UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIDDLE EAST FORUM,

Plaintiff, v. Civil No. 17-2010 (JDB) UNITED STATES DEPARTMENT OF THE TREASURY, et al.,

Defendants.

MEMORANDUM OPINION

The Freedom of Information Act’s “core purpose” is to “contribut[e] significantly to public

understanding of the operations or activities of the government.” U.S. Dep’t of Justice v. Reporters

Comm. for Freedom of Justice,

(1989) (emphasis omitted). The “core purpose”

of the Internal Revenue Code’s confidentiality provision,

, is to “protect[]

taxpayer privacy.” Tax Analysts v. IRS,

(D.C. Cir. 1997). This case highlights

the tension between those two purposes.

Plaintiff Middle East Forum (“MEF”), a nonprofit organization, brought this action against

the Internal Revenue Service (“IRS”) pursuant to the Freedom of Information Act (“FOIA”). 1 In

a FOIA request, MEF sought any communications between the IRS Office of Criminal

Investigation and other government agencies relating to a third party, Islamic Relief USA. MEF

alleges that the IRS violated FOIA by failing to process its request. The IRS has moved to dismiss,

claiming that MEF’s request was for a third party’s “return information,” which is protected by

the confidentiality provision of the Internal Revenue Code (“IRC”). See

.

1 According to its complaint, “MEF promotes American interests in the Middle East and protects Western Values from Middle Eastern threats. . . . MEF emphasizes the danger of lawful Islamism; protects the freedoms of anti-Islamist authors, activists, and publishers; and works to improve Middle East studies.” Compl. [ECF No. 1] ¶ 9.

1 However, as MEF made clear after the IRS’s initial denial, the request sought only any information

that was not protected return information. By failing to complete a FOIA search to determine

whether any responsive, non-protected material existed, the IRS failed to meet its obligation under

FOIA to produce responsive records or adequately explain its refusal to do so. Because the

appropriate remedy for an agency’s failure to produce records under FOIA is an injunction, the

IRS’s motion to dismiss will be denied with respect to MEF’s claim for injunctive relief and

granted with respect to MEF’s claim for declaratory judgment.

BACKGROUND

FOIA requires agencies to respond to any records request which “(i) reasonably describes

such records and (ii) is made in accordance with published rules stating the . . . procedures to be

followed.”

(a)(3)(A). This requirement does not include material that is

“specifically exempted from disclosure by statute . . . if that statute . . . establishes particular criteria

for withholding or refers to particular types of matters to be withheld.”

(b)(3)(A)(ii).

The IRC exempts many IRS documents from disclosure with its broad definition of “return

information,” which includes, among other things,

whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty . . . or offense.

(b)(2)(A). Pursuant to this section, the Department of the Treasury promulgated

regulations which state that “[i]n the case of records containing information with respect to

particular persons the disclosure of which is limited by statute or regulations, persons making

requests shall establish their identity and right to access such records.”

(c)(5)(iii)(A). For any “person requesting records . . . pertaining to other persons, the

2 requester shall furnish a properly executed . . . tax information authorization.”

§ 601.702(c)(5)(iii)(C).

This case arises out of a July 20, 2017 FOIA request submitted by MEF to the IRS. Compl.

[ECF No. 1] ¶ 2; see

(a)(3)(A). By this request, MEF sought

any and all communications, (including, but not limited to, emails, memos, meeting notes, letters, phone records, or similar materials) created between August 1, 2013 and the present, between (1) Internal Revenue Service (IRS) – Office of Criminal Investigation, and (2) any of the following: the Department of Justice (DOJ), Federal Bureau of Investigation (FBI) and/or the Office of Personnel Management (OPM), (3) that mention, are concerning, or relate to, Islamic Relief USA. Compl. ¶ 2. The IRS replied on July 27, 2017, informing MEF that the request was invalid because

it did not include “written authorization from Islamic Relief USA for the disclosure of the records”

pursuant to

(c)(5)(iii)(C). Compl. ¶ 5; Decl. of Han Huang [ECF No. 8-1] ¶ 4.

MEF claims that this reply was a decision by IRS to deny the request and thus was

appealable. Compl. ¶ 6. The IRS replies that the allegedly imperfect initial request did not trigger

its obligation to respond, so the reply was an unappealable determination of deficiency rather than

a denial of access. Def.’s Mot. to Dismiss [ECF No. 8] at 3. Nevertheless, MEF “administratively

appealed” on August 24, 2017, claiming that the requested records were “not tax records” and

therefore no authorization was required. Def.’s Mot. to Dismiss at 3; Decl. of Han Huang ¶ 7. By

a September 15, 2017 letter, the IRS again refused to search, citing FOIA’s exemption for law

enforcement information and claiming that all responsive information was protected return

information. Decl. of Han Huang ¶ 8 (citing

(b)(7)(C)). 2 The IRS informed MEF

that the IRS’s action was final and that the request was closed.

2 The IRS’s motion to dismiss does not raise this “law enforcement” exemption, which covers “records or information compiled for law enforcement purposes . . . that . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). The IRS instead relies on the “specifically exempted from disclosure by statute” exemption. See

(b)(3)(A).

3 MEF claims that the IRS failed to respond to its allegedly perfected FOIA request by the

statutory deadline and unreasonably misinterpreted the request. Compl. ¶¶ 28, 32. Therefore,

MEF filed suit “to compel IRS to comply with the law, to search for, and to produce” the records

described in the request. Compl. ¶ 8. MEF seeks (1) injunctive relief compelling the IRS to

produce responsive records,

¶¶ 36–37; (2) a declaratory judgment that the records it requests

are subject to release, that the IRS must release those records, and that the IRS may not assess

costs,

; and (3) an award of fees and costs from the IRS,

. The IRS has moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6), claiming that MEF’s failure to provide

third-party authorization rendered its request imperfect and non-compliant with the IRS’s FOIA

regulations, and thus insufficient to trigger the IRS’s FOIA obligations. See Def.’s Mot. to Dismiss

at 4–5. The IRS’s motion is now fully briefed and ripe for decision.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint

must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim need not be more likely to succeed than to fail but must “raise

a right to relief above the speculative level.” Twombly,

. The court must “treat

the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all inferences that

can be derived from the facts alleged.’” Elec. Privacy Info. Ctr. v. IRS,

(D.D.C. 2018) (citing Sparrow v. United Air Lines, Inc.

(D.C. Cir. 2000)).

When ruling on a 12(b)(6) motion, a court may consider the complaint along with “any documents

either attached to or incorporated in the complaint and matters of which [the Court] may take

judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997).

4 FOIA requesters must exhaust administrative remedies before filing suit, but the

exhaustion requirement is “a jurisprudential doctrine” rather than a jurisdictional bar. Hidalgo v.

FBI,

(D.C. Cir. 2003). Thus, although “FOIA cases typically and

appropriately are decided on motion for summary judgment,” courts “evaluate FOIA-exhaustion

claims under Rule 12(b)(6).” Kalu v. IRS, Civil Action No. 14-998 (JEB),

, at

*3–4 (D.D.C. July 1, 2015); see also Campaign for Accountability v. U.S. Dep’t of Justice,

(D.D.C. 2017) (“FOIA’s ‘reactive’ disclosure provision . . . indicates that an

agency’s denial of ‘any [procedurally compliant] request for records’ is improper, at least as a

prima facie matter.” (alteration in original) (quoting

(a)(3))).

ANALYSIS

The IRS claims that MEF’s FOIA request was imperfect because it did not comply with

FOIA or the IRS’s FOIA regulations, and that MEF therefore failed to exhaust administrative

remedies. The IRS also claims that the declaratory judgment MEF seeks is unavailable because

the IRS has not engaged in a pattern of denials or systemic FOIA violations. The Court will

examine each of these arguments in turn.

I. INJUNCTIVE RELIEF

The standard remedy for a FOIA violation is an injunction from a district court ordering

“the production of any agency records improperly withheld from the complainant.”

(a)(4)(B). To oppose an injunction, “the burden is on the agency to sustain its action.”

IRS claims that injunctive relief is improper because MEF’s request is imperfect and MEF failed

to exhaust administrative remedies. Def.’s Mot. to Dismiss at 9. Because the IRS has not

sufficiently justified its refusal to search for records responsive to MEF’s request, the IRS’s motion

to dismiss will be denied with respect to MEF’s claim for injunctive relief.

5 A. Perfected Request

The IRS’s FOIA regulations require that, “[i]n the case of records containing

information . . . the disclosure of which is limited by statute”—such as the IRC’s confidentiality

provision—the person “making requests shall establish their identity and right to access to such

records.”

(c)(5)(iii)(A). Where the requester seeks records “pertaining to

other persons,” the requester must establish its right to access those records by “furnish[ing] a

properly executed . . . tax information authorization.”

(c)(5)(iii)(C). The IRS

claims that MEF failed to provide this authorization, which rendered its request imperfect and

failed to trigger the IRS’s FOIA obligation. Def.’s Mot. to Dismiss at 7. However, an agency

responding to a FOIA request has an “obligation under the law of this circuit ‘to construe a FOIA

request liberally.’” LaCedra v. Exec. Office for U.S. Attorneys,

(D.C. Cir.

2003) (quoting Nation Magazine v. U.S. Customs Serv.,

(D.C. Cir. 1995)). The

responding agency also must conduct a search “that is ‘reasonably calculated to uncover all

relevant documents.’” Pinson v. U.S. Dep’t of Justice,

(D.D.C. 2014)

(quoting Hodge v. FBI,

(D.C. Cir. 2013)). Even if the IRS was justified in

rejecting MEF’s initial FOIA request as imperfect, MEF’s response (whether it constituted an

appeal or a renewed request) clarified that the request was for any information not protected by

statute. See Freedom of Information Act Appeal [ECF No. 8-4] at 2 n.1, 6. A “liberal

interpretation” of MEF’s request indicates that MEF was seeking only non-“return information”

and that no third-party authorization was therefore required.

To prove successfully that a “request on its face solely seeks . . . return information,” an

agency must “‘make an appropriate showing that all the information . . . comes within the statutory

definition’ of return information.” Hull v. IRS,

(10th Cir. 2011)

6 (emphasis added) (quoting Church of Scientology of Cal. v. IRS,

(D.C. Cir.

1986)). In Hull, the court granted the IRS’s motion for summary judgment based on affidavits of

“three IRS agents who had reviewed Plaintiffs’ FOIA request” and had provided a “logical and

specific explanation of why all of what Plaintiffs seek” was protected.

at 1175–77, 1191.

However, in Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation,

(D.C. Cir. 2017), the court found the FBI’s affidavits insufficient to support its

motion for summary judgment because they were “utterly silent as to which files . . . were

examined in connection with the targeted searches and how any such searches were conducted.”

Similarly, the IRS in the present case submitted a single affidavit to support its claim that

MEF’s request seeks return information. See Decl. of Han Huang. This affidavit is based only on

an examination of MEF’s request and the IRS’s initial response. Id. ¶ 10. Without a more detailed

explanation of the IRS’s process in determining that all information responsive to MEF’s request

would be protected information, this affidavit is insufficient to support the IRS’s motion. See

Reporters Comm.,

; see also Am. Ctr. for Law and Justice v. U.S. Dep’t of Justice,

(D.D.C. 2018) (on motion for summary judgment in FOIA case, court can

accept agency’s affidavits if they “provide reasonably specific detail concerning the methods used”

in agency’s process). This is all the more true because the IRS seeks not to withhold information

on a summary judgment motion after a search, but rather to dismiss MEF’s claim without

conducting a search in the first place. It is difficult to take the IRS at its word that all information

responsive to MEF’s request would fall within the return information exception when the IRS has

not run a search to see if that is, indeed, the case. 3

3 If confirming or denying the existence of responsive records would associate the individual named in the request with criminal activity, an agency may instead issue a “Glomar response” to assert that it cannot confirm or deny the existence of responsive records. See Nation Magazine,

. In this case, the IRS did not issue a Glomar response. Def.’s Mot. to Dismiss at 8.

7 The IRS also asserts that MEF’s request was imperfect because it did not “reasonably

describe” the records sought.

(a)(3)(A); Def.’s Mot. to Dismiss at 10. Although

the IRS’s FOIA regulations require “no specific formula . . . the requirement shall generally be

satisfied if the requester gives the name, . . . subject matter, location, and years at issue, of the

requested records.”

(c)(5)(i). The IRS claims that MEF’s request was not

reasonably specific because it did not include Islamic Relief USA’s taxpayer identification number

or location, or the system of records to be searched. Def.’s Mot. to Dismiss at 11. However,

MEF’s request included the name of the group, subject matter, IRS office where responsive files

would be found, date range, and the types of records sought. Compl. ¶ 2; FOIA Request [ECF No.

8-2] at 1–2, 2 n.2. IRS regulations require that FOIA requests “describe the records in reasonably

sufficient detail to enable . . . employees who are familiar with the subject matter of the request to

locate the records without placing an unreasonable burden upon the IRS.”

(c)(5)(i). The “linchpin inquiry is whether ‘the agency is able to determine precisely

what records are being requested.’” Dale v. IRS,

(D.D.C. 2002) (citation

omitted). Here, the IRS never requested additional information beyond the authorization form,

and its immediate identification of “all of the information . . . requested” as “return information”

indicates that the request sufficiently identified the records MEF sought. Def.’s Mot. to Dismiss

at 7.

B. Administrative Exhaustion

The IRS also claims that its response to MEF’s request was not appealable because a

“determination by the Disclosure Office that a request is deficient in any respect is not a denial of

access.” Decl. of Han Huang ¶¶ 5, 8. Without a perfected request, an agency has no duty to

respond to FOIA requests, and the requester fails to exhaust the administrative process. See, e.g.,

8 Hidalgo v. FBI,

, 1258–59 (D.C. Cir. 2003) (stating that “failure to exhaust precludes

judicial review if the ‘purposes of exhaustion’ and the ‘particular administrative scheme’ support

such a bar” (citing Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990))). But “the

unavailability of an administrative appeal [does] not preclude a requester from seeking judicial

review of an agency’s decision that a request is improper,” because “when an agency makes a

conscious choice not to provide a party with administrative process, the agency constructively

waives the requirement of administrative exhaustion.” Nat’l Sec. Counselors v. CIA,

(D.D.C. 2012). Here, the IRS has asserted that administrative review is unavailable.

Decl. of Han Huang ¶ 8. Because MEF disputes that the information it sought in the request was

protected return information, it had “no choice but to refuse to provide the consent and appeal the

IRS’s determination.” Hull,

. Given that MEF has filed a perfected FOIA request,

and has not failed to exhaust the administrative process, the IRS must conduct the requested search.

Hence, the IRS’s motion to dismiss MEF’s claim for injunctive relief will be denied.

II. DECLARATORY JUDGMENT

MEF asks the Court to declare that the IRS must search for and release responsive

documents and may not seek fees for the search. Compl. ¶ 33. The IRS contends that MEF is not

entitled to a declaratory judgment because the complaint does not allege “a pattern or practice of

delayed disclosure” or that “violations will recur with respect to the same requestors.” Def.’s Mot.

to Dismiss at 12 (quoting Navigators Ins. Co. v. Dep’t of Justice,

(D.

Conn. 2016)). The typical remedy for FOIA violations is an injunction from a district court

compelling production. See

(a)(4)(B); Edmonds Inst. v. U.S. Dep’t of Interior,

(D.D.C. 2005) (“The FOIA statute offers a clear and simple remedy for

agency non-compliance with the FOIA deadlines: a motion asking the court to compel the agency

9 to act on the FOIA request.”). Courts will grant declaratory judgments in the FOIA context for

“policy or practice” violations, where agencies engage in patterns or have policies of denying

FOIA requests. COMPTEL v. FCC,

(D.D.C. 2012). To support a claim

for declaratory relief, “the plaintiff is only required to put forth a plausible, ‘more than . . .

nebulous’ assertion of the existence of an ongoing pattern or practice.” Nat’l Sec. Counselors,

(quoting Haase v. Sessions,

, 910–11 (D.C. Cir. 1987)). MEF

alleges that the IRS violated FOIA by failing to search based on MEF’s initial request and by

failing to correct that decision on appeal. Compl. ¶ 28. These two isolated failures do not

constitute a “pattern or practice,” and MEF makes no allegations of other denials in similar

circumstances. Cf. Payne Enters. v. United States,

(D.C. Cir. 1988)

(holding that policy of refusing to release responsive documents despite warning from Secretary

of Air Force was a “pattern or practice,” rather than “isolated mistakes by agency officials”).

Because the standard remedy for FOIA violations is injunctive relief and MEF has not plausibly

alleged that the IRS denied its requests based on a policy or practice, the IRS’s motion to dismiss

will be granted with respect to MEF’s declaratory judgment claim.

III. COSTS AND FEES

Finally, MEF asks the Court to assess litigation fees and costs against the IRS. Compl.

¶ 41; see

(a)(4)(E) (court may “assess . . . fees and other litigation costs . . . in any

case under this section in which the complainant has substantially prevailed”). Both parties agree

that the award of fees and costs is “premature” at this stage because it is not yet clear whether MEF

will “substantially prevail.” Def.’s Mot. to Dismiss at 13; Pl.’s Mem. in Opp’n [ECF No. 9] at 8.

MEF also asks the court to declare that “plaintiffs are entitled to a waiver of [IRS] fees”

for the underlying FOIA request. Compl. ¶ 33(c). The IRS claims that the request for a fee waiver

10 is inappropriate because MEF has not exhausted administrative remedies and reminds the Court

that such a waiver is “discretionary.” Def.’s Mot. to Dismiss at 13 (citing Brayton v. U.S. Office

of the Trade Representative,

(D.C. Cir. 2011)). As the IRS cannot rely on the

exhaustion requirement to avoid a merits determination on MEF’s fee waiver request, it has the

opportunity to determine anew whether MEF qualifies for a fee waiver before it conducts the

requested search. See

(a)(4)(A)(iii). That determination can then be reviewed on

summary judgment along with any decision by the IRS to withhold documents. See, e.g., Espinoza

v. Dep’t of Justice,

(D.D.C. 2014).

CONCLUSION

It may well be that all of the records responsive to MEF’s request for inter-agency

communications concerning Islamic Relief USA are exempt from FOIA disclosure. However, the

IRS cannot aver that no responsive, non-exempt records exist without looking for them. For the

reasons explained above, the IRS’s motion to dismiss will be denied as to MEF’s claim for

injunctive relief and granted as to MEF’s claim for a declaratory judgment. A separate order has

been issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: July 3, 2018

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