United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2022 Decided July 19, 2022

No. 21-5168

THOMAS A. MONTGOMERY AND BETH W. MONTGOMERY,

APPELLANTS

v.

INTERNAL REVENUE SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00918)

Kim Marie Boylan argued the cause for appellants. With 

her on the briefs were Nicholas L. Wilkins and Christina M. 

Culver.

Norah E. Bringer, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With her on the brief was 

Michael J. Haungs, Attorney.

Before: HENDERSON and WALKER, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: In the district court, 

Appellants Thomas and Beth Montgomery brought suit against 

the Internal Revenue Service for its responses to the 

Montgomerys’ twelve Freedom of Information Act (“FOIA”) 

requests. The district court ultimately granted summary 

judgment to the IRS on all issues. The Montgomerys now 

appeal the district court’s May 19, 2021, order awarding 

summary judgment to the IRS, as well as seven opinions and 

orders supporting the May 19 order. These include 

Montgomery v. Internal Revenue Serv., 330 F. Supp. 3d 161 

(D.D.C. 2018); 356 F. Supp. 3d 74 (D.D.C. 2019); No. CV 17-

918, 2019 WL 2930038 (D.D.C. July 8, 2019); No. CV 17-918, 

2020 WL 1451597 (D.D.C. Mar. 25, 2020); No. CV 17-918, 

2020 WL 2994334 (D.D.C. June 4, 2020); 514 F. Supp. 3d 125 

(D.D.C. 2021); and No. CV 17-918, ECF No. 116 (D.D.C. May 

12, 2021). For the reasons explained below, we affirm the 

district court. 

I. Background

This lawsuit represents the most recent episode in an 

ongoing legal struggle between the Montgomerys and the IRS 

in a series of suits dating back over a decade. 

a. The Underlying Tax Suits

In the early 2000s, husband and wife Appellants

Thomas and Beth Montgomery, both accountants, undertook a 

tax scheme to artificially inflate business losses on their 

individual tax returns. To this end, Thomas Montgomery

participated in establishing sham partnerships he then used as 
3

tax shelters to report losses of over $1 billion. The IRS

subsequently uncovered the scheme and retroactively 

disallowed the losses on the Montgomerys’ individual tax 

returns in a series of adjustments.

In protest, the Montgomerys and associated 

partnerships brought two suits in federal court seeking 

readjustment of the IRS’s adjustments, Southgate Master 

Fund, L.L.C. ex rel. Montgomery Cap. Advisors, LLC v. United 

States, 659 F.3d 466 (5th Cir. 2011) (“Southgate”) and Bemont 

Invs., L.L.C. ex rel. Tax Matters Partner v. United States, 679 

F.3d 339 (5th Cir. 2012), abrogated on other grounds by 

United States v. Woods, 571 U.S. 31 (2013) (“Bemont”). The 

Montgomerys ultimately emerged from these cases with a 

partial victory. Though holding most of the Montgomerys’ 

partnership transactions were shams, the Fifth Circuit held that 

one of the transactions had a legitimate business purpose. 

Southgate, 659 F.3d at 481. In light of this, the Montgomerys 

and their partnerships then pursued thirteen separate lawsuits 

in the federal courts for various tax refunds associated with the 

readjustments assessed them. Before this litigation finalized, 

however, the Montgomerys and the IRS entered a global 

settlement agreement to resolve all outstanding differences in 

2014. 

b. FOIA Requests

With the underlying tax matters resolved, the 

Montgomerys brought suit to discover how their tax schemes 

came to the attention of the IRS. To this end, in May 2016 they 

submitted twelve records requests to the IRS under the 

Freedom of Information Act, 5 U.S.C. § 552. The IRS

subsequently grouped the Montgomerys’ FOIA requests into 

two categories: (1) the first five requests regarding certain 

whistleblower forms, including award applications (“Requests 
4

1–5”); and (2) the second seven requests involving the IRS’s 

communications with any third parties about the 

Montgomerys’ taxes (“Requests 6–12”). 

The IRS first responded to both groups of records 

requests by providing no responsive documents. For Requests 

1–5, the IRS cited FOIA Exemption 7(D) “exempt[ing] the 

disclosure of records or information compiled for law 

enforcement purposes to the extent that their release could 

disclose the identity of a confidential source.” JA51 (citing 5 

U.S.C. § 552(b)(7)(D)). For Requests 6–12, the IRS searched 

its files and first found no responsive records. The 

Montgomerys filed an administrative appeal with the IRS, 

which it subsequently denied via a Final Appeal Response 

Letter dated September 23, 2016. 

c. District Court

The Montgomerys then brought suit in the United 

States District Court for the District of Columbia alleging (1) 

the IRS wrongfully withheld documents pertaining to Requests 

1–5; (2) the IRS wrongfully withheld documents pertaining to 

Requests 6–12; and (3) the IRS violated the Administrative 

Procedure Act in doing so. 

In its Answer, the IRS asserted a Glomar Response for 

Requests 1–5. Named after a ship in a long-ago CIA secrets 

case, a Glomar Response refers to an agency’s refusal to either 

confirm or deny the existence of the records requested. See 

Phillippi v. C.I.A., 546 F.2d 1009, 1010 (D.C. Cir. 1976). The 

IRS averred that answering the Montgomerys’ requests “could 

violate protections from disclosure under the exemptions 

contained in [the Freedom of Information Act].” JA68.

Agencies are permitted to use a Glomar Response when an 

acknowledgement—or not—of certain records would reveal 
5

the very information the agency seeks to protect. Bartko v. 

United States Dep’t of Just., 62 F. Supp. 3d 134, 141 (D.D.C. 

2014). When using it to answer a FOIA request, an agency 

must tether its Glomar Response to at least one of the statutory 

FOIA exemptions. See id. (quoting Wolf v. CIA, 473 F.3d 370, 

374 (D.C. Cir. 2007)). 

i. Requests 1–5

The district court first considered and rejected the 

Montgomerys’ procedural arguments that estoppel and the 

official acknowledgment doctrine precluded the IRS from 

asserting its Glomar Response. Montgomery, 330 F. Supp. 3d 

at 168–70. It then granted the IRS summary judgment on the 

issue. Id. at 173; see also Montgomery, 356 F. Supp. 3d at 78 

(denying reconsideration of the issue). The district court relied 

on Exemption 7(D) in granting the IRS summary judgment. 

Montgomery, 330 F. Supp. 3d at 170. This exemption exempts

from FOIA disclosure

records or information compiled for law enforcement 

purposes, but only to the extent that the production of 

such law enforcement records or information . . . (D) 

could reasonably be expected to disclose the identity of 

a confidential source, including a State, local, or foreign 

agency or authority or any private institution which 

furnished information on a confidential basis, and, in 

the case of a record or information compiled by criminal 

law enforcement authority in the course of a criminal 

investigation or by an agency conducting a lawful 

national security intelligence investigation, information 

furnished by a confidential source . . . .

5 U.S.C. § 552(b)(7)(D). The district court was persuaded by

the IRS’s explanation that it asserted a Glomar Response for 
6

all documents regarding its whistleblower program because a 

confirmation of the existence or absence of whistleblower 

documents in a particular case may lead a savvy requester to 

the very whistleblower himself. Montgomery, 330 F. Supp. 3d 

at 170–71. 

ii. Requests 6–12

The matter of Requests 6–12 was not resolved so 

quickly. The district court first ruled that the IRS’s search for 

records responsive to Requests 6–12 was inadequate. See 

Montgomery, 330 F. Supp. 3d at 172 (denying summary 

judgment to IRS on adequacy of search with instructions to 

renew search); Montgomery, 2020 WL 1451597, at *5 (same); 

Montgomery, 514 F. Supp. 3d 125, 136 (D.D.C. 2021) (holding

most of the IRS’s search adequate with one exception and 

giving instructions to renew search resolving exception). After 

the district court required it to renew its search several times, 

the IRS eventually uncovered over 1,000 pages of documents 

responsive to Requests 6–12. Montgomery, 2020 WL 

1451597, at *5. The district court then ultimately held the IRS

had finally searched in all of the appropriate places, and its 

failure to locate certain documents the Montgomerys expected 

to find did not make the search inadequate. Montgomery, ECF 

No. 116, at *1. 

 

iii. APA Review 

Finally, the Montgomerys argued that the IRS’s policy 

to assert a Glomar Response for requests seeking 

whistleblower documents violated the Administrative 

Procedure Act because it constituted a rule without the APA 

requirements of notice and comment. The district court held 

that APA review remained unavailable to the Montgomerys 

because they could receive adequate relief under FOIA; 
7

namely, the release of certain withheld documents. 

Montgomery, 330 F. Supp. 3d at 173. 

The Montgomerys now appeal to this Court.

II. Analysis

a. Standard of Review

“We review de novo a district court’s grant of summary 

judgment in favor of an agency which claims to have complied 

with FOIA.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 

885, 889 (D.C. Cir. 1995). We also review the district court’s 

collateral estoppel and official acknowledgement

determinations de novo. Hall v. Clinton, 285 F.3d 74, 80 (D.C. 

Cir. 2002) (collateral estoppel); Protect Democracy Project, 

Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 884 (D.C. Cir. 2021) 

(official acknowledgement). However, the district court’s 

decision regarding judicial estoppel requires abuse of 

discretion review. Marshall v. Honeywell Tech. Sys. Inc., 828 

F.3d 923, 928 (D.C. Cir. 2016). 

b. Procedural Arguments 

The Montgomerys set forth three procedural arguments 

averring that the IRS is barred from asserting a Glomar 

Response to Requests 1–5: (1) collateral estoppel; (2) judicial 

estoppel; and (3) the official acknowledgment doctrine. The 

district court considered and rejected these arguments. 

Montgomery, 330 F. Supp. 3d at 168–70 (estoppel and official 

acknowledgment doctrine). We agree with the district court

and explain why the Montgomerys’ procedural arguments are

unpersuasive. We examine each argument in turn. 
8

i. Collateral Estoppel

The Montgomerys first allege that the IRS is 

collaterally estopped from asserting a Glomar Response 

because it successfully argued in the two underlying tax cases 

of Bemont and Southgate that no informant existed. Because 

the Glomar Response requires at least the possibility of an 

informant, the Montgomerys argue that the IRS is collaterally

estopped from now refusing to answer the Montgomerys’ 

Requests 1–5 pertaining to whistleblower documents. 

Collateral estoppel requires that (1) “the same issue 

now being raised must have been contested by the parties and 

submitted for judicial determination in the prior case;” (2) “the 

issue must have been actually and necessarily determined by a 

court of competent jurisdiction in that prior case;” and (3) 

“preclusion in the second case must not work a basic unfairness 

to the party bound by the first determination.” Martin v. Dep’t 

of Just., 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha 

Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir.

1992)). The Montgomerys fail to meet the first requirement of 

this test. 

The issue of the existence of a confidential informant, 

decided by the previous Fifth Circuit cases of Bemont and 

Southgate, is not the same as the issue confronting us now; 

namely, whether the IRS possesses any documents pertaining 

to a confidential informant. Indeed, the documents requested 

by the Montgomerys in Requests 1–5 include such items as 

award applications and reportable transaction forms. See 

JA43–44. As the IRS and the district court correctly point out, 

the IRS does not pay awards for every form submitted to it. So, 

these documents may very well exist outside of the presence of 

an actual whistleblower. Montgomery, 330 F. Supp. 3d at 169. 

Because documents pertaining to a potential whistleblower can 
9

exist regardless of whether a whistleblower himself exists, the 

issue facing us now was not previously litigated in the Fifth 

Circuit. The IRS is not collaterally estopped from its Glomar 

Response. 

ii. Judicial Estoppel

The Montgomerys next assert that the IRS is judicially 

estopped from asserting its Glomar Response. Judicial 

estoppel “prevents a party from asserting a claim in a legal 

proceeding that is inconsistent with a claim taken by that party 

in a previous proceeding.” New Hampshire v. Maine, 532 U.S. 

742, 749 (2001) (quoting 18 Moore’s Federal Practice 

§ 134.30, p. 134–62 (3d ed. 2000)). The Montgomerys argue 

that the IRS benefitted from its argument to the Fifth Circuit 

that no informant existed, resulting in favorable evidentiary 

and statute of limitations rulings. The IRS cannot now, the 

Montgomerys assert, change its position that no informant 

exists. 

As explained for the collateral estoppel issue above, the 

IRS has not changed its position on whether a confidential 

informant exists in this case. The IRS’s Glomar Response to 

the existence of whistleblower documents, as requested by the 

Montgomerys in FOIA Requests 1–5, does not bear on its prior 

position in the Fifth Circuit cases regarding the existence of a 

whistleblower. Since the IRS’s positions are not inconsistent, 

the IRS is not judicially estopped from its Glomar Response. 

iii. Official Acknowledgment 

The Montgomerys finally assert two arguments 

regarding the official acknowledgment doctrine: (1) the IRS

officially acknowledged that it did not have a confidential

informant through its disclosures to the Fifth Circuit; and (2) 
10

the IRS officially acknowledged in its Final Appeal Response 

Letter to the Montgomerys that “withheld material” existed 

with respect to Requests 1–5. We discuss both in turn. 

The official acknowledgment doctrine holds that “when 

an agency has officially acknowledged otherwise exempt 

information through prior disclosure, the agency has waived its 

right to claim an exemption with respect to that information.” 

Am. C.L. Union v. C.I.A., 710 F.3d 422, 426 (D.C. Cir. 2013). 

We use a three-part test to determine whether an agency has 

officially acknowledged otherwise-exempt information: (1) 

“the information requested must be as specific as the 

information previously released;” (2) “the information 

requested must match the information previously disclosed;” 

and (3) “the information requested must already have been 

made public through an official and documented disclosure.” 

Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990). 

As to the Montgomerys’ first assertion, for the reasons 

stated exhaustively above, the information requested by the 

Montgomerys does not match the information previously 

released by the IRS and so fails the official acknowledgment 

test. Namely, Requests 1–5 seek whistleblower documents, 

while the IRS previously disclosed the non-existence of a 

whistleblower himself. These two pieces of information differ, 

a fact even acknowledged by the Montgomerys in their opening 

brief. See Appellants Br. 37 (“The existence of responsive 

records is a distinct issue, separate from the existence of a 

confidential source.”). 

The Montgomerys cite Sea Shepherd Conservation 

Soc’y v. Internal Revenue Serv., 208 F. Supp. 3d 58 (D.D.C. 

2016), for the proposition that once “the existence or nonexistence of an informant [is] already public record, the IRS 

[cannot] establish ‘why the disclosure of the fact of the 
11

existence or non-existence of any records—as opposed to the 

records themselves—would cause harm to the interests 

protected by the FOIA exemptions [(3 and 7(D))] cited.’” 

Appellants Br. 35 (quoting Sea Shepherd Conservation Soc’y, 

208 F. Supp. 3d at 90 (emphasis in original)). However, the 

Montgomerys fail to appreciate Sea Shepherd’s narrow scope, 

which cautions that “[t]his opinion is not meant to and does not 

establish a general principle that the IRS may never issue a 

Glomar response for records from its Whistleblower Office.” 

Sea Shepherd, 208 F. Supp. 3d at 90. Rather, the Sea Shepherd 

Court clarified that its decision was based “on the unique 

circumstances presented in [that] case, in which the fact of the 

existence of whistleblower records within the agency had

already been made public.” Id. (emphasis added). 

No such unique circumstance is present in this case. 

The IRS did not officially acknowledge in any prior proceeding 

that it did, or did not, possess records pertaining to potential 

informants, the subject of Requests 1–5. The official 

acknowledgment doctrine therefore does not apply to the 

Montgomerys’ first argument.

The Montgomerys’ second argument similarly fails for 

the reasons stated by the district court. In its Final Appeal

Response Letter to the Montgomerys, the IRS stated that “[t]he 

withheld material contains information which could reasonably 

be expected to directly or indirectly disclose the identity of 

confidential sources in the course of a criminal investigation.” 

JA65. The Montgomerys aver that the IRS’s reference to 

“withheld material” constitutes an official acknowledgment 

that such material exists. This is incorrect. As the Appeals 

Officer who reviewed the Montgomerys’ FOIA requests 

explained to the district court, the standard “withheld material” 

language contained in the Letter was mistaken. We agree with 

the district court that “[i]t would be draconian to penalize the 
12

Government in a sensitive matter concerning a potential 

informant by refusing to permit some leeway for an honest 

mistake.” Montgomery, 330 F. Supp. 3d at 169. Moreover, we 

further agree with the district court that the IRS’s vague 

reference to “withheld material” does not match the 

information requested by the Montgomerys under the official 

acknowledgement doctrine’s second requirement, thus also 

failing that test. See id. at 169–70. 

For the reasons stated above, all of the Montgomerys’ 

procedural arguments fail. We move now to the merits of this 

case. 

c. Merits 

i. Requests 1–5

The Montgomerys argue that the IRS’s Glomar 

Response is contrary to law. They allege that the Response 

violates FOIA’s existing statutory scheme, runs contrary to 

Supreme Court and this Court’s precedent, and improperly 

involves the use of ex parte declarations. We address each in 

turn. 

1. FOIA Statutory Scheme

The Montgomerys first aver that FOIA Exemption 

7(D), the exemption on which the IRS and the district court 

relied, protects only the identity of a whistleblower and the 

information furnished by a whistleblower, not the existence of 

a whistleblower. 

We disagree. Exemption 7(D) permits the IRS to 

withhold information that “could reasonably be expected to 

disclose the identity of a confidential source.” 5 U.S.C. 
13

§ 552(b)(7)(D). As we have stated before, Congress intended 

7(D) “to provide a broad exemption for law enforcement” to 

allow for “agencies to obtain, and to maintain, confidential 

sources, as well as to guard the flow of information to these 

agencies.” Parker v. Dep’t of Just., 934 F.2d 375, 380 (D.C. 

Cir. 1991). The IRS is in fact required by Treasury Regulations 

to “use its best efforts to protect the identity of 

whistleblowers.” 26 C.F.R. § 301.7623-1(e). 

To this end, the IRS gives a Glomar Response to FOIA 

requests seeking documents pertaining to whistleblowers, 

refusing to either confirm or deny the existence of such records. 

This policy makes sense. If the IRS only asserts Glomar when 

whistleblower records exist, and gives a negative answer when 

no records exist,savvy requesters would both (1) recognize that 

a Glomar Response indicates the positive existence of 

whistleblower documents; and (2) may well be able to deduce 

the identity of a potential whistleblower himself, the very 

information the IRS is required to protect. This is especially 

true when the pool of potential whistleblowers is very small, 

leading a revenge-seeking requester to narrow down the 

informant with relative ease. Far from violating FOIA’s 

statutory scheme, the IRS’s Glomar Response to FOIA 

requests for whistleblower documents aligns with the purpose 

of Exemption 7(D) and the duties of the IRS to protect 

whistleblower identities. The Montgomerys make several 

more arguments on this point, none of which merit discussion. 

2. Relevant Precedent

Nor does the IRS’s Glomar Response run afoul of 

Supreme Court or this Court’s precedent, as the Montgomerys 

next argue. The Montgomerys specifically aver that the IRS 

relied on a presumption of confidentiality to assert its 7(D) 

Exemption, a practice prohibited by the Supreme Court case of 
14

Dep’t of Justice v. Landano. 508 U.S. 165 (1993) (“Landano”). 

The Montgomerys also cite three cases from this Circuit, 

including Roth v. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 

2011) (“Roth”), Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C. 

Cir. 1984) (“Lykins”), and Garza v. U.S. Marshals Svc., 2020 

WL 768221 (D.C. Cir. Jan. 22, 2020) (“Garza”) for their 

proposition that the IRS must only withhold small portions of 

requested records that could identify a whistleblower under 

Exemption 7(D) and publicly release the rest. 

The abovementioned precedent does not mandate such 

a result, and the district court’s decisions in this case align with 

precedent. The Montgomerys are correct that Landano 

prohibits a presumption of confidentiality for informants. See 

Landano, 508 U.S. at 166. Instead, under this Court’s 

precedent in Roth, an agency relying on confidential sources 

should “publicly explain[] to the extent it can why it has 

concluded that certain sources provided information under an 

express or implied assurance of confidentiality.” Roth, 642 

F.3d at 1185. However, this Court does not require the 

explanation to “‘giv[e] away the information [the agency] is 

trying to withhold,’” as the Montgomerys seem to suggest. Id.

(quoting Lykins, 725 F.2d at 1463–64). Instead, Roth and 

Lykins “recognize[] ‘that there are occasions when extensive 

public justification would threaten to reveal the very 

information for which a FOIA exemption is claimed.’” Roth, 

642 F.3d at 1185 (quoting Lykins, 725 F.2d at 1463). In these 

situations, this Court permits an agency relying on Exemption 

7(D) to “supplement its explanation by making the documents 

available for in camera review.” Roth, 642 F.3d at 1185. In 

this way, the court balances the FOIA requester’s interest in the 

testing of an agency’s claims with the purpose of Exemption 

7(D) in keeping some information non-public. See id. 
15

In this case, the district court directly followed this 

precedent. As explained above, revealing the existence of any 

whistleblower documents may have “giv[en] away the 

information [the IRS was] trying to withhold,” defeating the 

entire purpose of Glomar. Recognizing this, the district court 

correctly required the IRS to show in camera either (1) a 

confidential informant had been expressly or impliedly assured 

confidentiality, in accordance with Roth; or (2) no responsive 

records to Requests 1–5 existed. Montgomery, 330 F. Supp. 3d 

at 171. The IRS then submitted declarations, which the district 

court appropriately reviewed in camera and found “that the 

Service ha[d] satisfied one of these two requirements.” Id. No 

more is required under this Court’s or the Supreme Court’s 

precedent. 

3. In Camera Declarations

The Montgomerys finally argue that the district court’s 

use of in camera declarations, as opposed to in camera review, 

contravenes FOIA and other binding authority. Not so. First, 

we review the district court’s use of in camera submissions for 

abuse of discretion. Spirko v. U.S. Postal Serv., 147 F.3d 992, 

996 (D.C. Cir. 1998). We have explained on numerous 

occasions that “the decision whether to perform in camera

inspection is left to the broad discretion of the trial court 

judge.” Id. (internal quotation marks and citations omitted). 

Indeed, the FOIA statute itself provides that a court “may

examine the contents of such agency records in camera to 

determine whether such records or any part thereof shall be 

withheld under any of the exemptions . . . .” 5 U.S.C. 

§ 552(a)(4)(B) (emphasis added). 

This Court has previously given a test for “when an 

affidavit disclosing information assertedly exempt from 

production under the FOIA is proffered.” Arieff v. U.S. Dep’t 
16

of Navy, 712 F.2d 1462, 1470 (D.C. Cir. 1983). In these 

situations, in camera review is required “when (1) the validity 

of the government’s assertion of exemption cannot be 

evaluated without information beyond that contained in the 

public affidavits and in the records themselves, and (2) public 

disclosure of that information would compromise the secrecy 

asserted.” Id. at 1471. The district court properly applied this 

test and determined that the declarations proffered by the IRS 

could not be publicly released. Montgomery, 356 F. Supp. 3d 

at 81. It further received, and ultimately rejected the merits of,

three sets of briefs by the Montgomerys on the subject of the in

camera declarations. Id. In other words, the Montgomerys had 

their voices heard with regard to the in camera declarations. 

The Montgomerys cite Lykins for the proposition that 

there exists a distinction between in camera review of records

and in camera declarations or affidavits. In fact, Lykins

supports the use of affidavits, holding that “[t]o the extent 

necessary, the government must supply affidavits in support of 

its claims of exemption.” Lykins, 725 F.2d at 1463 (emphasis 

added). Though Lykins cautions against the overuse of 

affidavits, it does not prohibit them and instead provides the 

guidance that “[w]hen a trial court does make use of in camera

affidavits, it must see to it that such use is justified to the 

greatest extent possible on the public record, . . . and must then 

make available to the adverse party as much as possible of the 

in camera submission.” Id. at 1465. As previously explained, 

the district court carefully reviewed the declarations and, 

mindful of the requirement that it make them as public as 

possible, concluded it could not publicly release them. 

Montgomery, 356 F. Supp. 3d at 81. The district court acted 

well within its discretion in doing so. 
17

ii. Requests 6–12

The Montgomerys renew their argument that the IRS

did not conduct an adequate search for records related to 

Requests 6–12. The district court, in a series of opinions, 

initially agreed. See Montgomery, 330 F. Supp. 3d at 172; 

Montgomery, 2020 WL 1451597, at *5; Montgomery, 514 F. 

Supp. 3d at 136. Eventually however, after multiple 

instructions, the IRS satisfied the district court of the adequacy 

of its search. We agree with the district court’s ultimate 

conclusion. 

In order to satisfy FOIA’s aims of providing more 

transparency into the workings of the government, a recipient 

of a FOIA request must make an adequate search in its records 

for information answering the request. This Court has 

elaborated that an adequate search entails a “show[ing] that 

[the agency] made a good faith effort to conduct a search for 

the requested records, using methods which can be reasonably 

expected to produce the information requested.” Oglesby v. 

U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). While 

the agency need not “search every record system,” it also may 

not “limit its search to only one record system if there are others 

that are likely to turn up the information requested.” Id. While

“the adequacy of a FOIA 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, 315 F.3d 311, 315 (D.C. Cir. 2003), a “positive 

indication[] of overlooked materials” can lead a court to 

determine the search was inadequate, Valencia-Lucena v. U.S. 

Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (internal 

citations omitted). 

In this case, the IRS initially conducted several 

inadequate searches for records related to Requests 6–12. In 
18

the first, the IRS looked for responsive records only in its 

Integrated Data Retrieval System, finding none. Montgomery, 

330 F. Supp. 3d at 172. The district court agreed with the 

Montgomerys that the IRS should search two other records 

systems—namely, the IRS Whistleblower Office databases and 

litigation files from the Bemont and Southgate cases—or 

explain why these systems were not likely to produce 

responsive results. Id. 

In its second inadequate search, “[h]istory repeat[ed] 

itself,” Montgomery, 2020 WL 1451597, at *1, with the IRS

failing to search another important database, the Office of Tax 

Shelter Analysis, id. at *4. The district court lamented that the 

IRS had “proceeded in piecemeal fashion to search one 

database at a time, without ever commenting on whether other 

locations might contain responsive documents,” leaving the 

district court “uncertain as to whether there are other 

potentially relevant databases . . . .” Id. at *5. In addition, the 

IRS’s search of the litigation files resulted in over 1,000 pages 

of responsive documents, giving the district court a “positive 

indication[] of overlooked materials.” Id. Taken together, the 

district court harbored “substantial doubt” regarding the 

adequacy of the search and once again instructed the IRS to 

renew its review for responsive documents. Id. 

The district court was mostly satisfied of the adequacy 

of the IRS’s search by the third time the issue came before it. 

Montgomery, 514 F. Supp. 3d at 136. By that time, the IRS 

submitted declarations that it had searched its Integrated Data 

Retrieval System and taxpayer master files; files in the Large 

Business and International Division; the Whistleblower Office; 

multiple types of files related to the Bemont and Southgate 

litigation; and the Office of Tax Shelter Analysis database. Id. 

at 131–32. The IRS also finally “recited the magic words” that 

“‘it ha[d] searched all locations/systems reasonably likely to
19

contain records responsive to [Requests] 6-12.’” Id. at 132 

(quoting an IRS declaration). The district court was satisfied 

by these assurances. It further rejected the Montgomerys’ 

assertion, revived in this appeal, that the IRS’s failure to 

uncover ten documents identified by the Montgomerys as 

relevant constituted an inadequate search. Id. at 134. The only 

“relatively minor exception” to the district court’s satisfaction, 

id. at 136, was the IRS’s failure to search the emails of several 

agency employees associated with the Bemont and Southgate 

litigation, id. at 135. The IRS ultimately did so to the district 

court’s satisfaction, finally receiving summary judgment on the 

adequacy of the search for Requests 6–12. Montgomery, ECF 

No. 116, at *1. 

We agree that the IRS has finally carried its burden of 

showing the adequacy of its search for documents responsive 

to Requests 6–12. Although the Montgomerys are not entitled 

“to dictate, through search instructions, the scope of [the IRS’s] 

search,” Mobley v. C.I.A., 806 F.3d 568, 582 (D.C. Cir. 2015), 

they have identified no further databases possibly containing 

relevant information, see Montgomery, ECF No. 116, at *1. 

More importantly, the IRS has finally “explained its search 

process and why [certain] specified record systems are not 

reasonably likely to contain responsive records.” Mobley, 806 

F.3d at 582. 

In this appeal, the Montgomerys chiefly focus on 

certain documents, which they number in the hundreds, that

they contend were in the IRS’s possession but were not located 

by the IRS. They also take issue with the IRS’s declaration 

explaining that these documents were either destroyed or 

consolidated. The district court heard and rejected these 

arguments. See Montgomery, 514 F. Supp. 3d at 133–34, 135.

We agree with the district court.
20

As we have noted before, “particular documents may 

have been accidentally lost or destroyed, or a reasonable and 

thorough search may have missed them.” Iturralde, 315 F.3d 

at 315. This is why we judge the adequacy of a search not by 

its fruits, but rather “by the appropriateness of the methods 

used to carry out the search.” Id. While true a requester may 

cast doubt on the adequacy of a search through “positive 

indications of overlooked materials,” id. at 314 (citations 

omitted), the Montgomerys have not done so in this case, id. at 

315. The Montgomerys do not now “maintain that the [IRS] 

failed to search particular offices or files where the 

document[s] might well have been found,” id., nor that the IRS 

“failed or refused to interview government officials for whom 

there was strong evidence that they might have been helpful in 

finding the missing documents,” id., nor that the IRS “ignored 

indications in documents found in its initial search that there 

were additional responsive documents elsewhere,” id. Rather, 

the Montgomerys aver only that “hundreds” of documents are 

missing from the IRS’s search. Our precedent makes clear, 

however, that even if this claim were true, the IRS’s search in 

this case was not inadequate, as it “made a good faith effort to 

conduct a search for the requested records, using methods 

which can be reasonably expected to produce the information 

requested.” Oglesby, 920 F.2d at 68. Nothing more is required. 

Finally, as the district court explained, the IRS’s 

declaration as to the whereabouts of the “missing” 

documents—namely that they were either destroyed or 

consolidated with other files—easily passes muster. FOIA 

declarants are not required to have personal knowledge of the 

search itself, but rather “personal knowledge of the procedures 

used in handling [a FOIA] request and familiarity with the 

documents in question.” Wisdom v. U.S. Tr. Program, 266 F. 

Supp. 3d 93, 102 (D.D.C. 2017) (alteration in original) 

(citations omitted). As the district court noted, the relevant 
21

declaration on this matter “reflect[ed] [the declarant’s]

comprehensive understanding of the documents at issue, as 

well as her extensive collaboration with the experienced 

agency employees who searched them.” Montgomery, 514 F. 

Supp. 3d at 135. Again, no more is required.

iii. APA Review

Finally, the Montgomerys argue that the IRS’s policy 

of asserting a Glomar Response when a FOIA requester seeks 

whistleblower-related documents amounts to a rule, and this 

rule violates the Administrative Procedure Act because it did 

not undergo the requisite notice-and-comment process. We 

disagree.

 

Judicial review under the APA is only available when 

“there is no other adequate remedy in a court . . . .” 5 U.S.C. 

§ 704. The remedy for the Montgomerys is a release of certain 

documents responsive to their FOIA requests. This remedy is 

available in court under the FOIA statute, were the 

Montgomerys to prevail on their claims. 5 U.S.C. 

§ 552(a)(3)(A) (requiring an agency to “make the [requested] 

records promptly available to any person”); see also 5 U.S.C.A. 

§ 552(a)(4)(B) (giving courts jurisdiction to “order the 

production of any agency records improperly withheld”). 

Simply because the Montgomerys do not prevail on their 

claims does not make them subject to the exclusive review the 

APA provides. 

III. Conclusion

For the reasons set forth above, we affirm the district 

court on all questions.