                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   ROBERT V. JUSTICE,

                           Plaintiff,

                         v.                                   Civil Action 10-00568 (HHK)

   INTERNAL REVENUE SERVICE,

                           Defendant.


                                  MEMORANDUM OPINION

       Robert V. Justice, proceeding pro se, brings this action under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, against the Internal Revenue Service (“IRS”). Justice seeks to

compel the release of a letter purportedly written by the Commissioner of the IRS in 1985. After

searching its records, the IRS did not find the requested letter.

        Before the Court is the IRS’s motion for summary judgment and Justice’s opposition

thereto. Upon consideration of the IRS’s motion, the opposition thereto, and the summary-

judgment record, the Court concludes that the motion should be granted.

                                        I. BACKGROUND

       Justice’s FOIA request seeks “a letter sent by Commissioner Roscoe L. Egger, Jr. of the

IRS to all district directors dated April 4, 1985.” Compl., Ex. A at 1. The letter Justice seeks

purportedly advises IRS officials that they should issue a tax refund to individuals upon request

because the Sixteenth Amendment was not properly ratified. See Justice Decl., Ex. 1. In

response to Justice’s request, Sharon House, the FOIA coordinator for the Commissioner’s

office, located five boxes of records from the Commissioner’s reading file. Def.’s Mot. for
Summ. J., Ex. 1 (Decl. of Sharon House) (“House Decl.”) ¶¶ 10–11. House searched those

documents because the “reading file generally consists of correspondence written by the

Commissioner” and “I knew that it was likely that if the requested document existed, it would

probably be located” in that file. Id. ¶¶ 9–10. House reviewed the boxes but did not find the

letter sought by Justice. Id. ¶¶ 12–13. House also asked an IRS librarian to attempt to locate the

letter; the librarian responded by informing House that “[t]here were things from that month, but

nothing from that day, nor signed by the Commissioner.” Id. ¶ 13.

       On May 11, 2005, the IRS informed Justice that it could not locate the requested letter.

Compl., Ex. B. Justice appealed this finding, but was informed by the IRS that the agency had

already conducted an adequate search. Id., Exs. C, D. This suit followed.

                                         II. ANALYSIS

A.     Legal Standard

       FOIA provides access to federal agency records, subject to certain specified exceptions. 5

U.S.C. § 552(a), (b). In response to a FOIA request, an agency must “conduct[] a search

reasonably calculated to uncover all relevant documents.” Steinberg v. U.S. Dep’t of Justice, 23

F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485

(D.C. Cir. 1985)) (internal quotation marks omitted).

       Summary judgment is appropriate if “the movant shows that 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). When the adequacy of an agency’s search for requested records is at issue, an agency is

entitled to summary judgment if it demonstrates that “it has conducted a search reasonably




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calculated to uncover all relevant documents.” Steinberg, 23 F.3d at 551 (quoting Weisberg, 745

F.2d at 1485) (internal quotation marks omitted).

       In resolving disputes about the adequacy of a search, an agency’s declaration is entitled to

a presumption of good faith. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991). To challenge an agency’s showing that it complied with FOIA, a plaintiff must point to

evidence of bad faith. Moore v. Aspin, 916 F. Supp. 32, 35–36 (D.D.C. 1996). In doing so,

however, it is not enough to make “‘purely speculative claims about the existence and

discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B.     The IRS is Entitled to Summary Judgment

       An agency may submit affidavits or declarations to show that its search for responsive

records “us[ed] methods which can be reasonably expected to produce the information

requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The affidavits or

declarations must be “reasonably detailed” and “set[] forth the search terms and type of search

performed, and aver[] that all files likely to contain responsive materials (if such records exist)

were searched.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)

(internal citation and quotation marks omitted). Conclusory statements asserting that the agency

has reviewed all relevant files will not suffice. Id.

       In this case, the IRS argues that it fully complied with its obligations under FOIA to

execute an adequate search. In support of its argument, the IRS provides House’s declaration

describing the agency’s search for the letter sought by Justice. See generally House Decl.

Justice responds with a declaration of his own, stating that he is unable to present any facts in


                                                  3
opposition to the IRS’s motion because he has not been allowed to pursue discovery. He also

avers that House’s declaration should not be accorded a presumption of good faith because the

letter he seeks to disclose was “ordered destroyed.” Justice Decl. ¶ 4. Justice’s arguments lack

merit.

         The record establishes that the IRS conducted searches that were reasonably expected to

produce the requested information. See Steinberg, 23 F.3d at 551. In particular, House states in

her declaration that she and an IRS librarian searched for the letter in locations that House

reasonably believed would contain letters authored by the Commissioner during the year in

which Justice contends the letter was penned. House Decl. ¶¶ 9–13. The declaration is detailed

and specific, allowing the Court to conclude that the relevant files were likely searched. See

Nation Magazine, 71 F.3d at 890.

         With respect to Justice’s argument that House’s declaration is not entitled to a

presumption of good faith because the letter was “ordered destroyed,” the Court cannot agree.

Declarations such as House’s are accorded a presumption of good faith. SafeCard Servs., 926

F.2d at 1200. The presumption cannot be rebutted by “purely speculative claims.” Id. Justice’s

contention that the requested letter was “ordered destroyed” amounts to a “purely speculative

claim,” as he does not provide any evidence in support of this assertion. Furthermore, the fact

that the IRS did not locate the requested letter does not advance Justice’s case. An agency’s

search will not be presumed inadequate simply because the agency did not find the requested

documents. Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007).

Accordingly, the Court finds that the IRS complied with its search obligations.

C.       Justice is Not Entitled to Discovery


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       Justice requests discovery under Rule 56(f) of the Federal Rules of Civil Procedure,1

arguing that discovery would raise genuine issues of material fact. In FOIA actions, however,

discovery is disfavored. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d 54, 65

(D.D.C. 2002) (citing Nation Magazine, 71 F.3d at 892; Oglesby, 920 F.2d at 68). Courts permit

discovery in FOIA cases where a “plaintiff has made a sufficient showing that the agency acted

in bad faith.” Voinche v. FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006) (citing Carney v. U.S. Dep’t

of Justice, 19 F.3d 807, 812 (2d Cir. 1994)).

       Justice asserts that the requested letter was “ordered destroyed.” Justice Decl. ¶ 4. As the

Court indicates above, such an assertion is purely speculative, as Justice has failed to provide any

evidence in support of this contention. Because discovery in FOIA cases is the exception and not

the rule, and because Justice has failed to adduce any evidence that the IRS has acted in bad faith,

the Court denies his discovery request.

                                       III. CONCLUSION

       As set forth above, the IRS has demonstrated that it conducted searches reasonably

expected to produce the requested letter. Accordingly, the IRS’s motion for summary judgment

will be granted. A separate order accompanies this memorandum opinion.



                                                             Henry H. Kennedy, Jr.
                                                             United States District Judge




       1
              Since Justice responded to the IRS’s motion for summary judgment, Rule 56(f)
has been recodified “without substantial change” as Rule 56(d). Fed. R. Civ. P. 56(d) 2010
amend. cmt. (2010).

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