UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) Civil Action No. 14-1407 (EGS) ) INTERNAL REVENUE SERVICE, ) et al. ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Cause of Action Institute (“Cause of Action”)

sued the Internal Revenue Service (“IRS”) to obtain records

under the Freedom of Information Act,

(“FOIA”).

Currently pending before the Court are the parties’ cross-

motions for summary judgment. Upon consideration of the motions,

the responses and replies thereto, the applicable law, and the

entire record, the Court GRANTS the IRS’s motion for summary

judgment and DENIES Cause of Action’s cross-motion for summary

judgment.

I. BACKGROUND In April 2009, White House Counsel Gregory Craig issued a

memorandum advising “all federal agency and department general

counsels to consult with the White House on all document

requests that may involve documents with ‘White House

1 equities.’” Compl., ECF No. 1 ¶¶ 1-3; Pl.’s Statement of

Undisputed Material Facts (“Pl.’s SUMF”), ECF No. 55-2 ¶ 1.

Concerned about the White House’s involvement in the FOIA

process, Cause of Action requested the following records from

the IRS:

All records, including but not limited to e- mails, letters, meeting records, and phone records, reflecting communications between IRS FOIA staff or IRS Chief Counsel’s office and the White House Counsel’s office concerning records forwarded by the IRS for White House review in connection with document requests by Congress, the U.S. Government Accountability Office, or FOIA requesters.

Compl., ECF No. 1 ¶ 17; Pl.’s SUMF ¶ 2. 1 The request, which was

submitted on May 29, 2013, sought records from “January 2009 to

the present.”

The IRS acknowledged receipt of Cause of

Action’s request on June 25, 2013, but then proceeded to ask for

numerous extensions of time to respond. Compl., ECF No. 1 ¶¶ 18-

23; Pl.’s SUMF ¶¶ 3-4. When Cause of Action filed this action on

August 18, 2014, the IRS had not yet produced any responsive

records or provided a final determination as to plaintiff’s FOIA

request. Pl.’s SUMF ¶¶ 5, 7.

1 Cause of Action sent substantially similar FOIA requests to eleven other government agencies as well. See Compl., ECF No. 1 ¶ 16. Although this lawsuit initially included those agencies, see generally

Cause of Action eventually dismissed them from this action after receiving the requested records, see Stip. of Dismissal, ECF No. 57; Stip. of Dismissal, ECF No. 68.

2 According to the declarations submitted by the IRS in

support of its motion for summary judgment, the IRS first began

searching for records responsive to Cause of Action’s request on

August 21, 2013, approximately three months after the date of

plaintiff’s request. See Decl. of A.M. Gulas (“Gulas Decl.”),

Def.’s Mot. for Summ. J. Ex. 1, ECF No. 51-3 ¶ 5. The IRS

interpreted Cause of Action’s FOIA request as “seeking records

reflecting communications between the IRS FOIA staff, or Chief

Counsel, and the White House Counsel’s office, relating to

records forwarded by the IRS FOIA staff, or Chief Counsel, to

the White House Counsel’s office to review before such records

are provided to Congress, GAO or FOIA requesters.”

.

Based on this interpretation and her knowledge of “the IRS’s

functions and procedures,” Ms. Gulas determined that three

offices were the most likely to have potentially responsive

records: (1) the Office of the Chief Counsel; (2) the Executive

Secretariat Correspondence Office (“ESCO”); and (3) the Office

of Disclosure, which is within the Office of Privacy,

Governmental Liaison and Disclosure (“PGLD”).

. In

searching for records in these offices, the IRS generally

limited its search to records created through May 29, 2013, the

date on which Cause of Action made its FOIA request.

.

With respect to the Office of the Chief Counsel, the IRS

focused its search on the Office of the Associate Chief Counsel

3 (Procedure & Administration) because that office “has

responsibility for disclosure, privacy and FOIA issues.” Gulas

Decl., ECF No. 51-3 ¶ 27. Although the office has seven

branches, all of the attorneys “who handle matters involving

disclosure laws are located in branches 6 and 7.”

.

Accordingly, Ms. Gulas sent a request to “all attorneys and

branch chiefs in branches 6 and 7” asking them to search their

email for responsive records dated within the relevant time

period.

. Ms. Gulas directed these individuals to use

the following terms in conducting their searches: “White House,”

“WH,” “White House Counsel,” “WH Counsel,” “consultation,”

“consult,” “WH equities,” “EOP,” and “GAO.”

In addition, the

emails of two former attorneys — including the Deputy Associate

Chief Counsel for Procedure and Administration for disclosure

matters during most of the relevant time period — were also

searched.

. These searches did not yield any responsive

documents.

.

The IRS also searched ESCO, which is the office that

receives “all correspondence addressed to the Commissioner, as

well as correspondence referred to the IRS by the White House,

by the Office of Treasury Legislative Affairs, and by the

Treasury Executive Secretariat.”

. ESCO uses a document-

management system called E-Trak to store such correspondence.

. To find documents responsive to Cause of Action’s

4 request, the IRS searched E-Trak using the following terms:

“White House,” “Craig,” “Obama,” “Executive Office of the

President,” “EOP,” “GAO,” “FOIA,” “Freedom of Information Act,”

“WH,” “WH equities,” “consultation,” and “consult.”

¶¶ 21-

23. Although these searches yielded 4,627 hits, after further

review the IRS determined that none of those documents were in

fact responsive.

.

Finally, the IRS searched the Office of Disclosure, which

is the office responsible for responding to FOIA requests.

. Although John Davis, the Deputy Associate Director of the

office, confirmed that the office “had not coordinated any

responses to FOIA requests with the White House Counsel’s

office” and that he was not “aware of a memorandum from White

House Counsel Gregory Craig,” see

, the IRS

nonetheless searched two systems within the Office of

Disclosure: the Automated Freedom of Information Act System

(“AFOIA”) and the Electronic Disclosure Information System

(“EDIMS”), see Decl. of Jennifer Black (“Black Decl.”), Def.’s

Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 14. These databases are

used “to track and process all requests for agency records” made

pursuant to FOIA. Black Decl., ECF No. 51-4 ¶¶ 10-11. The IRS

searched the case history notes, “which should contain

references to any referral or consultation with another agency,”

using the following terms: “WH,” “EOP,” “White House,” “Obama,”

5 and “Executive Office of the President.”

. These

searches yielded 112 hits, none of which were deemed responsive

to Cause of Action’s FOIA request after further review.

.

On April 3, 2015 — nearly two years after Cause of Action

sent its FOIA request — the IRS sent a “final response letter”

indicating that it had determined that it did not have any

responsive records. Def.’s Mot. for Summ. J. Ex. 3, ECF No. 51-

5; Pl.’s SUMF ¶ 7. The eleven other government agencies to which

Cause of Action had sent substantially similar FOIA requests all

ultimately produced responsive records. Pl.’s SUMF ¶ 8.

Both parties now move for summary judgment. The IRS asserts

that it is entitled to summary judgment because there is no

genuine dispute of material fact as to whether the agency

conducted an adequate search for records. See Def.’s Mem. in

Supp. of Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 51-1. In

support of its motion, the IRS offers declarations from two

individuals. The first declaration is from A. M. Gulas, a senior

counsel in the Office of the Associate Chief Counsel who was

assigned to assist the Department of Justice in litigating this

case. See Gulas Decl., ECF No. 51-3 ¶ 2. Ms. Gulas has served as

a disclosure attorney in the IRS’s Office of Chief Counsel for

over twenty-one years.

. The second declaration is from

Jennifer Black, the attorney who succeeded Ms. Gulas when she

6 retired in August 2015. See Black Decl., ECF No. 51-4 ¶ 1. These

declarations outline the searches undertaken by the IRS to

locate records responsive to Cause of Action’s FOIA request.

Cause of Action opposes the motion and moves for summary

judgment, arguing that the IRS’s search was unduly narrow for a

host of reasons. See Pl.’s Mem. in Opp. to IRS Mot, for Summ. J.

and Cross-Motion for Summ. J. (“Pl.’s Opp.”), ECF No. 55-1.

II. LEGAL STANDARD FOIA requires that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is

made in accordance with published rules ... shall make the

records promptly available to any person.”

(a)(3)(A). “To fulfill its disclosure obligations, an agency

must conduct a comprehensive search tailored to the request and

release any responsive material not protected by one of FOIA’s

enumerated exemptions.” Tushnet v. U.S. Immigration & Customs

Enf’t,

(D.D.C. 2017).

The “vast majority” of FOIA cases can be resolved on

summary judgment. Brayton v. Office of the U.S. Trade

Representative,

(D.C. Cir. 2011). A court may

grant summary judgment only if there is “no genuine dispute as

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

matter of law.” Fed. R. Civ. P. 56(a). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

7 summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep’t of Justice,

(D.D.C.

2009) (citation omitted). Under FOIA, the underlying facts and

inferences drawn from them are analyzed in the light most

favorable to the FOIA requester, and summary judgment is

appropriate only after the agency proves that it has fully

discharged its FOIA obligations. Moore v. Aspin,

(D.D.C. 1996) (citing Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1983)).

When 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 grant summary judgment

based on information provided in an agency’s affidavits or

declarations when they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. S.E.C.,

(D.C. Cir. 1991) (citation and internal quotation marks

omitted), and “not controverted by either contrary evidence in

the record nor by evidence of agency bad faith,” Larson v. Dep’t

of State,

(D.C. Cir. 2009) (citation and

internal quotation marks omitted). Such affidavits or

declarations are “accorded a presumption of good faith, which

cannot be rebutted by ‘purely speculative claims about the

8 existence and discoverability of other documents.’” SafeCard

Servs.,

(citation omitted).

III. ANALYSIS The central issue on summary judgment is the adequacy of

the IRS’s search.

“An agency fulfills its obligations under FOIA if it can

demonstrate beyond material doubt that its search was

‘reasonably calculated to uncover all relevant documents.’”

Valencia-Lucena v. Coast Guard,

(D.C. Cir.

1999) (quoting Truitt v. Dep’t of State,

(D.C.

Cir. 1990)); see also Steinberg v. Dep’t of Justice,

(D.C. Cir. 1994). Where a plaintiff challenges the

adequacy of an agency’s search, the question for the court is

“‘whether the search was reasonably calculated to discover the

requested documents, not whether it actually uncovered every

document extant.’” Judicial Watch, Inc. v. United States Dep’t

of State,

(D.C. Cir. 2017) (quoting SafeCard

Servs.,

). In other words, the adequacy of a

search is “generally 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,

(D.C. Cir. 2003).

Because the adequacy of an agency’s search is “measured by

a ‘standard of reasonableness,’” it is necessarily “‘dependent

9 upon the circumstances of the case.’” Weisberg v. U.S. Dep’t of

Justice,

(D.C. Cir. 1983) (citations

omitted). To meet its burden at summary judgment, an agency may

provide “‘a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials ... were

searched.’” Iturralde,

(citation omitted).

Any factual assertions in such an affidavit will be accepted as

true unless the requesting party submits affidavits or other

documentary evidence contradicting those assertions. Wilson v.

U.S. Dep’t of Transp.,

(D.D.C. 2010)

(citing Neal v. Kelly,

(D.C. Cir. 1992)).

Cause of Action challenges the adequacy of the IRS’s search

on numerous grounds. The Court examines each argument in turn.

A. The IRS’s Temporal Limitation Was Reasonable Cause of Action argues that it was unreasonable for the IRS

to limit its search to records created through May 29, 2013, the

date on which Cause of Action made its FOIA request. Pl.’s Opp.,

ECF No. 55-1 at 6. 2 Cause of Action asserts that, instead, the

IRS should have set the cut-off date for its search to “no

earlier than August 23, 2013,” which was the date on which the

FOIA officer “started her search for responsive records.”

2 When citing electronic filings throughout this opinion, the Court cites to the ECF page number, not the page number of the filed document. 10 According to Cause of Action, not doing so improperly permitted

the IRS “‘to withhold, with little or no justification, a

potentially large number of relevant documents.’”

(quoting

Public Citizen v. Dep’t of State,

(D.C. Cir.

2002)).

An agency’s decision to impose temporal limitations in

responding to a FOIA request “is only valid when the limitation

is consistent with the agency’s duty to take reasonable steps to

ferret out requested documents.” McGehee v. Cent. Intelligence

Agency,

(D.C. Cir. 1983). Indeed, the D.C.

Circuit has cautioned against a “reflexive application of the

cut-off policy to every request regardless of circumstance” and

has “expressly rejected the proposition that under FOIA, the use

of a time-of-request cut-off date is always reasonable.” Public

Citizen,

. Even so, “specific circumstances in

some agencies may render an across-the-board rule reasonable” so

long as the agency makes a “showing that warrants such an

approach in its case.”

Here, the IRS argues that its decision to limit its search

to records created “up to the date of the request” was

reasonable because it simply was imposing “the specific time

limit that the requester imposed on its own FOIA request.”

Def.’s Reply In Supp. of Mot. for Summ. J. and Opp. to Pl.’s

Cross-Motion for Summ. J. (“Def.’s Reply”), ECF No. 59 at 21. It

11 further argues that the fact that its interpretation was

reasonable is supported by Cause of Action’s “failure to raise

the issue in the parties’ meet and confer.” Id. at 22. In view

of this latter argument, the Court agrees with the IRS. In

particular, given that the IRS’s cut-off date was communicated

to Cause of Action during the agency’s negotiations with

plaintiff, and given Cause of Action’s failure to object to the

IRS’s temporal limitation, there is no indication that the IRS

improperly limited the scope of its searches under these

circumstances.

B. The IRS Properly Focused Its Search To The Relevant Offices Cause of Action next protests that the IRS’s decision to

limit its search to the Office of Disclosure, the Office of the

Associate Chief Counsel, and ESCO was improper. Pl.’s Opp., ECF

No. 55-1 at 7-8. In particular, Cause of Action notes that

“[t]here is no indication that search memoranda were sent to

[PGLD] – which serves as the IRS FOIA Office” or to “sub-

components of the Office of Chief Counsel.” Id.

An agency seeking summary judgment in a FOIA case may

provide “[a] reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials (if such

records exist) were searched.” Oglesby v. U.S. Dep’t of Army,

12

(D.C. Cir. 1990). To allow a district court to

determine whether the search was adequate, the affidavit should

also include the agency’s “rationale for searching certain

locations and not others.” Defs. of Wildlife v. U.S. Border

Patrol,

(D.D.C. 2009). Factual assertions

in such an affidavit will be accepted as true unless the

requesting party submits evidence contradicting those assertions

or rebutting the presumption that the agency’s search was made

in good faith. Coffey v. Bureau of Land Mgmt.,

(D.D.C. 2017).

The IRS’s declarations submitted in support of its motion

for summary judgment belie Cause of Action’s claim that the IRS

should have searched in additional locations for responsive

records. As an initial matter, although Cause of Action asserts

that the agency should have searched PGLD, the declarations make

clear that PGLD was searched for responsive records. As Ms.

Gulas explained, “[w]ithin PGLD, the Office of Disclosure is

responsible for responding to requests made pursuant to FOIA.”

Gulas Decl., ECF No. 51-3 ¶ 9. Accordingly, records within the

Office of Disclosure were searched. Moreover, the Deputy

Associate Director of the Headquarters Office of Disclosure —

who is the “highest ranking official within PGLD from the period

covered by plaintiff’s FOIA request” that has relevant knowledge

and is currently still employed at the agency — specifically

13 attested that the Office of Disclosure “would have handled any

FOIA request that impacted, in any way, ‘White House equities.’”

See Decl. of John H. Davis (“Davis Decl.”), Def.’s Reply Ex. 4,

ECF No. 59-2 ¶¶ 2-3. To the extent that Cause of Action intends

to argue that the IRS should have searched other components of

PGLD, Cause of Action fails to offer any factual basis that

other components would be reasonably likely to possess

responsive records.

Likewise, although Cause of Action complains that the IRS

did not search records contained by “sub-components of the

Office of Chief Counsel,” see Pl.’s Opp., ECF No. 55-1 at 7-8,

that argument also fails. After all, the IRS did search the

Office of the Associate Chief Counsel (Procedure and

Administration), which is a sub-component of the Office of Chief

Counsel. See Gulas Decl., ECF No. 51-3 ¶ 27. Moreover, as Ms.

Gulas attested, the Office of the Associate Chief Counsel

(Procedure and Administration) “has responsibility for

disclosure, privacy and FOIA issues.”

Although that office

has seven branches, the attorneys who handle matters involving

FOIA requests are “located in branches 6 and 7.” Id. ¶¶ 28-29.

Cause of Action offers no basis to suggest that other sub-

components of the Office of Chief Counsel may have had

responsive records. Accordingly, the Court concludes that the

IRS’s decision to limit its search to certain branches within

14 the Office of the Associate Chief Counsel was reasonably

calculated to discover responsive documents. 3

C. The IRS’s Searches Were Adequate

i. The IRS’s Search of the Office of Chief Counsel Was Adequate Cause of Action contends that the IRS’s search of the

Office of Chief Counsel was inadequate for two reasons: (1)

because the scope of the search was unduly constrained; and (2)

because the IRS confused the terms “coordination” and

“consultation.” Pl.’s Opp., ECF No. 55-1 at 8-9. Both arguments

are unpersuasive.

First, as previously explained, the affidavits submitted by

the IRS offer compelling justification for the agency’s decision

to limit its search to the Office of Associate Chief Counsel

(Procedure and Administration). See supra Part III.B. Likewise,

3 Cause of Action also points to the fact that the IRS was “unaware” of the Craig Memo as evidence that the agency’s search was not “robust[].” Pl.’s Opp., ECF No. 55-1 at 7-8. Cause of Action does not offer any evidence to supports its inference, and therefore fails to rebut the contrary evidence submitted by the IRS. See, e.g., Gulas Decl., ECF No. 51-3 ¶ 33 (“Prior to receiving CoA’s FOIA request, I had not been aware of a memorandum from White House Counsel to agency general counsels regarding consultation with the White House Counsel’s office on document requests that may involve documents with White House equities.”); Davis Decl., ECF No. 59-2 ¶ 5 (“To my knowledge, no [policy or practice within the Office of Disclosure that would lead the office to consult with the White House prior to releasing IRS records responsive to any FOIA request] has existed . . . at any point since January 1, 2012[.]”).

15 the agency explained why it chose to limit its search to two

branches of that division. Id. Ms. Gulas is a “technical expert”

on FOIA matters based on her twenty-one years of experience as a

disclosure attorney in the Office of Chief Counsel, see Gulas

Decl., ECF No. 51-3 ¶¶ 1, 32-33, and her affidavit is to be

accorded a “presumption of good faith” in the absence of

evidence to the contrary, SafeCard Servs., Inc. v. S.E.C.,

(D.C. Cir. 1991).

Second, Cause of Action accuses the two senior counsels who

provided affidavits in support of IRS’s motion for summary

judgment of confusing the terms “coordination” and

“consultation” — which, according to plaintiff, have a different

“technical meaning” — in responding to plaintiff’s FOIA request.

According to Cause of Action, these declarations, which explain

that there was no “practice in the office to coordinate

responses to FOIA requests, GAO or Congressional inquiries with

the White House or White House Counsel’s office,” see Gulas

Decl., ECF No. 51-3 ¶ 33 and Decl. of Jennifer Black, Def.’s

Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 19, are inadequate to

establish that there was no practice to “consult” with the White

House. Pl.’s Opp., ECF No. 55-1 at 8-9. Ms. Gulas’s declaration,

however, confirms that she included the search terms

“consultation” and “consult” in searching for records responsive

to plaintiff’s FOIA request. See Gulas Decl., ECF No. 51-3 ¶¶

16 23, 29. As such, the Court concludes that any purported

confusion between “coordination” and “consultation” did not

affect the adequacy of the agency’s search for records.

ii. The IRS’s Search of the Executive Secretariat Correspondence Office Was Adequate With respect to the IRS’s search of ESCO, Cause of Action

complains that it is unable to determine whether the search was

adequate because the IRS’s affidavits contain insufficient

information regarding the E-Trak database, which is ESCO’s

document management system that tracks certain correspondence.

Pl.’s Opp., ECF No. 55-1 at 9-10. In particular, Cause of Action

states that it requires additional information regarding “the

individual employees or IRS components whose correspondence is

stored in E-Trak.” Id. at 10.

In response, the IRS offers the supplemental declaration of

Jennifer Black. See Supp. Decl. of Jennifer Black (“Black Supp.

Decl.”), Def.’s Reply Ex. 8, ECF No. 59-6. 4 Ms. Black explains

that “[a]ll communications” addressed to the Commissioner or

4 Although this declaration was attached to the IRS’s reply memorandum in support of its motion for summary judgment, the Court can “‘rel[y] on supplemental declarations submitted with an agency’s reply memorandum to cure deficiencies in previously submitted declarations’” where a plaintiff has not challenged the supplemental declaration. See Walston v. United States Dep’t of Def.,

(D.D.C. 2017) (citing DeSilva v. U.S. Dep’t of Housing and Urban Dev.,

(D.D.C. 2014)).

17 Deputy Commissioner, as well as to the Director of Legislative

Affairs, were recorded in E-Trak. Id. ¶ 8. In addition,

correspondence addressed to, among others, the President and

then referred to the Office of the Commissioner or the Director

of Legislative Affairs was also recorded in E-Trak. Id.

Cause of Action does not make any arguments with respect to

the adequacy of the IRS’s search in light of this information.

See Pl.’s Reply in Supp. of Cross-Motion for Summ. J. (“Pl.’s

Reply”), ECF No. 63 at 7-9. In any event, the Court notes that

Cause of Action only requested communications between the White

House and “IRS FOIA staff or IRS Chief Counsel’s office” — and

not with the Commissioner or others whose correspondence is

handled by ESCO. Accordingly, in light of the IRS’s searches in

E-Trak using appropriate terms, the Court concludes that the

agency has carried its burden to demonstrate that its search was

reasonably calculated to discover documents responsive to Cause

of Action’s FOIA request.

iii. The IRS’s Search of the Office of Disclosure Was Adequate Finally, Cause of Action argues that IRS’s search for

records within the Office of Disclosure was inadequate for two

reasons: (1) because of the IRS’s “unwillingness to search

individual employee e-mail from that office”; (2) because the

18 search terms used were “inadequate to capture potentially

responsive records.” Pl.’s Opp., ECF No. 55-1 at 10-15.

First, whether IRS was required to search the individual

email accounts of each employee in the Office of Disclosure

depends on whether such a search was reasonably necessary to

discover documents requested by Cause of Action’s FOIA request.

See Safecard Servs.,

. As the IRS’s declarations

make clear, the agency determined that searching employee emails

was unnecessary in light of Deputy Associate Director Davis’s

representation that he was not aware of any consultations

between the Office of Disclosure and the White House Counsel’s

Office with respect to FOIA requests. See Gulas Decl., ECF No.

51-3 ¶ 13; see also Davis Decl., ECF No. 59-2 ¶ 5. 5 By insisting

that the IRS was required to search each employee’s individual

email account, Cause of Action misunderstands the standard for

adequacy of an agency’s search under FOIA. An agency is only

required to show that “it has conducted a search reasonably

calculated to uncover all relevant documents,” Weisberg v. U.S.

5 The IRS also states the conducting a search of employees’ email accounts would be unduly burdensome. See Gulas Decl., ECF No. 51-3 ¶ 14 (attesting that it “would take one IRS IT person at least 13 years . . . to capture all of the emails of the[] 165 employees” in the Office of Disclosure). The Court agrees that such a search would impose an unreasonable burden on the IRS in light of the agency’s declarations indicating that responsive documents are unlikely to exist. See, e.g., Nation Magazine, Washington Bureau v. U.S. Customs Serv.,

(D.C. Cir. 1995). 19 Dep’t of Justice,

(D.C. Cir. 1983) (emphasis

added), and it need not search files or record systems that are

not “likely to contain responsive materials,” Oglesby v. U.S.

Dept. of Army,

(D.C. Cir. 1990) (emphasis

added). Here, the IRS has provided declarations explaining why

responsive records were unlikely to exist within the Office of

Disclosure. Moreover, Cause of Action has not pointed to any

evidence calling into question the testimony of those

declarants. Accordingly, the Court rejects Cause of Action’s

request that the IRS be required to search the individual email

accounts of each employee in the Office of Disclosure.

Second, agencies generally “have discretion in crafting a

list of search terms that ‘they believe[] to be reasonably

tailored to uncover documents responsive to the FOIA request.’”

Agility Pub. Warehousing Co. K.S.C. v. Nat’l Sec. Agency,

(D.D.C. 2015) (citation omitted). So long as

the “search terms are reasonably calculated to lead to

responsive documents, the Court should not ‘micro manage’ the

agency’s search.” Liberation Newspaper v. U.S. Dep’t of State,

(D.D.C. 2015) (citation omitted); see

also Johnson v. Executive Office for U.S. Attorneys,

(D.C. Cir. 2002) (“FOIA, requiring as it does both

systemic and case-specific exercises of discretion and

administrative judgment and expertise, is hardly an area in

20 which the courts should attempt to micro manage the executive

branch.”).

Here, Cause of Action contends that the IRS’s search was

inadequate because the agency failed to search for the terms

“FOIA,” “consult,” “OHWC,” “Office of White House Counsel,”

“WHO,” and “White House Office.” Pl.’s Opp., ECF No. 55-1 at 15.

The IRS explains that its search of the term “White House”

renders two of plaintiff’s proposed terms — “Office of White

House Counsel” and “White House Office” — superfluous. Def.’s

Reply., ECF No. 59 at 13. In addition, the IRS avers that

requiring the agency to use the term “FOIA” and “consultation”

would “yield overbroad results” and that it was reasonable for

the agency to craft terms specifically directed at retrieving

communications with the White House. Id.; Black Supp. Decl., ECF

No. 59-6 ¶¶ 12-13. Finally, the IRS notes that the acronyms

“OHWC” and “WHO” do not appear anywhere in plaintiff’s FOIA

request, and plaintiff does not explain why these acronyms were

“obvious” search terms whose omission made the agency’s search

deficient. Def.’s Reply, ECF No. 59 at 13; Black Supp. Decl.,

ECF No. 59-6 ¶ 14. Based on the IRS’s representations, the Court

concludes that the IRS’s decision not to include Cause of

Action’s proposed additional search terms was reasonable.

21 IV. Conclusion For the foregoing reasons, the Court concludes that there

is no genuine dispute of material fact as to the adequacy of the

IRS’s search for documents responsive to Cause of Action’s FOIA

request. Accordingly, the IRS’s motion for summary judgement is

GRANTED, and Cause of Action’s cross-motion for summary judgment

is DENIED. An appropriate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 12, 2018

22