UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 13-1759 (EGS) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) ________________________________)

MEMORANDUM OPINION

Judicial Watch requested information from the Internal Revenue

Service (“IRS”) under the Freedom of Information Act (“FOIA”),

. The IRS conducted what it considers to have been a

reasonable search in response to that request, but found no

responsive records. The IRS therefore moves for summary

judgment, arguing that it has discharged its FOIA

responsibilities. Judicial Watch opposes this motion and

proposes ways in which the IRS could have conducted a more

appropriate search. Upon consideration of the motion, the

response and reply thereto, the applicable law, and the entire

record, the Court GRANTS the motion for summary judgment.

I. Background

A. The May 22, 2013 FOIA Request and this Lawsuit.

On May 22, 2013, Judicial Watch submitted to the IRS a FOIA

request for: Any and all records and communications concerning, regarding, or related to the selection of individuals for audit based on information contained in 501(c)(4) tax exempt applications.

Compl., ECF No. 1 ¶ 5. “The time frame of the request was

identified as being ‘January 1, 2010 to the present.’”

On June 25, 2013, the IRS acknowledged that it had received

the request and advised that it would be unable to finish

processing the request on time and therefore had “‘extended the

response date to August 16, 2013.’”

. An August 13, 2013

letter from the IRS indicated that the IRS required additional

time and would contact Judicial Watch by September 27, 2013 if

it remained unable to complete processing of the request. See

. Having received no further response, Judicial Watch

filed suit on November 8, 2013. See

.

After the case was filed, the parties submitted a series of

status reports. See Meet and Confer Report, ECF No. 11; Status

Report, ECF No. 12. On August 6, 2014, they filed a joint status

report indicating that the IRS believed that “it had conducted a

reasonable search which did not locate any responsive records,”

while Judicial Watch felt that “there is a genuine issue of

material fact regarding whether the Service has satisfied its

obligations.” Status Report, ECF No. 18 at 1. At the parties’

request, the Court set a schedule for the briefing of a motion

for summary judgment. See Minute Order of August 6, 2014.

2 On September 22, 2014, the IRS filed its motion for summary

judgment. See Mot. for Summ. J. (“Mot.”), ECF No. 19. The IRS

also submitted a statement of facts in support of that motion.

See IRS Statement of Facts (“Def.’s SMF”), ECF No. 19-1. On

October 22, 2014, Judicial Watch filed its opposition to the

motion for summary judgment along with a response to the IRS’s

statement of facts. See Opp. to Mot. (“Opp.”), ECF No. 20;

Judicial Watch Statement of Facts (“Pl.’s SMF”), ECF No. 20-1.

On November 21, 2014, the IRS filed a reply brief, along with a

brief response to Judicial Watch’s statement of facts. See Reply

in Supp. of Mot. (“Reply”), ECF No. 23; IRS Reply SMF, ECF No.

23-1. The IRS’s motion is ripe for adjudication.

B. Organization of the IRS.

To understand the search conducted by the IRS in response to

Judicial Watch’s FOIA request, it is necessary to describe the

structure of the IRS. The IRS “is mainly organized around four

distinct operating divisions.” Def.’s SMF ¶ 2; Pl.’s SMF ¶ 2.

These divisions are: (1) the Wage and Investment Division, which

“serves individual taxpayers . . . with wage and investment

income only”; (2) the Small Business/Self-Employed Division,

which focuses on taxpayers that are either small businesses or

self-employed; (3) the Large & Mid-Size Business Division, which

works with “corporations with assets greater than $10 million”

as well as business and individuals with certain international

3 focuses; and (4) the Tax Exempt and Government Entities

Division, which “serves three distinct taxpayer segments:

Employee Plans, Exempt Organizations, and Government Entities.”

Def.’s SMF ¶¶ 3–7; Pl.’s SMF ¶¶ 3–7.

“All applications for tax exempt status” under Section

501(c)(4), “are processed by the Rulings and Agreements Office

within the Exempt Organizations Unit of [the Tax Exempt and

Government Entities Division].” Def.’s SMF ¶ 8; Pl.’s SMF ¶ 8.

The Tax Exempt and Government Entities Division does not conduct

any audits of individuals, however. See Def.’s SMF ¶ 9; Pl.’s

SMF ¶ 9. Individual audits are conducted by one of the three

other divisions. See Def.’s SMF ¶ 10; Pl.’s SMF ¶ 10. Naturally,

then, if information on a 501(c)(4) application caused the Tax

Exempt and Government Entities Division to think that an

individual audit was warranted, the Division would need to refer

the individual to another division for such an audit. See Def.’s

SMF ¶ 35, 50, 68, 86; Declaration of Dagoberto Gonzalez

(“Gonzalez Decl.”), ECF No. 19-3 ¶ 6; Declaration of David

Horton (“Horton Decl.”), ECF No. 19-4 ¶ 4; Declaration of Cheryl

Claybough (“Claybough Decl.”), ECF No. 19-5 ¶ 4; Declaration of

Karen Schiller (“Schiller Decl.”), ECF No. 19-6 ¶ 5.

C. The IRS’s Search for Records.

In keeping with Judicial Watch’s request for “[a]ny and all

records and communications concerning, regarding, or related to

4 the selection of individuals for audit based on information

contained in 501(c)(4) tax exempt applications,” Compl., ECF No.

1 ¶ 5, the IRS began its search by discerning whether any

individuals ever were selected for audit based upon information

in an application for tax-exempt status under Section 501(c)(4).

The IRS began with the Tax Exempt and Government Entities

Division—the recipient and reviewer of all applications under

Section 501(c)(4)—searching for records in “the recordkeeping

systems for examination referrals maintained by the Exempt

Organizations Unit,” which would contain all “referrals arising

from records of organizations that have applied for tax exempt

status.” Def.’ SMF ¶¶ 18-21; Declaration of Tamera Ripperda

(“Ripperda Decl.”), ECF No. 19-2 ¶ 7. The IRS retrieved from

this recordkeeping system “a list of all referrals arising out

of applications for tax-exempt status,” reviewed that list

manually “to identify all taxpayer names that were not clearly

organizations (creating a list of potential individuals),” and

finally obtained and reviewed the referral documentation for

these individuals “to determine if any referral arose from

information contained in an application . . . under [Section

501(c)(4)].” Def.’ SMF ¶¶ 21-24; Ripperda Decl. ¶ 7. No

referrals of any individual for an audit due to information

contained in such an application were found. See Def.’ SMF ¶¶

19, 25; Ripperda Decl. ¶ 7.

5 Having found that the Tax Exempt and Government Entities

Division had no record of ever referring an individual for audit

based upon information contained in a 501(c)(4) application, the

IRS then conducted searches of records within the other three

divisions. These searches confirmed the lack of records

regarding any such referral during the relevant time period. See

Def.’ SMF ¶¶ 42, 58, 75, 130; Gonzalez Decl. ¶ 7; Horton Decl. ¶

6; Claybough Decl. ¶ 6; Schiller Decl. ¶ 9.

Wage and Investment Division: Because the Wage and Investment

Division would not have received 501(c)(4) applications

directly, the IRS searched this division’s records for any

referrals from the Tax Exempt and Government Entities Division.

Such referrals would have been sent to the Wage and Investment

Division’s Compliance Office. See Def.’s SMF ¶ 36; Gonzalez

Decl. ¶ 6. The Wage and Investment Division records “[a]ll cases

of individual audits opened . . . based upon a referral from

another business unit” in the Audit Information Management

System. See Def.’s SMF ¶ 37; Gonzalez Decl. ¶ 7. A search of the

Audit Information Management System for any audits based upon

referrals during the relevant timeframe revealed only audits

that “concerned tip income received by casino employees.” Def.’s

SMF ¶ 41; Gonzalez Decl. ¶ 7.

Small Business/Self-Employed Division: Three offices within

this division may audit an individual: Campus Compliance

6 Services, Specialty Programs, and Examination Field. See Def.’s

SMF ¶ 87; Schiller Decl. ¶ 5. Because this division would not

receive 501(c)(4) applications directly, the IRS searched for

instances in which these offices received referrals of

individuals for audit from the Tax Exempt and Government

Entities Division. See Def.’s SMF ¶¶ 85–88; Schiller Decl. ¶ 5.

In the Campus Compliance Services office, all audit referrals

are recorded in the Audit Information Management System. See

Def.’s SMF ¶ 89; Schiller Decl. ¶ 6. A search of this system for

“any audit of an individual arising from a referral from [the

Tax Exempt and Government Entities Division]” during the

relevant period revealed that “[n]o project code specifically

identifying referrals from [that division] has been used in the

last 5 years” and that no open or closed cases “had project

codes indicating a connection to [that division’s] matters. See

Def.’s SMF ¶ 93; Schiller Decl. ¶ 6.

In the Specialty Programs office, different units record their

audit referrals in different ways (the Excise Tax Unit by

recording in the Specialist Referral System; the Estate and Gift

Tax Unit by tracking referrals in a spreadsheet; and the

Employment Tax Unit through a “computerized listing of open and

closed examinations”). See Def.’s SMF ¶¶ 97–98, 100, 105;

Schiller Decl. ¶ 7. A manual review of these systems revealed:

(1) that the Excise Tax Unit’s system contained no referrals of

7 individuals from the Tax Exempt and Government Entities

Division; (2) that the Estate and Gift Tax Unit’s spreadsheet

recorded 23 audits referred by the Tax Exempt and Government

Entities division, but the referrals all arose out of

information on the organization’s annual tax return, not a

501(c)(4) application; and (3) that the Employment Tax Unit’s

list included no open audits referred by the Tax Exempt and

Government Entities Division and that as many as 60 closed

audits were associated with a miscellaneous code that did not

identify which division referred them, but that obtaining more

information would require several months and a significant

amount of time to conduct a manual review. See Def.’s SMF ¶¶ 99,

101–04, 106-12; Schiller Decl. ¶ 7.1

In the Examination Field, audit referrals are processed in

seven different offices. See Def.’s SMF ¶ 116; Schiller Decl. ¶

8. One of these offices “maintains copies of all referrals sent

to it,” “conducted a manual review of all the referrals it

received” during the relevant time period, and found “no

1 The Employment Tax Unit also proffers that it is unlikely that these closed audits were referred by the Tax Exempt and Government Entities Division because the Unit rarely receives referrals from that division, has no open audits that were referred by that division, and “[t]he employee who receives and reviews all referrals to Employment Tax, and who has been in this position for 10 years . . . . had no recollection of ever seeing a referral from [the Tax Exempt and Government Entities Division] arising from information in [a 501(c)(4) application].” Def.’s SMF ¶¶ 113–14; Schiller Decl. ¶ 7.

8 referrals of individuals received from [the Tax Exempt and

Government Entities Division] based on information contained in

[a 501(c)(4) application].” Def.’s SMF ¶¶ 117-19; Schiller Decl.

¶ 8. The other offices “maintain electronic spreadsheets” of all

referrals. See Def.’s SMF ¶ 120; Schiller Decl. ¶ 8. Two of

these spreadsheets record the source of the referral, and a

review of these spreadsheets identified no referrals from the

Tax Exempt and Government Entities Division based on information

in a 501(c)(4) application. See Def.’s SMF ¶ 121; Schiller Decl.

¶ 8. In the other four, each office “contacted the Exam Group

Manager responsible for each open examination that was based on

a referral and was pending as of February 2014” and asked

whether the referral came from the Tax Exempt and Government

Entities Division and, if so, whether it was based upon

information in a 501(c)(4) application. See Def.’s SMF ¶ 122;

Schiller Decl. ¶ 8. No such cases were identified. See Def.’s

SMF ¶ 122; Schiller Decl. ¶ 8.2

Large and Mid-Size Business Division: Outside of individual

audits based upon preexisting audits of corporations or

2 For closed audits in those four offices, the only way to obtain information on the source of the referral would take months and involve many hours of review, and would be unlikely to succeed as no open audits exist that meet the same criteria, the offices that track closed audits had none that meet the relevant criteria, and group managers in the offices do not remember any referrals that would meet the criteria. See Def.’s SMF ¶ 123–29; Schiller Decl. ¶ 8.

9 partnerships, only two offices within this division have the

authority to commence an audit of an individual: the

International Individual Compliance Function and the Global High

Wealth Function. See Def.’s SMF ¶ 48; Horton Decl. ¶ 2 & n.1.

Because this division would not receive a 501(c)(4) application

directly, the IRS searched for instances in which either office

received referrals of individuals for audit from the Tax Exempt

and Government Entities Division. See Def.’s SMF ¶¶ 49–50, 67–

68; Horton Decl. ¶ 4; Claybough Decl. ¶ 4.

In the International Individual Compliance Function, the IRS

searched the audit-tracking database of the Planning and Special

Programs Office, which is the office to which all referrals

would have been sent. See Def.’s SMF ¶¶ 51–55; Horton Decl. ¶¶

4–5. That search revealed a list of all cases referred to the

office, and a manual review of the list and information

pertaining to each entity on the list “revealed that only one

referral came . . . from [the Tax Exempt and Government Entities

Division”—a referral that related “to a pension distribution.”

Def.’s SMF ¶¶ 56–57; Horton Decl. ¶ 5.

In the Global High Wealth Industry Group, all audit referrals

are recorded in a database. See Def.’s SMF ¶¶ 69–70; Claybough

Decl. ¶ 5. A search of that database revealed that only one

referral for audit had come in from the Tax Exempt and

Government Entities Division during the relevant time period,

10 and that “dealt with a defined retirement plan.” Def.’s SMF ¶¶

69–75; Claybough Decl. ¶¶ 5–6.

* * *

Based upon these searches, the IRS concluded that no audit

referrals of individuals had been made during the relevant time

period based upon any information contained in a 501(c)(4)

application.

D. The IRS’s Supplemental Searches.

In November 2014, in response to concerns raised in Judicial

Watch’s opposition to the IRS’s motion for summary judgment, the

IRS conducted a supplemental search “for internal directives and

guidelines regarding the selection of individuals for audit

based on 501(c)(4) applications.” Def.’s Reply SMF ¶ 5. The

Director of the Exempt Organizations Unit of the Tax Exempt and

Government Entities Division indicated that “[a]ny such

documents would generally be located on the IRS [Tax Exempt and

Government Entities] intranet website or in sections of the

Internal Revenue Manual applicable to [the Tax Exempt and

Government Entities Division].” Second Declaration of Tamera

Ripperda (“Second Ripperda Decl.”), ECF No. 23-2 ¶ 3. Ms.

Ripperda directed a review of “the guidance, resources, and

reference materials maintained on the . . . intranet website for

any material pertaining to referrals of individuals for audit

based on information in [501(c)(4)] applications.”

.

11 Although the search located documents related to “the referral

for audit of entities that have applied for recognition [under

Section 501(c)(4)],” it “located no documents relating to

referring individuals for audit based on information in

[501(c)(4)] applications.”

(emphasis in original). The

search also involved a review of sections of the Internal

Revenue Manual applicable to the division, but that review

located “no . . . provisions that specifically address referrals

of individuals based on information contained in [501(c)(4)]

applications.”

Finally, the IRS contacted “all senior

managers” in the unit that processes 501(c)(4) applications and

those with “oversight responsibilities for audit selection

and/or referrals” in an attempt to “determine if they have any

recollection of any internal directives or guidance” during the

relevant period.

None of these individuals had any memory

“of any internal directives or guidance related to referring

individuals for audit based in information contained in

[501(c)(4)] applications.”

II. Summary Judgment in a FOIA Case

Summary judgment is granted when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. District of Columbia,

(D.C. Cir. 2002). In determining whether a genuine

12 issue of fact exists, the court must view all facts in the light

most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp.,

(1986).

Under FOIA, all underlying facts and inferences are analyzed in

the light most favorable to the FOIA requester; as such, only

after an agency proves that it has fully discharged its FOIA

obligations is summary judgment appropriate. Moore v. Aspin,

(D.D.C. 1996) (citing Weisberg v. U.S. Dep't of

Justice,

(D.C. Cir. 1983)). “FOIA cases

typically and appropriately are decided on motions for summary

judgment.” Gold Anti-Trust Action Comm. v. Bd. of Governors of

Fed. Reserve Sys.,

(D.D.C. 2011)

(quotation marks omitted).

In considering a motion for summary judgment under FOIA, the

court must conduct a de novo review of the record. See

(a)(4)(B). The court may award summary judgment on the

basis of information provided by the agency in affidavits. See

Military Audit Project v. Casey,

(D.C. Cir.

1981); Vaughn v. Rosen,

(D.C. Cir. 1973).

Agency affidavits must be “relatively detailed and non-

conclusory.” SafeCard Servs. v. SEC,

(D.C.

Cir. 1991) (quotation marks omitted). Such affidavits are

“accorded a presumption of good faith, which cannot be rebutted

by purely speculative claims about the existence and

13 discoverability of other documents.”

(quotation marks

omitted).

III. Analysis

The IRS’s motion is based entirely upon its claim to have

conducted an adequate search in response to Judicial Watch’s

FOIA request. Because the IRS uncovered no responsive records

during that search, a finding that the search was adequate would

end this case.

A. Law Regarding the Adequacy of a Search.

The standard for assessing the adequacy of an agency’s search

in response to a FOIA request is a familiar one:

To prevail on a motion for summary judgment regarding the adequacy of a search, an agency must show “beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.” “The issue is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was adequate.” The standard is one of reasonableness, and is “dependent upon the circumstances of the case.” To establish the adequacy of its search, an agency may rely on affidavits and declarations which are “relatively detailed and nonconclusory and . . . submitted in good faith.”

Shurtleff v. U.S. Environmental Protection Agency,

(D.D.C. 2013) (quoting Weisberg,

)

(alterations in original). “There is no requirement that an

agency search every record system,” but “the agency cannot limit

its search to only one record system if there are others that

are likely to turn up the information requested.” Oglesby v.

14 U.S. Dep’t of Army,

(D.C. Cir. 1990).

Additionally, “the ‘mere speculation that as yet uncovered

documents may exist does not undermine the finding that the

agency conducted a reasonable search for them.’” DeSilva v. U.S.

Dep’t of Hous. & Urb. Dev.,

(D.D.C. 2014)

(quoting SafeCard,

) (alteration omitted).

Consistent with the need for a “reasonable” search, the cost

or burden of a potential search is also a factor in evaluating

whether the search conducted was adequate. “FOIA ‘was not

intended to reduce government agencies to full-time

investigators on behalf of requesters.’” Cunningham v. U.S.

Dep’t of Justice,

(D.D.C. 2014) (quoting

Judicial Watch v. Export-Import Bank,

(D.D.C. 2000)). For that reason, “an agency is not required to

undertake a search that is so broad as to be unduly burdensome.”

(citing Nation Magazine v. U.S. Customs Serv.,

(D.C. Cir. 1995)); see also Freedom Watch v. CIA,

(D.D.C. 2012) (“An agency need not honor a

FOIA request that requires an unreasonably burdensome search.”)

(quotation marks and alteration omitted). A costly and time-

consuming search with minimal chance of revealing responsive

records may not be necessary. See, e.g., Ancient Coin Collectors

Guild v. U.S. Dep’t of State,

, 33–34 (D.D.C.

2012) (search was adequate despite agency’s failure to search

15 backup recordings where the cost would be prohibitive and the

likelihood of uncovering responsive information was low);

Schrecker v. Dep’t of Justice,

(D.D.C.

2002) (“[T]o require an agency to hand search through millions

of documents is not reasonable and therefore not necessary,” as

agency already had searched “the most likely place responsive

documents would be located.”), aff’d,

(D.C. Cir.

2003).

B. Judicial Watch Largely Conceded that the IRS’s Initial Search Was Sufficient to Show that No Referrals of Individuals for Audits Took Place.

The IRS asserted in its motion that its various searches fully

discharged its responsibilities under FOIA because by

determining that the Tax Exempt and Government Entities Division

had not referred any individual for audit based upon information

contained in a 501(c)(4) application, the IRS could reasonably

conclude that no records exist that are responsive to Judicial

Watch’s request. See Mot. at 14-19. Judicial Watch did not

controvert these assertions directly; rather, it expressed

suspicion of this finding, implying that communications,

informal referrals, or guidelines must exist. This suspicion

raises three issues: (1) whether the IRS’s explanation of its

audit-referral process or its search of records regarding that

process may be inaccurate or incomplete; (2) whether the IRS

needed to search for “internal directives, memorandums, meeting

16 notes, agendas, etc” that might also be responsive, Opp. at 3;

and (3) whether the IRS was required to conduct searches to

obtain “communications or discussions about using 501(c)(4) tax

exempt applications for audit referrals generally.”

As to the first issue, Judicial Watch bases its suspicion that

referrals nonetheless occurred on a handful of concerns.

Judicial Watch has allegedly learned in connection with a

different FOIA request that IRS officials communicated with the

Department of Justice “about criminally prosecuting signers of

applications for 501(c)(4) tax exempt status based on allegedly

false information contained in applications.” Pl.’s SMF at 18 ¶

1. How that bears on whether the IRS referred individuals

internally for audit based on information contained in a

501(c)(4) application is entirely unexplained. Judicial Watch

also claims that an IRS official “acknowledged that donor lists

generally were neither needed nor used in making determinations

on tax exempt status,” but “the IRS required certain applicants

for 501(c)(4) tax exempt status to submit lists of donors to

their organizations as part of the application process, and

nearly one in ten donors identified on such donor lists were

subject to audit.”

¶¶ 2–3. The IRS asserts that even

assuming this evidence is admissible, proving that individuals

who happened to be listed on 501(c)(4) donor lists were selected

for an audit would not demonstrate that the IRS selected the

17 individual for audit based upon her presence on such a list. See

Reply at 5–6. Donor lists, moreover, are submitted to the IRS

for other purposes, so it is meaningless that they may have been

received by IRS officials. See id. at 6. Any correlation between

a name on a donor list and an audit cannot, without more,

overcome the presumption that the IRS’s detailed explanation of

its audit-referral processes and its search thereof was complete

and correct in determining that no responsive referrals occurred

during the relevant time period. Accordingly, Judicial Watch’s

indirect attack on the IRS search of all locations in which a

record of a referral of an individual for audit based upon

information gleaned from a 501(c)(4) application is rejected,

and Judicial Watch failed directly to challenge or cast doubt on

the adequacy of the search recounted in the IRS’s motion.

C. The IRS’s Supplemental Search for Guidance or Directives Was Adequate.

The second issue raised by Judicial Watch is the possible

existence of internal guidance regarding the use of 501(c)(4)

application information to prompt individual audits. Although

the IRS may not have been required to search for such records

because its searches of the records of various divisions

concluded that no such referrals had been made, the Court need

not address this issue because the IRS conducted a search for

18 such documents.3 The Court accepts the good faith and detailed

declaration of the Director of the Exempt Organizations Unit of

the Tax Exempt and Government Entities Division, who stated that

any guidance or similar records would either be on the

Division’s “intranet website” or would be found in applicable

“sections of the Internal Revenue Manual.” Second Ripperda Decl.

¶ 3. Ms. Ripperda directed a review of the various materials on

that portion of the intranet website, as well as the relevant

sections of the Internal Revenue Manual, but the search

uncovered nothing regarding the referral of individuals. Id. ¶

4. Ms. Ripperda also oversaw a survey of senior managers in the

units that process 501(c)(4) applications and that oversee audit

selections and referrals. See id. No one could recall the

existence “of any internal directives or guidance related to

referring individuals for audit based on information contained

in [501(c)(4)] applications.” Id. The IRS therefore determined

that no such guidance materials exist. Absent any reason to

doubt the declaration—which is accorded a presumption of good

3 Judicial Watch has not challenged the IRS’s submission of supplemental materials regarding an additional search conducted while summary-judgment briefing was ongoing. The Court presumes that Judicial Watch’s silence—neither seeking to file a surreply nor otherwise asking the Court for relief—means that it has no objection to the Court’s consideration of these supplemental materials. See DeSilva,

(citing Judicial Watch v. FDA,

, 89 n.1 (D.D.C. 2007); Vest v. Dep’t of Air Force,

(D.D.C. 2011)).

19 faith, see SafeCard, 926 F.2d at 1200—the Court finds that the

IRS identified all record-keeping systems that might contain the

guidance documents sought by Judicial Watch and searched them

thoroughly.

D. The IRS Need Not Search for Communications because it Reasonably Concluded that No Relevant Referrals Had Occurred and Further Searches Would Be Unduly Burdensome.

The IRS argues that its findings that there are neither

official directives nor guidance regarding the use of

information in a Section 501(c)(4) application and that no

individual audit referrals took place based upon information

gleaned from a Section 501(c)(4) application make it unnecessary

to search for further documents, including communications, on

the subject. See Reply at 8–9. The IRS has also indicated that

any search of the email accounts of its employees for

communications that might pertain to a decision to select or not

to select an individual for an audit based upon information in a

501(c)(4) application would require the search of approximately

16,000 employee email accounts (of individuals in 442 different

cities), between individuals who worked in offices that process

501(c)(4) applications, those who conduct individual audits, and

those who have policy-making authority over audit decisions. See

Declaration of Elise Hellmuth (“Hellmuth Decl.”), ECF No. 23-4 ¶

3. Judicial Watch is correct that the IRS has a central server

for the storage of employee emails, but that server has an

20 approximate limit of 6,000 emails per employee—any email over

that limit may be archived and saved locally. See Declaration of

Neguiel Hicks in Judicial Watch v. IRS, No. 14-1039, Ex. to

Pl.’s Opp. ¶¶ 6–7 (hereinafter “Hicks Decl.”). These archived

emails would be solely in control of the individual employee—

wherever he or she may be located. See id. ¶ 7. As the

declaration relied upon by Judicial Watch notes, there is no

method for the IRS to search these locally saved emails for

16,000 employees, so the IRS would need to collect files from

each employee individually. See id. ¶¶ 4–10. The declaration

relied upon by Judicial Watch was filed in a case in which

approximately 2,200 employees would have been implicated; there,

the estimate was that a few years would have been needed to

respond, using multiple full-time employees. See id. ¶¶ 26–27.

The burden here would be greater.

The IRS argues that this incredible burden is especially undue

because of the unlikelihood that anything responsive would be

uncovered. The IRS’s other searches establish—and Judicial

Watch’s evidence has not controverted—that no individuals were

referred for audit based upon information gleaned from a Section

501(c)(4) application. Therefore, it is speculation at best to

say that there exist communications discussing decisions to

audit an individual based upon 501(c)(4) applications. And it is

well-established that “an agency is not required to expend its

21 limited resources on searches for which it is clear at the

outset that no search would produce the records sought.”

Cunningham,

. Even if there were a small

likelihood of success, the Court, according the IRS’s affidavits

the appropriate presumption of good faith, finds that the IRS

has established a very significant burden that would render

Judicial Watch’s proposed search unreasonable. See, e.g., Wolf

v. CIA,

(D.D.C. 2008) (search of microfilm

files that would take an estimated 3,675 hours and cost $147,000

was unreasonably burdensome, especially in light of the fact

that responsive films might not exist); People for the Am. Way

v. U.S. Dep’t of Justice,

, 13–14 (D.D.C. 2006)

(searching 44,000 files manually and expending at least 25,000

hours of work to do so would be unduly burdensome).4

4 Judicial Watch also appeared to seek to broaden its initial FOIA request so that it would uncover communications that may pertain to decisions not to audit individuals based on information contained in a 501(c)(4) application. See Opp. at 3– 5. The initial request was for “[a]ny and all records and communications concerning, regarding, or related to the selection of individuals for audit based on information contained in 501(c)(4) tax exempt applications.” Compl., ECF No. 1 ¶ 5. The IRS correctly notes that the phrase “selection of individuals for audit” most naturally reads as describing those situations in which an individual was chosen to be audited; not to include decisions not to audit a particular individual. See Reply at 17. Nor does the use of the broadening words “concerning, regarding, or related to” transform the request into one for any records related in any way to information in a 501(c)(4) application and decisions not to audit a particular individual. Such a reading, moreover, would begin to render Judicial Watch’s request unduly vague. Cf. Sack v. CIA,

IV. Conclusion

For the foregoing reasons, the Court GRANTS the IRS’s motion

for summary judgment. An appropriate Order accompanies this

Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge July 3, 2015

Supp. 3d 154, 164 (D.D.C. 2014) (use of the phrase “pertaining in whole or in part” rendered a FOIA request unduly vague as “a record may pertain to something without specifically mentioning it,” making it impossible for the responding agency to know what is actually sought).

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