                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
CAUSE OF ACTION,                    )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 13-1225 (ABJ)
                                    )
TREASURY INSPECTOR GENERAL          )
FOR TAX ADMINISTRATION,             )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION

        This case arises out of an October 9, 2012 Freedom of Information Act (“FOIA”) request

submitted by plaintiff Cause of Action, a non-profit organization, to the Internal Revenue

Service (“IRS”). Compl. [Dkt. # 1] ¶ 7; Pl.’s Resp. to Def.’s Statement of Undisp. Material

Facts [Dkt. # 28] ¶ 1 (“Pl.’s SOF Resp.”). The IRS referred one portion of plaintiff’s FOIA

request to defendant, the Treasury Inspector General for Tax Administration (“TIGTA”), and

that part of the request is at issue here. 1 Pl.’s SOF Resp. ¶ 2. TIGTA is a component of the U.S.

Department of the Treasury (“Treasury”), and its activities include the investigation of

wrongdoing by IRS employees. Answer [Dkt. # 12] ¶ 4; Pl.’s SOF Resp. ¶ 8. The FOIA request

referred to TIGTA sought “[a]ll documents . . . pertaining to any investigation by [TIGTA] into




1      The remainder of plaintiff’s request is the subject of a different case pending before this
Court: Cause of Action v. I.R.S., No. 13-cv-0920 (D.D.C. filed June 19, 2013).
the unauthorized disclosure of [26 U.S.C.] § 6103 ‘return information’ to anyone in the

Executive Office of the President.” 2 Ex. 1 to Compl. [Dkt. # 1-1] at 2.

       On November 30, 2012, TIGTA issued what is commonly called a Glomar response and

informed plaintiff that it could neither admit nor deny the existence of any responsive records.

Pl.’s SOF Resp. ¶ 4; see also Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).                 After

unsuccessfully appealing defendant’s response at the administrative level, plaintiff filed a

complaint in this Court on August 9, 2013.           Pl.’s SOF Resp. ¶¶ 5–8; Compl. Defendant

answered the complaint on September 18, 2013, and moved for summary judgment on

November 18, 2013. Answer; Def.’s Mot for Summ. J. [Dkt. # 17]. That same day, defendant

also filed a motion for leave to file supplemental materials under seal, which plaintiff opposed on

December 2, 2013. Def.’s Mot. to File Documents Under Seal [Dkt. # 18]; Pl.’s Mem. of P. &

A. in Opp. to Def.’s Sealed Mot. [Dkt. # 21]. The Court granted defendant’s motion for leave to

file sealed materials on February 3, 2014, and it has considered those materials in connection

with this memorandum opinion. See Feb. 3, 2014 Minute Order. Plaintiff cross-moved for

summary judgment on December 23, 2013, arguing that defendant’s Glomar response was

improper. Pl.’s Cross-Mot. for Summ. J. [Dkt. # 27]. Since the Court concludes that the Glomar

response was inappropriate in this case, the Court will deny defendant’s motion, grant plaintiff’s

motion, and remand the matter to the agency for the processing of the FOIA request.




2       It is a criminal offense for “any officer or employee of the United States . . . willfully to
disclose to any person . . . any return or return information (as defined by section 6103(b).” 26
U.S.C. § 7213(a)(1). It is also a criminal offense for “any officer or employee of the United
States . . . willfully to inspect . . . any return or return information acquired by such person or
another person” under other provisions of the title. 26 U.S.C. § 7213A(a)(1)(A), (a)(2) (2012).
                                                 2
                                 STANDARD OF REVIEW

       In a FOIA case, the district court reviews the agency’s action de novo and “the burden is

on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “FOIA cases are typically and appropriately decided

on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009).

       On a motion for summary judgment, the Court “must view the evidence in the light most

favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d

703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986). But where a plaintiff has not provided evidence that an agency acted in bad faith, “a

court may award summary judgment solely on the basis of information provided by the agency

in declarations.” Moore, 601 F. Supp. 2d at 12.

                                         ANALYSIS

       FOIA requires government agencies to release records upon request in order to “ensure

an informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). But because “legitimate governmental and private

interests could be harmed by [the] release of certain types of information,” Congress provided

nine specific exemptions to the disclosure requirements. FBI v. Abramson, 456 U.S. 615, 621

(1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA

represents a balance struck by Congress between the public’s right to know and the

government’s legitimate interest in keeping certain information confidential.”).    These nine

FOIA exemptions are to be construed narrowly. Abramson, 456 U.S. at 630.



                                                  3
       A Glomar response “is proper if the fact of the existence or nonexistence of agency

records falls within a FOIA exemption.” Wolf, 473 F.3d at 374. To justify this response, an

agency must explain why it can neither confirm nor deny the existence of responsive

records. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (“Adapting these procedures

to the present case would require the Agency to provide a public affidavit explaining in as much

detail as is possible the basis for its claim that it can be required neither to confirm nor to deny

the existence of the requested records.”). This inquiry is not based on the content of the

documents, but on whether the potential harm caused by revealing the mere existence of the

documents is protected by a FOIA exemption. See Wolf, 473 F.3d at 374 (“In determining

whether the existence of agency records vel non fits a FOIA exemption, courts apply the general

exemption review standards established in non-Glomar cases.”).

       In this case, defendant contends that it cannot confirm or deny the existence of any

records responsive to the relevant portion of plaintiff’s FOIA request because that bare

acknowledgement would compromise interests protected by Exemptions 3, 6, and 7(C). Mem. in

Supp. of Def.’s Mot. for Summ. J. [Dkt. 17-1] at 1 (“Def.’s Mem.”). But the Court finds that

defendant’s Glomar response is not justified by Exemption 3, and that defendant has waived its

reliance on Exemptions 6 and 7(C) by officially acknowledging that records exist. Therefore, the

case will be remanded to defendant for further action.

I.     Exemption 3 does not justify defendant’s Glomar response because the existence of
       an investigation is not “return information.”

       FOIA Exemption 3 authorizes agencies to withhold information that is “specifically

exempted from disclosure by statute.”       5 U.S.C. §§ 552(b)(3)(A)(i), (b)(3)(B).      Defendant

invokes Exemption 3 by pointing to section 6103 of the Internal Revenue Code, which requires

that tax “[r]eturns and return information” be kept confidential subject to certain exceptions. See

                                                 4
26 U.S.C. § 6103(a). “That [section] 6103 is the sort of nondisclosure statute contemplated by

FOIA exemption 3 is beyond dispute.” Tax Analysts v. I.R.S., 117 F.3d 607, 611 (D.C. Cir.

1997).

         The “core purpose” of section 6103 is to “protect[ ] taxpayer privacy.” Id. at 615.

Congress provided a “deliberately sweeping” definition of “return information” in section 6103,

Landmark Legal Found. v. I.R.S., 267 F.3d 1132, 1135–36 (D.C. Cir. 2001), that includes:

         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, 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, interest,
         fine, forfeiture, or other imposition, or offense . . . .

26 U.S.C. § 6103(b)(2)(A).

         Defendant contends that it cannot confirm or deny the existence of any records relating to

investigations of unlawful disclosures of return information to anyone in the Executive Office of

the President because whether an investigation exists is, itself, return information. Def.’s Mem.

at 10. Defendant acknowledges that the FOIA request at issue here does not call for the

disclosure of any taxpayer’s income, payment history, deductions, net worth, or liability. And

the request does not call for information about whether a particular taxpayer’s return has been or

will be examined or subject to investigation. So the question presented is whether this request

calls for information that falls within the third clause of the definition that begins “or any other

data . . . .” Defendant claims that the existence of the sort of investigation described in the

request constitutes “data . . . with respect to the determination of the existence, or possible

existence of liability . . . of any person under [Title 26] for any . . . offense,” id. at 10–11, even



                                                    5
though the request does not seek information about the liability of any taxpayer for an offense

related to his own taxes. Therefore, defendant argues that its Glomar response is justified under

Exemption 3. Id.

       There is no question that the definition of “return information” in section 6103 “reaches

far beyond what the phrase ‘return information’ would normally conjure up.” Landmark, 267

F.3d at 1138; see also Life Extension Found., Inc. v. I.R.S., 915 F. Supp. 2d 174, 181 (D.D.C.

2013) (“‘Return information’ is defined broadly by [section 6103] to include almost any

information compiled by the IRS in connection with its determination of a taxpayer’s liability for

tax, interest, penalties, or civil or criminal offenses.”), aff’d 559 F. App’x 3 (D.C. Cir. 2014).

But the definition has limits. See Church of Scientology of Cal. v. I.R.S., 792 F.2d 146, 151

(D.C. Cir. 1986) (“Congress would not have adopted such a detailed definition of return

information in Section 6103 if it had simply intended the term to cover all information in IRS

files . . . .”), aff’d 484 U.S. 9 (1987). The Court finds that, in this case, defendant has pushed

those limits too far: the mere existence of records of investigations into unlawful disclosures of

return information is not, itself, return information compiled by the IRS “in connection with its

determination of a taxpayer’s liability” for a violation of Title 26. See Life Extension Found.,

915 F. Supp. 2d at 181.

       A. The Court does not owe “Chevron” deference to defendant’s interpretation.

       As an initial matter, the Court notes that it does not owe Chevron deference to TIGTA’s

interpretation of the term “return information” because TIGTA did not “reach[ ] the

interpretation asserted here in a notice-and-comment rulemaking, a formal agency adjudication,

or in some other procedure meeting the prerequisites for Chevron deference.” Landmark, 267

F.3d at 1135–36, citing United States v. Mead Corp., 533 U.S. 218 (2001); see also Chevron,



                                                6
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). TIGTA does not contend

otherwise. Therefore, the Court will accord defendant’s interpretation only “the weight derived

from [its] ‘power to persuade.’” Landmark, 267 F.3d at 1136, quoting Mead, 533 U.S. at 228;

see also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But see Tax Analysts, 117 F.3d at

613 (applying Chevron deference to the IRS’s interpretation of the term “data” within the section

6103 definition of “return information” without further explanation).

       B. The mere existence of an investigation into unnamed parties does not constitute
          “return information” under section 6103.

       The question presented in this case appears to be one of first impression: the parties have

not cited, and the Court has not found, any binding authority that addresses the use of a Glomar

response based on the claim that confirming the mere existence of records of an investigation

into unnamed individuals for something other than an offense related to their liability as a




                                                7
taxpayer would reveal confidential “return information.” 3 Defendant contends that the existence

of investigations of violations of section 6103 constitutes “return information” because it is “data

. . . with respect to the determination of the existence, or possible existence, of liability . . . of any

person under this title for any . . . offense.”           Pl.’s Mem. at 9–10, quoting 26 U.S.C.

§ 6103(b)(2)(A). The Court is concerned that defendant stripped the provision of its meaning

and not simply surplussage when it took its scissor to the statute. But at this juncture, the Court

need only find that under D.C. Circuit precedent, the term “data” in section 6013 does not stretch

so far as to cover an acknowledgement of the mere existence of the records sought here. See Tax

Analysts, 117 F.3d at 614–15.




3       The parties have directed the Court to two out-of-circuit cases. See Hull v. I.R.S., 656
F.3d 1174 (10th Cir. 2011); Leonard v. U.S. Dep’t of Treasury, No. 10-6625 (RBK/JS), 2012
WL 813837 (D. N.J. Mar. 9, 2012). In Hull, the plaintiff FOIA requesters sought information
relating to two named third parties. Hull, 656 F.3d at 1176. The defendant, the IRS, did not
assert a Glomar response, but it did refuse to search for responsive records, citing Exemption 3
and section 6103. Id. at 1192. The Tenth Circuit held that the IRS’s response was appropriate
because “a search for responsive documents and resulting confirmation that they exist would
disclose the fact that a certain corporation and its pension plan had been in communication with
the IRS” about matters that could subject both entities to tax liability. Hull, 656 F.3d at 1195.
Hull is easily distinguished from this case, however, because the FOIA request at issue there
related to the potential tax liability of two specific, named taxpayers. See id. Here, the request
does not implicate any taxpayer’s tax liability.
        In Leonard, the court held that the IRS’s Glomar response was inappropriate where a
FOIA requester sought “whistleblower” forms bearing his own name that had been filed with the
IRS. Leonard, 2012 WL 813837, at *3. The IRS contended that it could not even confirm the
existence of the records because that would inform the plaintiff that he was under investigation,
which would constitute “return information” under section 6103. Id. at *4. The court held that
the IRS’s Glomar response was not justified in part because the agency had not established that
confirming “the mere existence of whistleblower forms filed about Plaintiff” would reveal return
information since it would not “lead to the necessary conclusion that an IRS investigation ha[d]
been undertaken against him.” Id. at *5. The Leonard case is of little utility here since it turned
upon the agency’s failure to comply with procedural requirements that attach under Third Circuit
precedent when Glomar is invoked, id. at *4, and the court found that the situation did not
present the “exceptional circumstances” needed to support a Glomar response in that circuit. Id.
at *5. But to the extent it is instructive at all, it tends to support the Court’s ruling here.


                                                    8
       In Tax Analysts, the Court of Appeals considered whether the legal analyses and

conclusions contained within certain IRS field memoranda constituted “return information”

under section 6103. Id. at 612. The IRS claimed that these legal conclusions fell “within the

catchall ‘other data’” provision of the statute at issue here. Id. The court found that it owed

heightened deference to the IRS’s position under Chevron, 4 but concluded that, “while the IRS’s

interpretation of ‘data’ in [section 6103] [might] be linguistically possible,” it was not “a

permissible construction of the statute in light of its structures and purposes.” Id. at 616. Noting

that “data” is not limited to information that directly identifies a taxpayer, the court held that

“data” within the context of 26 U.S.C. § 6103(b)(2)(A) is still information that is “unique to a

particular taxpayer.” Id. at 614; see also Church of Scientology of Cal. v. IRS, 484 U.S. 9, 15

(1987) (“‘[R]eturn information’ remains such even when it does not identify a particular

taxpayer.”). The court also stated that the IRS had failed to justify the argument that “non-

taxpayer-specific” information constituted “return information,” since withholding it “ha[d]

nothing to do with § 6103’s core purpose of protecting taxpayer privacy.” Id. at 615, citing

Church of Scientology, 484 U.S. at 16. 5




4      The court did not explain why it applied Chevron deference in that case, and based upon
more recent binding authority, the Court concludes that it does not apply here. See Landmark,
267 F.3d at 1135–36, citing Mead, 533 U.S. 218. Moreover, TIGTA does not raise the issue of
deference in its pleadings.

5       The Court further notes that that “data” in section 6103 can encompass information that is
specific to an individual taxpayer, even when that person is a third party. See, e.g., Landmark,
267 F.3d at 1137 (“[T]he term ‘data’ is correctly understood to cover the identity of third parties
who urge the IRS to withdraw or reexamine an entity’s tax-exempt status.”); Tax Analysts v.
I.R.S., 391 F. Supp. 2d 122, 130–31 (D.D.C. 2005) (personal information of taxpayers redacted
from IRS “Check Sheets” and “Harm Memos” was “data” exempt from disclosure under section
6103); Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 29 (D.D.C. 2003) (names and addresses of
individuals who complained to the IRS about the plaintiff constituted “data”).

                                                 9
        The Tax Analysts opinion is instructive here. 6 At this stage of the case, the only question

is whether defendant must acknowledge if some records exist related to an unknown number of

investigations into a particular set of unauthorized disclosures of tax return information: those

made to unnamed individuals in the Executive Office of the President. This information is not

“unique to a particular taxpayer” and it is not “return information,” as broadly defined as that

term may be. 7 Defendant has therefore not carried its burden to “explain[] in as much detail as is

possible the basis for its claim that it can be required neither to confirm nor to deny the existence

of the requested records.” See Phillippi, 546 F.2d at 1013.

        The Court further notes that defendant’s sealed pleading “only” relates to Exemptions 6

and 7(C), and that defendant states in the sealed pleading that it has “fully addressed” the

Exemption 3 issues in its public filings. Since defendant’s arguments in its public materials are

insufficient, the Court concludes that the information protected by defendant’s Glomar response

is not “return information” under section 6103, and that defendant’s reliance on Exemption 3 is

not justified.




6      In Landmark, the D.C. Circuit characterized the holding of Tax Analysts as limited to the
narrow proposition that section 6103 did not cover the particular field memoranda at issue in that
case. 267 F.3d at 1137–38. The court further noted that Tax Analysts did not “consider whether
propositions that were neither factual nor legal qualified as ‘data.’” Id. at 1138. But Tax
Analysts is still relevant to this case because, here, the question is not whether the information
defendant seeks to conceal is “factual” – which it plainly is – but rather whether this factual
information is “unique to a particular taxpayer” – which it is not. See Tax Analysts, 117 F.3d at
614 (emphasis added).

7       Defendant posits that there is a vague “risk” that revealing the existence of the records
plaintiff seeks would confirm that those records are “unique to a particular taxpayer.” Def.’s
Mem. at 13. But any risk of that happening is minimal, since the Executive Office of the
President has nearly 2,000 employees, and the mere revelation that an undisclosed number of
records exists would not link those records to any specific person or people. See Ex. 8 to Pl.’s
Mot. at 27 (table indicating that, in 2010, the Executive Office of the President employed 1,965
people).
                                                 10
       C. TIGTA’s own actions undermine its broad claims.

       The Court also observes that TIGTA’s claim that the existence of an investigation

constitutes “return information” is undermined by its own actions.           TIGTA has repeatedly

acknowledged that investigations into the unlawful disclosure of return information exist, both in

public reports to Congress and in response to other FOIA requests by plaintiff. See Ex. 5 to Pl.’s

Mem. [Dkt. # 27-1] (two letters to U.S. Senators stating the number of investigations “involving

potential violations of Title 26” that TIGTA had conducted in the past six months); Ex. 4 to Pl.’s

Mem. [Dkt. # 27-1] at 13 (chart released by TIGTA to plaintiff in response to a FOIA request

stating that TIGTA had closed 290 investigations into “unauthorized access to tax return

information” in 2012). The fact that TIGTA has publicly announced that it has investigated

unlawful disclosures of, or access to, that body of information protected by statute as “return

information” strongly suggests that the fact of an investigation is not, itself, “return information.”

       “As Skidmore deference looks in part to an agency’s consistency, this must count

against” TIGTA’s claims about the definition of “return information.” Landmark, 267 F.3d at

1137 (internal citations omitted).     These acknowledgements by TIGTA further support the

Court’s conclusion that the “core purpose” of section 6103 – to “protect[ ] taxpayer privacy” –

would not be undermined if TIGTA revealed the existence of the records at issue in this case.

See Tax Analysts, 117 F.3d at 611, 615. For all of these reasons, the Court finds that defendant’s

Glomar response is not justified by Exemption 3.

II.    Although defendant properly invoked Exemption 7(C), it has waived reliance on
       Exemptions 7(C) and 6 by officially acknowledging the existence of an investigation.

       Defendant also asserts that its Glomar response is justified by FOIA Exemptions 6 and

7(C). See Def.’s Mem. at 14. Exemption 6 shields from mandatory disclosure “personnel and

medical files and similar files the disclosure of which would constitute a clearly unwarranted

                                                 11
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects information that

was (1) compiled for law enforcement purposes if (2) the disclosure “could reasonably be

expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C).

Because Exemption 7(C) involves a lower threshold than the one set forth in Exemption 6, which

requires a “clearly unwarranted invasion” of privacy, the Court will address Exemption 7 first.

See id. § 552(b)(6) (emphasis added); see also U.S. Dep’t of Justice v. Reporters Comm. for

Freedom of Press, 489 U.S. 749, 756 (1989) (comparing Exemptions 7(C) and 6). To determine

whether either Exemption 7(C) or 6 applies in this case, the Court balances defendant’s asserted

privacy interest against the public interest in disclosure of information. See id. at 758–59.

       A. The asserted privacy interest outweighs the public interest in disclosure and so
          Exemption 7(C) applies.

       Plaintiff does not dispute that the records it seeks relate to defendant’s law enforcement

functions. Pl.’s Mem. of P. & A. in Supp. of its Opp. to Def.’s Mot. for Summ. J. & in Supp. of

its Cross-Mot. for Summ. J. [Dkt. # 23] at 17 (“Pl.’s Mem.”). Rather, plaintiff contends that

defendant has not established a privacy interest sufficient to outweigh “the only public interest

relevant for purposes of Exemption 7(C),” which is “‘the citizens’ right to be informed about

what their government is up to.’” See Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.

Cir. 1992), quoting Reporters Comm., 489 U.S. at 773; see also Pl.’s Mem. at 18. Specifically,

plaintiff states that “there is a significant public interest in learning whether TIGTA has

conducted any investigations of unauthorized disclosures to [the Executive Office of the

President] because it would reveal how TIGTA responds to allegations of Section 6103

violations by officials at the highest level of the Executive Branch.” Pl.’s Reply in Supp. of Pl.’s

Cross-Mot. for Summ. J. & Opp. to Def.’s Mot. for Summ. J. [Dkt. # 34] at 13 (“Pl.’s Reply”).




                                                 12
       But Exemption 7(C) also “takes particular note of the ‘strong interest’ of individuals,

whether they be suspects, witnesses, or investigators, ‘in not being associated unwarrantedly’”

with law enforcement activity. Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir.

1990), quoting Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984). Therefore, as a general

matter, a Glomar response supported by Exemption 7(C) is justified when “confirming or

denying the existence of the records would associate the individual named in the request with

criminal activity.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 893

(D.C. Cir. 1995). And in the Glomar context, the protections of Exemption 7(C) can apply even

if admitting the existence of records would not definitively link an individual to a criminal

inquiry; if an “[o]fficial acknowledgement” would “‘engender comment and speculation and

carr[y] a stigmatizing connotation,’” the exemption is triggered.         People for the Ethical

Treatment of Animals v. Nat’l Insts. of Health (“PETA”), 745 F.3d 535, 542–43 (D.C. Cir. 2014)

(finding Glomar response appropriate where an acknowledgement of the existence of records

would have implicated at least one of three individuals named in a FOIA request in a law

enforcement investigation), quoting Fitzgibbon v. C.I.A., 911 F.2d 755, 767 (D.C. Cir. 1990).

       In this case, plaintiff’s FOIA request does not name any individuals; rather, plaintiff

seeks records relating to any investigations of unauthorized disclosures of section 6103 “return

information” to “anyone in the Executive Office of the President.” Ex. 1 to Compl. at 2. But

plaintiff’s pleadings in this case, which are available on the public docket, do name an individual

plaintiff believes to have been investigated by defendant: the former Chairman of the Council of

Economic Advisors, Austan Goolsbee. See Pl.’s Mem. at 5–9; Pl.’s Reply at 8–12. The Court

must therefore consider the privacy interests of Mr. Goolsbee in the balance.




                                                13
       Plaintiff contends that “there is a significant public interest” in knowing “how TIGTA

responds to allegations of Section 6103 violations by officials at the highest level of the

Executive Branch.” Pl.’s Reply at 13. But allegations of government misconduct “‘are easy to

allege and hard to disprove,’ [so] a requester ‘must produce evidence that would warrant a belief

by a reasonable person that the alleged Government impropriety might have occurred.’” Judicial

Watch, Inc. v. U.S. Dep’t of Justice, 898 F. Supp. 2d 93, 105 (D.D.C. 2012), quoting Nat’l

Archives & Records Admin. v. Favish, 541 U.S. 157, 174–75 (2004). Plaintiff has not produced

any evidence that would reasonably suggest that TIGTA has not properly handled the type of

investigation addressed in its FOIA request.

       At the same time, any unnamed individuals who may have been investigated lack a

privacy interest in the disclosure of the mere fact of the existence of records of investigations in

general. But Mr. Goolsbee’s significant privacy interest outweighs the public interest asserted

by plaintiff. Any confirmation of the existence of the investigatory records that plaintiff seeks

would certainly “‘engender comment and speculation and carr[y] a stigmatizing connotation’” as

to Mr. Goolsbee. See PETA, 745 F.3d at 542, quoting Fitzgibbon, 911 F.2d at 767. Therefore, a

Glomar response would be justified by Exemption 7(C) in the face of plaintiff’s request for

records revealing the existence of an investigation of him. The Court notes that it has not relied

on defendant’s sealed pleading to reach this conclusion, and that it finds that a privacy interest

cognizable under Exemption 7(C) is implicated here only to the extent that plaintiff’s publicly-

filed pleadings identify Mr. Goolsbee by name.

       B. Defendant has waived its Glomar response by officially acknowledging the existence
          of an investigation.

       But the Court cannot sustain defendant’s Glomar response because defendant has waived

the protections of Exemption 7(C) by officially acknowledging the existence of an investigation

                                                 14
into Mr. Goolsbee on the public record. 8 See Am. Civil Liberties Union v. U.S. Dep’t of Def.,

628 F.3d 612, 620 (D.C. Cir. 2011) (“If the government has officially acknowledged

information, a FOIA plaintiff may compel disclosure of that information even over an agency’s

otherwise valid exemption claim.”).       Information is “officially acknowledged” if: “(1) the

information requested [is] as specific as the information previously released; (2) the information

requested . . . match[es] the information previously disclosed; and (3) the information

requested . . . already [has] been made public through an official and documented disclosure.”

Id. at 620–21, citing Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765. When faced with a

Glomar response, all a plaintiff must show is that “the agency has already disclosed the fact of

the existence (or nonexistence) of responsive records, since that is the purportedly exempt

information that a Glomar response is designed to protect.” Am. Civil Liberties Union v. C.I.A.,

710 F.3d 422, 427 (D.C. Cir. 2013). An agency’s “official acknowledgement waiver” extends

only to the particular records it has acknowledged, not the entire class of records a FOIA

requester seeks. Wolf, 473 F.3d at 379.

       In 2010, Mr. Goolsbee made a statement during a press conference that led some to be

concerned that he had “improperly accessed and disclosed” the confidential return information of

a taxpayer, Koch Industries, Inc. Ex. 1 to Pl.’s Mem. [Dkt. # 27-1] at 1–2 (letter from U.S.

Senators to the Treasury Inspector General for Tax Administration expressing concern and

requesting a review). On September 28, 2010, the Inspector General for Tax Administration sent

a letter to several U.S. Senators stating that he would commence a “review” into Mr. Goolsbee’s



8      This waiver applies equally to defendant’s claims under Exemption 6, and so the Court
will not address those arguments here. The parties dispute whether section 6103 is subject to
waiver, but the Court need not reach that issue because it has already determined that the
information defendant seeks to protect through its Glomar response does not constitute “return
information.”
                                                15
comment. Ex. 2 to Pl.’s Mem. [Dkt. # 27-1] at 1. And on August 10, 2011, a TIGTA Special

Agent sent an email to the Chief Legal Counsel of Koch Industries, stating that “the final report

relative to the investigation of Austan Goolsbee’s press conference remark is completed, has

gone through all the approval processes, and would now be available through a [FOIA] request.”

Ex. 3 to Pl.’s Mem. [Dkt. 27-1].

       The Court finds that even if the Inspector General’s letter to the Senators was not alone

sufficient to constitute a waiver, the letter combined with the email supplies official confirmation

of the existence of responsive records – the one fact that the Glomar response was intended to

withhold. In the letter, the Inspector General confirmed publicly that the agency was looking

into the matters raised by the Senators, but he said that he would “review” the allegations, and

did not use the word “investigate.” See Ex. 2 to Pl.’s Mem. at 1. Given the difference between

the words “review” and “investigate” when the conduct at issue is potentially criminal, one could

conclude that the information in the letter does not precisely “match the information” sought in

the FOIA request. See Am. Civil Liberties Union, 628 F.3d at 620.

       But the email from the TIGTA Special Agent fills in the gap. It expressly confirms the

existence of records about an investigation that meets all of the parameters of plaintiff’s FOIA

request. Defendant does not dispute the authenticity of the email, nor does it claim that the email

was unauthorized or unofficial. Rather, it contends that the Court should disregard the email

because “disclosures in the course of investigations and criminal cases do not waive an agency’s

FOIA Exemptions.” Def.’s Reply at 12. But defendant does not claim that the Special Agent’s

email was actually sent “in the course of” an investigation or a criminal case, nor could it;

indeed, on its face, the email confirms that an investigation has concluded.




                                                16
          Defendant offers no other argument as to why this email is not an official

acknowledgement of the existence of an investigation into Mr. Goolsbee’s comment, and so the

Court finds that defendant has waived its ability to assert a Glomar response to protect the

privacy of Mr. Goolsbee. See Wolf, 473 F.3d at 379. Moreover, upon review of the full record,

the Court finds that defendant has failed to establish any other basis that would justify a Glomar

response based on Exemptions 6 or 7(C). So, defendant has waived its Glomar response on

those grounds in its entirety. Thus, the Court will remand this case to TIGTA so that it may

“determine whether the contents -- as distinguished from the existence – of the officially

acknowledged records may be protected from disclosure” by a FOIA exemption. Wolf, 473 F.3d

at 379.




                                               17
