UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________) SEA SHEPHERD CONSERVATION ) SOCIETY, ) ) Plaintiff, ) ) v. ) Civil Action No. 13-1422 (ABJ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) ____________________________________) MEMORANDUM OPINION Plaintiff Sea Shepherd Conservation S ociety (“Sea Shepherd”) brought th is action under the Freedom of Information Act (“FOIA”) against defendant the Internal Re venue Service (“IRS”), seeking all records related to itself in IRS files dated January 1, 2006 to M ay 13, 2013. Compl. [Dkt # 1]. On March 31, 2015, the Court rem anded the matter to the IRS so that the agency could conduct additional searches, provide more detailed descriptions of its s earches and more detailed justifications of its withholdings, and release any non-exempt portions of responsive records to plaintiff. Sea Shepherd Conservation Soc’y v. IRS , 89 F. Supp. 3d 81 (D.D.C. 2015). With that process now complete, the parties have again cross-moved for summary judgment, and these pleadings also address the adequacy of the agency’s se arches and the justifications for its withholdings. Def.’s Mot. for Summ. J. [Dkt # 35] (“ Def.’s Mot.”); Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. [Dkt # 35-1] (“Def.’s Mem.”); Pl.’ s Cross-Mot. for Summ. J. [Dkt. # 37] (“Pl.’s Cross-Mot.”); Pl.’s Mem. of P. & A. in Opp. to Def .’s Mot. and in Supp. of Pl.’s Cross-Mot. [Dkt. # 37-1] (“Pl.’s Cross-Mem.”). Because the Court finds once again that one of defendant’s searches was inadequate, it will grant plaintiff’ s motion in part, and remand the matter to the agency for a second time, so that the agency can renew its se arches of the Exempt2 Organizations Examinations function. But because the agency adequately searched for records in the National & Area Chief Counsel Office of TEGE, the Exempt Organizations Rulings & Agreements function, the Communications & Liaison Office, and the Whistl eblower Office, the Court will grant defendant’s motion in part as well. In addition, the Court finds that defendant’s invocation of Exemptions 3 and 7(D) is justified, and it will grant defendant’s motion for summary judgment in part on those issues. But the Court finds that the agency’s Glomar response with regard to records from the Whistleblower office is not justified, based on the unique circumstances of this case. So the Court will grant plaintiff’s motion in part on that issu e, as well.
BACKGROUND I. Sea Shepherd’s FOIA Request, IRS’s First Search, and the Court’s Remand Sea Shepherd is a 501(c)(3) non-profit environmental organization dedic ated to the preservation of oceanic habitats and wildlife. Sea Shepherd , 89 F. Supp. 3d at 86. 1 It filed a FOIA request on May 13, 2013, seeking (1) “any and all documents, from January 1, 2006, through the

1 The Court has described the factual b ackground in detail in its March 31, 2 015 Memorandum Opinion: “Since 2003, plaintiff has engaged in numerous direc t confrontation campaigns against the Institute of Cetacean Research, which plaintiff de scribes as an organization that hunts whales in the Southern Ocean for commercial purposes in violati on of international law. Plaintiff claims that Cetacean is funde d, in part, by the Japanese governm ent.” Sea Shepherd , 89 F. Supp. 3d at 86 (citations omitted). P laintiff seeks information on “whe ther the IRS acted on the basis of Japan’s diplomatic demands rather than for tax-related reasons” when it initiated an audit of its tax-exempt status, and it insists that the records sought in this law suit “could provide a definitive answer.” Pl.’s Cross-Me m. at 10. The memorandum in support of p laintiff’s cross motion spends almost seven pages recounting the lurid details of the dispute between plaintiff, the Japanese government, and the Institute of Cetacean Research. Id. at 2–10. But none of that factual background information is relevant to the questions before the Court, whi ch boil down to whether the IRS conducted an adequate search for records, and whether it has adequately supported its claimed exemptions. In any event, the Court notes that Sea Shepherd’s acti vities with respect to the Institute have resulted in injunctions and findings of contempt again st it. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y , 774 F.3d 935, 940 (9th Cir. 2014) (finding Sea Shepherd in contempt for aiding and abetting a violation of an injunction p rohibiting it “from physically attacking or coming within 500 yards of any of the [Institute’s ] whaling and fueling vessels on the open sea.”).3 date of this request, related to Sea Shepherd,” (2) “any and all documents r elated to the examination of Sea Shepherd commenced by the Internal Revenue Service on or about Janua ry 4, 2013,” (3) “any and all documents relating to any complaint . . . regarding Sea Shepherd’s activities or qualifications for tax-exempt status after January 1, 2006,” and (4) “any and all documents related to any request from any person that the Internal Revenue Service examine Se a Shepherd.” Ex. A to Compl. [Dkt. # 1] at 1. Plaintiff specifically requested that the IRS sea rch the following locations: the files of Peter Huang, the agent who handled the examination of plaintiff’s taxexempt status; the National and Area Chief Counsel Offices of the Tax-Exempt and Government Entities (“TEGE”) function of the IRS; the office of the Director of Exempt Organizations Examinations in Dallas, Texas; and the office of Exempt Organizations Rul ing and Agreements in the TEGE National Office. Id. When defendant did not timely respond to the FOIA request, Compl. ¶¶ 7–9, Se a Shepherd filed suit. Compl. After the lawsui t had been commenced, the IRS conducted a search and produced more than 12,000 pages of responsive, non-exempt records. Def.’ s Statement of Undisputed Material Facts [Dkt. # 35-2] (“Def.’s SOF”) ¶ 3; see Pl.’s Statement of Genuine Issues in Opp. to Def.’s SOF [Dkt. # 37-2, 38-2] (“Pl.’s SOF”) ¶ 3. The IRS moved for summary judgment on May 20, 2014, arguing both that its sea rch was adequate, and that its production inc luded all of the responsive and non-e xempt documents. Def.’s SOF ¶ 4; Pl.’s SOF ¶ 4. On March 31, 2015, the Court denied the IRS’s motion for summary judgment and remanded the matter to the agency. Sea Shepherd , 89 F. Supp. 3d at 89–103. The Court held that certain of defendant ’s declarations were inadequate: First, none of the declarations adequately addresses plaintiff’s reques t for “any and all documents” related to it . . . or even indicates that a search for “any and all documents” related to plaintiff was actually conducted. Second, none of the declarations describes defendant’s overall “rationa le4 for searching certain locations and not others.” And third, the individua l declarations suffer from numerous other deficiencies . . . . Id. at 91 (internal citations omitted). The Court then “turn[ed] to those reco rds that the IRS did identify,” and found that the claimed exemptions – exemptions 6 an d 7 – were not justified. Id. at 94–98. The Court also found that the IRS’s reliance on exemption 3 was not un iformly justified.
Id. at 98–102. But the Court did find many of the agency’s exemption 5 withholdi ngs justified.
Id. at 102–03. The Court instructed the IRS to “conduct a further search for res ponsive records, to provide a more detailed justification for the adequacy of its search and for any withholdings of responsive material, and to release any reasonably segregable non-exemp t material to [Sea Shepherd] consistent with the FOIA statute and this opinion.” Id. at 104. II. Procedural History On September 15, 2015, after concludi ng its supplemental search and relea sing additional materials to Sea Shepherd, the IRS filed a renewed motion for summary judgm ent, along with a statement of facts, an updated Vaughn Index, and several declarations. Def.’s Mot.; Def.’s Mem.; Def.’s SOF; Vaughn Index [Dkt. # 35-5]; 3d Decl. of A.M. Gulas, Ex. 3 to Def.’s Mot. [Dkt. # 35- 3] (“3d Gulas Decl.”); 2d Decl. of Michael Franklin [Dkt. # 35-4] (“2d Franklin Decl.”); Decl. of Nia Dowdy [Dkt. # 35-6] (“Dowdy Decl.”); Decl. of Jon Waddell [Dkt. # 35-7] ( “Waddell Decl.”); Decl. of Margaret Von Lienen [Dkt. # 35-8] (“Von Lienen Decl.”); Decl. of De an Patterson [Dkt. # 35-9] (“Patterson Decl.”); Decl. of Cindy Stuart [Dkt. # 35-10] (“Stuart Decl.”). Plaintiff then filed a cross-motion for summary judgment. Pl.’s Cross-Mot.; Pl.’s Cross -Mem. It also attached a “Statement of Genuine Issues in O pposition to Defendant’s Statement of M aterial Facts,” Pl.’s SOF, its own Statement of Undisputed Material Facts, Pl.’s Statement of Un disputed Material Facts in Supp. of Pl.’s Cross-Mot. [Dkt. # 37-3, 38-3] (“Pl.’s Cross-SOF”) , and two supporting5 declarations. Decl. of Ann E. Prezyna [Dkt. # 37-4]; 2d Decl. of Christophe r S. Rizek [Dkt. # 37- 5]. On December 4, 2015, defendant filed a reply in support of its motion and cro ss-opposition to plaintiff’s motion. Def.’s Reply in Supp. of Def.’s Mot. & Opp. to Pl.’s C ross-Mot. [Dkt. # 42, 43] (“Def.’s Reply”), along with a response to plaintiff’s statement of fa cts and two additional declarations. And on January 4, 2016, Sea Shepherd filed a cross-reply in s upport of its motion. Pl.’s Reply Mem. in Supp. of its Cross- Mot. [Dkt. # 45] (“Pl.’s Cross-Reply”). 2 The Court also granted the IRS’s requests, over plaintiff’s objections, to submit decla rations ex parte and in

camera in support of their motion and their cross-opposition, Min. Order (Sept. 1 8, 2015); Min. Order (Dec. 7, 2015). On August 8, 2016, the Court ordered the agency to prov ide another ex parte and in camera declaration. Min. Order (Aug. 8, 2016). The Court ultimately ordered defendant to file part of the in camera submission on the public docket, Min. Order (Aug. 25, 2016), and defendant submitted a redacted version of the August 15, 2016. See Redacted Decl. of Michael Franklin [Dkt. # 47] (“Redacted Franklin Decl.”).
STANDARD OF REVIEW In a FOIA case, the district court reviews the agency’s decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); 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).

2 Plaintiff argues that “[t]he IRS has still not articulated any overall se arch rationale,” and it concludes that the “slapdash quality of its latest summary judgment filin gs” prove that “the IRS does not take seriously its obligati ons under FOIA.” Pl.’s Cross-Mem. at 2 . Sea Shepherd’s pleadings seem to focus more on accusations and heated rhetoric than legal argument. That approach has not made their positions more persuasive.6 Summary judgment is appropriate “if the movant shows that there is no genui ne dispute as to any material fact and the movant is entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibil ity of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, togeth er with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fa ct.” Celotex Corp. v.
Catrett , 477 U.S. 317, 323 (1986) (internal quot ation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing th at there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “mat erial” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing t he summary judgment motion.’” Scott v. Harris , 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam). “The rule governing cross-motions for summary judgment . . . is that neithe r party waives the right to a full trial on the merits by filing its own motion; each side con cedes that no material facts are at issue only for the purposes of its own motion.” Sherwood v. Wash. Post , 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer , 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing each party’s motion, “[a]ll underlying facts and infe rences are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia , 709 F.7 Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson , 477 U.S. at 247. In a FOIA action, where a plaintiff has neither alleged nor provi ded evidence that an agency acted i n bad faith, “a court may award summary judgment solely on the basis of information provided by the a gency in declarations.” Moore , 601 F. Supp. 2d at 12.
ANALYSIS FOIA requires the release of government records upon request. Its purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society, n eeded 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). At the same time, Congress recognized “that legi timate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refuse d.” 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 betwee n the public’s right to know and the government’s legitimate interest in keeping certain infor mation confidential”), citing John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152 (1989). The Supreme Court has instructed that “FOIA exemptions are to be narrowly construed.” Abramson , 456 U.S. at 630. To prevail in a FOIA action, an agency must first demonstrate that it has mad e “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). Second, the agency must show that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership Conference on Civil Rights v. Gonzales , 404 F. Supp. 2d 246, 252 (D.D.C. 2005). “[W]hen an agency seeks to withhold information , it must provide a ‘relatively detailed justifi cation’” for the withholding, Morley v. CIA , 508 F.3d 1108, 1122 (D.C.8 Cir. 2007), quoting King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987), through a Vaughn Index, an affidavit, or by other means. Gallant v. NLRB , 26 F.3d 168, 172–73 (D.C. Cir. 1994). After asserting and explaining its exemptions, an agency must release “[a ]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), unless the non-exempt p ortions are “inextricably intertwined with exempt portions” of the record. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force , 566 F.2d 242, 260 (D.C. Cir. 1977); see also Johnson v. EOUSA , 310 F.3d 771, 776 (D.C. Cir. 2002)

. “In order to demonstrate that all reasonably segregable material has been released, the agency must provide a ‘detailed justification’ for its non- segregability,” although “the agency is not required to provide so much detail that the exempt material wo uld effectively be disclosed.” Johnson , 310 F.3d at 776, quoting Mead Data , 566 F.2d at 261. “[A] district court has the obligation to consider the segregability issue sua sponte , regardless of whether it has been raised by the parties.” Id. , citing Trans-Pacific Policing Agreement v. U.S. Customs Serv. , 177 F.3d 1022, 1028 (D.C. Cir. 1999). Because a court must determine de novo whether an agency properly withheld information, a court may examine the withheld records in camera . 5 U.S.C. § 552(a)(4)(B); Carter v. U.S. Dep’t of Commerce , 830 F.2d 388, 393 (D.C. Cir. 1987) (“[W]hen the requested documents ‘are few in number and of short length,’ in camera review may save time and money.”), quoting Allen
v. CIA , 636 F.2d 1287, 1298 (D.C. Cir. 1980). I. Defendant has failed to adequately justify one of its renewed searches. A. Legal Standard When an agency’s search is questioned, it must show “beyond material doubt that its search was reasonably calculated to unc over all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State , 641 F.3d 504, 514 (D.C. Cir. 2011) , quoting Valencia-Lucena v. U.S. Coast9 Guard , 180 F.3d 321, 325 (D.C. Cir. 1999); see also Oglesby , 920 F.2d at 68; Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To demonstrate that it has performed an adequate search for documents resp onsive to a FOIA request, an agency must submit a reasonably detailed affidavit describing the search. Oglesby , 920 F.2d at 68; see also Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 91 (D.D.C. 2009). A declaration is “reasonably detailed” if it “set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain resp onsive materials (if such records exist) were searched.” Oglesby , 920 F.2d at 68; see also Defs. of Wildlife , 623 F. Supp. 2d at 92. A declaration, therefore, must at least include the agency’s “rationale f or searching certain locations and not others.” Defs. of Wildlife , 623 F. Supp. 2d at 92; see also Nat’l Sec. Counselors
v. CIA , 849 F. Supp. 2d 6, 11 (D.D.C. 2012) (fi nding affidavit sufficient where it “outline[d] with reasonable detail the CIA’s decision to limit the search” to a particular area); Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (affirming the grant of summary judgment whe re the initial search was inadequate, but the ultimate search was reasonable, and where the agen cy provided a detailed declaration articulating the search process). Agency affidavits attest ing to a reasonable search “are accorded a presumption of good faith,” SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), that can be rebutted only “with evidence that the agency’s sear ch was not made in good faith.” Trans Union LLC v. FTC , 141 F. Supp. 2d 62, 69 (D.D.C. 2001). An agency’s declarations “need not ‘set forth with meticulous documentat ion the details of an epic search for the requested records,’” Defs. of Wildlife , 623 F. Supp. 2d at 91, quoting Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982), but they should “describe what records were searched, by whom, and through what processes.” Id. , quoting Steinberg v. DOJ, 23 F.3d 548,10 552 (D.C. Cir. 1994). Conclusory assertions about the agency’s thoroughn ess are not sufficient. See Morley v. CIA , 508 F.3d 1108, 1121–22 (D.C. Cir. 2007) (finding agency’s “single conclu sory affidavit” to be inadequate). At the same time, however, where an “affidav it could in theory be more detailed, that fact alone does not warrant denying summary judgment i n favor of” a defendant. White v. DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012). B. Defendant has adequately explained all but one of its renewed searches. To address the inadequacies of its first search, the IRS conducted supplem ental searches of three functions: the National and Area Chief Counsel Offices of TEGE, the E xempt Organizations Rulings and Agreements section, and the Exempt Organizations Examinatio ns function, see Def.’s Mem. at 8–15, as well as the IRS Communications and Liaison office, and the IRS Whistleblower Office. Def.’s SOF ¶ 33; Pl.’s SOF ¶ 33. To demonstrate the adequacy of these searches, the IRS submitted six declarations:

x The third declaration of A.M. Gulas, Senior Counsel in the Office of the Ass ociate Chief Counsel, which describes her c oordination with others in the agency to complete an adequate search. See 3d Gulas Decl.

x The declaration of Nia Dowdy, a Paralegal Specialist in the Disclosure & Li tigation Support (“DLS”) branch of the Office of Associate Chief Counsel, which des cribes her search for records in the National and Area TEGE offices. See Dowdy Decl.

x Two declarations from Margaret Von Lienen describing the search of the Exe mpt Organizations Examinations function. See Von Lienen Decl.; 2d Von Lienen Decl..

x The declaration of Jon Waddell, Senior Manager in Exempt Organizations Ru lings and Determinations Unit, which describes the search of his unit. See Waddell Decl.

x The declaration of Dean Patterson, a Public Affairs Specialist in the Medi a Relations Division of the Communications & Liaison Office, which describ es his coordination with the branch chiefs o f that office to search for responsiv e records. See Patterson Decl.

x The declaration of Cindy Stuart, a Management Analyst and Executive Assis tant in the Whistleblower Office, which describes her search for records and the a gency’s Glomar response. See Stuart Decl.11 1. The renewed search of the National and Area Chief Counsel Offices of TEGE was adequate. In its first decision, the Court found that the search of the National & Area Chief Counsel Offices of TEGE was inadequate. Sea Shepherd , 89 F. Supp. 3d at 94. Although a search memorandum was sent to the National TEGE Counsel Office, the declaration p rovided “no indication that . . . anyone . . . ever res ponded to the request to search for responsive records, nor does the declaration indicate that [the declarant] contacted anyone in th e Area Chief Counsel offices of TEGE.” Sea Shepherd , 89 F. Supp. 3d at 93. Despite the agency’s attempts to cure the deficiency during the pendency of the litigation, the Court concluded that the agency’s efforts were insufficient because they did “not sufficiently indicate that defendant conducted a search for records responsive to all portions of plaintiff’s request,” nor did they “ explain the rationale for only contacting Weiner in the Pacifi c Coast Area TEGE Counsel office, and n o other individuals or offices, with respect to plaintiff’s full request.” Id. at 93–94. With its renewed motion for summary judgment, IRS has offered a declaratio n of paralegal specialist Nia Dowdy to further describe its first search of the National C ounsel Office. Dowdy Decl. Dowdy’s duties include proce ssing FOIA requests; she has knowledge of the records kept by the National Counsel Office, and of the procedures for processing reque sts for records. Def.’s SOF ¶ 24; Pl.’s SOF ¶ 24. Defendant now states that on or about June 19, 2013, DLS received a copy of Se a Shepherd’s FOIA request, which was subsequently assigned to Dowdy. Def.’ s SOF ¶ 26; Pl.’s SOF ¶ 26. Dowdy searched CASE-MIS, an automated case tracking system, for S ea Shepherd’s full name, because, as she explains, f iles involving a particular taxpaye r are labeled using that taxpayer’s name. Def.’s SOF ¶¶ 27–29; Pl.’s SOF ¶¶ 27–29. The search return ed two case numbers: PRESP-111843-13, assigned to Courtney Jones in the Exempt Organ izations branch of12 the TEGE Associate Office in Washington, D.C., and POSTU-103863-13, assi gned to Mark Weiner in the Los Angeles TEGE office. Def.’s SOF ¶ 29; Pl.’s SOF ¶ 29. There w ere no other case files in CASE-MIS associated with Sea Shepherd. Def.’s SOF ¶ 29; Pl.’s SOF ¶ 29. Dowdy sent Jones a search memorandum and requested a copy of her case file, and she also sent Jones a copy of plaintiff’s FOIA request and a form to provide a des cription of her search efforts. Def.’s SOF ¶ 30; Pl.’s SOF ¶ 30. The records that Dowdy received fro m Jones were produced to Sea Shepherd. Def.’s SOF ¶ 32; Pl.’s SOF ¶ 32. In addition, Senior Counsel A.M. Gulas, who coordinated the defendant’s o verall response to plaintiff’s request, see, e.g. , Sea Shepherd , 89 F. Supp. 3d at 92, searched CASE-MIS to determine who in TEGE might have respons ive documents. Def.’s SOF ¶ 36; Pl. ’s SOF ¶ 36. 3 The system returned the same two file s: POSTU-103863-13, which was assign ed to Mark Weiner and Patricia Wang in the TEGE Area Couns el’s office in Los Angeles, Def.’s S OF ¶ 37; Pl.’s SOF ¶ 37; and PRESP-111841-13, which had been assigned to Courtney Jones in the Office of Associate Chief Counsel of TEGE, and w as reviewed by Kenneth Griffin. Def. ’s SOF ¶ 41; Pl.’s SOF ¶ 41. 4

3 Though Sea Shepherd asserts that Gulas did not disclose the search terms s he used, Pl.’s Cross-Mem. at 15, the IRS has since clarified that the best way to query CASE -MIS is by using a taxpayer’s name to name any files related to that taxpayer, and that Gulas s earched using Sea Shepherd’s full name. Def.’s Reply at 6–7; see 3d Gulas Decl. ¶¶ 3, 8, 12. 4 The parties do not dispute that OCC employees “are required to post any tim e spent working on a case to the file number associated with that case,” and that “Co unsel employees are required to place paper copies of all documents they receive or create whil e working the case in the case file, including any emails the employee sent or received.” Def.’s SOF ¶ 28; Pl.’s SOF ¶ 28.13 The IRS asserts that Gulas had already obtained all responsive documents i n Weiner’s control during her first search. 3d Gulas Decl. ¶ 4. 5 To obtain any documents created or compiled by Wang, Gulas sent Wang a copy of Sea Shepherd’s FOIA request, and asked her to search for responsive documents. Wang responded by email on April 29, 2015, indicating that she did not have any additional responsive documents. Id. ¶ 5. Gulas’s declaration states that Wang forwarded the FOIA request to Kirk Paxson, who was the Deputy Division Coun sel-Associate Chief Counsel for TEGE at the time of the request, and had been copied on cert ain emails that had been deemed responsive. Id. ¶ 6. Paxson responded to Gulas by email and reported that he did not have additional responsive documents. Id. Paxson then forwarded the FOIA request to Helene Winnick, the Special Counsel to the Division Counsel, who replied that she had no responsive files, either. Id. ¶ 7. 6
The second file identified in CASE- MIS, PRESP-111841-13, had been assign ed to Courtney Jones in the Office of Asso ciate Chief Counsel of TEGE, with Kenne th Griffin as her reviewer. Def.’s SOF ¶ 41; Pl.’s SOF ¶ 41. Gulas had previously obtained fro m Dowdy a copy of Jones’s PRESP file, including all o f the emails and documents that Jones had compiled. Def.’s SOF ¶ 42; Pl.’s SOF ¶ 42. Gulas also sent Griffin, Jones’s reviewer, a copy of the FOIA request and asked him to search for responsive records. Def.’s SOF ¶ 43; Pl.’s SOF ¶ 4 3. Griffin

5 Sea Shepherd disagrees that Gulas had already obtained the responsive do cuments from Weiner. Pl.’s SOF ¶ 37. But Gulas’s declarations submitted in connection w ith the pre-remand search identified the Weiner documents as well, so Sea Shepherd’s objecti on is not well founded. See 2d Gulas Decl., Ex. 4 to Def.’s Mot. for Summ. J. [Dkt. # 16-4] (“2d Gulas Decl .”). 6 Gulas’s declaration does not explain why Paxson believed that Winnick wo uld have responsive documents, an omission th at Sea Shepherd seizes upon in its cha llenge of Gulas’s declaration. See Pl.’s SOF ¶ 40. But Gulas explains that Winnick ultimately reported that sh e did not have any responsive documents, and Sea Shepherd does not explain why th at representation should not be afforded a presumption of good faith. So the Court will not inv alidate the search on that basis.14 responded via email that he had no responsive documents and explained that his involvement in the matter had been minimal. Def.’s SO F ¶ 43. Griffin included Senior Couns el Don Spellman on the email, and asked Spellman to “look for any documents or emails he might possess.” Id. ; Pl.’s SOF ¶ 43. Spellman responded to Gul as, and reported that he reviewed a ll of his records and emails, and had located four emails on which he had been copied, but that he l ocated no paper files pertaining to plaintiff. Def.’s SOF ¶ 44; Pl.’s SOF ¶ 44. Gulas subsequentl y determined the emails received from Spellman were duplicates of emails that had been previously produced at control numbers 012208–012228. Def.’s SOF ¶ 44; Pl.’s SOF ¶ 44. Gulas’s searches returned no other files associated with plaintiff’s nam e. Def.’s SOF ¶ 45. OCC does not have any system other than CASE-MIS which would have likely pro duced responsive records. Id. According to Gulas, the “best way to locate the counsel records created or compiled for a particular taxpayer’s case is to identify the counsel emp loyee(s) assigned to such case by consulting CASE-MIS.” 3d Gulas Decl. ¶ 3. Because Gulas obtained re sponsive documents, or a response indicating that no documents were found, from eac h person assigned to or involved with the two Sea Shepherd cas es, Gulas concluded there were no a dditional locations to search for OCC documents. Id. ¶ 12. Sea Shepherd argues that the searches were deficient because only Gulas submitted a declaration, and Gulas lacks personal knowledge of the searches conducte d by the other TEGE employees. Pl.’s SOF ¶ 38. In essence, Sea Shepherd demands an unbroken cha in of declarations from each person who received a request to search their area for responsive documents. See e.g. Pl.’s SOF ¶ 39, 40. But because the statute does not require the IRS to undert ake such a painstaking approach, the Court will find the search of TEGE to be adequate.15 Although defendant’s declarations c ould certainly be more detailed, “th e issue to be resolved is not whether there might exist any other documents possibly responsive t o the request, but rather whether the search for those documents was adequate .” Weisberg , 745 F.2d at 1485 (emphasis in original). The adequacy of an agency’s search “is judged by a standard of re asonableness and depends, not surprisingly, upon the facts of each case.” Id. “In cases where documents are collected from several different offices, unit-specific descriptions a re not required, and the affidavit of the officer ultimately responsible for the supervision of th e FOIA search is sufficient.”
Trans Union LLC , 141 F. Supp. 2d at 68–69, citing Judicial Watch, Inc. v. HHS , 27 F. Supp. 2d 240, 244 (D.D.C. 1998) (“Unit-specific descriptions are not required, at least where plaintiff has failed to raise some issue of fact necessitating rebuttal.”). In this case, Gulas coordinated a wide-ranging search for records in numerous components of TEGE, instructing the searchers to look for any records related to Sea Sh epherd. Since what plaintiff sought was exactly that – all records related to itself – defendant’s failure to identify particular search terms used by Paxson and Wang does not indicate that the s earch was inadequate. See Friends of Blackwater v. U.S. Dep’t of Interior , 391 F. Supp. 2d 115, 120 (D.D.C. 2005) (stating that the “fail[ure] to enumerate any specific search terms used” in a FOIA search “might not be enough to invalidate an otherwise adequate affidavit.”). The Court concludes that Dowdy’s and Gulas’s searches of OCC were “reasona bly calculated to uncover all relevant documents.” Ancient Coin Collectors Guild , 641 F.3d at 514, quoting Valencia-Lucena , 180 F.3d at 325. Gulas and Dowdy identified the relevant database that was reasonably likely to contain all records concerning Sea Shepherd with in the time period at16 issue. They described the search methodology – plaintiff’s name. 7 And they contacted all of the employees who were listed as having worked on the case, and tracked down any additional leads that flowed from those contacts. So the Court concludes that there is enough here to support judgment for the agency as to the adequacy of the searches of OCC and TEGE. 2. The renewed search of the Exempt Organizations Rulings and Agreements function was adequate. Rulings and Agreements (“R&A”) is one of two main components of the Exempt Organizations Division of TEGE (the other main component is Exempt Organi zations Examinations). Def.’s SOF ¶ 46; Pl.’s S OF ¶ 46. R&A is comprised of two sub-units, Determinations and Technical. Def.’s SOF ¶ 48; Pl.’s SOF ¶ 48. It uses two primary databases to manage case files: EDS and TEDS. Cases are identified either by the entity’ s name and taxpayer identification number, or by an employee identification number (“EIN”), and both systems can be searched with an entity’s name or EIN. Id. If either of R&A’s sub-units – Determinations and Technical – worked on a case, it would appear in EDS or TEDS. Id. The Court previously found the search of R&A inadequate because the declaration in support of the initial search stated onl y that R&A would not have files whil e an examination is pending, but it did not address plaintiff’s request for “any and all” records related to Sea Shepherd. Sea Shepherd , 89 F. Supp. 3d at 94. So the agency went back and did another search. Around April 6, 2015, Gulas a nd Michael Franklin, an attorney in the Office of the Associate Chief Counsel, contac ted Jon Waddell, a senior

7 Sea Shepherd argues that the Gulas declaration is deficient because Gula s failed to disclose the search terms she used in CASE-MIS. Pl.’s SOF ¶ 45. Though Sea Shepherd’s point is well taken because the declaration does not expressly state the search terms th at Gulas used, it is clear that Gulas searched using Sea Shepherd’s full name. Gulas’s declaration a sserts that “when a case involves a particular taxpayer, the taxpayer’s name is used to name the fil e.” 3d Gulas Decl. ¶ 3. Later, she makes clear that “[r]esearch of the CASE-MIS system identified no files opened under the plaintiff’s name other than the two described above.” Id. ¶ 12 (emphasis added).17 manager in R&A Determinations, provi ded Waddell with a copy of Sea Shepherd’s FOIA request, and asked him to search R&A for any responsive records. Def.’s SOF ¶¶ 51–52; Pl.’s SOF ¶¶ 51– 52. At Waddell’s request, Tracy Dornette, a Staff Assistant in Determinations, searched EDS and TEDS using Sea Shepherd’s EIN, and did not locate any responsive documents in either system. Def.’s SOF ¶ 53. She also searched an online database of exempt organizatio ns, and found Sea Shepherd’s 1982 application file, whi ch was outside of the timeframe at is sue in Sea Shepherd’s request, and was therefore not responsive. Id. 8 Waddell thus concluded that all locations likely to return responsive records were searche d, and R&A did not contain any other records system which might return responsive results. Waddell Decl. ¶ 9. Plaintiff asserts that Waddell’s declaration is insufficient because it does not establish the basis for his knowledge of Dornette’s search. Pl.’s SOF ¶ 53. It also contes ts that Waddell’s statement that all locations likely to return responsive records had been searched and that there were no other records system likely to produce responsive records because “it reflects an opinion or conclusion.” Id. ¶ 54. Sea Shepherd’s arguments are not persuasive. The agency has explained that responsive documents would have come from one or two databases. It searched both datab ases using a search term that it knows would return relevant information, and it found no recor ds. Because Waddell provided a rationale for Dornette’s search and the search terms used, and h as “aver[red] that all files likely to contain responsive materials . . . were searched,” Oglesby , 920 F.2d at 68, the Court finds that the search of R&A was reasonably calculated to find all responsi ve documents.

8 Sea Shepherd disputes these statements because Dornette has not submitt ed a declaration and Waddell’s declaration does not disc lose the basis of his knowledge of D ornette’s activities or conclusions. Pl.’s SOF ¶ 53. But for the reasons explained above, Sea Sheph erd’s objection is not well founded. See Trans Union LLC , 141 F. Supp. 2d at 62; Judicial Watch, Inc. , 27 F. Supp. 2d at 244.18 3. The renewed search of the Exempt Organizations Examinations function remains inadequate. In its review of the initial search of the Exempt Organizations Examinatio ns function, the Court found the declarations describing the search of that function defic ient for several reasons. In particular: (1) “neither declarant [met] the basic requirement of averring that all files likely to contain responsive materials . . . were searched”; (2) the declaration of Kieu Ta failed to describe the file systems or search terms she used; and (3) both declarations failed to indicate that a search was conducted for any and all records rel ated to plaintiff – rather than rec ords related only to the audit of plaintiff. Sea Shepherd , 89 F. Supp. 3d at 93. The Exempt Organizations Examinations function is responsible for enfor cement activities. Def.’s SOF ¶ 55; Pl.’s SOF ¶ 55. Its headquarters are in Dallas, Texas, and it also has six area offices. Def.’s SOF ¶ 55; Pl.’ s SOF ¶ 55. Exempt Organizations rece ives information from the public about activities of 501(c )(3) entities. Def.’s SOF ¶ 56; Pl .’s SOF ¶ 56. Those referrals – which are entered into the Exempt Organizations Referral Data base – often allege noncompliance with a tax law. Def.’s SO F ¶ 56; Pl.’s SOF ¶ 56. If a referral warrants further investigation, it is sent to an area office, where the examining agent maintains the case file. Def.’s SOF ¶ 56–57; Pl.’s SOF ¶ 56–57. There is usually little contact between the e xamining agent and the headquarters office. Def.’s SOF ¶ 57; Pl.’s SOF ¶ 57. In April 2015, Margaret Von Lienen, the Director of the Exempt Organizatio ns Examinations function, was contacted by Richard Daly, Executive Assista nt to the Deputy Division Commissioner, given a copy of Sea Shepherd’s FOIA request, and as ked to have Exempt Organizations Examinations in Dallas search for any documents, complaints, or referrals related to Sea Shepherd. Def.’s SOF ¶ 60; Pl.’s S OF ¶ 60. Von Lienen asserts that, at h er direction, Regeina Hall in Exempt Organizations Examinations Program and Review, “s earched her email19 using ‘Sea Shepherd Conservation Society’ and ‘SSCS,’ and also searched c ase chronology reports in the Referral Database using Sea Shepherd’s [EIN]. 2d Decl. of Margaret V on Lienen [Dkt. # 42- 4] (“2d Von Lienen Decl.”) ¶ 9. Von Lienen reports that Hall used the search t erms ‘Sea*,’ ‘Shepherd*’ and ‘Conservation*.’” Id. She also avers that Roger Vera, Manager of ClassificationReferrals – the unit which receives all incoming referrals – “searched the EO Referral Database for any referrals made about SSCS that were responsive to the request.” Id. ¶ 10. Vera conducted his search using Sea Shepherd’s EIN and a wildcard search – using the same te rms that Hall did.
Id. ¶ 11. Vera also searched his email files using the same wildcard terms, in ad dition to searching paper referral files received by mail. Id. Von Lienen asserts that “all locati ons likely to contain responsive records located in EO Examinations have been searched and EO Examinations does not contain any o ther records system likely to produce[] records responsive to SSCS’s request.” Von Lienen Dec l. ¶ 10. Sea Shepherd disputes this conclusion because the “record reflects that the only email account searched in the EO Examinations Dallas Headquarters w as that of Regeina Hall, and Defendant has not established that no other employee within that office was likely to have sent, received , or been [copied] on emails responsive to Plaintiff’s FOIA request.” Pl.’s SOF ¶ 64. The Court a grees with Sea Shepherd. Defendant’s supplemental search is ma rkedly better than the first becaus e it details the locations searched and the search terms used. However, the affidavits sub mitted still do not describe an adequate search. First – and most important – none of the declar ations provide an explanation for why it was likely that only Hall’s and Vera’s email account s would include responsive records. Defendant has offered no reason for why no other Exemp t Organizations Examinations employee was likely to have sent, received, or been copied on responsive emails.20 Second, it is unclear why Hall used diffe rent terms when searching her emai l and the referral database, and why those search terms were not the same as those utilized by V era. The varying search terms call into question wheth er defendant implemented a rational search methodology of the Exempt Organizations Examinations function. See Defs. of Wildlife , 623 F. Supp. 2d at 92. The Court therefore finds that defendant’s affidavits do not describe a se arch of the Exempt Organizations Examinations functio n that was reasonably calculated to uncover all responsive documents, and it will remand this aspect of the case to defendant for furth er action consistent with this opinion. 4. The search of the Communications & Liaison Office was adequate. The Court’s initial memorandum opini on noted plaintiff’s objection that defendant failed to describe a search of two other functions likely to have responsive docum ents: the Communications and Liaison Offi ce and the Whistleblower Office. Sea Shepherd , 89 F. Supp. 3d at 92 n.3. The Court concluded that “it need not rule on this issue” because “plaintiff did not mention either of these offices in its FOIA request, and the IRS was ‘not obl iged to look beyond the four corners of the request for leads to the location of responsive documents.’” Id. , quoting Kowalczyk v. DOJ , 73 F.3d 386, 389 (D.C. Cir. 1996). Nonetheless, on remand, the agency searched both of those components. Because the Court finds that both searc hes were adequate, it will enter judgment for defendant as to both. The Communications and Liaison Office has three subparts: the Legislativ e Affairs Division, the National Public Liais on, and the Communications Division, which itself has five branches – National Office and Field Me dia Relations; Internal Communications; Social Media; Visual Education and Communications ; and Technical Communications. Def .’s SOF ¶¶ 66–67; Pl.’s SOF ¶¶ 66–67. Dean Patterson is a pub lic affairs specialist in the National Office and Field Media Relations Division. Def.’s SOF ¶ 73; Pl.’s SOF ¶ 73.21 On April 6, 2015, Patterson was contacted by Franklin and Gulas, who reques ted that he search the Communications & Liaison Office for any responsive records. De f.’s SOF ¶ 74; Pl.’s SOF ¶ 74. In turn, Patterson contacted e ach of the branch chiefs and the Staf f Advisor to the National Public Liaison, and “asked them to search their areas, and ask the ir staffs to search, for any records responsive to Sea Shepherd’s FOIA request and to provide [him] with copies of any such records, or confirm a negative result by email.” Def.’s SOF ¶ 75; Pl.’s SOF ¶ 75. Patterson did not contact Legislative Affairs because Gulas informed him that she ha d already contacted that office’s FOIA coordinator to conduct a search. Def.’s SOF ¶ 75; Pl.’s SOF ¶ 7 5. “Patterson received negative respons es from Internal Communications, S ocial Media, the National Public Liaison, Field Media Relations, and Visual Education and Communications.” Def.’s SOF ¶ 76; Pl.’s SOF ¶ 76. According to Patterson’s declaration, “[t] hree people located and forwarded to me a copy of the same email,” which Patterson then forwarde d to Gulas. Patterson Decl. ¶ 9; see also Def.’s SOF ¶ 76; Pl.’s SOF ¶ 76. 9 Separately, on April 6, 2015, Gulas c ontacted Ross Kiser in the Legislativ e Affairs branch of Communications & Liaison, and asked him to search for any records respon sive to plaintiff’s request. Def.’s SOF ¶ 78; Pl.’s SOF ¶ 78. Kiser conducted his search through E-trak, a database used by the branch to manage and track correspondence. Def.’s SOF ¶¶ 79–82; Pl.’s SOF ¶¶ 79– 82. E-trak can be searched using specific names or terms, and can also be searched using specific time periods. Def.’s SOF ¶ 83; Pl.’s SOF ¶ 83. Kiser performed a “topic searc h using the name ‘Sea Shepherd Conservation Society’ and its abbreviation ‘SSCS’” for the time period specified

9 Sea Shepherd disputes this statement “to the extent that ‘me’ is anyone other than Patterson because the record does not reflect that any other individual received ema ils relating to plaintiff from persons in the National Public Liaison Division of Communications & L iaison.” Pl.’s SOF ¶ 76. It is clear that Patterson is speaking in the first person in his declar ation, and so Sea Shepherd’s has not raised a genuine dispute of fact here that was worthy of any time or attention.22 in plaintiff’s request, and found no responsive records. 3d Gulas Decl. ¶ 2 0. Gulas explains that “Legislative Affairs does not maintain any other records system likely to produce records responsive to SSCS’s FOIA request.” Id. ¶ 18. The Court finds that both Kiser’s and Patterson’s searches were adequate. Although Patterson does not descri be in detail the search methods of the branch chie fs, “where documents are collected from several different offices, unit-specific descriptio ns are not required.” Trans
Union LLC , 141 F. Supp. 2d at 68. So, both searches were reasonably calculated to unco ver all relevant documents. Oglesby , 920 F.2d at 68. 5. None of the other deficiencies asserted by plaintiff warrant remand. Plaintiff also challenges defendant’s search due to several other signif icant alleged omissions. First, plaintiff claims that an IRS employee, Venus Harvey, de stroyed files responsive to plaintiff’s request while the litig ation was pending. Pl.’s Cross-Mem . at 13. Plaintiff argues that destruction of responsive documents “plainly contravenes FOIA,” an d suggests that defendant’s failure to even acknowledg e the destruction shows “bad faith or incompetence.” Id

. In response, defendant argues that p laintiff’s allegation is speculativ e and “based on [plaintiff’s] flawed interpretation of responsive documents the Service released.” De f.’s Cross-Reply at 9. It concedes that a record bearing control number 012620–012621 references another document, and that an employee named Venus Harvey apparently destroyed the document ref erenced. Id. However, the agency proffers another declaration of Michael Franklin, wh o asserts that the referenced document was not responsive to plaintiff’s request because it pertained to tax years 2000 and 2005, and plaintiff’s request concerned documents from tax years 2006 through 2013. 3d Decl. of Michael Franklin [Dkt. # 42-2] (3d Franklin Decl.”) ¶ 4. It appea rs that plaintiff is arguing that the destruction of the file in question ought to cast doubt on the adequacy and good23 faith of defendant’s search generally, 10 but plaintiff has offered little to rebut the presumption of good faith that attaches to agency declarations. Plaintiff also claims that defendant should have made some effort to searc h the records of former Exempt Organizations Director Lois Lerner and former Exempt Organ izations Tax Law Specialist Justin Lowe. See Pl.’s Cross-Mem. at 13–14. Both Lerner and Lowe were involved in the conflict between Sea Shepherd and the Japanese government, and so, plaintiff argues, they were reasonably likely to possess responsive records. See id. Franklin asserts that defendant coul d not have directly searched Lerner o r Lowe’s files because both had “left employment with the IRS” by the time that the searche s were completed. 3d Franklin Decl. ¶ 7. However, the IRS admits that it had compiled document s from 88 custodians – including Lerner and Lowe – into a “Congressional database” i n response to investigatory requests from Congre ssional committees, the Treasury Ins pector General for Tax Administration, the FBI, and the DOJ. Id. ¶ 6. On October 20, 2015, Emma Woodward, an attorney assigned to respond to the Congressional inquiries who was famil iar with the database, searched using the terms “Sea Shepherd,” “SCSS,” and “Sea Shepherd Conservation Society,” and located 59 documents. Id. ¶ 8. After removal of duplicates, and after defendant redacted certain records, the remaining records were released to plaintiff. See id. at 9–12. Franklin’s declaration has described “what records were searched, by whom, and through what proce sses,” Defs. of Wildlife , 623 F. Supp. 2d at 91, and that the “Congressional database is the only location to search for [electronic] or hardcopy documents maintained by Lerner or Lowe that w ould be likely to

10 Sea Shepherd also makes clear that it views the destruction of this docum ent as “potentially criminal conduct.” Pl.’s Cross-Mem. at 13. This is but one example of Sea Sh epherd’s overheated and unnecessary rhetoric.24 contain responsive records.” 3d Franklin Decl. ¶ 7. Although it seems that this database should have been searched originally, the Court finds that Woodward’s belated ef fort was adequate. Finally, plaintiff asserts that def endant failed to contact employee Leo pold Cantu, despite the fact that certain case chronology reports show that he established cas e files for, and sent correspondence about, referrals con cerning Sea Shepherd. Pl.’s Cross-M em. at 14. Franklin’s declaration acknowledges that docum ents “bearing control numbers 01261 9, 012621, and 012623 are case chronology reports” created by Exempt Organizations Examinatio ns, and that they “contain the names [Leopold] Cantu and Carolyn Johnson next to entries stating ‘Case Established.’” 3d Franklin Decl. ¶ 5. Cantu and Johnson were Tax Examining Technicians who received referrals from the public “requesting the Service investigate tax exempt organizations for compliance” and “enter[ed] that information into the EO Referral databas e.” Id. However, the agency explains that after Tax Examining Technicians establish cases, th ey “do not retain copies of referrals themselves,” so Cantu and Johnson would not possess any respo nsive records. Id. For this reason, the Court finds that the failure to search Cantu’s and Johnson ’s files – as opposed to the Exempt Organizations Examinations files in general – does not render d efendant’s search inadequate. II. Defendant has fully justified its withholdings under exemptions 3 and 7(D). Turning to the records that the IRS identified, the agency declined to produce numerous responsive records under FOIA Exemptions 3 and 7. The parties agree that th e IRS has turned over more than 12,000 pages of records in this case. Def.’s SOF ¶ 3; Pl.’s SOF ¶ 3. But the parties remain unable to agree about a small subs et of remaining documents. Defend ant contends that “[o]nly 371 pages remain in dispute,” and that “[s]pecifically, of these 3 71 pages 216 remain withheld in full and 155 pages are wit hheld in part based upon FOIA Exemptio ns 3 in connection25 with 6301(a)[,] (e)(7), 7(D) and 5 with the deliberative process privileg e.” Def.’s Mem. at 3; see Def.’s SOF ¶ 99. Plaintiff’s cross-motion makes it clear that it is only cha llenging defendant’s withholdings under FOIA Exemptions 3 in conjunction with 26 U.S.C. § 6103, and FOIA Exemption 7(D). Pl.’s Cross-Mem. at 21. So, in plaintiff’s view, “only 236 pages, 190 of them withheld in full and 46 in part, remain in dispute.” Id. at 20, citing Pl.’s Cross-SOF ¶¶ 48–62. A. FOIA Exemption 7(D) protects defendant’s sources. The IRS is withholding records in part and in full under FOIA Exemption 7(D)

. 11 See Vaughn Index; Pl.’s Cross-SOF ¶ 51. 12 Exemption 7 permits agencies to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or infor mation” would undermine one of six enumerated interests. 5 U.S.C. § 552(b)(7)(A)–(F). In this case, the IRS relies on Exemption 7(D) , which specifically permits agencies to withhold “records or information complied for law enf orcement purposes” to the extent that the records or information “could reasonably be expected t o disclose the identity of

11 The disputed records bear control numbers 012398, 012400, 012404, 0125 70, 012571, 012622, 012624, 012637. 3d Gulas Decl. ¶¶ 25–29. 12 Plaintiff contends that seven redacted pages were omitted from the agen cy’s Vaughn Index. Pl.’s Cross-SOF ¶ 54. The Third Gulas Declaration explains that five of tho se seven pages were properly redacted pursuant to Exemption 7(D) and Exemption 3 in connectio n with 28 U.S.C. § 6103(e)(7), and that the remaining two pages were properly redacted purs uant to Exemption 3 in connection with 28 U.S.C. § 6103(a). 3d Gulas Decl. ¶¶ 25, 30, 32.26 a confidential source, including a State, local, or foreign agency or auth ority or any private institution which furnished the information on a confidential basis.” 13 5 U.S.C. § 552(b)(7)(D). 1. The records were compiled for a law enforcement purpose. The agency must first meet its burden to prove that the records were collect ed for a “law enforcement purpose.” 5 U.S.C. § 552(b )(7). As the D.C. Circuit explained in Tax Analysts v.
IRS , 294 F.3d 71 (D.C. Cir. 2002): There are several overarching principles that the courts follow in assess ing whether records or information satisfy the threshold requirement of § 552(b)(7). First, “law enforcement purposes” under Exemption 7 include s both civil and criminal matters with in its scope. Second, FOIA makes no distinction between agencies whose principal function is criminal law enforcement and agencies with both law enforcement and administrative functions. Therefore, agencies lik e IRS, with both law enforcement and administrative functions . . . may seek to avoid disclosure of records or information pursuant to Exemption 7. Finally, “courts can usually assume that government agencies act within the scope of the legislated authority .” However, courts apply a more deferential standard to a claim that information was compiled for law enforcement purposes when the claim is made by an agency whose primary function involves law enforcement. Id. at 76–77, quoting Pratt v. Webster , 673 F.2d 408, 416, 418, 420 n.32. The Tax Analysts court noted that the IRS is a “mixed-function” agency, with both a law enforcement and an administrative purpose, and it concluded that when dealing with a mixed-f unction agency, “a court

13 In full, Exemption 7(D) states that agencies may withhold 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 auth ority 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 s ecurity intelligence investigatio n, information furnished by a confidential source[.] 5 U.S.C. § 552(b)(7).27 must scrutinize with some skepticism the particular purpose claimed for d isputed documents redacted under FOIA Exemption 7.” Id. at 77; quoting Pratt , 673 F.2d at 418. “In assessing whether records are compiled for law enforcement purposes, this circuit has long emphasized that the focus is on how and under what circumstances the re quested files were compiled, . . . and ‘whether the files sought relate to anything that can fai rly be characterized as an enforcement proceeding.’” Jefferson v. DOJ, 284 F.3d 172, 177 (D.C. Cir. 2002), quoting Aspin
v. DOD , 491 F.2d 24, 27 (D.C. Cir. 1973).
In Rural Housing Alliance v. Dep’t of Agriculture , 498 F.2d 73 (D.C. Cir. 1974), the court identified two types of investigatory files that governm ent agencies compile: (1) files in connection with government oversight of th e performance of duties by its employees, and (2) files in connection with investigations that focus directly on specific alleged illegal acts whic h could result in civil or criminal sanctions. Id. at 81. . . . Thus, if the investigation is for a possible violation of law, then the inquiry is for law enforcement purposes, as distinct from customary surveillance of the performance of duties by government employees. Id. Then, in [ Pratt , 673 F.2d at 420–21], the court set forth a two-part test whereby the government can show that its records are law enforcement records: the investigatory activity that gav e rise to the documents is “related to th e enforcement of federal laws,” and there is a rational nexus between the investigation at issue and the agency ’s law enforcement duties.” Jefferson , 284 F.3d at 177; see also Rural Hous. Alliance , 498 F.2d at 81, Pratt , 673 F.2d at 420–
21. The IRS contends that all of the records it withheld under Exemption 7 were c ompiled for a law enforcement purpose because (1) the records relate to an audit; and (2 ) the records pertain to informants. Def.’s Reply at 18–19. Plaintiff contends that the evidence s upports its theory that defendant’s audits were not for a law e nforcement purpose, but were instea d “to justify harassment of Sea Shepherd with a baseless audit as a diplomatic sop to Japan.” Pl.’s Cross-Mem. at 24–25. Because the records withheld relate to an audit of plaintiff to determine whether it qualifies for tax-exempt status, the records were compiled for a law enforcement pur pose. Courts have28 found that the Exempt Organizations function “performs a law enforcement function by enforcing the provisions of the federal tax code that relate to qualification for tax exempt status.” Church of Scientology Int’l v. IRS , 995 F.2d 916, 919 (9th Cir. 1993). The Ninth Circuit in Church of Scientology relied on a case from this jurisdiction, Center for Nat’l Policy Review on Race & Urban Issues v. Weinberger , 502 F.2d 370 (D.C. Cir. 1974), which predated Rural Housing
Alliance , and which interpreted a precursor to the current version of exemption 7, b ut concluded that “[w]here an agency . . . has both voluntary compliance and formal determination functions . . . the pertinent files are ‘compiled for law enforcement purpo ses.’” Church of Scientology , 995 F.2d at 919, quoting Weinberger , 502 F.2d at 373. The court concluded that the Exempt Organizations function, “like the agency in Weinberger , performs both voluntary compliance and formal determinatio n functions. Moreover, the EO’s role i n determining eligibility for the governmental benefit of tax exempt status also ‘has th e salient characteristics of law enforcement.’” Id. , quoting Weinberger , 502 F.2d at 373. So whether or not federal officials, as plaintiff repeatedly alleges, par ticipated in a campaign to harass the plaintiff at the urging of the Japanese government, see Pl.’s Cross-Mem. at 24–25, the question is not whether this campaign existed, but rather, whether any records gathered29 from the informants and any records created during the IRS’s examination o f the informants’ complaints, were compiled for a law enforcement purpose. 14 The Court found previously that “defe ndant has said little to address [plaintiff’s] objections” that the material withheld was compiled for a law enforcement purpose. Sea Shepherd , 89 F. Supp. 3d at 95. Although defendant’s declarations do not speak to the l aw enforcement purpose of the records, defendant has now come forward with sufficient inf ormation for the Court to conclude that the records were compiled to determine whether the inform ants’ complaints merited a review of Sea Shepherd’s tax exempt status, which is clearly “rel ated to the enforcement of federal laws.” See Jefferson , 284 F.3d at 177. So, the Court finds that “there is a rational nexus between the investigation” of plaintiff’s tax-exempt status “and the age ncy’s law enforcement duties.” See id. 15 2. The IRS has met its burden to show that the sources were promised confidentiality. Because defendant has met its burden of establishing that the records were compiled for a law enforcement purpose, the Court must consider next whether the records “could reasonably be expected to disclose the identity of a confidential source.” See 5 U.S.C. § 552(b)(7)(D). The agency invoking Exemption 7(D) bears the burden of “showing that the sourc e is a confidential

14 Plaintiff presses the point in its pleadings: “This much is clear: (1) th e Japanese government sought revocation of the Se a Shepherd’s tax exempt status as a d iplomatic bargaining chip in negotiations over whaling restrictions; (2) U.S. government empl oyees, including IRS employees, communicated with one another and/or with the Japanese government regarding the possible revocation of Sea Shepherd’s tax exemption; and (3) the IRS there after examined Sea Shepherd,” and noting that “[w]hat remains uncertain . . . is whether the IR S acted on the basis of Japan’s diplomatic demands rather than for tax-related reasons when it in itiated the audit.” See Pl.’s Cross-Mem. at 9–10. This is a FOIA action, and it does not provide an av enue for addressing the merits of plaintiff’s allegations. 15 The Court need not address defendant’s alternative argument, that the d ocuments were compiled for a law enforcement purpose because they pertain to confidenti al sources. See Def.’s Reply at 18–19, citing Robinson v. Att’y Gen. , 534 F. Supp. 2d 72, 81 (D.D.C. 2008).30 one.” Citizens for Responsibility & Ethics in Washington v. DOJ ( CREW ), 746 F.3d 1082, 1101 (D.C. Cir. 2014), citing DOJ v. Landano , 508 U.S. 165, 172 (1997). It is not enough for an agency to simply state that the sources in que stion provided information “on a con fidential basis.” Id. , quoting Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011). Rather, the agency “must either ‘present probative evidence that the source did in fact receive an express grant of confidentiality,’”
id. , quoting Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998), or else it must “point to more narrowly defined circumstances that . . . support the inference of confide ntiality.” Id. , quoting
Roth , 642 F.3d at 1184. The key question “is not whether the requested document i s of the type that the agency usually treats as confidential, but whether the particula r source spoke with an understanding that the communication would remain confidential.” Landano , 508 U.S. at 172. In its March 31, 2015 opinion, the Court concluded that the agency’s invocation of Exemption 7(D) was not justified: In this case, the IRS has entirely failed to carry its burden to show that its sources “did in fact receive an express grant of confidentiality,” and it h as also failed to articulate circumstances that would “support the inferenc e of confidentiality.” See CREW , 746 F.3d at 1101 (citations and internal quotation marks omitted). Defendant me rely states that “the confidentia l sources[] requested anonymity,” without anything more. Indeed, the IRS does not even claim that these sources received an assurance of confidentiality at all, see CREW , 746 F.3d at 1101 – only that they “requested” it. Under these circumst ances, the Court cannot find that the IRS has carried its burden to establish that any of “the particular source[ s] spoke with an understanding that the communication would remain confidential.” See Landano , 508 U.S. at 172. Thus, the IRS has not justified its withholdings under Exemption 7(D). Sea Shepherd , 89 F. Supp. 3d at 98 (internal citations omitted). The IRS states that it has received “multiple referrals” with respect to Se a Shepherd. 2d Franklin Decl. ¶ 6. The first and third referrals came from the same source, while the second referral came from an another source. Id. ¶¶ 6–9. The source at the heart of the first and third referrals “specifically requested that its identity be withheld due to co ncerns about retribution for31 providing information against [Sea Shepherd].” Id. ¶ 9. The Court has also reviewed an ex parte
in camera declaration authored by IRS attorney Michael Franklin, which identifies the source at issue, and details the government’s communications with the source. Base d on the facts set forth in the ex parte declaration, the Court is satisfied that the government has met its burden to show that the source of the first and third referrals “spoke with an understandi ng that the communication would remain confidential,” Landano , 508 U.S. at 172, and that the source received express assurances that its statements would be kept confidential. CREW , 746 F.3d at 1101. Therefore, the Court finds that Exemption 7(D) applies, and that the government can properly withhold from plaintiff documents regarding the first and third referrals. The second referral “came as a referral through the EO referral system on a F orm 13909, Tax-Exempt Organization Complaint (Referral) Form .” 2d Franklin Decl

. ¶ 7. Franklin explains that the second source, which “alleged specific illegal acts performed by [Sea Shepherd],” “checked the box on the Form 13909 indicating that it feared retaliation if its identity was disclosed.” Id. ¶¶ 7–8. The government points out that, “[i]n light of the fact that some of the organization’s alleged unlawful activity was assault on whaling fisherm an, the IRS concluded that confidentiality was warranted for the [second source’s identity] and the information provided because such information could identify the sources.” Id. ¶ 10. The government’s affidavits did not identify any assurances of confident iality that were made to the second source. See CREW , 746 F.3d at 1101. So the Court ordered the government to do the following two things: (1) provide a supplemental declaration that describes whether the confid ential source described in paragraphs 3 and 4 of Franklin’s ex parte declaration received an assurance of confidentiality . . . and if so, detail when, how, and by whom those assurances were conveyed, and (2) produce ex parte and in camera any documents that are being withheld on the basis of exemption 7(D) that relate to [the se cond source].32 See Min. Order (Aug. 8, 2016); Arieff v. U.S. Dep’t of Navy , 712 F.2d 1462, 1469 (D.C. Cir. 1983) (“The receipt of in camera affidavits . . . when necessary, [is] ‘part of a, trial judge’s procedural arsenal.’”), quoting United States v. Southard , 700 F.2d 1, 11 (1st Cir. 1983). 16
After the Court reviewed the in camera materials, it ordered the Government to file a redacted version of the declaration on the public docket. See Min. Order (Aug. 25, 2016). The redacted declaration of Michael Franklin takes the position that the seco nd source was promised confidentiality both on an express and implied basis. See Redacted Franklin Decl. ¶ 2. Franklin states that the agency provided express assurances of confidentiality in two ways: (1) through its policy statements in the Internal Revenue Manual, which instructs IRS emp loyees that “[p]ersons furnishing information on tax violations expect and deserve to have their identity kept secret. All employees must, therefore, handle such information in strict confidence .” Id. at ¶¶ 3–6, quoting Internal Revenue Manual § 10.4.1.5.9, https://www.irs.gov/irm/part10 /irm_10-004-001. html#d0e236; and (2) on the IRS’s website, where the agency “guarantees th at it ‘will protect the identity of whistleblowers to the fullest extent permitted by law.’” Id. ¶ 7, quoting Internal Revenue Service, Confidentiality & Disclosure for Whistleblowers, http s://www.irs.gov/uac/ confidentiality-and-disclo sure-for-whistleblowers. The IRS posits that by checking the box on Form 13909 (“I am concerned that I m ight face retaliation or retribution if my identity is disclosed”), “the confidential sources accepted the Service’s stated public policy that the Service will keep the identities o f the sources confidential.” Redacted Franklin Decl. ¶ 10. For the same reasons, the IRS submits that the confidential sources

16 Defendant, despite the clear direc tive in the Court’s order, took the op portunity to submit in camera and ex parte all of the documents that it was seeking to withhold under Exemption 7(D), which included far more than the nine pages “that relate to the [second sour ce].” Min. Order (Aug. 8, 2016). But despite the agency’s over inclusiveness, the Court has ident ified the relevant pages.33 received an implied assurance of confidentiality, “based on the Service’ s public assurances that it keeps confidential the identity of conf idential informants,” and based o n the fact that the sources “specifically requested confidentiality.” Id. ¶¶ 13–14. To withstand summary judgment on its Exemption 7(D) claim on the basis of an express promise, the agency must “present ‘probative evidence that the source did in fact receive an express grant of confidentiality.” CREW , 746 F.3d at 1101, quoting Campbell , 164 F.3d at 34. “Such evidence can take a wide variety of forms, including notations on the face o f a withheld document, the personal knowledge of an offici al familiar with the source, a statement by the source, or contemporaneous documents discussi ng practices or policies for dealing with the source or similarly situated sources.” Campbell , 164 F.3d at 34. But “the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.”
Landano , 508 U.S. at 172 (emphasis in original). “[I]t is not enough for the agency t o claim that all sources providing information in the course of a criminal investigati on do so on a confidential basis.” Roth , 642 F.3d at 1184. Here, the IRS points solely to the existence of a policy that could be found o n the agency’s public website. See Redacted Franklin Decl. ¶ 3 (“Express assurances were conveyed to the confidential source(s) of informatio n in this case by the Service’s expre ssly stated, publically available, and long-standing policy of protecting the identity of a confi dential informant.”) This does not even rise to the level of contemporaneous records discussing the p olicy with the source or with similarly situated sources – the sum total of the evidence is that th e agency policy was available to be discovered by a member of the public. There is, therefore, n o evidence tying express assurances to this source. So, while the Court acknowledges the sensitive nature of the34 information at issue, it finds that the government has not met its burden of showing that an express assurance of confidentiality was given to the second source. Indeed, the d ocuments that were submitted in camera reveal that though the agency and the source exchanged letters on multiple occasions, the agency never expressly promised that it would treat the source’s information as confidential. But the Court does find that the source received an implied assurance of con fidentiality. The D.C. Circuit has explained that four factors should be considered in as sessing an implied assurance of confidentiality: “the character of the crime at issue, the so urce’s relation to the crime, whether the source received payment, and whether the source has an ongoing relationship with the law enforcement agency and typically communicates with the agency only at locations and under conditions which assure the contact will not be noticed.” Roth , 642 F.3d at 1184, quoting Landano , 508 U.S. at 179. “The first factor, the character of the crime, contemplates that sources l ikely expect confidentiality when they report on serious or violent crimes, risking re taliation.” Labow v. DOJ, ___ F.3d ___, 2016 WL 4150929, at *5 (D.C. Cir. Aug 5, 2016). While in this cas e, the agency’s law enforcement function relates to tax offenses, the nature of the inform ation provided related to other more physically threatening crimes. The second source “alleged spe cific illegal acts performed by [Sea Shepherd],” 2d Franklin Decl. ¶ 8, and indicated that the source “feared retaliation if its identity was disclosed,” see id. ¶ 7, which is unsurprising, given Sea Shepherd’s well-documented history of violence against its ideological opponents. See Inst. of Cetacean
Research , 774 F.3d at 941 (describing Sea Shepherd’s “annual campaign to prevent Cetacean from killing whales in the Southern Ocean,” by “throwing smoke bombs and glass c ontainers of acid at the Plaintiffs’ vessels; dragging metal-reinforced ropes in the water to damage the vessels’35 propellers and rudders; throwing saf ety flares with metal hooks and nets h ung from the Plaintiffs’ vessels in the hope that they will set f ire to the vessels, and shining high- powered lasers at the Plaintiffs’ vessels to annoy the crew”). The agency concluded that confidentiality was warranted “[i]n light of th e fact that some of the organization’s alleged unlawful activity was assault on whaling fi sherman.” 2d Franklin Decl. ¶ 10. An agency’s assessment of risks faced by informants need not be d etailed. In Labow , the D.C. Circuit upheld an FBI declaration that argued that disclosure of the identity of informants “could have disastrous consequences because disclosure could subject th ese third parties, as well as their families, to embarrassment, humiliation, and/or physical or men tal harm.” 2016 WL 4150929, at *6. The D.C. Circuit relied on a similarly “broad” declaration in Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013), in which the Court upheld an agency that “stated that disclosure ‘could have disastrous consequences’ and ‘s ubject [informants] to violent reprisals.’” Id. , quoting Hodge , 703 F.3d at 581. While the agency’s assessment of the risk is conclusory, it is no more conclusory than the assessments that have been upheld in Labow and Hodge . So the Court finds that the first
Roth factor favors confidentiality. “The second Roth factor calls for considering the source’s relationship to the crime, because sources divulging nonpublic, identifying information are more ‘ vulnerable to retaliation.’”
Labow , 20166 WL 4150929, at *6, quoting Mays v. DEA , 234 F.3d 1324, 1330 (D.C. Cir. 2000). The agency’s declarations do not discuss the issue. But based on the Court’ s in camera review of the documents at issue, the Court concludes that the second source reveale d nonpublic identifying information that could make the source more vulnerable to retaliation if t he documents were disclosed.36 With respect to the third Roth factor – whether the source receive payment – the IRS has indicated in its in camera and ex parte submissions that though the second source was eligible to receive payment, the source did not seek an award. The fact that a source did not seek an award “weighs against a finding of confidentiality, but it is not itself disposi tive.” Labow , 2016 WL 4150929, at *6. “Finally, the fourth Roth factor concerns the duration of the source’s relationship with law enforcement and the manner of communication. Consistent and secretive co mmunications indicate a source’s expectation of confidentiality.” Id. The ex parte materials reveal that the second source communicated with the IRS on three occasions over the course of about a year, and that it repeated its fears of reprisal in communications that followed the initial Form 13909. So this factor weighs in favor of confidentiality as well. The Court concludes that the source provided ongoing information about se rious crimes, and that its repeated expressions of a need for confidentiality were made i n the context of the agency’s publicly announced policies. Under these circumstances, the IR S’s reliance on Exemption 7(D) is justified. See id. ; Hodge , 703 F.3d at 581–82. B. FOIA Exemption 3 permits the agency to withhold the records that the informants provided. Defendant also asserts that Exemptio n 3 justifies the withholding of info rmation generated as a result of the complaints from the informants. Exemption 3 protects fro m disclosure any records that are “specifically exempted from disclosure by statute . . . if that statute requires that the matters be withheld from the public in such a manner as to leave no discre tion on the issue; or establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). T o determine whether a statute “speci fically exempt[s]” records “from disclosure,” the Court must consider two questions: “Does the statute meet37 Exemption 3’s requirements? And does the information that was withheld fa ll within that statute’s coverage?” Newport Aeronautical Sales v. Dep’t of Air Force , 684 F.3d 160, 165 (D.C. Cir. 2012). The answer to the first question is inc ontrovertible. Here, the IRS withhe ld several records, in part and in full, under Exemption 3, and it points to 26 U.S.C. § 6103(e)(7 ) as the statute in question. 17 “That [section] 6103 is the sort of nondi sclosure statute contemplated by FOIA exemption 3 is beyond dispute.” Tax Analysts v. IRS , 117 F.3d 607, 611 (D.C. Cir. 1997). So the Court must consider whether the information that the IRS seeks to pro tect falls within the ambit of section 6103(e)(7 ). Section 6103(e)(7) states that “[ r]eturn information with respect to any taxpayer may be open to inspection by or disclosure to any per son authorized by this subsection to inspect any return of such taxpayer if the Secretary det ermines that such disclosure would not seriously impair Federal tax administration.” 26 U. S.C. § 6103(e)(7). 18 The Court reviews the Secretary’s determination de novo , and the IRS bears the burden to justify nondisclosure. See Church of Scientology , 792 F.2d at 150.

17 The records in dispute include all of the records in dispute under Exempt ion 7(D), plus the records with the following control numbers: 012396, 012401, 012569, and 0 12613–012614. Compare 3d Gulas Decl. 25–29 with id. ¶ 32. The Court notes that defendant “continues to assert FOIA exemptions 3 in connection with 6103(e)(7), and 7(D) with respect to” the document with control number 012590–012613, but that document does not appear on the age ncy’s Vaughn Index. See Pl.’s Cross-Mem. at 20 (noting that, be cause of this deficiency, the agenc y has “effectively conceded” that those pages should be immediately unredacted and released). The agency’s response seems to miss a crucial word or phrase when it argues that “[b]ecau se [Sea Shepherd] has conceded that pages bearing control numbers 012590–012612, this Court sh ould determine that the Service has properly withheld those records.” Def.’s Reply at 17. Give n the lack of clarity surrounding this document, the Court ins tructs the agency to be guided by the Court’s opinion and release these two pages document if it is appropriate to do so. 18 Tax administration is defined, in relevant part, as: “the administrati on, management, conduct, direction, and supervision of the execution and application of the internal revenue laws or related statutes (or equivalent laws and statutes of a State) and tax conventions to which the United States is a party.” 26 U.S.C. § 6103(b)(4)(A)(i).38 Congress provided a “deliberately sweeping” definition of “return infor mation” in section 6103, Landmark Legal Found. v. IRS , 267 F.3d 1132, 1135–36 (D.C. Cir. 2001), in order to effectuate the statute’s “core purpose” of “protecting taxpayer privacy .” Tax Analysts , 117 F.3d at 615. Return information is defined 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 t ax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or p rocessing, or any other data, receiv ed 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 existen ce, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or othe r imposition, or offense . . . . 26 U.S.C. § 6103(b)(2)(A). Both sides seem to assume that the withheld info rmation is “return information,” but neither side presented any legal argument on the questi on. See Def.’s Mem. at 23–24; Pl.’s Cross-Mem. at 29–32; Def.’s Reply at 21; Vaughn Index at 1–8 (arguing that “[d]isclosing this material would seriously impair Federal tax administ ration,” but not arguing that the information is return information). “[T]he identities of third parties who request[] audits or investigation s of [tax-exempt organizations],” and “any other mat erial or information included in thos e third-party requests,” constitute “return infor mation” under section 6103. Landmark Legal Found. , 267 F.3d at 1135, 1138; see also id. at 1137 (“[T]he term ‘data’ is correctly understood to cover the identity o f third parties who urge the IRS to withdraw or reexamine an entity’s tax-exempt st atus.”). So, the information that the IRS seeks to withhold in this case – the identities of t he confidential sources and the information that the sources provided – is return information. Therefore, the question to be resolved is: would the release of the return information seriously impair federal tax administration? In its first opinion, the Co urt found that:39 [D]efendant has failed to carry its burden to show that its withholdings under Exemption 3 and section 6103(e)(7) were justified. The only explanation defendant has given in its pleadings for all of its withholdin gs under section 6103(e)(7) is that “Senior Counsel A.M. Gulas has been delegated the authority to determine whether the release of return information would seriously impair the federal tax administration, and s he made that determination as to the material designated as withheld in the Vaughn indexes.” Defendant also claims that “[r]elease of the material designated as withheld in the Vaughn indexes would impair federal tax administration by revealing the scope, direction and nature of the Servic e’s investigation into Sea Shepherd . . . and by identifying confidential informants.” In addition, in the Vaughn Indexes, defendant repeatedly contends that the information it has withheld “would seriously impair Federal tax administration because it would result in a chilling effect on confidential sources coming forward, thereby hampering future investigations.” But defendant’s investigation of p laintiff is now closed, and, as the Court has already found, defendant has not es tablished that its informants “did in fact receive an express grant of confidentiality” or that other circumsta nces exist that would “support the inference of confidentiality.” See CREW , 746 F.3d at 1101. So neither the status of the investigation nor the concerns about revealing sources justifies def endant’s reliance on section 6103( e)(7) here. Sea Shepherd , 89 F. Supp. 3d at 100 (internal citations omitted). On remand, Gulas has averred that: When a member of the public refers a taxpayer to the IRS, even an exempt organization, that member of the public is seeking to have the IRS investigate whether the taxpayer is violating the Internal Revenue Code. Exempt organizations, as a rule, are exempt from taxation on the income (donations) they receive from donors. Based on the records located, the records reflect that sources wrote to the IRS and described the potentiall y illegal activities engaged in by the organization. The IRS relies on sources to report potential non-compliance, as reflecte d by the EO Referral Form 13909. If it becomes known that the IRS does not protect the identity and confidentiality of informants, this will have a chilling effect on other potential witnesses or informants coming forward. 3d Gulas Decl. ¶¶ 33–34. Franklin’s declaration adds that “[d]isclosing this material would seriously impair Federal tax administration because it would result in a c hilling effect on confidential sources coming forward, thereby hampering future investig ations. The chilling effect40 would be especially severe where, as in this case, the sources have request ed confidentiality.” 2d Franklin Decl. ¶ 11. In these declarations, the IRS has repeated the arguments that the Court co nsidered before, and added two more arguments: (1) “When a member of the public refers a taxpa yer to the IRS, even an exempt organization, that member of the public is seeking to have th e IRS investigate whether the taxpayer is violating the Internal Revenue Code,” 3d Gulas Dec l. ¶ 33; and (2) that “[t]he IRS relies on sources to report potential non-compliance.” Id. ¶ 34. But there has been a change: the Court has now found that the sources receive d either an express or implied assurance of confidentiality, and that fact changes th e analysis underlying the first opinion. In addition, the Court has had an opportunity to review the d ocuments that the IRS seeks to withhold in camera . Its review reveals that the return information contained in the documents is intertwined with information that may reveal the identity of the sources. Some documents bear upon whether a source ha d personal knowledge of Sea Shepherd’s violent acts, and other documents explain why Sea Shepherd would be able to identify the s ources even if the non-identifying information were made available. The Court agrees with the IRS, then, that it would have a serious chilling effect on the use of confidential informants if that information were to be revealed. And that chilling effect would “seriously impair federal t ax administration.”41 26 U.S.C. § 6103(e)(7). So the Court conc ludes that the agency’s reliance o n Exemption 3 in connection with 26 U.S.C. § 6103(e)(7) is justified. 19 C. The search of the Whistleblower Office was adequate, but, based on the un ique circumstances presented in this case, defendant’s Glomar response is not justified. 1. The search of the Whistleblower Office of was adequate. Sea Shepherd’s original request, dated May 13, 2013, sought “any and all do cuments related to the examination of Sea Shepherd commenced by the Internal Reven ue Service on or about January 4, 2013, and any and all doc uments relating to any complaint l odged with the Internal Revenue Service expressing concerns regarding Sea Shepherd’s a ctivities or qualifications for tax-exempt status after January 1, 2006.” Ex. A to Compl. at 1–2. The request indicated Sea Shepherd’s belief that the case agent, Peter Huang, may have relevant documents, as well as “the National and Area Chief Counsel Offices of the Tax-Exempt and Government E ntities function of the IRS, as well as the Director of Exempt Organizations Exams office in Dal las, Texas, and EO Rulings and Agreements in the [TEGE] National office.” Id. at 1. As the Court noted in its previous opinion, “plaintiff did not me ntion [the Whistleblower Office] in its FOIA request, and the IRS was ‘not obliged to look beyond the four corners of the request for le ads to the location of responsive documents.’” Sea Shepherd , 89 F. Supp. 3d at 92 n.3, quoting Kowalczyk v. DOJ , 73 F.3d 386, 389 (D.C. Cir. 1996); see also Mobley , 806 F.3d at 582. But because the agency did

19 Plaintiff contends that defendant has withheld the record with control number 012590 in full, even though the Court’s previous opinion found that the IRS had not ju stified its withholdings for that document. Pl.’s Cross-SOF ¶ 61, citing Sea Shepherd , 89 F. Supp. 3d at 96, 98, 101. The IRS, somewhat cryptically, admits that “as of the date that [Sea Shepherd] filed its Statement of Undisputed Material Facts (Oct. 15, 2015), the Service has not provided ad ditional justification for its withholding” of that document. Def.’s Resp. to Pl.’s Cross-SOF [Dkt. # 42-1] ¶ 62. The Court has reviewed that record in camera , and it appears to be a duplicate of other records that are subject to withholding under Exemptions 3 and 7(D).42 search the Whistleblower office, it must prove that its search was adequat e, and it must justify its withholdings. In April 2015, Kevin Gillin, Special C ounsel in the Office of Division Coun sel, Small Business & Self-Employed, contacted Cindy Stuart, a Management Analyst and Executive Assistant in the Whistleblower Office, and asked her to search for “any claims submitted with respect to Sea Shepherd Conservation S ociety.” Def.’s SOF ¶¶ 85–86; Pl.’s SOF ¶¶ 85–86. Stuart searched E-trak – which “is fully searchable by both the name of the whistleblower as well as the taxpayers subject to a whistleblower claim” – for records related to Sea Sh epherd using its taxpayer identification number and taxpayer name. Def.’s SOF ¶¶ 87–88; Pl.’s SOF ¶¶ 87–88. The IRS has refused to confirm or deny whether the search revealed the existence of any records. Stuart Decl. ¶ 5. Because “all whistleblower claims are controlled on . . . E-trak,” and E-trak “is fully searchable by both the name of the whistleblower as well as the taxpayers su bject to a whistleblower claim,” the Court finds that there was a rationale behind St uart’s search parameters. Stuart Decl. ¶ 3. Stuart avers that she searched “all locations likely to co ntain responsive records,” and that the Whistleblower Office “doe s not contain any other records syst em” likely to produce responsive records. Id. ¶ 9. The Court has also reviewed the declarations submitted in camera that detail the results search of the Whistleblower Office. The Court conc ludes that the agency’s declarations detail a “good faith effort to conduct a searc h . . . using methods . . . reasonably expected to produce the information requested.” Oglesby , 920 F.2d at 68. 2. The agency has not justified its Glomar response. While with respect to the other offices within the IRS, the defendant provi ded a substantive response – releasing some records while withholding others – in the case of the Whistleblower43 Office, defendant declined to “confirm or deny the existence of whistlebl ower records” at all. Def.’s SOF ¶ 89. The IRS explains that it issued a Glomar 20 response in this instance because the whistleblower program is an important and lucrative source of informatio n, Stuart Decl

. ¶ 7, and that “loss of confidence in the IRS’s ability to protect whistleblowers wo uld interfere with the Service’s ability to fully and properly investigate taxpayers’ complian ce with the internal revenue laws, would impair the Service’s ability to determine the correct applica tion of Federal tax laws, and would, therefore, seriously impair Federal tax administration.” Id. ¶ 8. Further, the analyst from the Whistleblower Office avers that a Glomar response is required even if no responsive records were uncovered “because if the IRS were to provide a ‘no records’ re sponse when there are no records, and Glomar response when there are records , the public will soon learn that a
Glomar response is synonymous with a confirmation that records exist.” Id . ¶ 6. Plaintiff contends that defendant’s Glomar response is “unprecedented.” Pl.’s CrossMem. at 16, 19. It urges the Court to “compel the IRS to detail the results of i ts search of the Whistleblower Office . . . on the public record.” Id. at 19. Neither party has pointed the Court to any other case in which a court has sus tained or rejected a Glomar response to a FOIA request directed towards the IRS Whistleblower Office. The Glomar doctrine applies when “confirming or denying the existence of records wou ld itself ‘cause harm cognizable under a FOIA exception.’” Roth , 642 F.3d at 1178, quoting Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007); see also Gardels v. CIA , 689 F.2d 1100, 1103 (D.C. Cir.

20 The Glomar doctrine takes its name from the CIA’s refusal to confirm or deny the existence of records about “the Hughes Glomar Explorer , a ship used in a classified [CIA] project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard fo r analysis by United States military and intelligence experts.’” Roth , 642 F.3d at 1171, quoting Phillippi v. CIA , 655 F.2d 1325, 1327 (D.C. Cir. 1981).44 1982). In other words, the fact of the existence or nonexistence of records itself must be subject to a FOIA exception. Wolf , 473 F.3d at 374. When addressing an agency’s Glomar response, courts must accord “substantial weight” to agency determinations. Gardels , 689 F.2d at 1104. Summary judgme nt is therefore appropriate when an agency’s affidavits describe the justifications for nondisclosure with “reasonably specific detail” and “are not controverted by either contrary evidence in the recor d nor by evidence of agency bad faith.” Wolf , 473 F.3d at 374, quoting Miller v. Casey , 730 F.2d 773, 776 (D.C. Cir. 1984). “Ultimately, an agency’s justif ication for invoking a FOIA exempt ion is sufficient if it appears ‘logical’ or ‘plausible.’” Id. at 374–75; see also Gardels , 689 F.2d at 1105; Hayden v.
NSA , 608 F.2d 1381, 1388 (D.C. Cir. 1979). And “to the extent the circumstances justify a Glomar response, the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents,” PETA v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014), but an agency may conduct a search “on its own volition” prior to issuing the
Glomar response. See EPIC v. NSA , 678 F.3d 926, 934 (D.C. Cir. 2012) It may be true, as the IRS argues, that any responsive records from the Whist leblower Office – should they exist – could be withheld under Exemption 3 and 26 U.S.C . § 6103(e)(7). Def.’s Reply at 13. But the agency has done little to explain with any specif icity why the disclosure of the fact of the existence or non-existence of any records – as opposed to the records themselves – would cause harm to the interests protected by the FOIA exemptions cited, particularly given the fact that in this case, in connection with this particular taxpayer, the de fendant has already publicly acknowledged that whistleblowers or confidential informants provided i nformation to other components of the agency. See e.g. , 2d Franklin Decl. ¶¶ 6–9 (IRS received “multiple referrals” from confidential informants to the Exempt Organizations component).45 Defendant seeks to treat the search of the Whistleblower Office differently, and shield the results of that search from disclosure by arguing that the Whistleblower p rogram is “much broader” than the Exempt Organizati ons function, and that “the erosion of confidence in potential whistleblowers to the Service’s ability to keep confidential a whistlebl ower’s identity has serious consequences to the Service’s future ability to collect information regarding non-compliance with Federal tax law.” Def.’s Reply at 15–16. This argument is beside the point s ince the disclosure of any whistleblower’s identity is not at issue at this point. The agency also states that revealing whether whistleblower records exis t would cause a “loss of confidence in the IRS’s ability to protect whistleblowers and would interfere with the Service’s ability to fully and properly investigate taxpayers’ complian ce” with the tax laws. Stuart Decl. ¶ 8. This has some force as a general proposition. But even if one were t o defer to the agency’s judgment on this issue in the ordinary situation, the Court concludes that the defendant has not justified its Glomar response under the unique circumst ances of this case, where the fact of the existence of whistleblowers and informants has already been made pu blic by the defendant in response to a FOIA request lodged by the taxpayer itself. This is the sort of “contrary evidence” that weakens the plausibility of the agency’s claims of impending harm. See Wolf , 473 F.3d at 374–75. Notwithstanding the particular importance of the Whistleblower Office to the administration of the tax laws in general, the defendant has failed to spec ify how revealing this one additional piece of information – whether whistleblower records related to the plaintiff also exist in the Whistleblower Office – would chill other informants or affect the agency’s ability to do its work any more than its own revelations already have. This 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. Rather, the Court’s46 ruling turns on the unique circumstances presented in this case, in which t he fact of the existence of whistleblower records within the agency has already been made public. So the IRS must reveal to Sea Shepherd whether its search of the Whistleblower Office yielded any records, and if so, it must then produce the records or identify the legal basis for withholding t hem.
CONCLUSION The Court finds that the IRS adequately explained its searches of: the Nati onal and Area Chief Counsel Offices of TEGE; the Exempt Organizations Rulings and Agree ments function; the Communications & Liaison Office, and the Whistleblower Office, and it wil l grant defendant’s motion for summary judgment in part as to the adequacy of those searches. But the IRS has failed to adequately explain the renewed search of the Exempt Organizations Exam inations function. So the Court will grant plaintiff’s motion for summary judgment in part, and remand this matter to the agency to renew its search of that component. The Court also finds that defendant ha s fully justified its withholdings under exemptions 3 and 7(D). The Court will grant summary judgment to the agency on the adequac y of those withholdings. But the Court finds that, based on the unique circumstances of this case, defendant’s
Glomar response with respect to the Whistleblower Office was not justified. The a gency must reveal whether its search of the Whis tleblower Office yielded any respons ive records, and then either produce them or justify their withholding.47 So the agency must conduct a further search for responsive records, and it must release any reasonably segregable non-exempt mat erial to Sea Shepherd consistent wi th the FOIA statute and this opinion. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: September 20, 2016