaining or providing legal advice regarding
federal disclosure and administrative law, are exempt from disclosure[.] Id.

11

TIGTA does not claim the attorney-client privilege over the documents described in Miller
Declaration 18.
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The attorney-client privilege concerns confidential communications between an attorney


and his client relating to a legal matter for which the client has sought professional advice.
Mead, 566 F.2d at 252 (emphasis added). While the privilege is not limited to communications
made in the context of litigation or even a specific dispute, it must nevertheless reflect a clients
request for his attorneys counsel . . . on a legal matter. Coastal States Gas Corp., 617 F.2d at
862. As the D.C. Circuit recently observed, the attorney-client privilege only protects
disclosure of communications; it does not protect disclosure of the underlying facts by those who
communicated with the attorney. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 764 (D.C.
Cir. 2014) (citation omitted), cert. denied, No. 14-637, 2015 U.S. LEXIS 668 (Jan. 20, 2015).
Here, the Miller Declarations bald statement of the privilege omits the subject-matter
that is not covered by the privilege, such as the specific facts that underlie the communications,
the subject of the communication, or the form of the communication. See Miller Decl. 16(b).
In addition, the communications of employees and attorneys regarding the remarkably broad
topics of administrative law and federal disclosure fail to satisfy the significant purpose test, as
described in Kellogg, where obtaining or providing legal advice [must be] one of the significant
purposes of the attorney-client communication. Kellogg, 756 F.3d. at 760 (emphasis added).
E.

Exemptions 7(C) And 6.

TIGTA alternatively relies on Exemptions 6 and 7(C) to withhold records that it claims
are also exempt from disclosure under Exemption 3 in conjunction with 6103. Miller Decl.
16(c)-(d). The Court has concluded that TIGTA waived its reliance on these exemptions under
Glomar by officially acknowledging its investigation related to Austan Goolsbee. Cause of
Action, 2014 U.S. Dist. LEXIS 140595, at *21-22. Because of such official acknowledgment of
an investigation, and the acknowledgment of a conclusion to the investigation, any cognizable
interest Mr. Goolsbee may have is sufficiently diminished to permit disclosure. See Kimberlin v.
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U.S. Dept of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998); Stern v. Fed. Bureau of Investigation,
737 F.2d 84, 92 (D.C. Cir. 1984) (holding that the status . . . of individuals . . . as federal
employees diminishes their privacy interests). Additionally, the Miller Declaration does not
justify with adequate specificity its reliance on the privileges. Miller Decl. 16(c)-(d). And, as
explained below, TIGTA has failed to establish cognizable substantial privacy interests or,
alternatively, that they outweigh the strong public interest in disclosure.
1.

TIGTA Failed To Identify Cognizable Privacy Interests Implicating


Exemption 7(C).

Exemption 7(C) bars disclosure of personal information in law enforcement records that
could reasonably be expected to constitute an unwarranted invasion of personal privacy.
5 U.S.C. 552(b)(7)(C). It exempts only those records pertaining to investigations undertaken
by an agency for law enforcement purposes, that is, for those investigations that focus directly
on specifically alleged illegal acts, illegal acts of particular identified officials, [those] which
could, if proved, result in civil or criminal sanctions. Natl Whistleblower Ctr. v. U.S. Dept of
Health & Human Servs., 849 F. Supp. 2d 13, 27 (D.D.C. 2010) (citations omitted). Exemption
7(C) is triggered whenever potentially responsive records relate to anything that can fairly be
characterized as an enforcement proceeding. Id. (citation omitted).
In determining the applicability of Exemption 7(C), courts must balance the public
interest in disclosure against any alleged privacy interests. Cause of Action, 2014 U.S. Dist.
LEXIS 140595, at *17-18. The Exemption 7(C) balancing test is similar to, but not
coterminous with, the balancing test undertaken for an Exemption 6 analysis. Schoenman v.
Fed. Bureau of Investigation, 575 F. Supp. 2d 136, 159 (D.D.C. 2008) (citation omitted).
Nevertheless, because Exemption 7(C) provides protection for a somewhat broader range of

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privacy interests than Exemption 6, the Court should first consider the application of Exemption
7(C). Cause of Action, 2014 U.S. Dist. LEXIS 140595, at *17.
TIGTA has waived Exemption 7(C) regarding the Goolsbee matter. Id. at *25. It has
failed to sufficiently demonstrate how any particular individual privacy interests would be
implicated by the release of responsive records here. In fact, TIGTA fails even to attempt to
identify any privacy interests; it assumes the existence of such interests, but does not argue why
the mere alleged presence of information that may be protected by Exemption 7(C) would justify
the withholding of responsive records in their entirety. Miller Decl. 16(d).
Cause of Action seeks information concerning the Executive Office of the Presidents
attempts, if any, to obtain taxpayer return information. At least with respect to Goolsbee,
TIGTA has already acknowledged responsive records exist. Therefore, it is difficult to imagine
how such records require the wholesale and unjustified application of Exemption 7(C). See
Rosenberg v. U.S. Dept of Immigration & Customs Enforcement, 13 F. Supp. 3d. 92, 106-08
(D.D.C. 2014) (ordering FBI to revise redactions withholding information that did not identify
third parties).
2.

TIGTA Failed To Identify Cognizable Privacy Interests Implicating


Exemption 6.

Where, as here, an agency fails to meets its burden as to Exemption 7(C) which
requires an agency to show that disclosure could reasonably be expected to constitute an
unwarranted invasion of privacy, 5 U.S.C. 552(b)(7)(C) it rarely meets the stricter standard
of Exemption 6, which applies only if disclosure would constitute a clearly unwarranted
invasion of personal privacy. 5 U.S.C. 552(b)(6). Exemption 6 applies [w]hen disclosure of
information which applies to a particular individual is sought from Government records. U.S.
Dept of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (emphasis added). TIGTA has
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waived exemptions with respect to Goolsbee-related information. Cause of Action, 2014 U.S.
Dist. LEXIS 140595, at *25. It bears the burden of showing that Exemption 6 applies to other
named individuals, a burden it has not carried to date.
3.

The Public Interest In Disclosure Outweighs Any Alleged Privacy


Concerns.

Even assuming TIGTA had satisfactorily identified cognizable individual privacy


interests with respect to records other than the Goolsbee case, its reliance on Exemptions 6 and
7(C) still fails because the public interest in the requested records outweighs the putative privacy
interests. Exemptions 6 and 7(C) require a balancing analysis that requires TIGTA to
demonstrate how disclosure would compromise a substantial, as opposed to a de minimis
privacy interest, because [i]f no significant privacy interest is implicated . . . [the] FOIA
demands disclosure. Multi AG Media LLC v. U.S. Dept of Agric., 515 F.3d 1224, 1230 (D.C.
Cir. 2008). If TIGTA meets its burden by identifying a substantial privacy interest, Cause of
Action must then establish a sufficient reason for disclosure by showing that the public
interest sought to be advanced is a significant one, an interest more specific than having the
information for its own sake. Natl Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004). If the requester can assert a public interest justifying disclosure, the court proceeds to
weigh the third-party privacy interests against the public interest in disclosure. Citizens for
Responsibility & Ethics in Wash. v. U.S. Dept of Justice, 840 F. Supp. 2d 226, 230-31 (D.D.C.
2012).
i.

Any implicated privacy interests are insubstantial.

Under Exemption 6, a substantial privacy interest would likely exist in avoiding


embarrassment, retaliation, or harassment and intense scrutiny by the media. Judicial Watch,
Inc. v. U.S. Dept of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012). Under Exemption 7(C),
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Case 1:13-cv-01225-ABJ Document 49 Filed 02/24/15 Page 30 of 32

[i]ndividuals involved in law-enforcement investigations . . . have a privacy interest in the nondisclosure of their names and identifying information, Natl Whistleblower Ctr., 849 F. Supp.
2d at 28, and have a strong interest in not being associated unwarrantedly with alleged criminal
activity. Stern, 737 F.2d at 91-92. TIGTA has failed to identify with any level of specificity
the substantive quality of the individual privacy rights at stake in this litigation. Miller Decl.
16(c), (d).
ii.

The public interest in disclosure outweighs any conceivable


individual privacy interests.

The relevant inquiry regarding the public interest is based on the core purpose of the
FOIA as contribut[ing] significantly to public understanding of the operations or activities of
the government. Reporters Comm., 489 U.S. at 775. Further, Item Seven pertains to activities
of the government specifically, illegal activities and the response, if any, of the government
agency responsible for investigating such activities. Thus, the requested records would reveal
whether the Executive Office of the President has abused its authority by illegally accessing
taxpayer return and return information, whether IRS officials are complicit with this abuse of
authority, and whether TIGTA is properly reviewing credible allegations of violations of 6103.
Records pertaining to these important issues would not merely serve an interest in
obtaining information for its own sake, Favish, 541 U.S. at 172, but would alert the general
public to the possibility that taxpayer information was illegally accessed at the highest levels of
the Executive Branch. When there is an alleged Exemption 7(C) privacy interest and the
requesters asserted public interest is based on wrongdoing by federal government employees,
requesters must produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred. Id. at 174.

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The Court has already undertaken this analysis with respect to Special Agent Carneys email to Koch Industries and found waiver. SOF Ex. 3; Cause of Action, 2014 U.S. Dist. LEXIS
140595, at *23-25. Unless and until TIGTA carries its burden of proof and demonstrates that
individual privacy rights predominate with respect to each specific potential disclosure, it may
not withhold responsive records. See Vaughn, 484 F.2d at 820 (citing 5 U.S.C. 552(a)(3)).
F.

TIGTA Has Failed To Release Segregable Portions Of Records.

Notwithstanding TIGTAs partial release of four pages of DECOS Cases documents that
should have been released in full, SOF Ex. 14, TIGTA has failed to comply with FOIAs plain
requirement that [a]ny reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt. 5 U.S.C. 552(b); see
Oglesby v. U.S. Dept of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (If a document contains
exempt information, the agency must still release any reasonably segregable portion after
deletion of the nondisclosable portions.) (quoting 5 U.S.C. 552(b)); see supra Part III.B.
Section 6103(b)(2), properly construed, provides TIGTA ample guidance for doing so. See
6103(b) (listing confidential information); see also, e.g., Letter from Ava F. Littlejohn; see
also, e.g., E-mail from Sarah Hall Ingram, Internal Revenue Serv., to Jeanne Lambrew, Deputy
Dir., White House Office of Health Reform, and Ellen Montz, White House Health Policy
Advisor (July 19, 2012), available at http://issa.house.gov/wp-content/uploads/2013/10/HallIngram-WH.pdf.
CONCLUSION
For the foregoing reasons, this Court should deny TIGTAs motion for summary
judgment and grant Cause of Actions cross-motion for summary judgment because Cause of
Action has demonstrated there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law.
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Dated: February 24, 2015

Respectfully submitted,
/s/ Daniel Z. Epstein
DANIEL Z. EPSTEIN
D.C. Bar No. 1009132
ARAM A. GAVOOR
D.C. Bar No. 1023440
CAUSE OF ACTION
1919 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
(202) 499-4232 (telephone)
(202) 330-5842 (fax)
daniel.epstein@causeofaction.org
Attorneys for Plaintiff

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