1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

CAUSE OF ACTION INSTITUTE, )

)

Plaintiff, ) 

) 

v. ) Civil Action No. 14-1407 (EGS)

)

INTERNAL REVENUE SERVICE, )

et al. )

 )

Defendants. )

______________________________)

MEMORANDUM OPINION

Plaintiff Cause of Action Institute (“Cause of Action”) 

sued the Internal Revenue Service (“IRS”) to obtain records 

under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). 

Currently pending before the Court are the parties’ crossmotions for summary judgment. Upon consideration of the motions, 

the responses and replies thereto, the applicable law, and the 

entire record, the Court GRANTS the IRS’s motion for summary 

judgment and DENIES Cause of Action’s cross-motion for summary 

judgment. 

I. BACKGROUND

In April 2009, White House Counsel Gregory Craig issued a 

memorandum advising “all federal agency and department general 

counsels to consult with the White House on all document 

requests that may involve documents with ‘White House 
2

equities.’” Compl., ECF No. 1 ¶¶ 1-3; Pl.’s Statement of 

Undisputed Material Facts (“Pl.’s SUMF”), ECF No. 55-2 ¶ 1. 

Concerned about the White House’s involvement in the FOIA 

process, Cause of Action requested the following records from 

the IRS:

All records, including but not limited to emails, letters, meeting records, and phone 

records, reflecting communications between 

IRS FOIA staff or IRS Chief Counsel’s office 

and the White House Counsel’s office 

concerning records forwarded by the IRS for 

White House review in connection with 

document requests by Congress, the U.S. 

Government Accountability Office, or FOIA 

requesters. 

Compl., ECF No. 1 ¶ 17; Pl.’s SUMF ¶ 2.1 The request, which was 

submitted on May 29, 2013, sought records from “January 2009 to 

the present.” Id. The IRS acknowledged receipt of Cause of 

Action’s request on June 25, 2013, but then proceeded to ask for

numerous extensions of time to respond. Compl., ECF No. 1 ¶¶ 18-

23; Pl.’s SUMF ¶¶ 3-4. When Cause of Action filed this action on 

August 18, 2014, the IRS had not yet produced any responsive 

records or provided a final determination as to plaintiff’s FOIA 

request. Pl.’s SUMF ¶¶ 5, 7.

 1 Cause of Action sent substantially similar FOIA requests to 

eleven other government agencies as well. See Compl., ECF No. 1 

¶ 16. Although this lawsuit initially included those agencies, 

see generally id., Cause of Action eventually dismissed them 

from this action after receiving the requested records, see 

Stip. of Dismissal, ECF No. 57; Stip. of Dismissal, ECF No. 68. 
3

According to the declarations submitted by the IRS in 

support of its motion for summary judgment, the IRS first began 

searching for records responsive to Cause of Action’s request on 

August 21, 2013, approximately three months after the date of 

plaintiff’s request. See Decl. of A.M. Gulas (“Gulas Decl.”), 

Def.’s Mot. for Summ. J. Ex. 1, ECF No. 51-3 ¶ 5. The IRS 

interpreted Cause of Action’s FOIA request as “seeking records 

reflecting communications between the IRS FOIA staff, or Chief 

Counsel, and the White House Counsel’s office, relating to 

records forwarded by the IRS FOIA staff, or Chief Counsel, to 

the White House Counsel’s office to review before such records 

are provided to Congress, GAO or FOIA requesters.” Id. ¶ 4. 

Based on this interpretation and her knowledge of “the IRS’s 

functions and procedures,” Ms. Gulas determined that three 

offices were the most likely to have potentially responsive 

records: (1) the Office of the Chief Counsel; (2) the Executive 

Secretariat Correspondence Office (“ESCO”); and (3) the Office 

of Disclosure, which is within the Office of Privacy, 

Governmental Liaison and Disclosure (“PGLD”). Id. ¶ 8. In 

searching for records in these offices, the IRS generally 

limited its search to records created through May 29, 2013, the 

date on which Cause of Action made its FOIA request. Id. ¶ 3. 

With respect to the Office of the Chief Counsel, the IRS 

focused its search on the Office of the Associate Chief Counsel 
4

(Procedure & Administration) because that office “has 

responsibility for disclosure, privacy and FOIA issues.” Gulas 

Decl., ECF No. 51-3 ¶ 27. Although the office has seven 

branches, all of the attorneys “who handle matters involving 

disclosure laws are located in branches 6 and 7.” Id. ¶ 28. 

Accordingly, Ms. Gulas sent a request to “all attorneys and 

branch chiefs in branches 6 and 7” asking them to search their 

email for responsive records dated within the relevant time 

period. Id. ¶ 29. Ms. Gulas directed these individuals to use 

the following terms in conducting their searches: “White House,”

“WH,” “White House Counsel,” “WH Counsel,” “consultation,”

“consult,” “WH equities,” “EOP,” and “GAO.” Id. In addition, the 

emails of two former attorneys — including the Deputy Associate 

Chief Counsel for Procedure and Administration for disclosure 

matters during most of the relevant time period — were also 

searched. Id. ¶ 30. These searches did not yield any responsive 

documents. Id. ¶¶ 29-31. 

The IRS also searched ESCO, which is the office that 

receives “all correspondence addressed to the Commissioner, as 

well as correspondence referred to the IRS by the White House, 

by the Office of Treasury Legislative Affairs, and by the 

Treasury Executive Secretariat.” Id. ¶ 15. ESCO uses a documentmanagement system called E-Trak to store such correspondence. 

Id. ¶ 16. To find documents responsive to Cause of Action’s 
5

request, the IRS searched E-Trak using the following terms: 

“White House,” “Craig,” “Obama,” “Executive Office of the 

President,” “EOP,” “GAO,” “FOIA,” “Freedom of Information Act,”

“WH,” “WH equities,” “consultation,” and “consult.” Id. ¶¶ 21-

23. Although these searches yielded 4,627 hits, after further 

review the IRS determined that none of those documents were in 

fact responsive. Id. ¶¶ 24-25. 

Finally, the IRS searched the Office of Disclosure, which 

is the office responsible for responding to FOIA requests. Id. ¶ 

9. Although John Davis, the Deputy Associate Director of the 

office, confirmed that the office “had not coordinated any 

responses to FOIA requests with the White House Counsel’s 

office” and that he was not “aware of a memorandum from White 

House Counsel Gregory Craig,” see id. ¶¶ 12-13, the IRS 

nonetheless searched two systems within the Office of 

Disclosure: the Automated Freedom of Information Act System 

(“AFOIA”) and the Electronic Disclosure Information System 

(“EDIMS”), see Decl. of Jennifer Black (“Black Decl.”), Def.’s 

Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 14. These databases are 

used “to track and process all requests for agency records” made 

pursuant to FOIA. Black Decl., ECF No. 51-4 ¶¶ 10-11. The IRS 

searched the case history notes, “which should contain

references to any referral or consultation with another agency,”

using the following terms: “WH,” “EOP,” “White House,” “Obama,”
6

and “Executive Office of the President.” Id. ¶ 14. These 

searches yielded 112 hits, none of which were deemed responsive 

to Cause of Action’s FOIA request after further review. Id. ¶ 

17. 

On April 3, 2015 — nearly two years after Cause of Action 

sent its FOIA request — the IRS sent a “final response letter”

indicating that it had determined that it did not have any 

responsive records. Def.’s Mot. for Summ. J. Ex. 3, ECF No. 51-

5; Pl.’s SUMF ¶ 7. The eleven other government agencies to which 

Cause of Action had sent substantially similar FOIA requests all 

ultimately produced responsive records. Pl.’s SUMF ¶ 8. 

Both parties now move for summary judgment. The IRS asserts 

that it is entitled to summary judgment because there is no 

genuine dispute of material fact as to whether the agency 

conducted an adequate search for records. See Def.’s Mem. in 

Supp. of Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 51-1. In 

support of its motion, the IRS offers declarations from two 

individuals. The first declaration is from A. M. Gulas, a senior 

counsel in the Office of the Associate Chief Counsel who was 

assigned to assist the Department of Justice in litigating this 

case. See Gulas Decl., ECF No. 51-3 ¶ 2. Ms. Gulas has served as 

a disclosure attorney in the IRS’s Office of Chief Counsel for 

over twenty-one years. Id. ¶ 1. The second declaration is from 

Jennifer Black, the attorney who succeeded Ms. Gulas when she 
7

retired in August 2015. See Black Decl., ECF No. 51-4 ¶ 1. These 

declarations outline the searches undertaken by the IRS to 

locate records responsive to Cause of Action’s FOIA request. 

Cause of Action opposes the motion and moves for summary 

judgment, arguing that the IRS’s search was unduly narrow for a 

host of reasons. See Pl.’s Mem. in Opp. to IRS Mot, for Summ. J. 

and Cross-Motion for Summ. J. (“Pl.’s Opp.”), ECF No. 55-1. 

II. LEGAL STANDARD

FOIA requires that “each agency, upon any request for 

records which (i) reasonably describes such records and (ii) is 

made in accordance with published rules ... shall make the 

records promptly available to any person.” 5 U.S.C. § 

552(a)(3)(A). “To fulfill its disclosure obligations, an agency 

must conduct a comprehensive search tailored to the request and 

release any responsive material not protected by one of FOIA’s 

enumerated exemptions.” Tushnet v. U.S. Immigration & Customs 

Enf’t, 246 F. Supp. 3d 422, 430 (D.D.C. 2017).

The “vast majority” of FOIA cases can be resolved on 

summary judgment. Brayton v. Office of the U.S. Trade 

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may 

grant summary judgment only if there is “no genuine dispute as 

to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). Likewise, in ruling on 

cross-motions for summary judgment, the court shall grant 
8

summary judgment only if one of the moving parties is entitled 

to judgment as a matter of law upon material facts that are not 

genuinely disputed. See Citizens for Responsibility & Ethics in 

Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C. 

2009) (citation omitted). Under FOIA, the underlying facts and 

inferences drawn from them are analyzed in the light most 

favorable to the FOIA requester, and summary judgment is 

appropriate only after the agency proves that it has fully 

discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp. 

32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep’t of Justice, 

705 F.2d 1344, 1350 (D.C. Cir. 1983)).

When considering a motion for summary judgment under FOIA, 

the court must conduct a de novo review of the record. See 5 

U.S.C. § 552(a)(4)(B). The court may grant summary judgment 

based on information provided in an agency’s affidavits or 

declarations when they are “relatively detailed and nonconclusory,” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 

1200 (D.C. Cir. 1991) (citation and internal quotation marks 

omitted), and “not controverted by either contrary evidence in 

the record nor by evidence of agency bad faith,” Larson v. Dep’t 

of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation and 

internal quotation marks omitted). Such affidavits or 

declarations are “accorded a presumption of good faith, which 

cannot be rebutted by ‘purely speculative claims about the 
9

existence and discoverability of other documents.’” SafeCard 

Servs., 926 F.2d 1197 at 1200 (citation omitted). 

III. ANALYSIS 

The central issue on summary judgment is the adequacy of 

the IRS’s search.

“An agency fulfills its obligations under FOIA if it can 

demonstrate beyond material doubt that its search was 

‘reasonably calculated to uncover all relevant documents.’”

Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 

1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. 

Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 

548, 551 (D.C. Cir. 1994). Where a plaintiff challenges the 

adequacy of an agency’s search, the question for the court is 

“‘whether the search was reasonably calculated to discover the 

requested documents, not whether it actually uncovered every 

document extant.’” Judicial Watch, Inc. v. United States Dep’t 

of State, 681 Fed. Appx. 2, 4 (D.C. Cir. 2017) (quoting SafeCard 

Servs., 926 F.2d at 1201). In other words, the adequacy of a 

search is “generally determined not by the fruits of the search, 

but by the appropriateness of the methods used to carry out the 

search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 

(D.C. Cir. 2003). 

Because the adequacy of an agency’s search is “measured by

a ‘standard of reasonableness,’” it is necessarily “‘dependent 
10

upon the circumstances of the case.’” Weisberg v. U.S. Dep’t of 

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citations 

omitted). To meet its burden at summary judgment, an agency may 

provide “‘a reasonably detailed affidavit, setting forth the 

search terms and the type of search performed, and averring that 

all files likely to contain responsive materials ... were 

searched.’” Iturralde, 315 F.3d at 313-14 (citation omitted). 

Any factual assertions in such an affidavit will be accepted as 

true unless the requesting party submits affidavits or other 

documentary evidence contradicting those assertions. Wilson v. 

U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148 (D.D.C. 2010) 

(citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992)).

Cause of Action challenges the adequacy of the IRS’s search 

on numerous grounds. The Court examines each argument in turn. 

A. The IRS’s Temporal Limitation Was Reasonable 

Cause of Action argues that it was unreasonable for the IRS 

to limit its search to records created through May 29, 2013, the 

date on which Cause of Action made its FOIA request. Pl.’s Opp., 

ECF No. 55-1 at 6.2 Cause of Action asserts that, instead, the

IRS should have set the cut-off date for its search to “no 

earlier than August 23, 2013,” which was the date on which the 

FOIA officer “started her search for responsive records.” Id.

 2 When citing electronic filings throughout this opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document.
11

According to Cause of Action, not doing so improperly permitted 

the IRS “‘to withhold, with little or no justification, a 

potentially large number of relevant documents.’” Id. (quoting 

Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir. 

2002)).

An agency’s decision to impose temporal limitations in 

responding to a FOIA request “is only valid when the limitation 

is consistent with the agency’s duty to take reasonable steps to 

ferret out requested documents.” McGehee v. Cent. Intelligence 

Agency, 697 F.2d 1095, 1101 (D.C. Cir. 1983). Indeed, the D.C. 

Circuit has cautioned against a “reflexive application of the 

cut-off policy to every request regardless of circumstance” and 

has “expressly rejected the proposition that under FOIA, the use 

of a time-of-request cut-off date is always reasonable.” Public 

Citizen, 276 F. 3d at 643. Even so, “specific circumstances in 

some agencies may render an across-the-board rule reasonable” so 

long as the agency makes a “showing that warrants such an 

approach in its case.” Id.

Here, the IRS argues that its decision to limit its search 

to records created “up to the date of the request” was 

reasonable because it simply was imposing “the specific time 

limit that the requester imposed on its own FOIA request.”

Def.’s Reply In Supp. of Mot. for Summ. J. and Opp. to Pl.’s 

Cross-Motion for Summ. J. (“Def.’s Reply”), ECF No. 59 at 21. It 
12

further argues that the fact that its interpretation was 

reasonable is supported by Cause of Action’s “failure to raise 

the issue in the parties’ meet and confer.” Id. at 22. In view 

of this latter argument, the Court agrees with the IRS. In 

particular, given that the IRS’s cut-off date was communicated 

to Cause of Action during the agency’s negotiations with 

plaintiff, and given Cause of Action’s failure to object to the 

IRS’s temporal limitation, there is no indication that the IRS 

improperly limited the scope of its searches under these 

circumstances. 

B. The IRS Properly Focused Its Search To The Relevant 

Offices

Cause of Action next protests that the IRS’s decision to 

limit its search to the Office of Disclosure, the Office of the 

Associate Chief Counsel, and ESCO was improper. Pl.’s Opp., ECF 

No. 55-1 at 7-8. In particular, Cause of Action notes that 

“[t]here is no indication that search memoranda were sent to 

[PGLD] – which serves as the IRS FOIA Office” or to “subcomponents of the Office of Chief Counsel.” Id.

An agency seeking summary judgment in a FOIA case may 

provide “[a] reasonably detailed affidavit, setting forth the 

search terms and the type of search performed, and averring that 

all files likely to contain responsive materials (if such 

records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 
13

920 F.2d 57, 68 (D.C. Cir. 1990). To allow a district court to 

determine whether the search was adequate, the affidavit should 

also include the agency’s “rationale for searching certain 

locations and not others.” Defs. of Wildlife v. U.S. Border 

Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009). Factual assertions 

in such an affidavit will be accepted as true unless the 

requesting party submits evidence contradicting those assertions

or rebutting the presumption that the agency’s search was made 

in good faith. Coffey v. Bureau of Land Mgmt., 277 F. Supp. 3d 

1, 7 (D.D.C. 2017).

The IRS’s declarations submitted in support of its motion 

for summary judgment belie Cause of Action’s claim that the IRS 

should have searched in additional locations for responsive 

records. As an initial matter, although Cause of Action asserts 

that the agency should have searched PGLD, the declarations make 

clear that PGLD was searched for responsive records. As Ms. 

Gulas explained, “[w]ithin PGLD, the Office of Disclosure is 

responsible for responding to requests made pursuant to FOIA.”

Gulas Decl., ECF No. 51-3 ¶ 9. Accordingly, records within the 

Office of Disclosure were searched. Moreover, the Deputy 

Associate Director of the Headquarters Office of Disclosure —

who is the “highest ranking official within PGLD from the period 

covered by plaintiff’s FOIA request” that has relevant knowledge 

and is currently still employed at the agency — specifically 
14

attested that the Office of Disclosure “would have handled any 

FOIA request that impacted, in any way, ‘White House equities.’”

See Decl. of John H. Davis (“Davis Decl.”), Def.’s Reply Ex. 4, 

ECF No. 59-2 ¶¶ 2-3. To the extent that Cause of Action intends 

to argue that the IRS should have searched other components of 

PGLD, Cause of Action fails to offer any factual basis that 

other components would be reasonably likely to possess 

responsive records.

Likewise, although Cause of Action complains that the IRS 

did not search records contained by “sub-components of the 

Office of Chief Counsel,” see Pl.’s Opp., ECF No. 55-1 at 7-8, 

that argument also fails. After all, the IRS did search the 

Office of the Associate Chief Counsel (Procedure and 

Administration), which is a sub-component of the Office of Chief 

Counsel. See Gulas Decl., ECF No. 51-3 ¶ 27. Moreover, as Ms. 

Gulas attested, the Office of the Associate Chief Counsel 

(Procedure and Administration) “has responsibility for 

disclosure, privacy and FOIA issues.” Id. Although that office 

has seven branches, the attorneys who handle matters involving 

FOIA requests are “located in branches 6 and 7.” Id. ¶¶ 28-29. 

Cause of Action offers no basis to suggest that other subcomponents of the Office of Chief Counsel may have had 

responsive records. Accordingly, the Court concludes that the 

IRS’s decision to limit its search to certain branches within 
15

the Office of the Associate Chief Counsel was reasonably 

calculated to discover responsive documents.3

C. The IRS’s Searches Were Adequate

i. The IRS’s Search of the Office of Chief Counsel Was 

Adequate

Cause of Action contends that the IRS’s search of the 

Office of Chief Counsel was inadequate for two reasons: (1) 

because the scope of the search was unduly constrained; and (2) 

because the IRS confused the terms “coordination” and 

“consultation.” Pl.’s Opp., ECF No. 55-1 at 8-9. Both arguments 

are unpersuasive. 

First, as previously explained, the affidavits submitted by 

the IRS offer compelling justification for the agency’s decision 

to limit its search to the Office of Associate Chief Counsel 

(Procedure and Administration). See supra Part III.B. Likewise, 

 

3 Cause of Action also points to the fact that the IRS was 

“unaware” of the Craig Memo as evidence that the agency’s search 

was not “robust[].” Pl.’s Opp., ECF No. 55-1 at 7-8. Cause of 

Action does not offer any evidence to supports its inference, 

and therefore fails to rebut the contrary evidence submitted by 

the IRS. See, e.g., Gulas Decl., ECF No. 51-3 ¶ 33 (“Prior to 

receiving CoA’s FOIA request, I had not been aware of a 

memorandum from White House Counsel to agency general counsels 

regarding consultation with the White House Counsel’s office on 

document requests that may involve documents with White House 

equities.”); Davis Decl., ECF No. 59-2 ¶ 5 (“To my knowledge, no 

[policy or practice within the Office of Disclosure that would 

lead the office to consult with the White House prior to 

releasing IRS records responsive to any FOIA request] has 

existed . . . at any point since January 1, 2012[.]”). 
16

the agency explained why it chose to limit its search to two 

branches of that division. Id. Ms. Gulas is a “technical expert”

on FOIA matters based on her twenty-one years of experience as a 

disclosure attorney in the Office of Chief Counsel, see Gulas 

Decl., ECF No. 51-3 ¶¶ 1, 32-33, and her affidavit is to be 

accorded a “presumption of good faith” in the absence of 

evidence to the contrary, SafeCard Servs., Inc. v. S.E.C., 926 

F.2d 1197, 1200 (D.C. Cir. 1991). 

Second, Cause of Action accuses the two senior counsels who 

provided affidavits in support of IRS’s motion for summary 

judgment of confusing the terms “coordination” and 

“consultation” — which, according to plaintiff, have a different 

“technical meaning” — in responding to plaintiff’s FOIA request. 

According to Cause of Action, these declarations, which explain 

that there was no “practice in the office to coordinate

responses to FOIA requests, GAO or Congressional inquiries with 

the White House or White House Counsel’s office,” see Gulas 

Decl., ECF No. 51-3 ¶ 33 and Decl. of Jennifer Black, Def.’s 

Mot. for Summ. J. Ex. 2, ECF No. 51-4 ¶ 19, are inadequate to 

establish that there was no practice to “consult” with the White 

House. Pl.’s Opp., ECF No. 55-1 at 8-9. Ms. Gulas’s declaration, 

however, confirms that she included the search terms 

“consultation” and “consult” in searching for records responsive 

to plaintiff’s FOIA request. See Gulas Decl., ECF No. 51-3 ¶¶ 
17

23, 29. As such, the Court concludes that any purported 

confusion between “coordination” and “consultation” did not 

affect the adequacy of the agency’s search for records. 

ii. The IRS’s Search of the Executive Secretariat 

Correspondence Office Was Adequate

With respect to the IRS’s search of ESCO, Cause of Action 

complains that it is unable to determine whether the search was 

adequate because the IRS’s affidavits contain insufficient 

information regarding the E-Trak database, which is ESCO’s 

document management system that tracks certain correspondence. 

Pl.’s Opp., ECF No. 55-1 at 9-10. In particular, Cause of Action 

states that it requires additional information regarding “the 

individual employees or IRS components whose correspondence is 

stored in E-Trak.” Id. at 10.

In response, the IRS offers the supplemental declaration of 

Jennifer Black. See Supp. Decl. of Jennifer Black (“Black Supp. 

Decl.”), Def.’s Reply Ex. 8, ECF No. 59-6.4 Ms. Black explains 

that “[a]ll communications” addressed to the Commissioner or 

 

4 Although this declaration was attached to the IRS’s reply 

memorandum in support of its motion for summary judgment, the 

Court can “‘rel[y] on supplemental declarations submitted with 

an agency’s reply memorandum to cure deficiencies in previously 

submitted declarations’” where a plaintiff has not challenged 

the supplemental declaration. See Walston v. United States Dep’t 

of Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017) (citing DeSilva v. 

U.S. Dep’t of Housing and Urban Dev., 36 F. Supp. 3d 65, 72 

(D.D.C. 2014)).
18

Deputy Commissioner, as well as to the Director of Legislative 

Affairs, were recorded in E-Trak. Id. ¶ 8. In addition, 

correspondence addressed to, among others, the President and 

then referred to the Office of the Commissioner or the Director 

of Legislative Affairs was also recorded in E-Trak. Id. 

Cause of Action does not make any arguments with respect to 

the adequacy of the IRS’s search in light of this information. 

See Pl.’s Reply in Supp. of Cross-Motion for Summ. J. (“Pl.’s 

Reply”), ECF No. 63 at 7-9. In any event, the Court notes that 

Cause of Action only requested communications between the White 

House and “IRS FOIA staff or IRS Chief Counsel’s office” — and 

not with the Commissioner or others whose correspondence is 

handled by ESCO. Accordingly, in light of the IRS’s searches in 

E-Trak using appropriate terms, the Court concludes that the 

agency has carried its burden to demonstrate that its search was 

reasonably calculated to discover documents responsive to Cause 

of Action’s FOIA request. 

iii. The IRS’s Search of the Office of Disclosure Was 

Adequate

Finally, Cause of Action argues that IRS’s search for 

records within the Office of Disclosure was inadequate for two 

reasons: (1) because of the IRS’s “unwillingness to search 

individual employee e-mail from that office”; (2) because the 
19

search terms used were “inadequate to capture potentially 

responsive records.” Pl.’s Opp., ECF No. 55-1 at 10-15. 

First, whether IRS was required to search the individual 

email accounts of each employee in the Office of Disclosure 

depends on whether such a search was reasonably necessary to 

discover documents requested by Cause of Action’s FOIA request. 

See Safecard Servs., 926 F.2d at 1201. As the IRS’s declarations 

make clear, the agency determined that searching employee emails

was unnecessary in light of Deputy Associate Director Davis’s 

representation that he was not aware of any consultations 

between the Office of Disclosure and the White House Counsel’s 

Office with respect to FOIA requests. See Gulas Decl., ECF No. 

51-3 ¶ 13; see also Davis Decl., ECF No. 59-2 ¶ 5.5 By insisting 

that the IRS was required to search each employee’s individual 

email account, Cause of Action misunderstands the standard for 

adequacy of an agency’s search under FOIA. An agency is only 

required to show that “it has conducted a search reasonably

calculated to uncover all relevant documents,” Weisberg v. U.S. 

 5 The IRS also states the conducting a search of employees’

email accounts would be unduly burdensome. See Gulas Decl., ECF 

No. 51-3 ¶ 14 (attesting that it “would take one IRS IT person 

at least 13 years . . . to capture all of the emails of the[] 

165 employees” in the Office of Disclosure). The Court agrees 

that such a search would impose an unreasonable burden on the 

IRS in light of the agency’s declarations indicating that 

responsive documents are unlikely to exist. See, e.g., Nation 

Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 

891 (D.C. Cir. 1995).
20

Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (emphasis 

added), and it need not search files or record systems that are 

not “likely to contain responsive materials,” Oglesby v. U.S. 

Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (emphasis 

added). Here, the IRS has provided declarations explaining why 

responsive records were unlikely to exist within the Office of 

Disclosure. Moreover, Cause of Action has not pointed to any 

evidence calling into question the testimony of those 

declarants. Accordingly, the Court rejects Cause of Action’s 

request that the IRS be required to search the individual email 

accounts of each employee in the Office of Disclosure. 

Second, agencies generally “have discretion in crafting a 

list of search terms that ‘they believe[] to be reasonably 

tailored to uncover documents responsive to the FOIA request.’”

Agility Pub. Warehousing Co. K.S.C. v. Nat’l Sec. Agency, 113 F. 

Supp. 3d 313, 339 (D.D.C. 2015) (citation omitted). So long as 

the “search terms are reasonably calculated to lead to 

responsive documents, the Court should not ‘micro manage’ the 

agency’s search.” Liberation Newspaper v. U.S. Dep’t of State, 

80 F. Supp. 3d 137, 146 (D.D.C. 2015) (citation omitted); see 

also Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 

771, 776 (D.C. Cir. 2002) (“FOIA, requiring as it does both 

systemic and case-specific exercises of discretion and 

administrative judgment and expertise, is hardly an area in 
21

which the courts should attempt to micro manage the executive 

branch.”).

Here, Cause of Action contends that the IRS’s search was 

inadequate because the agency failed to search for the terms 

“FOIA,” “consult,” “OHWC,” “Office of White House Counsel,”

“WHO,” and “White House Office.” Pl.’s Opp., ECF No. 55-1 at 15.

The IRS explains that its search of the term “White House”

renders two of plaintiff’s proposed terms — “Office of White 

House Counsel” and “White House Office” — superfluous. Def.’s 

Reply., ECF No. 59 at 13. In addition, the IRS avers that 

requiring the agency to use the term “FOIA” and “consultation”

would “yield overbroad results” and that it was reasonable for 

the agency to craft terms specifically directed at retrieving 

communications with the White House. Id.; Black Supp. Decl., ECF 

No. 59-6 ¶¶ 12-13. Finally, the IRS notes that the acronyms 

“OHWC” and “WHO” do not appear anywhere in plaintiff’s FOIA 

request, and plaintiff does not explain why these acronyms were 

“obvious” search terms whose omission made the agency’s search 

deficient. Def.’s Reply, ECF No. 59 at 13; Black Supp. Decl., 

ECF No. 59-6 ¶ 14. Based on the IRS’s representations, the Court 

concludes that the IRS’s decision not to include Cause of 

Action’s proposed additional search terms was reasonable.
22

IV. Conclusion

For the foregoing reasons, the Court concludes that there 

is no genuine dispute of material fact as to the adequacy of the 

IRS’s search for documents responsive to Cause of Action’s FOIA 

request. Accordingly, the IRS’s motion for summary judgement is 

GRANTED, and Cause of Action’s cross-motion for summary judgment 

is DENIED. An appropriate Order accompanies this Memorandum 

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

June 12, 2018