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 Conservati on Society made a Freedom of I nformation Act (“FOIA”) request to the Internal Revenue Service (“IRS”), seeking all record s related to itself in IRS files dated from January 1, 2006 to Ma y 13, 2013. In particular, plai ntiff requested records related to any complaints lodged with the IRS about Sea Shepherd, and the e xamination of Sea Shepherd’s tax-exempt status that began in January of 2013. In this lawsu it, plaintiff contends that the IRS failed to conduct an adequate search for responsive records, an d that it has withheld or redacted records without justification. De fendant filed a motion for summ ary judgment on May 20, 2014. The Court finds that defendant h as failed to establish that it conducted an adequate search for records under FOIA, and that it has not demonstrated on this record that most of its withholdings were justified. The refore, the Court will remand this case and direct the agency to conduct additional searches, provi de more detailed descriptions of its searches and more detailed justifications for its withholdings, and release any non-exemptportions of responsive records to plaintiff.BACKGROUND I. Sea Shepherd Conservation Society Sea Shepherd is a 501(c)(3) non-profit environmental organizatio n dedicated to the preservation of oceanic habitats and wildlife, including whales . Pl.’s Mem. of P. & A. in Opp. to Def.’s Mot. for Summ. J. at 2 [Dkt. # 17] (“Pl.’s Opp.”) at 2. Si nce 2003, plaintiff has “engaged in numerous direct confrontation campaigns” against the Institut e of Cetacean Research (“Cetacean”), which plaintiff de scribes as an organization that hunts whales in the Southern Ocean for commercial purposes in violation of international law. Id. Plaintiff claims that Cetacean is funded, in part, by the Ja panese government. Id. Sea Shepherd maintains that, in response to its campaigns agains t Cetacean, the Japanese government and Cetacean have targ eted Sea Shepherd diplomatical ly and through litigation in the United States. See id. at 4–5. Some of this litigation has been successful. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y , 725 F.3d 940, 944, 947 (9th Cir. 2013) (declaring that Sea Shepherd’s acts amounted to piracy and granting prelimi nary injunction). Other matters remain pending. 1 On the diplomatic side, and as background for the instant litig ation, plaintiff points to two classified cables, authored by United States gover nment officials and published in January 2011 by the online organization Wikileaks, that reflect c onversations between the United States and Japanese governments about Sea Shepherd’s activities and tax-exempt status. See Ex. 1 to Rule 56(d) Decl. of Christopher Rizek [Dkt. # 17-3] at 1–2 (stating that General Machida of Japan “appreciates the [U.S. government] initiative to address [ Sea Shepherd’s] tax exempt

1 See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y , No. C11-2043JLR, 2014 WL 3579639, at *1 (W.D. Wash. July 21, 2014) (“Cetacean al leges that Sea Shepherd’s tactics include ramming Cetacean’s ships, dragging ropes in the water to disable propellers, and directing smoke bombs, flares, but yric acid-filled containers, and lasers at Cet acean’s ships.”).

2status,” and that U.S. official M onica Medina “believes the [U.S. g overnment] can demonstrate the group does not deserve tax exempt status based on their aggr essive and harmful actions”); Ex. 2 to Rule 56(d) Decl. of Christopher Rizek [Dkt. # 17-3] at 2 (stating that General Yamashita of Japan “said [Sea Shepherd’s] acti ons have kept the fleet from re aching its [whaling] quota the last few years” and that the government of Japan “would come under pre ssure domestically if [Sea Shepherd] harassment continues to keep Japanese whalers from fil ling their quota,” and noting that U.S. official Marc Wall “sai d the [U.S. government] is conce rned about the safety of life at sea and is looking at the activity of [Sea Shepherd]”). In January 2013, Sea Shepherd became the subject of an IRS examin ation into its taxexempt status for the year 2010. See Def.’s Statement of Undisputed Material Facts [Dkt. # 16-1] (“Def.’s SOF”) ¶ 1; Pl.’s State ment of Genuine Issues in Opp. to Def.’s SOF [Dkt. # 17-2] ¶ 1. On October 29, 2014, the IRS notified Sea Shepherd by letter that i ts 2010 return would be accepted and that the investigation was closed. Attach. 1 to Pl.’s Notice of Change in Facts [Dkt. # 22-1] at 1. In addition, the IRS informed plaintiff in an addendum to its letter that, “[s]hould the courts with its [sic] authority find the Sea Shepherd in violation of laws, a subsequent examination may be initiated.” Id. at 4. II. Plaintiff’s FOIA Request Plaintiff contends that, “[b]ase d on revelations in the media, Sea Shepherd’s past experiences with very public attempts by both [Cetacean] and th e Japanese government to shut down the organization, and the timing and nature of the audit, Sea Shepherd has reason to believe that the IRS started the audit in response to a request of the Japanese government or [Cetacean].” Pl.’s Opp. at 5. These suspicions led plaintiff to file a FOIA re quest with the IRS on May 13, 2013, seeking “any and all documents, from January 1, 2006, thro ugh [May 13, 2013], related to

3Sea Shepherd,” including documents related to “the examination of Sea Shepherd commenced by the Internal Revenue Service on or about January 4, 2013,” and any “complaint lodged with the Internal Revenue Service expressing concerns regarding Sea Sheph erd’s activities or qualification for tax-exempt status after January 1, 2006.” Ex. A to Compl. [Dkt. # 1] at 1. Plaintiff also sought “any and all documents related to any request from any person th at the Internal Revenue Service examine Sea Shepherd and any and all documents that relate to th e examination of Sea Shepherd.”
Id. at 1–2. Plaintiff specifically requested that the IRS search the followi ng locations: the files of the agent who handled the examination of plaintiff’s tax-exempt sta tus, Peter Huang; the National and Area Chief Counsel Offices of the Tax-Exempt and Government Ent ities (“TEGE”) function of the IRS; the office of the Director of the Exempt Organizations E xams in Dallas, Texas; and the office of Exempt Organizations Ru lings and Agreements in the TEG E National Office. Id . at 1. III. Procedural History On June 17, 2013, the IRS informed plaintiff that it would not be able to respond within the twenty-day statutory period, and it extended its response dat e to August 2, 2013. Compl. [Dkt. # 1] ¶ 6; see also 5 U.S.C. § 552(a)(6)(A)(ii). After the IRS missed this deadline, plaintiff filed a complaint in this Court on September 19, 2013. See Compl. ¶¶ 7–9. On January 30, 2014, defendant produced over 3000 pages of records to plaintiff, and moved for an extension until March 7, 2014, to complete its response. Def.’s Mot. Proposing P roduction Schedule [Dkt. # 8]. The Court granted defendant’s mo tion for an extension of the pr oduction schedule. Minute Order (Jan. 31, 2014). On March 7, 2014, defendant produced a second set of documents to plaintiff, which it described as its “final release. ” Def.’s Status Report (Mar. 7, 201 4) [Dkt. # 10]. On March 21,

42014, however, defendant filed another status report in which it stated that it had discovered on March 19, 2014, that its initial search was incomplete, and tha t it was taking steps “to expeditiously complete its search and production of IRS counsel records.” Def.’ s Status Report (Mar. 21, 2014) [Dkt. # 12] at 1; see also Decl. of A.M. Gulas [Dkt. # 12-1] (“1st Gulas Decl.”) ¶ 6. On May 20, 2014, the IRS filed a motion for summary judgment. De f.’s Mot. for Summ. J. [Dkt. # 16] (“Def.’s Mot.”); Mem. in Supp. of Def.’s Mot. [Dkt . # 16] (“Def.’s Mem.”). Among the arguments advanced by the agency was the contention that do cuments should be withheld because the audit of plaintiff’s tax-exempt status was ongoing. See Def.’s Mem. at 12. Plaintiff filed an opposition on July 18, 2014. Pl.’s Opp. Defendant replie d on August 8, 2014, Def.’s Reply Mem. in Supp. of Def.’s Mot. [Dkt. # 19] (“Def.’s Reply”), and filed an additional declaration by Kieu Ta, which corrected an exhibit filed with the motion for summary judgment.
See Decl. of Kieu Ta, Attach. 1 to D ef.’s Errata [Dkt. # 18-1] (“Ta D ecl.”). In light of the supplemental declaration, plaintiff was granted leave to file a s ur-reply on August 25, 2014. Minute Order (Aug. 25, 2014); see also Pl.’s Sur-reply to Def.’s Reply [Dkt. # 21]. On November 5, 2014, plaintiff notif ied the Court that the IRS h ad concluded its investigation without consequenc e for plaintiff, and it took th e position that this event vitiated defendant’s reliance on FOIA Exe mptions 7(A) and 7(D) to withhol d records. Pl.’s Notice of Change in Facts [Dkt. # 22] (“Pl.’s Notice”) at 1–2. The Court ord ered the IRS to state whether it wished “to continue to stand on its previous withholdings and ex planations,” or “to withdraw and resubmit its motion for summary judgment.” Minute Order (Nov. 5, 2014). On November 12, 2014, the IRS notified the Court that it would stand on its pre vious pleadings. Def.’s Notice in Resp. [Dkt. # 24] (“Def.’s Resp.”) ¶¶ 1–4.

5On March 3, 2015, the Court ordere d defendant to deliver a seri es of records to the Court for its in camera review: redacted and unredacted versions of the pages 003708 and 003715 in the Vaughn Index for IRS Examination Reco rds [Dkt. # 16-3] (“Examination Vaughn Index”), and pages 012398, 012400–012401, 012404, 012467, 012533–012534, 0125 69–012571, 012208– 012210, and 012215–012216 in the Vaughn Index for IRS Counsel Records [Dkt. # 16-5] (“Counsel Vaughn Index”). Minute Order (Mar. 3, 2015), citing Ray v. Turner , 587 F.2d 1187, 1195 (D.C. Cir. 1978). Defendant complied with this order, see Pl.’s Notice of Compliance [Dkt. # 26], and the Court has reviewed the records in connection wit h its consideration of defendant’s motion for summary judgment.
STANDARD OF REVIEW In a FOIA case, the district court reviews the agency’s decision s 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). On a motion for summary judgment, the Court “must view the evid ence in the light most favorable to the nonmoving party, draw all reasonable inference s in [its] favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao , 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986). But where a plaintiff has neither alleged nor provided evidence that an agency acted in bad faith, “a court may award summary judgmen t solely on the basis of information provided by the agency in declarations.” Moore , 601 F. Supp. 2d at 12.

6ANALYSIS FOIA requires government agenc ies to release records upon reque st in order to “ensure an informed citizenry, vital to the functioning of a democratic so ciety, needed to check against corruption and to hold the governors accountable to the governe d.” NLRB v. Robbins Tire &
Rubber Co. , 437 U.S. 214, 242 (1978). But because “legitimate governmenta l and private interests could be harmed by [the] release of certain types of informatio n,” Congress provided nine specific exemptions to the disclosure requirements. FBI v. Abramson , 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ , 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balanc e struck by Congress between the public’s right to know and the go vernment’s legitimate interest in keeping certain information confidential.”). These nine FOIA ex emptions are to be construed narrowly. Abramson , 456 U.S. at 630. To prevail in a FOIA action, an agency must, first, demonstrate that it has made “a good faith effort to conduct a search for the requested records, usi ng 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). Any “reasonably segregable” informati on in a responsive record must be released, 5 U.S.C. § 552(b), unless the nonexempt portions ar e “‘inextricably intertwined with exempt portions.’” Wilderness Soc’y v. U.S. Dep’t of Interior , 344 F. Supp. 2d 1, 18 (D.D.C. 2004), quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force , 566 F.2d 242, 260 (D.C. Cir. 1977).

7I. Defendant’s declarations do n ot describe an adequate search f or responsive records. A. Legal Standard “An agency fulfills its obligations under FOIA if it can demons trate beyond material doubt that its search was ‘reasonably calculated to uncover all relev ant documents.’” Valencia-Lucena
v. U.S. 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 Oglesby , 920 F.2d at 68; Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The Court finds that the IRS did not meet th is burden, and will remand the case to defendant to continue its search and amend its declarati ons. To demonstrate that it has performed an adequate search for docum ents responsive to a FOIA request, an agency must submit a reasonably detailed affid avit describing the search. Oglesby , 920 F.2d at 68 (finding summary judgment improper where agenc y’s affidavit lacked sufficient detail); see also Defenders of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 91 (D.D.C. 2009) (same). 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 li kely to contain responsive materials (if such records exist) were searched.” Oglesby , 920 F.2d at 68; see also Defenders , 623 F. Supp. 2d at 92 (finding declaration defi cient where it failed to detai l the types of files searched, the filing methods, and the search terms u sed). A declaration, therefore, must at least include the agency’s “rationale for searching certa in locations and not others.” Defenders , 623 F. Supp. 2d at 92; see also Nat’l Sec. Counselors v. CIA , 849 F. Supp. 2d 6, 11 (D.D.C. 2012) (finding affidavit suffici ent where it “outline[d] with reasonable detail the CIA’s decision to limit the search” to a particular area); Hooker v. U.S. Dep’t of Health & Human Servs. , 887 F. Supp. 2d 40, 51 (D.D.C. 2012) (finding that the agency’s declaration “fail[ed] to explain . . . why those offices were the reasonably likely locations of the records sought”). Agency affidavits atte sting to a reasonable search “are

8afforded a presumption of good f aith” that “can be rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Defenders of Wildlife v. U.S. Dep’t of Interior , 314 F. Supp. 2d 1, 8 (D.D.C. 2004), quoting 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 do cumentation the details of an epic search for requested records,’” Defenders , 623 F. Supp. 2d at 91, quoting Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982), but they should “‘describe wh at records were searched, by whom, and through what processes.’” Id. , quoting Steinberg v. DOJ, 23 F.3d 548, 552 (D.C. Cir. 1994). Conclusory assertions about the agency’s thoroughness are not sufficient. See Morley v.
CIA , 508 F.3d 1108, 1121–22 (D.C. Cir. 2007) (finding agency’s “sin gle conclusory affidavit” to be inadequate). At the same time, however, where an “affidavit cou ld in theory be m ore detailed, that fact alone does not warrant denying summary judgment in favor of” a defendant. White v.
DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012). B. Defendant’s Searches and Declarations Plaintiff’s FOIA request sought three types of records: (1) re cords related to the IRS’s audit of Sea Shepherd; (2) records related to “any complaint lod ged with the [IRS] expressing concerns regarding Sea Shepherd’s activities or qualification fo r tax-exempt status” between January 1, 2006, and May 13, 2013; and (3) “any and all documen ts, from January 1, 2006, through [May 13, 2013], related to” plaintiff. Ex. A to Compl. at 1. In addition, plaintiff’s request identified several offices and one a gent, in various branches of the IRS, that it believed might possess responsive files: the office of the Director of Exempt O rganizations Examinations in Dallas, Texas; Peter Huang, the agent assigned to the examinatio n of Sea Shepherd; the offices of the National and Area Tax Exempt and Government Entities (“TEGE”) Counsel; and the Rulings and Agreements division of the office of Exempt Organizations. Id.

9To demonstrate the adequacy of its search efforts, the IRS subm itted four declarations: 2

x The declaration of Denise Higley, a Tax Law Specialist in the I RS’s Headquarters Disclosure Office’s FOIA function, describes the agency’s initi al search efforts after receiving plaintiff’s FOIA request, including Higley’s coordinat ion with (1) Kieu Ta, the FOIA coordinator for the office of Exempt Organizations Examinations, (2) the National Office of Chief Counsel, and (3) revenue agent Peter H uang. See Decl. of Denise Higley [Dkt. # 16-6] (“Higley Decl.”).

x The declaration of Kieu Ta, a Senior Program Analyst in the IRS’ s office for Tax Exempt and Government Entities, describes her coordination with agent Huang and the Exempt Organizations Referral group. See Ta Decl.

x Two declarations from A.M. Gulas, Senior Counsel in Branch 7 of the Office of the Associate Chief Counsel (Procedur e and Administration), describ e Gulas’s coordination with Denise Higley, Peter Huang, Mark Weiner in th e Pacific Coast Area Chief Counsel Office, Courtney Jones in the National Office of Chief Counsel, and Elizabeth Goff in the office of Exempt Organizations Rulings an d Agreements. See 1st Gulas Decl.; Second Decl. of A.M . Gulas [Dkt. # 16-4] (“2d Gulas De cl.”). As will be set out in more detail below, the Court concludes that defendant’s declarations are deficient on several grounds. First, none of the declaratio ns adequately addresses plaintiff’s request for “any and all documents” related to it within the des ignated time period, or even indicates that a search for “any and all documents” related to p laintiff was actually conducted. Second, none of the declarations d escribes defendant’s overall “r ationale for searching certain locations and not others.” See Defenders , 623 F. Supp. 2d at 92; see also Nat’l Sec. Counselors , 849 F. Supp. 2d at 11. And, third, the individual declarations suffer from numerous other deficiencies that are describe d below. Thus, the Court cannot conclude that the agency has

2 Defendant also submitted a fifth declaration by Michael Frankli n, an attorney in Branch 6 of the Office of the Associate Ch ief Counsel (Procedure and Adm inistration), in support of its withholdings under various FOIA exemptions. Decl. of Michael F ranklin [Dkt. # 16-2].

10described a search that was “reasonably calculated to uncover al l relevant documents,” see Valencia-Lucena , 180 F.3d at 325, and it will remand the case to defendant on th is basis. 3 1. The Higley and Ta declarations do not describe an adequate se arch of the Exempt Organizations Examinations function. Plaintiff’s FOIA request asked defendant to search for records in the office of the “Director of Exempt Organizations Exam[in ations].” Ex. A to Compl. at 1. T he Court finds that defendant has failed to describe an adequate search of the Exempt Organiz ations Examinations function. Denise Higley was assigned to process and coordinate plaintiff’s FOIA request, and she began her search on May 20, 2013, by contacting Peter Huang, th e agent assigned to the examination of Sea Shepherd’s tax-exempt status, as plaintiff spe cified in its FOIA request. Higley Decl. ¶¶ 1–3; see also Ex. A to Compl. at 1. Agent Huang informed Higley that he had “approximately 3,000” pages of mater ial “related to an open exam ination for 2010.” Higley Decl. ¶ 3. On June 19, 2013, Higley broadened her search by sending a sear ch request memorandum to Kieu Ta, requesting a copy of the open examination file “and any records other than those in [Huang’s] possession.” Id . ¶¶ 5–6. On June 20, 2014, after receiving the formal search r equest from Higley, Ta reached out to agent Huang to coordinate a resp onse. Ta Decl. ¶ 4. Ta states that agent Huang conducted a “thorough search in his area to ensure all responsive documents were

3 Plaintiff disputes the adequacy of the scope of IRS’s search o n the additional ground that the agency’s declarations do not reflect a search of either the Whistleblower Office or the Communications and Liaison Office. See Pl.’s Opp. at 9. Because the Court is remanding this case to the IRS on other grounds, it need not rule on this issu e at this time. The Court notes, however, that plaintiff did not mention either of these offices in its FOIA request, and that the IRS was “not obliged to look beyond the four corners of the request for leads to the location of responsive documents.” See Kowalczyk v. Dep’t of Justice , 73 F.3d 386, 389 (D.C. Cir. 1996). 11gathered for this FOIA request, including records he received f rom Walt Waldram, the initial examining agent before the examination was transferred to [agen t] Huang.” Id. ¶ 6. With respect to Higley’s request to search for records “other than those in [Huang’s] possession,” Higley Decl. ¶ 5, Ta states that “because the examination was initiated from several referrals from confidential sour ces, and to ensure a thorough s earch was conducted, [she] checked with the [Exempt Organizations] Referral group to gather any respo nsive documents that Mr. Huang did not have.” Ta Decl. ¶ 5. Ta then explains that “[t]he [Exempt Organizations] Referral group confirmed that all referra ls had been sent to the exam gr oup.” Id

. Between July 1, 2013, and July 18, 2013, Higley received both e lectronic and paper copies of documents “relating to the pending examination” from Huang an d Ta. Higley Decl. ¶ 7. And according to Higley, “[t]hese . . . records were all the records [E]xamination had.” 4 Id

. The Court finds that the Higley and Ta declaratio ns fail to des cribe an adequate search for records in the Exempt Organizations Examinations function. Firs t, neither declarant meets the basic requirement of “averring that all files likely to contain responsive materials . . . were searched.” Oglesby , 920 F.2d at 68. Ta simply states – without further descriptio n – that agent Huang “conducted a thorough search in his area,” and describes h er own search of the Exempt Organization Referral group, Ta Decl. ¶¶ 5–6, without explainingwhy these were the only locations she elected to search and without stating that “no ot her record system was likely to produce responsive documents.” See Oglesby , 920 F.2d at 68. Moreover, Ta fails to describe any other details of her search, such as the relevant file systems o r search terms that she may have employed. See White , 840 F. Supp. 2d at 89. And, in light of these deficiencies, Hi gley’s

4 Several months later, on or around March 20, 2014, Senior Coun sel A.M. Gulas also contacted Huang, who then produced “one additional responsive e -mail.” 2d Gulas Decl. ¶ 8. 12conclusory statement that the records she received from Ta “wer e all the records [E]xamination had,” is not entitled to credence. See Higley Decl. ¶ 7; see also Morley , 508 F.3d at 1121–22. Finally, both Higley and Ta fail to indicate that a search was c onducted for the broader category of records requested by plaintiff – and not solely records relat ed to the audit of plaintiff. The Court finds, therefore, that the Ta declaration and the relevant portio ns of the Higley declaration do not describe an adequate search of the Exempt Organizations Examinations function. 2. The Higley and Gulas declarations do not describe an adequate search of the National and Area Chief Counsel Offices of the Tax-Exempt and G overnment Entities function. Plaintiff also requested that the IRS search for records in the “ National and Area Chief Counsel Offices of the Tax-Exemptand Government Entities,” or T EGE, function. Ex. A to Compl. at 1. So, Higley sent a search memorandum on June 21, 2 013, to Melva Tyler, Supervisory Legal Administrative Specialist in the Legal Processing Divisio n for the Office of the Associate Chief Counsel (Procedure and Administration) in Washington, D.C . Higley Decl. ¶ 6. According to Higley, “Tyler is the chief of the branch . . . responsible f or coordinating searches for Counsel records within National O ffice Chief Counsel offices.” Id . Higley’s declarati on, however, provides no indication that Tyler or anyone else in the Nationa l TEGE Counsel Office ever responded to the request to search for responsive records, nor does the declaration indicate that Higley contacted anyone in the A rea Chief Counsel offices of TE GE. See id

. On March 19, 2014, while this case was already pending, Senior Counsel A.M. Gulas discovered these omissions from the Higley declaration. 1st Gu las Decl. ¶¶ 6, 8. Gulas attempted to cure this deficiency by reaching out to the Disclosure and L itigation Support Branch, which she explains is the office that processes FOIA requests for Nationa l Office of Counsel records, in order to “learn if they had ever received any records from TEGE Couns el.” Id. ¶¶ 7–8. On March 20,

132014, she received a copy of the one file the office had identif ied as responsive from TEGE Counsel attorney Courtney Jones. Id. ¶ 8. Gulas asked Jones whether any other responsive records might be found in the National TEGE Counsel office, and Jones r esponded that there were none. 2d Gulas Decl. ¶ 2. Gulas “corr oborated” Jones’s statement by “ reviewing the Counsel case time reporting database, which indicat ed [Jones] had billed only five hours to the [Sea Shepherd] case.”
Id

. As for Area TEGE Counsel, Gulas c ontacted Mark Weiner, a senior counsel in the Pacific Coast Area TEGE Counsel office, who provided legal assistance t o Peter Huang, the agent assigned to plaintiff’s case at the IRS. 1st Gulas Decl. ¶ 10. Weiner stated that the only records in his possession were those that agent Huang had already produce d, and Gulas confirmed this to be true based on descriptions pr ovided by Weiner. 2d Gulas Dec l. ¶ 4. Gulas also asked Weiner to provide her with any emails he had exchanged with revenue ag ents related to this case, and Weiner forwarded to her his emails with Huang and with Walt Wal dram, the agent initially assigned to the examin ation of plaintiff. Id. ¶¶ 5–7. As IRS Senior Counsel Gulas acknowledged, the original Higley de claration failed to describe an adequate search for responsive records in either th e National or Area TEGE Counsel offices. See 1st Gulas Decl. ¶¶ 6, 8. Moreover , despite Gulas’s efforts to c ure the deficiencies of the Higley declaration, Gulas’s declarations do not sufficiently indicate that defendant conducted a search for records responsive to all portions of plaintiff’s request. Moreover, Gulas fails to explain the rationale for only c ontacting Weiner in the Pacific Coast Area TEGE Counsel office, and no other individuals or offi ces, with respect to plaintiff’ s full request. See Defenders , 623 F. Supp. 2d at 92; Nat’l Sec. Counselors , 849 F. Supp. 2d at 11. Thus, the search for records in the National and Area TEGE Counsel offices was inadequate.

143. The Second Gulas declaration does not adequately describe the search of the Exempt Organizations Rulings and Agreements function. Although plaintiff’s FOIA request specifies that plaintiff beli eved that responsive records might be found in the Exempt Organizations Rulings and Agreement s function of the national TEGE office, see Ex. A to Compl. at 1, the Higl ey declaration does not indicate that she coordinated any search in that location. See Higley Decl. Thus, “[t]o confirm that the IRS had searched all offices that plaintiff’s counsel specifically identified in the initial request,” Gulas contacted Elizabeth Goff, FOIA Coordinator for Exempt Organizatio ns in the National Office, and requested that she conduct a search for responsive records in the Rulings and Agreements function. 2d Gulas Decl. ¶ 11. Goff responde d that “Rulings and Agreemen ts would have no f iles while an examination is pendi ng in the field.” Id. But even if Goff’s assertion might be sufficient to explain why R ulings and Agreements did not possess records responsive to the portion of plaintiff’ s FOIA request that sought records related to the then-ongoing examination of its tax-exempt statu s, it does not address the portion of plaintiff’s request that sought “any and all” records related to Sea Shepherd within the specified timeframe, see Ex. A to Compl. at 1, nor does it indicate that all “reasonably likely locations” of responsive records were searched. See Hooker , 887 F. Supp. 2d at 51. Accordingly, the Court cannot conclude that this aspectof the search was sufficient. 4. The Court will remand the case to defendant. For all of these reasons, then, the Court finds that defendant’s affidavits do not attest to a search that was “reasonably calculated to uncover all relevant documents” with respect to plaintiff’s FOIA request. See Valencia-Lucena , 180 F.3d at 325. Therefore, the Court will remand this case to the IRS so that it may conduct additional searches and provide more detailed declarations consiste nt with this opinion.

15II. Defendant has not justified i ts withholdings under FOIA Exemp tions 6 and 7. Turning to those records that the IRS did identify, the agency declined to produce numerous responsive documents under FOIA Exemptions 6 and 7. The Court fin ds that these withholdings have not been justified on this record. Exemption 6 shields from mandatory disclosure “personnel and med ical files and similar files the disclosure of which would constitute a clearly unwarr anted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). In this case, the IRS acknowledges that “the information at issue here is not in a personal or medical file,” but contends that it was found “in a ‘similar file[].’” Def.’s Mem. at 18 (alteration in original). Exemption 7 permits agencies to withhold “records or informatio n compiled for law enforcement purposes, but only to the extent that the productio n of such law enforcement records or information” would u ndermine one of six enumerated interests. 5 U.S.C. § 552(b)(7)(A)–(F). As a threshold matter, the IRS c ontends that all of the records it withheld under Exemption 7 were compiled for a law enforcement purpose because there is “a nexus ‘between [the IRS’s] activity . . . and its law enfor cement duties.’” Def.’s Mem. at 12, quoting Keys v. DOJ, 830 F.2d 337, 340 (D.C. Cir. 1987). Plainti ff contends that defendant h as not made this showing because the descriptions of the records it found are insufficiently detai led, and because plaintiff suspects that the IRS’s audit may have been motivated by a non-law enforc ement purpose. Pl.’s Opp. at 18. Although defendant has said little to address these objecti ons, the Court need not rule on that issue at this time because it fi nds that defendant’s withholdin gs under Exemption 7 were unsupported on other grounds. In addition, and for the same reason , the Court need not determine at this time whether any of the records defendant withheld unde r Exemption 6 were found in “similar files,” as defendant contends. See Def.’s Mem. at 18.

16A. Defendant has not justified its withholdings under Exemption 7(A). FOIA Exemption 7(A) permits agencies to withhold “records or in formation compiled for law enforcement purposes, but only to the extent that the produ ction of such law enforcement records or information . . . coul d reasonably be expected to int erfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). At the time it filed it s dispositive motion, defendant argued that “Exemption 7(A) applies to the Service’s examination records for Sea Shepherd Conservation Society, because the Service’s examination of the Sea Shepherd’s tax exempt status is ongoing.” Def.’s Mem. at 12, citing Decl. of Michael Frankl in [Dkt. # 16-2] (“Franklin Decl.”) ¶ 5. It also contended that the discl osure of the information could “hamper the Service’s progress in the examination by revealing the scope, progress and directi on of the investigation.” Id. at 13, citing Franklin Decl. ¶ 33; see also Examination Vaughn Index at 1–13; Counsel Vaughn Index at 1–3, 5–13. The agency has not revised its position. See Def.’s Resp. But whether or not the records at issue here qualify as “law enf orcement records,” the IRS’s statement that the release of the records “could reasonably be ex pected to interfere with enforcement proceedings,” see 5 U.S.C. § 552(b)(7)(A), is no longer sufficient to justify thei r retention because the investigation of plaintiff has now closed

. See Pl.’s Notice. On November 5, 2014, plaintiff notified the Court that, on October 29, 2014, i t received a letter from the IRS stating that the audit had ended and that “[plaintiff’s] organization co ntinues to qualify for exemption from Federal income tax.” Attach. 1 to Pl.’s Notice at 1. In light of plaintiff’s notice, the Court ordered defendant to explain whether it wished “to stand on its previous withholdings and explanations,” or “to withdraw and resubmit its motion for summary judgment.” Minute Order (Nov. 5, 2014). On November 1 2, 2014, defendant responded that it “continue[d] to stand on its previous withholdings and explanations,” and that it would not

17withdraw and resubmit its motion. Def.’s Resp. ¶ 4. In additio n, defendant pointed out that its October 29, 2014 letter to plain tiff had included an addendum i n which it cautioned plaintiff that, “[s]hould the courts . . . find the Sea Shepherd in violation o f laws, a subsequent examination may be initiated.” Id. ¶ 1. Defendant took the position that this addendum “demonstrat es that its investigation of Plaintiff is not conclusively closed and there fore Exemption 7(A) continues to apply.” Id. ¶ 2. But the IRS has not provided any authority for the proposition that the possibility that another investigation might be la unched in the future is suffici ent to give rise to the risk that disclosure of records of the pre vious investigation would “inte rfere with enforcement proceedings,” which is the necessary predicate for the cited exe mption. Indeed, the only basis on which the IRS invoked Exemption 7(A) was the fact that its inves tigation was “ongoing.” See Def.’s Mem. at 12. Therefore, the Court finds that defendant ha s not carried its burden to show that Exemption 7(A) applies to any of the withholdings it has m ade in this case. B. Defendant has not justified its with holdings under Exemptions 6 or 7(C). Defendant has also invoked FOIAExemptions 6 and 7(C) to withho ld third-party identifying information. Def.’s Mem. at 17; Franklin Decl. ¶¶ 1 7–19. Exemption 6 shields from mandatory disclosure “personnel and medical file s and similar f iles the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protect s information that was: (1) compile d for law enforcement purposes, if (2) the disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). To determine whet her either Exemption 7(C) or 6 applies, a court balances an agency’s asserted privacy interest against the public interest in

18disclosure of information. See DOJ v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 758– 59 (1989). Defendant asserts that Exemptions 6 and 7(C) justify its redact ions from two types of records. The first group of records consists of copies of plai ntiff’s own QuickBooks data, from which defendant has redacted the Social Security numbers and Ta xpayer Identification Numbers of third parties. See Examination Vaughn Index at 6, 13. 5 The second group is made up of two “Tax Exempt Organization Referral Packages,” and defendant has redacted “[t]he names, telephone numbers, fax numbers, an d emails of third parties lis ted on these referral documents.”
Id. at 6. 6 Defendant asserts that “[t]he release of this information could reasonably be expected to lead to the identification of certain third parties, which coul d conceivably subject them to harassment or annoyance in their private lives.” Def.’s Mem. at 20. Therefore, defendant continues, “[t]he Service determined and the Court should agree that there is little or no public interest in this information.” Id. ; Def.’s Reply at 10. But in this case, plaintiff has pointed to the public interest in knowing whether the IRS’s audit was in any wa y related to the statements revealed by the Wikileaks cables, which indicate that United St ates government offi cials discussed the IRS’s investigation of plaintiff’s tax-exempt status with J apanese government officials who were concerned about plainti ff’s activities. Pl.’s Opp. at 26; see also Ex. 1 to Rule 56(d) Decl. of

5 The specific records at issue are Bates numbered 004069, 00407 1, 004073, 004075, 004078, 004080, 004083, 008758, 008769, 008791, 008810, 008829, 008842, 008867, 008886, 008889, 008952, 008963, 008985, 009004, 009023, 009036, 009061, 009080, 009083, 009146, 009157, 009179, 009198, 009217, 009230, 009255, 009274, 009277, 010060, 010061, 010063, 010067, 010071, 010074, and 010075. 6 The specific records at i ssue are Bates numbered 003708 and 00 3715. The latter record is also referred to as document number 003664.

19Christopher Rizek; Ex. 2 to Rule 56(d) Decl. of Christopher Riz ek. In addition, plaintiff has articulated a public interest in knowing whether the IRS’s audi t was related to the Cetacean lawsuit. Pl.’s Opp. at 26. Whether or not these records m eet the threshold requirements of Exemptions 6 and 7, and whether or not the private intere sts asserted by defendant outwe igh the public interest identified by plaintiff, the Court finds that plaintiff has pointed to a pu blic interest in disclosure that the IRS did not consider in the balancing test. Accordingly, the Court wi ll remand the case to the IRS so that it may weigh the privacy interest in non-disclosure agains t the public interest in the release of the records. See Judicial Watch v. U.S. Dep’t of Homeland Sec. , 598 F. Supp. 2d 93, 96 (D.D.C. 2009) (“[A]n agency must, for each record, conduct a particular ized assessment of the public and private interests at stake.”). C. Defendant has not justified its withholdings under Exemption 7(D). The IRS has also failed to justify its reliance on Exemption 7( D). This provision permits agencies to withhold “records or information compiled for law e nforcement purposes” to the extent that the records or information “could reasonably be expected t o disclose the identity of a confidential source, including aState, local, or foreign agenc y or authority or any private

20institution which furnished information on a confidential basis .” 7 5 U.S.C. § 552(b)(7)(D). The agency invoking Exemption 7(D) bears the burden of “showing thatthe source is a confidential
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 (1993). It is not enough for an agency to simply state that the sources in question provided informati on “‘on a confidential 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 confidentiality.’” Id. , quoting
Roth , 642 F.3d at 1184. The key question “is not whether the reques ted document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communi cation would remain confidential. ” Landano , 508 U.S. at 172. In this case, the IRS has entirely failed to carry its burden t o show that its sources “did in fact receive an express grant of confidentiality,” and it has a lso failed to articulate circumstances that would “support the infere nce of confidentiality.” See CREW , 746 F.3d at 1101 (citations and internal quotation marks omitted) . Defendant merely states that “ the confidential sources[]

7 In full, Exemption 7(D) states that agencies may withhold records or information compile d for law enforcement purposes, b ut only to the extent that the production of such law enforcement records or information . . . (D) could reas onably be expected to disclose the identity of a confidential source, includinga State, local, or foreign age ncy or authority or any private institution which furnished information on a con fidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigationor by an agency conducting a lawful nati onal security intelligence inves tigation, information furnished by a confidential source[.] 5 U.S.C. § 552(b)(7). 21requested anonymity,” without anything more. Franklin Decl. ¶ 38; see also 2d Gulas Decl. ¶ 24 (“the confidential source . . . requested anonymity”). 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 circumstances, the Court cannot find that the IRS has carried its burden to establish that any of “the particular source[s] s poke 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). III. Some of defendant’s withholdings are not justified by FOIA Exemption 3 in conjunction with 26 U.S.C. § 6103. Defendant withheld several records, in part and in full, under FOIA Exemption 3 in conjunction with 26 U.S.C. § 6013(a) and 26 U.S.C. § 6103(e)(7) . Def.’s Mem. at 14, 16. FOIA Exemption 3 authorizes agencies to withhold information that is “specifically exempted from disclosure by statute.” 5 U.S .C. §§ 552(b)(3)(A)(i), (b)(3)(B). In this case, defendant has pointed to two provisions of section 6103 of the Internal Revenue Code as the exempting statutes: 26 U.S.C. § 6103(a), and 26 U.S.C. § 6103(e)(7). Def.’s Mem. at 14 –16. “That [section] 6103 is the sort of nondisclosure statute contemplated by FOIA exemption 3 is beyond dispute.” Tax Analysts
v. IRS , 117 F.3d 607, 611 (D.C. Cir. 1997). A. Some of defendant’s withholdings unde r Exemption 3 and section 6103(a) are not justified. Section 6103(a) requires that tax returns and “return informati on” be kept confidential subject to certain excepti ons. 26 U.S.C. § 6103(a). “Return i nformation” i s defined as a taxpayer’s identity, the nature, source, or amount of his inc ome, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax p ayments, whether the taxpayer’s return was, is being, or will be examine d or subject to other investigation or processing, or any other data, receive d by, recorded by, prepared by, furnished to, or collected by the Secretary wi th respect to

22a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person u nder this title for any tax, penalty, interest, fine, forfeiture, or other impo sition, or offense . . . .
Id. § 6103(b)(2)(A). Defendant invokes Exemption 3 and section 6103(a) in connection w ith its redaction of the “names and contact information of the authors of certain marine shipping notices from the Office of Naval Intelligence” from records found on pages 003708 and 0 03715 of defendant’s production. Pl.’s Opp. at 13; see also Examination Vaughn Index at 6. 8 The remainder of each document has been produced in its entirety, but plaintiff challenges the red actions for two reasons: that the information is otherwise publicly available, and that it does no t constitute “return information.”
See Pl.’s Opp. at 13–14. Plaintiff has provided a link to a website that, according to plaintiff, contains an unredacted version of page 003708. See id. at 13. The IRS contends that the information it withheld from these tw o pages is confidential “return information” because it constitutes personally identifyi ng information that is specific to a taxpayer other than plaintiff. 9 Def.’s Reply at 7–8, citing Tax Analysts , 117 F.3d at 618. The Court has reviewed the two pages in camera and finds that, under the ci rcumstances of this case – where the information withheld does not appear to relate to the individual’s status as a taxpayer in any way – the IRS has not carried its burden to establish that t he redacted information qualifies as

8 Defendant also asserted that th ese redactions were justified u nder Exemptions 6 and 7(C), see Examination Vaughn Index at 6, but the Court has al ready determined that defendant ’s reliance on those exemptions was unjustifie d for the reaso ns stated abov e. 9 The IRS does not deny that unredacted versions of these two page s are publicly available, although it points out that plain tiff has not actually “produc[ ed] the documents 003708 or 003715 in an unredacted form.” See Def.’s Reply at 7. The Court notes, however, that it is the IRS’s burden, and not plaintiff’s to pr ove that a FOIA exemption appl ies. 5 U.S.C. § 552(a)(4)(B); Military Audit Project , 656 F.2d at 738. 23“return information” under sec tion 6103. Therefore, the Court will remand this issue to the agency so that it may fully address plaintiff’s contention that these r edactions were not justified and release any reasonably segregable, non-exempt information as required by FOIA. See 5 U.S.C. § 552(b); Wilderness Soc’y , 344 F. Supp. 2d at 18. The Court notes, however, that pl aintiff has not challenged defe ndant’s redaction of the “[n]ame of [a] 3 rd party taxpayer (unrelated to [Sea Shepherd]) . . . to protect co nfidential return information” on the page Bates numbered 012229. See Counsel Vaughn Index at 4. The IRS justified this withholding based on Exemption 3 “in conjunction w ith IRC 6103.” Id. Therefore, the Court finds that plaintiff ha s conceded the propriety of th is withholding. See, e.g. , Hopkins v. Women’s Div., Gen. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an oppos ition to a dispositive motion and addresses only certain arguments r aised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004); see also Tax Analysts , 117 F.3d at 610 (treating argument raised by the defendant as c onceded where the plaintiff failed to oppose it). B. Defendant’s withholdings under Exem ption 3 and section 6103(e)(7) are not justified. Section 6013(e)(7) states that “[ r]eturn information with respe ct to any taxpayer may be open to inspection by or disclosure to any person authorized by this subsection to inspect any return of such taxpayer if the Secretary determines that such d isclosure would not seriously impair

24Federal tax administration.” 10 26 U.S.C. § 6103(e)(7). The Court’s review of the Secretary’s determination that a disclosure would “seriously impair Federal tax administration” is de novo , “and the IRS bears the burden of proof to justify nondisclosure .” Casa Investors, Ltd. v. Gibbs , No. 88-cv-2485, 1990 WL 180703, at *2 (D.D.C. Oct. 11, 1990), c iting Church of Scientology , 792 F.2d 146, 150 (D.C. Cir. 1986); see also 5 U.S.C. § 552(a)(4)(B). First, plaintiff objects to defendant’s withholding of third-party identifying information under Exemption 3 and section 6103(e)(7) because, it claims, 26 U.S.C. § 7602(c) and 26 C.F.R. § 301.7602-2(3) “compel the Service to disclose the names of thi rd parties contacted in the course of the Service’s investigation of Sea Shepherd.” Pl.’s Opp. at16. But plaintiff has brought a lawsuit under FOIA, not these provisions, and offers no explanation as to why it should be permitted to raise a new cause of action in its opposition to d efendant’s motion for summary judgment. See Taylor v. Mills , 892 F. Supp. 2d 124, 137 (D.D.C. 2012) (“In the main, a plain tiff is not permitted to raise new claims at the summary judgment st age, where those claims were not pleaded in the complaint.”).

10 The Internal Revenue Code provi des that “[t]he term ‘tax admi nistration’ -- (A) means— (i) the administration, manageme nt, conduct, direction, and supe rvision of the execution and application of the internal revenue laws or r elated statutes (or equivalent laws and statutes of a State) and tax convention s to which the United States is a party, and (ii) the development and formulation of Federal tax policy relat ing to existing or proposed internal re venue laws, related statutes, and tax conventions, and (B) includes assessment, collection, enforcement, litigation, pu blication, and statistical gathering functi ons under such laws, statutes, or conventions. 26 U.S.C. § 6103(b)(4). 25For its part, however, defendant h as failed to carry its burdento show that its withholdings under Exemption 3 and section 6103(e)(7) were justified. The o nly explanation defendant has given in its pleadings for all of its withholdings under sectio n 6103(e)(7) is that “Senior Counsel A.M. Gulas has been delegated the authority to determine whethe r the release of return information would seriously impair the fede ral tax administration, and she made that determination as to the material designated as withheld in the Vaughn indexes.” Def.’s Reply at 10, citing Franklin Decl. ¶ 14, and 2d Gulas Decl. ¶ 15; see also Def.’s Mem. at 15–16. Defendant a lso 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 Service’s investigation into Sea Shepherd . . . and by identifying confidential informants.” De f.’s Mem. at 16. In addition, in the Vaughn Indexes, defendant repeatedly contends that the information it has withheld “would seriously impair Federal tax administration because it would re sult in a chilling effect on confidential sources coming forward, thereby hampering future i nvestigations.” See Examination Vaughn Index at 1–12; Counsel Vaughn Index at 2–3, 6–8, 10–13. But defendant’s investigation of plaintiff is now closed, see Attach. 1 to Pl.’s Notice, and, as the Court has already found, de fendant has not established th at its informants “did in fact receive an express grant of confidentiality” or that other circumstance s exist that would “support the inference of confidentiality.” See CREW , 746 F.3d at 1101 (citations and internal quotation marks omitted). So neither the status of the investigation nor the c oncerns about revealing sources justifies defendant’s reliance on section 6103(e)(7) here. Defendant’s declarations shed no further light on this question . The Franklin declaration merely repeats the assertion that Gulas had the authority to de cide whether to withhold information on this basis. Franklin Decl. ¶ 14. And Gulas provides no add itional insight into her determination

26in her two declarations, other than to suggest that the ongoing nature of an investigation could be a basis for a finding that the release of certain information w ould impair federal tax administration.
See 2d Gulas Decl. ¶ 14. Although the D.C. Circuit has not provided specific guidance as to how the IRS may show that the release of certain records would compromise federal tax administration, FOIA requires more than the conclusory assertions presented here. See Nat’l Sec. Counselors , 849 F. Supp. 2d at 11. Moreover, the cases cited by the IRS to support its with holdings also indicate that more is required. See Currie v. IRS , 704 F.2d 523, 530–32, 534 (11th Cir. 1983) (upholding distric t court’s determination that withholding w as justified under Exemption 3 and section 6103(e)(7) where district court had engaged in extensive in camera review of documents and concluded that “[t]he release of the documents would hamper” an ongoing investigation); Radcliffe v. IRS , 536 F. Supp. 2d 423, 436, 439–40 (S.D.N.Y. 2008) (finding IRS’s withholdings under Exemption 3 and section 6103(e)(7) justified where IRS d eclarants had provided detailed descriptions of withheld information and the investigation was ongoing). Under these ci rcumstances, the Court finds that defendant has not adequately ju stified its reliance on Exemptio n 3 and section 6103(e)(7) in withholding third-party identifying information. Plaintiff also challenges the IRS’s redaction of third-party taxpayer identification numbers from copies of Sea Shepherd’s o wn QuickBooks data found at page s 004069, 004071, 004073, 004075, 004078, 004080, and 004083. Pl.’s Opp. at 14; see also Examination Vaughn Index at 6. Plaintiff contends that this data, which it states pertains to its payees, constitutes its own “return information,” and should not be withheld. Pl.’s Opp. at 14–15. Plaintiff further notes that the IRS has failed to redact other portions of these records that would also constitute “return information” under the IRS’s approach, such as the payees’ names and identit ies. Id. at 15. Defendant responds

27that its withholding of this infor mation was justified by Exempt ion 3 and section 6013(e)(7) because the withheld information is “return information,” and b ecause, again, “Senior Counsel A.M. Gulas has been delegated the authority to determine whethe r the release of return information would seriously impair the fede ral tax administration, and she m ade that determination” with respect to these records. Def.’s Reply at 10, citing Franklin Decl. ¶ 14, and 2d Gulas Decl. ¶ 15;
see also Def.’s Mem. at 15–16. Neither party’s pleadings, however, address the fact that, in it s Vaughn Index, defendant actually justified these partic ular withholdings on the basis o f FOIA Exemption 3 and section 6103(a), not section 6103(e)(7). Compare Examination Vaughn Index at 6 (invoking section 6103(a)), with Def.’s Reply at 8 (stating that this material was withheld unde r Exemption 3 and section 6103(e)(7)). The IRS bears the burden of justifying its withholdings under FOIA, 5 U.S.C. § 552(a)(4)(B), and because it ha s not clearly identified and ex plained the basis for its withholding, it has not carried that burden he re. Moreover, to the extent that the IRS’s withholding of this information was based on section 6103(e)(7), the IRS has also n ot justified its redactions for the reasons stated above in connecti on with the IRS’s other withhold ings under that provision. IV. Many of defendant’s withholdin gs under Exemption 5 are justif ied. Plaintiff has only challenged a handful of the numerous redacti ons and withholdings made by defendant under FOIA Exemption 5. 11 See Pl.’s Opp. at 29–30. Exemp tion 5 permits agencies to withhold “inter-agency or intra-agency memorandums or letters which would not be available

11 Specifically, plaintiff contends that defendant has not justi fied its invocation of Exemption 5 and the deliberative process privilege with respect to the pa ges Bates numbered 012398, 012400– 012401, 012404, 012467, 012533–012534, and 012569–012571, and t hat defendant has not justified its invocation of Exemption 5 and the attorney-client privilege with respect to pages 012208–012210 and 012215–012216. Pl.’s Opp. at 29 & n.16. The p ropriety of any redactions under Exemption 5 that plaintiff has not challenged is conceded

. See Hopkins , 284 F. Supp. 2d at 25, aff’d 98 F. App’x 8; Tax Analysts , 117 F.3d at 610. 28by law to a party other than an agency in litigation with the a gency.” 5 U.S.C. § 552(b)(5); see also U.S. Dep’t of Interior v. Kl amath Water Users Protective Ass’n , 532 U.S. 1, 8 (2001) (holding that a record may be withheld under Exemption 5 only if “its sou rce [is] . . . a Government agency, and it . . . fall[s] within the ambit of a privilege against dis covery under judicial standards that would govern litigation against the agency that holds it”). Ex emption 5 “encompass[es] the protections traditionally afford ed certain documents pursuant t o evidentiary privile ges in the civil discovery context,” including the attorney-client privilege and the executive “deliberative process” privilege. Taxation with Representation Fund v. IRS , 646 F.2d 666, 676 (D.C. Cir. 1981). The agency seeking to withhold a document bears the burden of showi ng that an exemption applies. Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n , 216 F.3d 1180, 1190 (D.C. Cir. 2000). After conducting an in camera review of the withholdings thatplaintiff has challenged, the Court finds that Exemption 5 j ustifies some, but not all, of th e agency’s redactions. A. Defendant’s Deliberative Process Withholdings “The deliberative process priv ilege rests on the obvious realiz ation that officials will not communicate candidly among themsel ves if each remark is a poten tial item of discovery,” and its purpose “is to enhance ‘the quality of agency decisions’ by pro tecting open and frank discussion among those who make them within the Government.” Klamath , 532 U.S. at 8–9 (citations omitted), quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 151 (1975). Thus, the privilege only “protects agency documents that are both predecisional anddeliberative.” Judicial Watch,
Inc. v. FDA , 449 F.3d 141, 151 (D.C. Cir. 2006); accord McKinley v. Bd. of Governors of Fed. Reserve Sys. , 647 F.3d 331, 339 (D.C. Cir. 2011). “[A] document [is] predec isional if ‘it was generated before the adoption of an agency policy’ and deliberative if ‘it reflects the give-and-take

29of the consultative process.’” Judicial Watch , 449 F.3d at 151, quoting Coastal States Gas Corp. v. Dep’t of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980). In this case, plaintiff challenges the withholdings described i n the Vaughn Index for IRS Counsel Records with respect to the pages Bates numbered 012398 , 012400–012401, 012404, 012467, 012533–012534, and 012569–012571. Pl.’s Opp. at 29. After conducting an in camera review of these pages, the Court makes the following findings:

x Page 012398: The deliberative pr ocess privilege justifies the withholding of all of the redacted material except for the information described in defen dant’s Vaughn index as “[t]wo lines consisting of Waldram’s discussion of information received from a confidential informant.” See Counsel Vaughn Index at 6.

x Pages 012400–012401: The deliberative process privilege does n ot justify any of the redactions defendant made to these pages.

x Page 012404: Defendant states thatit has redacted “[e]ight lin es” from this record. Counsel Vaughn Index at 7. The Court finds that the deliberative process privi lege justifies the withholding of lines one, two, four, five, and eight in thei r entirety. In addition, the deliberative process privilege j ustifies the withholding of the final word of line three and the final two words of line se ven. The redactions of the remai nder of line three, all of line six, and the remainder of line seven are not justified by the d eliberative process privilege.

x Page 012467: The deliberative pr ocess privilege justifies the withholding of all of the redacted material.

x Pages 012533–012534: The deliberative process privilege justif ies the withholding of both pages in their entirety.

x Pages 012569–012571: These pages are substantially identical t o pages 012400–012401 and 012398 and the Court’s findings w ith respect to those pages apply. The Court notes that defendant a lso withheld all of the challen ged material under Exemptions 7(A), 7(D), and 3 in conjunction with section 6013(e )(7). See Counsel Vaughn Index at 6–7, 10, 13. Therefore, on rema nd, defendant must provide a m ore detailed justification for why these exemptions would justify th e withholding of any material that the Court has concluded is not

30covered by Exemption 5 and release any reasonably segregable no n-exempt information to plaintiff. B. Defendant’s Attorney-Client Privilege Withholdings The attorney-client privilege protects confidential communicati ons from clients to their attorneys made for the purpose of securing legal advice or serv ices, and “is not limited to communications made i n the context of litig ation or even a spec ific dispute.” Coastal States , 617 F.2d at 862. The privilege also prot ects communications from att orneys to their clients that “‘rest on confidential information obt ained from the client.’” Tax Analysts , 117 F.3d at 618, quoting In re Sealed Case , 737 F.2d 94, 99 (D.C. Cir. 1984); see also Mead Data , 566 F.2d at 254. In the FOIA context, the agency is the “client” and the agency’s lawye rs are the “attorneys” for the purposes of attorney-client privilege. See In re Lindsey , 148 F.3d 1100, 1105 (D.C. Cir. 1998), citing Coastal States , 617 F.2d at 863. Plaintiff has challenged defendant’s reliance on Exemption 5 an d the attorney-client privilege to withhold information from the pages Bates numbered012208–012210 and 012215– 012216. After reviewing these pages in camera , the Court finds that all of defendant’s redactions are justified by Exemption 5 and the attorney-client privilege.

31CONCLUSION For the reasons stated above, th e Court finds that defendant’s s earch for records responsive to plaintiff’s FOIA request was inadequate, and that defendant has failed to justify its reliance on most of the FOIA exemptions tha t it invokes. Therefore, defend ant’s motion for summary judgment will be denied, and the Court will remand this case to the agency. Defendant is instructed to conduct a further search for responsive records, to provide a more detailed justification for the adequacy of its search and for any withholdings of responsive m aterial, and to release any reasonably segregable non-exempt material to plaintiff consiste nt with the FOIA statute and this opinion. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: March 31, 2015

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