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Судебные дела / Зарубежная практика  / Gennifer FLOWERS, Plaintiff, INTERNAL REVENUE SERVICE, Defendant., United States District Court, District of Columbia., 307 F.Supp.2d 60, No. CIV.A.01-0763(RMU)., March 11, 2004

Gennifer FLOWERS, Plaintiff, INTERNAL REVENUE SERVICE, Defendant., United States District Court, District of Columbia., 307 F.Supp.2d 60, No. CIV.A.01-0763(RMU)., March 11, 2004


Gennifer FLOWERS, Plaintiff, INTERNAL REVENUE SERVICE, Defendant.

United States District Court, District of Columbia.

307 F.Supp.2d 60

No. CIV.A.01-0763(RMU).

March 11, 2004.

Larry Elliot Klayman, James F. Peter╜son, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Stuart David Gibson, U.S. Attorney's Of╜fice, Washington, DC, for Defendant.



URBINA, District Judge.


This case comes before the court on the defendant's motion for summary judgment and the plaintiff's motion for discovery. Plaintiff Gennifer Flowers brings suit against the Internal Revenue Service ("IRS" or "the defendant") under the Freedom of Information Act ("FOIA"), 5 U.S.C. ╖ 552, alleging that the IRS unlaw╜fully refused to disclose tax documents requested by the plaintiff. The defendant moves for summary judgment, contending that the court lacks subject-matter juris╜diction over the plaintiff's initial request and that the IRS fully complied with the plaintiff's perfected 2003 request. In re╜sponse, the plaintiff moves for discovery. Because the plaintiff failed to exhaust her administrative remedies with regard to her initial request, the court may not review that request. As for the plaintiffs perfect╜ed request, because the defendant has demonstrated that its searches were rea╜sonably calculated to uncover responsive documents, and because the plaintiff may not use FOIA discovery to conduct an investigation into the defendant's motiva╜tions, the court grants the defendant's mo╜tion for summary judgment and denies the plaintiffs motion for discovery.



1. ═ Pursuant to Local Civil Rule 56.1, the defen╜dant submitted a statement of undisputed ma╜terial facts. The plaintiff did not submit a statement of disputed material facts or otherwise contest the defendant's facts. Accord╜ingly, the court treats the defendant's facts as admitted. LCvR 56.1; Burke v. Gould, 286 F.3d 513, 518 (D.C.Cir.2002).


On June 27, 2000, the plaintiff, a resi╜dent of Nevada, sent a letter to the di╜rector of the IRS Office of Disclosure requesting "[a]ny and all documents, in╜cluding but not limited to files, that re╜fer or relate in any way to Gennifer Flowers" pursuant to FOIA. Def's State╜ment of Undisputed Material Facts ("Def.'s Statement") ╤╤ 2-3; Compl. ╤ 5 & Ex. 1. In her letter, the plaintiff indi╜cated that "the term 'document' is used in its broadest sense" and requested that the IRS send all responsive documents and any correspondence to her attorney at Judicial Watch, Inc. Def.'s Statement ╤╤ 3-4; Compl. Ex. 1.

On August 3, 2000, the IRS responded to the plaintiffs request via a letter advis╜ing her that "[i]n its present format, your letter meets some but not all of the re╜quirements which constitute a valid [FOIA] request." Def.'s Statement ╤ 5; Summerlin Decl. Ex. 2. The IRS specified several shortcomings in the plaintiffs re╜quest. Def.'s Statement ╤╤ 6, 9; Summerlin Decl. Ex. 2. First, the IRS noted that the plaintiffs request failed to include a sepa╜rate written authorization, signed and dat╜ed by the plaintiff, indicating her social security number, the identity of the person to whom disclosure was to be made, the type of information to be disclosed, and the taxable years covered by the information. 2 Id . Second, the IRS noted that because IRS district offices-rather than the Na╜tional Office-maintain taxpayer files, the plaintiff should direct her request to the service center or district office associated with the particular return. Id . The IRS provided a telephone number for the plain╜tiff to call for assistance in determining the office to which she should address her request. Id. Third, the IRS described the plaintiffs request as "too broad to meet the FOIA requirement to adequately de╜scribe the records sought," and asked her to provide additional guidance on the information requested, the IRS function that might have responsive documents, the types of issues involved, and the time frame on which the IRS should focus its search. Id. Fourth, the IRS indicated that the plaintiff must fulfill the proof-of-identi╜ty requirement and could do so via nota╜rized statement or sworn statement. Id . Finally, the IRS noted that the plaintiff must provide "a firm commitment to pay the fees for search and duplication" and an attestation regarding the applicable fee category. Id. The IRS closed by stating that it would keep the plaintiffs request open for 30 days to allow the plaintiff to perfect it, and provided a phone number and website for the plaintiff in case she had questions. Def.'s Statement ╤ 7; Sum╜merlin Decl. Ex. 2.


2. ═ The IRS enclosed a copy of Form 8821, the authorization form commonly used to meet FOIA requirements. Summerlin Decl. Ex. 2.


The plaintiff did not perfect her request or otherwise respond to the IRS letter. Def.'s Statement ╤ 8. Instead, eight months after receiving the IRS letter, the plaintiff filed suit in this court. In her complaint, the plaintiff alleges that the IRS subjected her to retaliatory audits and other actions during the Clinton Adminis╜tration from 1993 to 2001. Compl. ╤ 6. She seeks a declaration that the IRS' refusal to disclose the requested documents is unlaw╜ful, an order directing the IRS to make these documents available to the plaintiff, and a fee waiver. Id. at 2.

At the initial status conference, the court directed the parties to certify that they had met in an effort to resolve the procedural difficulties with the plaintiff's request, and scheduled a second status conference for January 16, 2003. Def.'s Statement ╤ 10. The parties met on De╜cember 27, 2002. Id . Subsequently, on January 10, 2003, the plaintiff submitted a perfected request seeking disclosure of five categories of documents dating back to 1992 from four IRS offices. Id. ╤╤ 10╜ 11; Deamon Decl. Ex. 1.

The plaintiffs 2001 complaint and 2003 perfected request resulted in separate but overlapping IRS actions. First, in June 2001, after the plaintiff filed her complaint, the IRS general counsel directed the IRS Dallas disclosure office to identify and lo╜cate any records pertaining to the plaintiff. Def's Statement ╤ 18; Deamon Decl. ╤╤ 9-10, 12. The Dallas disclosure office used its Integrated Data Retrieval System ("IDRS") to produce transcripts pertaining to the plaintiffs account. Deamon Decl. ╤ 13. Second, in January 2003, the IRS National Office searched the IRS national headquarters 3 for responsive documents, while the Dallas disclosure office again used IDRS to search for documents re╜sponsive to the plaintiffs perfected re╜quest. Id . ╤ 5, 8; Def's Statement ╤╤ 13-15, 24-27; Baker Decl. ╤╤ 5-6; Williams Decl. ╤╤ 2-4; Cincotta Decl. ╤ 2, 5, 8-10.


3. ═ Specifically, the IRS National Office searched the Congressional Correspondence and Quality Review Branch of the Office of Legislative' Affairs and the National Head╜quarters Management and Finance Office. Baker Decl. ╤╤ 5-6; Williams Decl. ╤╤ 2-4; Cincotta Decl. ╤╤ 2, 5, 8-10.


The search of IRS national headquarters produced only a copy of the plaintiffs per╜fected request. Def.'s Statement ╤╤ 26-27; Cincotta Decl. ╤ 5. The search by the Dal╜las disclosure office produced IDRS tran╜scripts revealing that during the specified time period, the IRS had conducted or contemplated audit activity on the plain╜tiffs tax returns twice-once on her 1990 return and once on her 1992 return. Def.'s Statement ╤╤ 13-15; Deamon Decl. ╤╤ 5, 8. With regard to the plaintiffs 1990 return, the transcripts indicated that the computer at the IRS Austin service center randomly selected the plaintiffs 1990 re╜turn for audit in 1992, but the IRS decided not to conduct an audit after reviewing the return. Def.'s Statement ╤ 14; Deamon Decl. ╤ 6. Because the IRS did not conduct an audit, the IRS did not create an exami╜nation file for the plaintiffs 1990 return. Id . As for the 1992 return, the transcripts showed that the IRS selected the plaintiffs 1992 return for audit in 1993 based on an "information item"-defined as informa╜tion either generated within the IRS or supplied by an external source-rather than random selection. 4 Deamon Decl. ╤ 7.


4. ═ The transcripts indicated that the IRS closed the plaintiff's examination file on June 13, 1994, three weeks after the plaintiff paid an additional $ 120 in income tax by agree╜ment. Def.'s Statement ╤ 15; Deamon Decl. ╤ 7.


In an effort to retrieve the examination file associated with the plaintiffs 1993 au╜dit, the Dallas disclosure office traced the file via document locator number to the IRS Austin service center. Id . ╤ 14; Def.'s Statement ╤ 1 8. In June 2001, the Dallas disclosure office asked the Austin service center to retrieve the file. Id . The Austin service center reported that be╜cause the file was more than eight years old, the center had sent the file to the National Archives and Records Adminis╜tration's ("NARA") federal records center ("FRC") in Fort Worth for long-term stor╜age. Def.'s Statement ╤ 19; Deamon Decl. ╤╤ 15, 18. The Austin service center therefore asked the Fort Worth FRC to search for the file, but the FRC indicated that the block of NARA records containing the plaintiffs file was missing. Id. In July 2001, the Dallas disclosure office reported back to the IRS general counsel with this information. Deamon Decl. ╤ 18. At the same time, the Dallas disclosure office told the general counsel that because IRS doc╜ument-retention schedules for examination files require the files' destruction seven years after closing, the plaintiff's file would have been eligible for destruction as of June 2001. Id. ╤ 19 & Ex. 2.

In May 2002, the IRS general counsel again contacted the Dallas disclosure of╜fice, this time asking it to determine the exact date of the file's destruction. Id . ╤ 20. The Dallas disclosure office subse╜quently asked the Fort Worth FRC to go back and conduct a special search for the plaintiffs file. Id. ╤╤ 20-21; Def.'s State╜ment ╤ 20. This time the Fort Worth FRC reported that it had shipped the block of records in question to the FRC in Suitland, Maryland. Id. In turn, the Suit╜land FRC informed the Dallas disclosure office that NARA had destroyed the plain╜tiffs file on August 21, 2001. Def.'s State╜ment ╤╤ 20-21; Deamon Decl. ╤╤ 21-22 & Ex. 4.

Given the destruction of the plaintiffs file, the IRS could not produce the file or any documents placed in the file that may have referred to the information item prompting the plaintiffs 1993 audit. Def's Statement ╤╤ 21-22; Deamon Decl. ╤ 22. In an effort to locate any other records pertaining to the information item, the Dallas disclosure office asked the Austin service center, which maintains records of persons claiming rewards for providing the IRS with information about other taxpay╜ers, to check for reward claims relating to the plaintiff. Def.'s Statement ╤ 22; Deamon Decl. ╤ 23. The Austin service center reported that it had no records of any such claim. Id. Accordingly, the only documents the IRS provided to the plain╜tiff in response to her perfected request were the IDRS transcripts. Def.'s State╜ment ╤ 23; Deamon Decl. ╤ 24.

In March 2003, the defendant filed a motion for summary judgment contending that the court lacks jurisdiction over the plaintiffs initial request and that the de╜fendant fully complied with its obligations regarding the plaintiffs perfected request. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 5-15. In response, the plaintiff filed a three-page opposition contending that summary judgment is inappropriate and requesting discovery regarding the defen╜dant's search for documents and "why Plaintiff s administrative file was de╜stroyed." Pl.'s Opp'n at 3. The court now addresses the defendant's motion for sum╜mary judgment and the plaintiffs motion for discovery.


A. Legal Standard for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to in╜terrogatories, and admissions on file, to╜gether with the affidavits, if any, show that there is no genuine issue as to any materi╜al fact and that the moving party is enti╜tled to a judgment as a matter of law." FED. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Lib╜erty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "gen╜uine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judg╜ment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere exis╜tence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judg╜ment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the exis╜tence of an element essential to that par╜ty's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may suc╜ceed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Cray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

B. ═ Legal Standards for FOIA Requests

1. Exhaustion of Remedies

"Exhaustion of administrative remedies is generally required before seeking judicial review 'so that the agency has an opportunity to exercise its discre╜tion and expertise on the matter and to make a factual record to support its deci╜sion.' " Wilbur v . Cent. Intelligence Agen╜ cy , 355 F.3d 675, 677 (D.C.Cir.2004) (quoting Oglesby v. United States Dept of Army , 920 F.2d 57, 61 (D.C.Cir.1990)). In the FOIA context, the exhaustion require╜ment is a prudential consideration, not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust does not de╜prive the court of subject-matter jurisdic╜tion. Id . But as a prudential consider╜ation, the exhaustion requirement may still bar judicial review if both (1) the adminis╜trative scheme at issue and (2) the pur╜poses of exhaustion support such a bar. Id. (citing Hidalgo v. Fed. Bureau of In╜vestigation, 344 F.3d 1256, 1258-59 (D.C.Cir.2003)). With regard to the first factor, the D.C. Circuit has concluded that FOIA's administrative scheme supports barring judicial review. 5 Id. (citing Hidal╜go, 344 F.3d at 1259). As for the second factor, courts look to see whether barring judicial review would "prevent[ ] prema╜ture interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); see also Hidalgo, 344 F.3d at 1259 (applying the Weinberger description of the purpose of exhaustion in the FOIA context).


5. ═ Specifically, the court has stated that

[t]he FOIA expressly requires that an agen╜cy receiving a request for information (i) determine within 20 days (excepting Satur╜days. Sundays, and legal public holidays) after the receipt of any such request wheth╜er to comply with such request and shall immediately notify the person making such request of such determination and the rea╜sons therefor, and of the right of such per╜son to appeal to the head of the agency any adverse determination; and (ii) make a de╜termination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal . . . If the denial of the request is upheld on appeal, the agency must notify the person making such request of the provisions for judicial review of that determination . . . As we have previ╜ously concluded, this statutory scheme re╜quires each requestor to exhaust adminis╜trative remedies.

Hidalgo, 344 F.3d at 1259 (internal quotations and citations omitted).


If the agency fails to answer the request within 20 days, FOIA deems the requester to have constructively exhausted adminis╜trative remedies and permits immediate judicial review. 5 U.S.C. ╖ 552(a)(6)(C); Judicial Watch, Inc. v. Rossetti ("Judicial Watch I "), 326 F.3d 1309, 1310 (D.C.Cir. 2003) (citing Oglesby, 920 F.2d at 64-65). That said, "[i]f the agency responds to the request after the twenty-day statutory window, but before the requester files suit, the administrative exhaustion requirement still applies." Judicial Watch I , 326 F.3d at 1310. Moreover, courts have held that only a valid FOIA request can trigger an agency's FOIA obligations, and that "fail╜ure to file a perfected request therefore constitutes failure to exhaust administra╜tive remedies." Dale v. Internal Revenue Serv. , 238 F.Supp.2d 99, 103 (D.D.C.2002) (citing 5 U.S.C. ╖ 552(a)(3) and 26 C.F.R. ╖ 601.702(c)(5)); see also Judicial Watch I, 326 F.3d at 1311-12 (basing its analysis on the defendant's argument that the plaintiff had not constructively exhausted because the non-conforming FOIA request could not be considered "received" and thus could not trigger the 20-day limit); accord Church of Scientology v. Internal Revenue Serv., 792 F.2d 146, 150 (D.C.Cir. 1986) (noting that FOIA requires "re╜quests [to] be made in accordance with published rules").

2. Adequacy of Agency Search

"A requester dissatisfied with the agency's response that no records have been found may challenge the adequacy of the agency's search by filing a lawsuit in the district court after exhausting any ad╜ministrative remedies." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). To prevail on summary judgment, "the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995) (internal quotations and citations omitted). An agency must search for documents in good faith, using methods that are reasonably expected to produce the requested information. Va╜lencia-Lucena, 180 F.3d at 326 (citing Oglesby, 920 F.2d at 68). The principal issue is not whether the agency's search uncovered responsive documents, but whether the search was reasonable. Oglesby, 920 F.2d at 67 n. 13 (citing Meer╜opol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986)); Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996). The agency need not search every record in the sys╜tem or conduct a perfect search. Safe╜Card Services, Inc. v. Sec. & Exch. Comm'n , 926 F.2d 1197, 1201 (D.C.Cir. 1991); Meeropol, 790 F.2d at 952, 956. Nor need the agency produce a document where "the agency is no longer in posses╜sion of the document[ ] for a reason that is not itself suspect." SafeCard Servs., 926 F.2d at 1201.

Instead, to demonstrate reason╜ableness, the agency must set forth suffi╜cient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Na╜tion Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). While an agen╜cy's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evi╜dence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id. If the record raises substantial doubts re╜garding the agency's efforts, "particularly in view of well defined requests and posi╜tive indications of overlooked materials," summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326 (inter╜nal quotations and citations omitted).

As a general rule, "[d]iscovery in FOIA is rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains." Schrecker v. Dep't of Justice, 217 F.Supp.2d 29, 35 (D.D.C.2002), aff'd, 349 F.3d 657 (D.C.Cir.2003); see also Ju╜dicial Watch, Inc. v. Dept. of Justice ("Ju╜dicial Watch II"), 185 F-Supp.2d 54, 65 (D.D.C.2002) (noting that "[d]iscovery is not favored in lawsuits under the FOIA"). Only if the agency has not undertaken an adequate search for responsive documents is discovery appropriate. Schrecker, 217 F.Supp.2d at 35. Discovery is not war╜ranted "when it appears that discovery would only ... afford[ the plaintiff] an opportunity to pursue a bare hope of fall╜ing upon something that might impugn the affidavits." Military Audit Project v. Ca╜sey, 656 F.2d 724, 751-52 (D.C.Cir.1981) (internal quotations omitted); see also Broaddrick v. Executive Office of Presi╜dent, 139 F.Supp.2d 55, 63-64 (D.D.C.2001) (noting that the court may deny discovery when the plaintiff's efforts amount to a "bare hope of falling upon something that might impugn the affidavits"). Where an agency's affidavits regarding its search are sufficient, the judge has the discretion to forgo discovery. Meeropol, 790 F.2d at 960-61; see also Schleeper v. Dept of Jus╜tice, 1999 WL 325515, at *1 (D.C.Cir.1999) (per curiam) (upholding lower court's deni╜al of discovery). Even if an agency's affi╜davits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supple╜ment its affidavits. Judicial Watch II, 185 F.Supp.2d at 65.

C. ═ The Court Grants the Defendant's Motion for Summary Judgment and Denies the Plaintiff's Motion for Discovery

In its motion for summary judgment, the defendant asserts that the court lacks jurisdiction over the plaintiffs initial re╜quest because the plaintiff failed to ex╜haust her administrative remedies. Def.'s Mot. at 5-13. As for the plaintiffs perfected request, the defendant asserts that it has complied fully with its obligations by undertaking searches for and produc╜ing all responsive documents. Id. at 13-15. In response, the plaintiff states that "[i]t appears that the IRS admittedly de╜stroyed Plaintiff's administrative file two months after it answered the complaint Plaintiff had filed seeking to compel pro╜duction of these very same records" and contending that "summary judgment can╜not be granted in this matter until Plain╜tiff and the Court have had the opportuni╜ty to conduct a complete investigation into the facts and circumstances surrounding this highly unusual matter, which may amount to obstruction of justice." Pl.'s Opp'n at 2 (emphasis in original). Accord╜ingly, the plaintiff requests discovery "into Defendant's search for documents and into why Plaintiff's administrative file was de╜stroyed." Id . at 3.

1. The Plaintiff's Initial Request

With regard to the plaintiff's initial request, the court declines review. Wilbur, 355 F.3d at 677; Dale, 238 F.Supp.2d at 103. The plaintiff states in passing that pursuant to FOIA's construc╜tive-waiver provision, she has exhausted her administrative remedies (presumably because the IRS did not respond to her request within the requisite 20 days). Compl. ╤ 8 (citing 5 U.S.C. ╖ 552(a)(6)(C)). But the plaintiff's failure to file a request that comports with agency FOIA regula╜tions constitutes failure to exhaust admin╜istrative remedies. Dale, 238 F.Supp.2d at 103. Under the IRS FOIA regulations, a FOIA request must

(A) Be made in writing and signed by the individual making the request;

(B) State that it is made pursuant to the Freedom of Information Act, 5 U.S.C. 552, or regulations thereunder;

(C) Be addressed to and mailed to the office of the IRS official who is responsible for the control of the records re╜quested[;]

(D) Reasonably describe the records[;]

(E) In the case of a request for records the disclosure of which is limited by statute or regulations [such as the Priva╜cy Act or 26 U.S.C. ╖ 6103], establish the identity and the right of the person making the request to the disclosure of the records[;]

(F) Set forth the address where the per╜son making the request desires to be notified of the determination as to whether the request shall be granted;

(G) State whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them;

(H) State the firm agreement of the re╜quester to pay the fees for search, dupli╜cation, and review ultimately determined . . . or . . . place an upper limit for such fees that the requester is willing to pay, or request that such fees be reduced or waived and state the justification for such request; and

(I) Identify the category of the reques╜ter and, with the exception of "other requesters," state how the records shall be used[.]

26 C.F.R. ╖ 601.702(c)(4)(i). Cross-refer╜enced with the FOIA regulations are the IRS confidentiality statutes and regula╜tions, which require a taxpayer seeking disclosure of her return to a third party to submit a separate written document, signed and dated by the taxpayer, that indicates -

(i) The taxpayer's taxpayer identity in╜formation[;]

(ii) The identity of the person or per╜sons to whom the disclosure is to be made;

(iii) The type of return (or specified por╜tion of the return) or return information (and the particular data) that is to be disclosed; and

(iv) The taxable year or years covered by the return or return information.

Id. ╖ 301.6103(e)-1; see also 26 U.S.C. 6103(c) (setting forth a general rule of confidentiality for tax returns and return information).

On its face, the plaintiff's initial request did not fulfill all of these basic require╜ments. Compl. Ex. 1. Most notably, the plaintiffs request did not include the nec╜essary separate written document. Id.; 26 C.F.R. ╖ 301.6103(c)-1. Nor did it state the plaintiff's firm agreement to pay for search and duplication fees, place a ceiling on such fees, or request a fee waiver. 6 Compl. Ex. 1; 26 C.F.R. ╖ 601.702(c)(4)(H). Both the IRS regula╜tions and the IRS response letter made clear that unless the plaintiff's request met the stated requirements, the defendant could not process the plaintiff's request. 26 C.F.R. ╖ 601.702(c)(4)(i) (warning that "only requests for records which fully com╜ply with the [regulatory] requirements . . . can be processed"); Summerlin Decl. Ex. 2. Yet, inexplicably, the plaintiff chose not to take steps to correct these simple tech╜nical deficiencies. Instead, she waited sev╜eral months and then proceeded directly to this court. 7 Given that the plaintiff failed to perfect her initial request and judicial review of the request clearly would prema╜turely interfere with the agency process, the court declines to review the initial re╜quest. Wilbur , 355 F.3d at 677; Dale, 238 F.Supp.2d at 103; accord Hidalgo, 344 F.3d at 1259-60 (directing the district court to decline judicial review of a reques╜ter's premature appeal because his appeal did not serve the purposes of exhaustion). The court therefore grants the defendant's motion for summary judgment as to the plaintiff's initial request. FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Diamond, 43 F.3d at 1540.

2. The Plaintiff's Perfected Request

Although the plaintiff's perfected request presents a different factual situa╜tion, it once again does not achieve the plaintiff's desired outcome. Unlike the ini╜tial request, the perfected request appears to meet the IRS' FOIA requirements: it asked the IRS to search the IRS national headquarters, the Dallas regional office, the Dallas disclosure office, and the Austin service center for (1) all records relating to the plaintiffs tax audits, (2) all communica╜tions about the plaintiff among the four IRS offices and between the IRS and third parties, (3) all records regarding the "in╜formation item" that gave rise to the plain╜tiffs audit, and (4) a "transcript of ac╜count." Deamon Decl. Ex. 1; 26 C.F.R. ╖ 601.702(c)(4)(i). It specified a time frame of 1992 to 2003, and requested a fee waiver or alternately a $250 limit on fees. Id . Finally, the perfected request satisfies the IRS' confidentiality requirements by including a separate written document pro╜viding the requisite taxpayer information and authorization. Deamon Decl. Ex. 1; 26 C.F.R.╖ 301.6103(c)-1.

Accordingly, the defendant does not challenge the validity of the perfected re╜quest, stating that the court has jurisdic╜tion over that request. Def.'s Mot. at 13. Instead, it is the plaintiff who raises a challenge. Specifically, the plaintiff states that in December 2003, the defendant in╜formed her that the IRS had selected her audit on the basis of an information item rather than by random selection. Pl.'s Opp'n at 1. Citing to an opinion-editorial by a commentator who alleges that the IRS regularly audited President Clinton's critics, the plaintiff characterizes her audit as "just one of a series of controversial and highly suspect audits of persons and organizations perceived to be adverse to or critical" of President Clinton. Id . at 1-2 & Ex. 3. Along those lines, the plaintiff contends that "[n]owhere in Defendant's motion or declarations does Defendant ex╜plain why it allowed Plaintiff's administra╜tive file to be destroyed by NARA in Au╜gust of 2001, more than one year after Plaintiff made her initial FOIA request and over four (4) months after Plaintiff filed [her] lawsuit." Id. at 2. Recognizing that discovery in FOIA cases is rare, the plaintiff nevertheless asks the court to permit discovery "to conduct a complete investigation into the facts and circum╜stances surrounding this highly unusual matter, which may amount to obstruction of justice." Pl.'s Opp'n at 2.

Charitably construing the plaintiffs re╜quest for discovery as a typical challenge to the adequacy of the defendant's searches, the court concludes that the IRS' searches were adequate because they were reasonably calculated to uncover all rele╜vant documents. Nation Magazine, 71 F.3d at 890; Schrecker, 217 F.Supp.2d at 35. The IRS has presented several de╜tailed affidavits indicating that it conduct╜ed multiple searches, using reasonable methods, of the locations and offices most likely to have maintained documents re╜sponsive to the plaintiffs perfected re╜quest-namely, the IRS offices in Wash╜ington, Dallas, and Austin, as well as the NARA FRCs in Fort Worth and Suitland. Id.; Valencia-Lucena, 180 F.3d at 326; see generally, e.g., Deamon, Baker, Williams, Cincotta Decls. Contrary to the plaintiff's assertions, the IRS affidavits also set forth "a reason that is not itself suspect"-the published document-reten╜tion schedules-for the destruction of the plaintiff's file. SafeCard Servs., 926 F.2d at 1201; Def.'s Statement ╤╤ 20-21; Deamon Decl. ╤╤ 21 & Ex. 4.

The plaintiff offers no evidence to rebut the presumption of good faith accorded the IRS' affidavits. 8 SafeCard Servs., 926 F.2d at 1200. Instead, the plaintiff points to the case of Judicial Watch v. Depart╜inent of Commerce, and argues by analo╜gy that discovery is appropriate in "un╜usual situations such as this." Pl.'s Opp'n at 2-3 (citing Judicial Watch, Inc., v. Dep't of Commerce ("Judicial Watch III "), 34 F.Supp.2d 28 (D.D.C.1998)). But here the plaintiff tries to fit a square peg into a round hole. As the plaintiffs counsel of course knows, Judicial Watch involved four years of extensive and egre╜gious misconduct by the Department of Commerce-including the shredding and unexplained removals of requested docu╜ments-in response to various FOIA re╜quests. Judicial Watch III, 34 F.Supp.2d at 30-40 (describing in detail the defen╜dant's actions over the course of that "long and extraordinary litigation"). There may be some cases in which a de╜fendant's actions resemble the defendant's outrageous conduct in Judicial Watch, but this case clearly is not one of them. 9 Al╜though the plaintiff tries to draw parallels between the two cases by implying that the IRS deliberately destroyed the plain╜tiffs file to avoid disclosure of the infor╜mation item, the IRS affidavits provide a non-suspect reason for the destruction: the published document-retention sched╜ules. SafeCard Servs., 926 F.2d at 1201; compare Pl.'s Opp'n at 2 with Def's Statement ╤╤ 16-17, 20 and Deamon Decl. Ex. 4. Accordingly, the court concludes that the IRS' searches, as demonstrated by its affidavits, were adequate. Meeropol , 790 F.2d at 960-61; Schleeper, 1999 WL 325515, at *1.


8. ═ To the extent that the plaintiff offers the opinion-editorial to rebut the affidavits' pre╜sumption, the court notes that this evidence does not address the adequacy of the searches at issue here and therefore cannot justify dis╜covery. Pl.'s Opp'n Ex. 3; accord W. Journal╜ism Ctr. v. Internal Revenue Serv., 2003 WL 21254986, at *2 (D.D.C. Mar. 4, 2003) (deny╜ing discovery because the plaintiffs' evidence focused not on the search at issue, but on the defendant's alleged history of noncompliance with other FOIA requests).

9. ═ So unreasonable and unlawful was the De╜partment's search in Judicial Watch that the court faced the "unprecedented situation in which the defendant ... moved for entry of judgment against itself [while] the plaintiff, Judicial Watch, [ ] vehemently opposed the motion." Judicial Watch III, 34 F.Supp.2d at 29-30 (emphasis in original). The court ulti╜mately denied the defendant's motion "be╜cause the record of misconduct in th[e] case [was] so egregious and so extensive that merely granting the [Department's] motion and ordering a new search would fail to hold the agency fully accountable for the serious violations that it appears to have deliberately committed." Id . at 30.


It is apparent to the court, howev╜er, that the plaintiffs challenge is not about the adequacy of the IRS' searches. On their face, the plaintiffs submissions make clear that her ultimate objective is to investigate the IRS' motives in selecting her for audit. E.g. , Pl.'s Opp'n at 2-3 (asserting that the plaintiff needs the op╜portunity to conduct "a complete investiga╜tion into the facts and circumstances of this highly unusual matter" and find out "why Plaintiff's administrative file was de╜stroyed" given that it "likely would have contained additional information on how Plaintiff was selected for an audit") & Ex. 3 (opining that "the IRS has audited a mathematically improbable series of [President Clinton's] critics"). But granting the plaintiffs motion on that basis would im╜permissibly expand the limited scope of FOIA discovery. As the D.C. Circuit re╜cently noted, the purpose of FOIA is "to ensure an informed citizenry, vital to the functioning of a democratic society." United We Stand Am., Inc. v. Internal Revenue Serv., 2004 WL 404130, at *1 (D.C.Cir. Mar.5, 2004) (quoting Nat'l La╜bor Rel. Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)). Toward that end, the statute's "fundamental principle ... is public access to government documents." Valencia-Lucena, 180 F.3d at 325. Here, in response to the plaintiffs request, the IRS searched relevant locations within the agency and provided her access to the responsive documents in its possession. Although the plaintiff may be unhappy with the search results, she cannot use FOIA discovery to conduct an investiga╜tion into the IRS' rationale for her audit. Accord, e.g., Williams v. Fed. Bureau of Investigation, 1991 WL 163757, at *3 (D.D.C. Aug. 6, 1991) (concluding that the plaintiff was not entitled to discovery, "to unearth details about the FBI's investiga╜tion" of the plaintiff and his organization because an agency's investigatory rationale is not the proper subject of FOIA discov╜ery requests).

Accordingly, because the defendant has demonstrated that its searches were rea╜sonably calculated to uncover responsive documents, and because the court cannot expand FOIA discovery to suit the plain╜tiffs investigatory objectives, the court grants the defendant's motion for sum╜mary judgment and denies the plaintiffs motion for discovery with regard to the plaintiffs perfected request. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Diamond, 43 F.3d at 1540; Nation Magazine, 71 F.3d at 890; Schrecker, 217 F.Supp.2d at 35; Williams, 1991 WL 163757 , at *3.

No doubt the court's disposition of this case leaves the plaintiff disappointed and dissatisfied. Yet the record shows that the actions of the plaintiff (or her counsel) virtually preordained this outcome. To re╜cap, more than eight years after her 1992 audit, the plaintiff filed an error-ridden FOIA request. Despite the opportunity to correct these errors at very little trouble or expense, she waited several months and then filed suit in federal court. After be╜ing instructed by this court to resolve the procedural difficulties stymieing her initial request, she finally submitted a perfected request. Meanwhile, of course, Rome burned: the federal document-retention machinery lumbered forward on schedule, and the plaintiff's file was destroyed. Had the plaintiff taken the minor steps neces╜sary to perfect her request in 2000, she might now have in her hands the very documents that could have proved or dis╜proved her theories about the IRS' motiva╜tions for the plaintiffs audit. This irony is not lost on the court, which had to allocate precious resources to this case.


For the foregoing reasons, the court grants the defendant's motion for sum╜mary judgment and denies the plaintiffs motion for discovery. An order consistent with this Memorandum Opinion is sepa╜rately and contemporaneously issued this 11th day of March, 2004.


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