United States District Court, D. Maryland
Xinis United States District Judge.
before the Court in this Freedom of Information Act
(“FOIA”) case are cross-motions for summary
judgment filed by Plaintiff Abdelrahman and Sara Ayyad
(“Plaintiffs”), ECF No. 18, and Defendant
Internal Revenue Service (“the IRS”), ECF No. 25.
The issues are fully briefed and a hearing was held on
February 1, 2018. For the reasons explained below, the Court
GRANTS in part and DENIES in part Plaintiffs' motion, and
GRANTS in part and DENIES in part the IRS's Motion.
following facts are undisputed. Since 2006, Plaintiffs have
been the subject of the Internal Revenue Service (“the
IRS”) examinations regarding their federal income tax
returns for tax years 2006 through 2012. ECF No. 1. On March
9, 2016, Plaintiffs each filed FOIA requests, seeking the
production of agency records including, but not limited to,
• The full administrative file developed by Kenneth
Feldman, an IRS Revenue Agent in Baltimore, Maryland office,
from the date of his assignment through the date of the
submission of the FOIA request;
• All records including, but not limited to, the
examination, assessment, and appeals with respect to
plaintiffs' income tax returns during the period of Mr.
Feldman's assignment to plaintiffs' case;
• All written correspondence, electronic or otherwise,
among Agent Feldman, Bisamber Misir, Quinton J. Ferguson,
Larry Timms, and any other IRS employee relating to the
examination of plaintiffs' account;
• Any records relating to any civil and/or criminal
fraud investigation or assessments, including any
correspondence from or to a fraud technical advisor any IRS
employee engaged in a similar role as a fraud technical
advisor, or any other IRS employees or agents engaged in the
investigation and/or assessment of fraud. This request
included, but was not limited to: Form 11661, Fraud
Development Stats; Form 2797, Referral Report of Potential
Criminal Fraud Cases; and/or any other forms prepared and/or
filed in furtherance of a civil and/or criminal fraud
investigation or assessment, and any records relating to the
preparation and filing of those forms;
• The entire case history for all examinations for tax
period 2006 through 2013;
• Any records relating to any accuracy-related penalty
determinations or assessments;
• Any records relating to the preparation and filing of
the statutory notice of deficiency dated November 30, 2012
issued by the IRS Richmond Office for tax period 2009;
• The identification of any official(S0 having control
of any records being requested; and
• The administrative appeals file for atax years 2006
through 2009 was specifically not requested.
ECF No. 1 at ¶ 7.
Disclosure Specialist Jennifer J. Perez received and
processed the requests on March 10, 2016. See Decl.
of Jennifer J. Perez (“Perez Decl.”), ECF No.
25-4 at ¶¶ 1, 4. Perez determined that the
responsive records were likely located in Plaintiffs' IRS
examination files which consists of relevant physical notes
and records as well as an electronic file maintained in the
agency's “Services' Information management
System” (“IMS”). Decl. of Kenneth N.
Feldman (“Fedlman Decl.”), ECF No. 25-2 at ¶
April 12, the IRS notified the Ayyads that it would process
their FOIA requests as a single request because the Ayyads
are married and their FOIA requests almost identical. ECF No.
1 at ¶ 25. Six days later, Perez informed Plaintiffs
that the Service located 2, 885 pages of responsive records
and would provide them in “PDF” format.
Id. at ¶ 12, Ex. B. Of these 2, 885 responsive
records, the agency redacted 21 pages and withheld 120 pages
under claimed FOIA exemptions. Id. Plaintiffs
requested that the IRS produce a Vaughn Index,
which the IRS did not do. Id. at ¶ 14.
Plaintiffs filed an administrative appeal on June 14, 2016,
again requesting a Vaughn index from the IRS. The
IRS denied the Ayyads' request on June 22, 2016. ECF No.
1at ¶ 19; see also ECF No. 1-2 at 42-44.
August 31, 2016, after exhausting all administrative
remedies, Plaintiffs filed suit under 5 U.S.C. § 552,
alleging that the IRS unlawfully withheld responsive agency
records to which Plaintiffs are entitled. ECF No. 1.
Plaintiffs again requested that the Court order the IRS to
produce a Vaughn Index of all responsive records
withheld under claim of exemption. Id. at 9.
November 8, 2016, months after Plaintiffs' FOIA action
was filed in this Court, IRS determined that they had not
performed an adequate search in response to Plaintiffs'
request for “all written correspondence, electronic or
otherwise, among Agent Feldman, Mr. Bisamber Misir, Mr.
Quinton J. Ferguson, Mr. Larry Timms, and any other IRS
employee relating to the examination of plaintiffs'
account.” ECF No. 25-1 at ¶ 4; see also
Decl. of William E. Rowe (“Rowe Decl.”), ECF No.
28-1 at ¶¶ 18-19. IRS instructed Agent Feldman to
provide all electronic correspondence related to
Plaintiffs' examinations. Id. at ¶¶
21-22; Feldman Decl., ECF No. 25-2 at ¶ 6. Agent Feldman
located 872 additional pages of responsive electronic
correspondence, of which the IRS redacted 176 pages and
withheld 27 pages, claiming various FOIA exemptions. Rowe
Decl, ECF No. 28-1 at ¶ 25. These emails were provided
to Plaintiff s on March 2, 2017 with the Bates range IRS
000001-000872 (“March 2 release”). See
25-1 at 5. The IRS did not provide a Vaughn Index.
reviewing the March 2 release, Plaintiffs' counsel noted
that email correspondence between Agent Feldman and Bisamber
Misir regarding Plaintiffs' tax returns, on which
Plaintiff's counsel was originally copied, was missing
from the IRS's disclosures. ECF No. 18-1. Plaintiff's
counsel contacted the IRS regarding these missing emails on
March 8, 2017. ECF No. 18-1 at 4. The IRS then conducted yet
another search of Agent Feldman's Outlook inbox and
enlisted several information technology specialists to
determine why the emails were not produced by the initial
search. Feldman Decl., ECF No. 25-2 at ¶ ¶10-17.
After a month of investigation, the IRS was unable to
ascertain why the referenced email was not included in Agent
Feldman's search results and the investigation was
closed. Id. The IRS released the missing emails to
Plaintiff on May 31, 2017 with Bates range IRS001080-81. ECF
No. 25-1 at 5-6. The IRS did not conduct further review of
Agent Feldman's inbox or conduct searches of other email
inboxes. ECF No. 25-1; Rowe Decl., ECF No. 28-1 at ¶ 45.
addition to the missing electronic correspondence,
Plaintiffs' counsel also informed the IRS that the March
2 release did not include the emails' respective
attachments. ECF No. 18-1 at 3-4. On March 17, 2017,
Plaintiff moved for summary judgment in their favor and
renewed their request for a Vaughn Index. ECF No.
April 25, 2017, the Court issued an order requiring the IRS
to release all remaining responsive, non-exempt records to
Plaintiff by May 31, 2017. ECF No. 24. The IRS thereafter
located 6, 568 additional pages of potentially
responsive attachments not previously identified, more than a
year after Plaintiffs' FOIA request and months of ongoing
litigation. Within this newfound document trove, the IRS
redacted 412 pages and withheld 3, 474 pages. ECF No. 25-1 at
5; Feldman Decl., ECF No. 25-2 at ¶¶18-19; Rowe
Decl., ECF No. 28-1 at ¶¶ 46-50. These responsive
documents were provided - again without a Vaughn
Index - to Plaintiffs on May 31, 2017, with the Bates range
000001-0006568. ECF No. 25-1 at 5-6. The IRS then filed its
cross-motion for summary judgment, arguing that it has now
fully complied with FOIA in releasing responsive documents
and that the agency adequately claimed FOIA related
exemptions for withheld and redacted documents. Id.
at 7. In support, the IRS submitted affidavits with broad
descriptions of the covered documents, but it did not submit
a Vaughn Index. See, e.g., ECF Nos. 18-1 at
11 & 25-1 at 6.
Standard of Review
enacted FOIA to promote government transparency and
“permit access to official information long shielded
unnecessarily from public view.” Milner v.
Dep't of Navy, 562 U.S. 562, 565 (2011) (quoting
EPA v. Mink, 410 U.S. 73, 79 (1973)); 5 U.S.C.
§ 552. FOIA is “a means for citizens to know
‘what their Government is up to.' This phrase
should not be dismissed as a convenient formalism. It defines
a structural necessity in a real democracy.”
Nat'l Archives & Records Admin. v. Favish,
541 U.S. 157, 171-72 (2004) (internal quotations and
strong interest in transparency, however, must be balanced
against the “legitimate governmental and private
interests [that] could be harmed by release of certain types
of information.” United Techs. Corp. v. U.S.
Dep't of Defense, 601 F.3d 557, 559 (D.C. Cir.
2010). To that end, Congress established nine FOIA exemptions
under which agencies may withhold information from
disclosure. 5 U.S.C. § 552 (b). “These exemptions
are explicitly made exclusive, and must be narrowly
construed.” Milner, 562 U.S. at 565 (internal
quotations and citations omitted); see also Jones v.
Murphy, 256 F.R.D. 510, 514 (D. Md. 2008) (noting that
“[i]t is the responsibility of the Court to construe
the privilege strictly and allow protection of documents only
if specific requirements are met.”) (internal citations
agency's decision to withhold records under a FOIA
exemption is not entitled to deference, and the Court must
conduct a de novo review of the administrative
record with a strong presumption in favor of disclosure. 5
U.S.C. § 552(a)(4)B); Dep't of State v.
Ray, 502 U.S. 164, 173 (1991). FOIA's segregation
requirement also requires the agency to provide “any
reasonably segregable portion of a record” after it has
redacted the exempt portions. 5 U.S.C. §552(b). The
Government bears the burden of providing that documents
withheld in full are not “reasonably segregable.”
Id.; see also Williamette Indus., Inc. v. United
States, 689 F.2d 865, 868 (9th Cir. 1982), cert
denied, 460 U.S. 1052 (1983).
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283
(4th Cir.2004) (en banc) (internal quotation marks omitted).
As a general rule, FOIA determinations should be resolved on
summary judgment. Hanson v. U.S. Agency for Intern.
Dev., 372 F.3d 286, 290 (4th Cir. 2004).
Ayyads, in short, argue that summary judgment should be
granted in their favor because the IRS has failed to
demonstrate that it performed a reasonable search and has not
established that exemptions apply to withheld or redacted
documents. The IRS, by contrast, argues that summary judgment
is appropriate in its favor because the record evidence
indisputably demonstrates adequate search and appropriate
claimed exemptions. At summary judgment in a FOIA case, the
Court reviews the record evidence to determine: (1) the
reasonableness of its search for responsive records, and (2)
that any redacted or withheld records fall under one of
FOIA's disclosure exemptions. Rein v. U.S. Patent
& Trademark Office, 553 F.3d 353, 362 (4th Cir.
2009). The Court addresses each element of this inquiry in
Adequacy of the Government's Search
the claimed adequacy of the search, the agency must show that
it has “conducted a search reasonably calculated to
uncover all relevant documents.” Weisberg v.
DOJ, 705 F.2d 1344, 1451 (D. C. Cir. 1983). In deciding
whether the government's search was reasonable, a court
is to consider “not whether any further documents might
conceivably exist but rather whether the government's
search for responsive documents was adequate.”
Perry v. Block, 684 F.2d 121, 129 (D.C. Cir. 1982);
see also Ethyl Corp. v. U.S. EPA, 25 F.3d 1241, 1246
(4th Cir. 1994). Thus, the adequacy of the search is
determined “not by the fruits of the search, but by the
appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of Currency,
315 F.3d 311, 315 (D.C. Cir. 2003). “FOIA does not
require a perfect search, only a reasonable one.”
Rein v. U.S. Patent & Trademark Office, 553 F.3d
353, 362 (4th Cir. 2009) (citing Meeropol v. Meese,
790 F.2d 942, 956 (D.C. Cir. 1986).
of a search does not require “meticulous
documentation” of “an epic search for the
requested records, ” but must be demonstrated through
“affidavits that explain in reasonable detail the scope
and method of the search conducted by the agency.”
Perry, 684 F.3d at 127; see also Weisberg,
627 F.2d at 371 (agency affidavits that “do not denote
which files were searched, or by whom, do not reflect any
systematic approach to document location, and do not provide
information specific enough to enable [the requester] to
challenge the procedures utilized” are insufficient to
support summary judgment). An affidavit is “reasonably
detailed” if it “set[s] forth the search items
and the type of search performed . . . averring that all
files likely to contain responsive materials (if such records
exist) were searched.” Ethyl Corp, 25 F.3d at
summary judgment, for the plaintiffs to demonstrate the
inadequacy of a FOIA search, they must “identify
specific deficiencies in the agency's response”
that contradict the adequacy of the search or suggest bad
faith. CareToLive v. FDA, 631 F.3d 336, 341-42 (6th
Cir. 2011); see also Heily v. U.S. Dep't of
Commerce, 69 F. App'x 171, 173 (4th Cir. 2003).
Here, Plaintiffs posit the following deficiencies: (1)
Defendant's failure to search outside Agent Feldman's
email for responsive electronic communications; (2) the
absence of case history for tax years 2006-2009 and
2011-2013; (3) Plaintiff's unrebuttable evidence that at
least five ...