                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
JUDICIAL WATCH, INC.,              )
                                   )
            Plaintiff,             )
                                   )
      v.                           )    Civil Action No. 14-1872 (RMC)
                                   )
INTERNAL REVENUE SERVICE,          )
                                   )
            Defendant.             )
_________________________________  )

                                  MEMORANDUM OPINION

              Judicial Watch, Inc. sues the Internal Revenue Service (IRS) to obtain records

under the Freedom of Information Act, 5 U.S.C. § 552, et seq. (FOIA). IRS has filed a Motion

for Summary Judgment, arguing that it is entitled to summary judgment because it conducted an

adequate search in response to Judicial Watch’s FOIA request, validly invoked FOIA

exemptions to withhold records, and properly declined to release non-responsive records. For

the reasons below, the Court will grant the motion for summary judgment.

                                          I. FACTS

              In an August 8, 2014 letter to IRS, Judicial Watch submitted a request under

FOIA for the following records:

              a) Any and all records concerning, regarding, or related to
              communications between the IRS and the Freedom From Religion
              Foundation (FFRF) on the promotion of political issues, legislation,
              and candidates by churches and other tax-exempt religious
              organizations; and
              b) Any and all records concerning, regarding, or related to IRS
              monitoring of churches and other tax-exempt religious
              organizations to ensure that such organizations are not engaging in
              the promotion of political issues, legislation, and candidates.




                                               1
Mot. for Summ. J. [Dkt. 12], Declaration of A. M. Gulas (Gulas 1st Decl.), Ex. A. IRS

responded to Judicial Watch’s FOIA request by letter dated September 8, 2014 and requested an

extension until October 31, 2014 to provide a final response. Judicial Watch filed suit here on

November 6, 2014 after IRS did not further respond to its FOIA request. Gulas 1st Decl. ¶ 4.

               Pursuant to a joint stipulation filed on January 5, 2015, the parties agreed that

Judicial Watch’s FOIA request did “not seek information regarding or relating to examination

files or other taxpayer return or return information as defined by 26 U.S.C. § 6103.” 1 See

Stipulation [Dkt. 10]. IRS had earlier identified forty (40) pages of records in response to item 1

of Judicial Watch’s FOIA request “as originally submitted to the Internal Revenue Service.” See

Supplemental Decl. of A. M. Gulas [Dkt. 16-1] ¶ 3 (Gulas Supp. Decl.). By letter dated January

15, 2015, IRS informed Judicial Watch that it would not produce any of the 40 pages of records

because it considered the records non-responsive to Judicial Watch’s FOIA request in light of the

parties’ stipulation. Gulas 1st Decl., Ex. A.

               Pending before the Court is IRS’s motion for summary judgment. IRS thereafter

filed a motion for leave to submit a declaration and an addendum brief providing detailed

descriptions of the 40 pages of contested records for in camera, ex parte review, which the Court

granted. See 6/4/15 Minute Order. 2 IRS delivered to chambers for in camera, ex parte review

the Gulas 2nd Declaration and its addendum. See Notice of Compliance [Dkt. 17].




1
 26 U.S.C. § 6103(a) provides that “return information” shall be confidential and shall not be
disclosed except as authorized. See 26 U.S.C. § 6103.
2
 IRS argued that it was “unable to publicly describe those pages in detail without violating the
prohibition against disclosure contained in 26 U.S.C. § 6103.” See Mot. for Leave to Submit
Documents For the Court’s In Camera Review [Dkt. 14] at 2.

                                                 2
                                     II. LEGAL STANDARD

               IRS contends that it is entitled to judgment as a matter of law because there is no

genuine dispute as to any material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). Summary judgment is properly granted against a party who

“after adequate time for discovery and upon motion . . . fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling

on a motion for summary judgment, a 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. A nonmoving party, however, must establish more than “[t]he mere existence of a

scintilla of evidence” in support of its position. Id. at 252.

               FOIA cases are typically and appropriately decided on motions for summary

judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.

Supp. 477, 481 n.13 (D.D.C. 1980), aff’d, Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In

a FOIA case, a district court may award summary judgment solely on the basis of information

provided by the agency in affidavits when the affidavits describe “the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). Affidavits submitted by the agency to demonstrate the

adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA,

692 F.2d 770, 771 (D.C. Cir. 1981).




                                                   3
                                         III. ANALYSIS

               As an initial matter, IRS argues that it conducted an adequate search for records

responsive to Judicial Watch’s FOIA request and properly invoked FOIA exemptions to justify

withholding records responsive to item 2 of the request. See Mem. for Summ. J. [Dkt. 12-1] at

3-9. Judicial Watch does not respond to either of these arguments, and the Court treats them as

conceded. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25

(D.D.C. 2003), aff'd, 98 Fed. Appx. 8 (D.C. Cir. 2004) (“It is well understood in this Circuit that

when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments

raised by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.”).

               The sole issue remaining in this case is whether IRS properly withheld 40 pages

of records located in connection with item 1 of the FOIA request. IRS asserts that the records

are non-responsive to Judicial Watch’s FOIA request in light of the stipulation that Judicial

Watch does not seek records that constitute “return information” as defined by 26 U.S.C. § 6103.

IRS maintains that the 40 pages of records are therefore not subject to FOIA’s disclosure

requirements. Judicial Watch argues that IRS has improperly withheld the records because it has

failed to demonstrate with particularity that the records qualify as “return information” or are

exempt from disclosure under a valid FOIA exemption. Judicial Watch contends that the Gulas

1st Declaration, filed on the public record, contains insufficient detail for the Court to evaluate

whether IRS has validly withheld the records, particularly in the absence of a Vaughn index. 3


3
  A Vaughn index, which is named after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), generally “indicates in some descriptive way which documents the agency is withholding
and which FOIA exemptions . . . apply . . . . [T]here is no fixed rule establishing what a Vaughn
index must look like, and a district court has considerable latitude to determine its requisite form
and detail in a particular case.” ACLU v. CIA, 710 F.3d. 422, 432 (D.C. Cir. 2013). “In the usual
case, the index is public and relatively specific in describing the kinds of documents the agency
                                                  4
               The Internal Revenue Code broadly defines “return information” as

               a taxpayer’s identity, the nature, source, or amount of his income,
               payments, receipts, deductions, exemptions, credits, assets,
               liabilities, net worth, tax liability, tax withheld, deficiencies,
               overassessments, or tax payments, whether the taxpayer’s return
               was, or is being 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, interest, fine, forfeiture, or other
               imposition or offense . . .

26 U.S.C. § 6103(b)(2). Judicial Watch stipulated that it does not seek records “regarding or

relating to . . . taxpayer return or return information as defined by 26 U.S.C. § 6103.” See

Stipulation [Dkt. 10].

               The Gulas 2nd Declaration provides detailed descriptions of the 40 pages of

contested records with more than sufficient information for this Court to determine the nature of

the records. Therefore, the Court finds that its review of the records themselves is unnecessary.

On the basis of the Gulas 2nd Declaration, the Court finds that the 40 pages of records that IRS

withheld consist entirely of return information within the meaning of 26 U.S.C. § 6103. Because

of the constraints on IRS’s release of “return information,” it was proper for IRS to submit the

Gulas 2nd Declaration for ex parte, in camera review in lieu of a Vaughn index. Furthermore,

because Judicial Watch stipulated that it did not seek such information, the Court concludes that

the 40 pages of records are non-responsive to Judicial Watch’s FOIA request. See Competitive



is withholding.” Id. However, “an agency may even submit other measures in combination with
or in lieu of the index itself,” such as supporting affidavits. Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 146 (D.C. Cir. 2006). “Any measure will adequately aid a court if it
‘provide[s] a relatively detailed justification, specifically identif[ies] the reasons why a particular
exemption is relevant and correlat[es] those claims with the particular part of a withheld
document to which they apply.’” Id. (citing Mead Data Cent., Inc. v. U.S. Dep't of Air Force,
566 F.2d 242, 251 (D.C. Cir. 1977)).
                                                   5
Ent. Inst. v. E.P.A., 12 F. Supp. 3d 100, 114 (D.D.C. 2014) (“Documents that are ‘non-

responsive’ to a FOIA request . . . are simply not subject to the statute’s disclosure requirements,

and agencies may thus decline to release such material without invoking a statutory

exemption.”); see also Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140, 156 (D.D.C. 2010)

(“[b]ecause an agency has ‘no obligation to produce information that is not responsive to a FOIA

request,’” agencies’ redaction of non-responsive information was proper) (citation omitted).

Accordingly, IRS “may decline to release such material without invoking a statutory exemption.”

Competitive Ent. Inst., 12 F. Supp. 3d at 114. The Court will therefore grant summary judgment

to IRS.

                                       IV. CONCLUSION

               For the reasons above, the Court will grant IRS’s motion for summary judgment,

Dkt. 12. A memorializing Order accompanies this Memorandum Opinion.



Date: August 24, 2015

                                                                     /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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