UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) CAUSE OF ACTION, ) ) Plaintiff, ) ) v. ) Civil Action No. 13-0920 (ABJ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION This case arises out of a Freedom of Information Act request by plaintiff Cause of Action for records related to possible disclosures of confidential “retu rn information” by the Internal Revenue Service (“IRS”). Compl. [Dkt. # 1] ¶ 7. The confidential ity of that information is governed by 26 U.S.C. § 6103, and that provision of the Internal Revenue Code lies at the heart of this action. “Return informati on” is defined in section 6103(b)( 2), and section 6103(g) governs disclosures to the President and certain other Executive Branch em ployees. On October 9, 2012, plaintiff reque sted eight categories of reco rds from defendant, the first six of which are at issue in this lawsuit. 1 Ex. 1 to Compl. [Dkt. # 1-3] (“FOIA Req.”); Pl.’s Mem. of P. & A. in Opp. to Def.’s Mot. for Summ. J. & in Supp. of it s Cross-Mot. for Summ. J. [Dkt. # 21-1] (“Pl.’s Mem.”) at 3. Sp ecifically, plaintiff sought: 1) All documents, including but not limited to emails, letters, and telephone logs or other telephone records , constituting communications to and/or from 1 The Court granted defendant’s unopposed motion to dismiss plai ntiff’s claims with respect to categories seven and eight of the request on November 4, 201 3. Order (Nov. 4, 2013) [Dkt. # 9]. Category seven is the subject of a separate lawsuit by pl aintiff against the Treasury Inspector General for Tax Administration. See Cause of Action v. Treasury Inspector Gen. for Tax Admin. , 70 F. Supp. 3d 45, 49 (D.D.C. 2014).any employee of the IRS concerning any FOIA request or lawsuit that relates to [26 U.S.C.] § 6103(g); 2) All documents, including notes and emails, referring or relat ing to any communication described in request #1; 3) Any communications by or from anyone in the Executive Office of the President constituting requests for taxpayer or “return information” within the meaning of § 6103(a) that were not made pursuant to § 6103(g) ; 4) All documents, including notes and emails, referring or relat ing to any communication described in request #3; 5) All requests for disclosure by any agency pursuant to [26 U.S .C. §] 6103(i)(1), (i)(2), and (i)(3)(A); [and] 6) All documents, including communications not limited to notes, emails, letters, memoranda and telephone logs or other telephone record s, referring or relating to records described in request #5[.] FOIA Req. at 2. Plaintiff requested records from the time period of January 1, 2009, through the date of its FOIA re quest, October 9, 2012. Id. at 1. Defendant released 793 pages responsive to categories one and tw o of plaintiff’s request with some redactions, citing FOIA Exemptions 5 and 6. Br. in R eply to Pl.’s Opp. to Def.’s Mot. for Summ. J. & in Opp. to Pl.’s Mot. for Summ. J. [Dkt. # 26] (“D ef.’s Reply”) at 1. Defendant did not release any records in response to items three through six of plaintiff’s FOIA request on the grounds that any records related to requests for “return in formation” would themselves constitute “return information” that is exempt from disclosure under FOIA Exemption 3 in conjunction with section 6103. Id. ; Br. in Supp. of Def.’s Mot. for Summ. J. [Dkt. # 16-1] (“Def.’ s Mem.”) at 1. The IRS also took the position that records responsiv e to items three through six would be shielded from disclosure by Exemption 6, and that records responsive to items five and six could also be withheld under Ex emption 7(C). Def.’s Mem. at 1 ; Def.’s Reply at 1. Nevertheless, defendant conducted a search for records responsi ve to items three and four,

2although it did not search for records responsive to items five and six. Decl. of Denise Higley in Supp. of Def.’s Mot. [Dkt. # 16-3] (“Higley Decl.”) ¶¶ 17–24. After exhausting its administrative remedies, plaintiff filed a complaint in this Court on June 19, 2013. Compl. Defendant moved for summary judgment on April 14, 2014, Def.’s Mot. for Summ. J. [Dkt. # 16], and plaintiff filed a cross-motion com bined with its opposition to defendant’s motion on June 9, 2014. Pl.’s Cross-Mot. for Summ. J. [Dkt. # 21] (“Pl.’s Mot.”); Pl.’s Mem. Plaintiff claims thatdefendant failed to conduct an a dequate search for responsive records and that its reliance on most of the FOIA exemptions it claims is improper. Pl.’s Mem. The IRS filed a cross-opposition combined with a reply on July 28, 2014, Def.’s Reply, and plaintiff filed a cross-reply on August 22, 2014. Reply in Sup p. of Pl.’s Mot. [Dkt. # 30] (“Pl.’s Reply”). The Court finds that defendant’s search for records responsive to items one and two of the FOIA request was adequate, and that its withholdings under Exemp tion 5 were proper. But defendant has not described an adequate search for records resp onsive to items three and four of the request, and it will theref ore be ordered to do more. Defendant’s response to items three and four also raises the qu estion of whether Executive Branch requests for “return info rmation” are themselves “return information” that cannot be disclosed. The Court finds that defendant properly deemed the “t ax check” records it identified as potentially responsive to items three and four to be “return inf ormation” that should be withheld under FOIA Exemption 3 and sec tion 6103, but the Court does not a gree that any other records responsive to these requests would necessarily be exempt from dis closure. In other words, it is not at all clear that all Executive Branch requests for “return information” can be characterized as

3“return information” that is factual in nature and shielded from disclosure by the taxpayer confidentiality statute. Finally, the Court finds that the fa ilure to search for records re sponsive to items five and six was not justified by any FOIA exemption. Therefore, the Courtwill grant both parties’ motions in part and deny them in part, and it will remand the case to the IRS to conduct an adequate search for records responsive to items three through six of plaintiff’ s FOIA request, and to release any reasonably segregable, non-ex empt information to plaintiff.
STANDARD OF REVIEW In a FOIA case, the district court reviews the agency’s action de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). “FOIA cases are typicall y 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 his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao , 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). But where a plaintiff has not provided evidence that an agency acted in b ad faith, “a court may award summary judgment solely on the basis of information provided by the agency in declarations.”
Moore , 601 F. Supp. 2d at 12.
ANALYSIS FOIA requires government agencies to release records upon 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 &

4Rubber Co. , 437 U.S. 214, 242 (1978). But because “legitimate government al and private interests could be harmed by [the] release of certain types of informatio n,” Congress provided nine specific exemptions to the discl osure 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 g overnment’s legitimate interest in keeping certain information confidential.”). These nine FOIA e xemptions 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). And, second, the agency must show that “mate rials 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), citing Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The FOIA requests in this case all reference 26 U.S.C. § 6103, the provision of the Internal Revenue Code that was enacted t o preserve taxpayer privacy. See Tax Analysts v. IRS , 117 F.3d 607, 611 (D.C. Cir. 1997). Subsection (a) sets forth the general proposition that returns and return information shall be confidentia l, and subsection (b) defines the key terms in the statute. 26 U.S.C. § 6103(a)–(b). The provisions that follow delineate the exceptio ns to the confidentiality rule, including the disclosure of returns and return information to th e designee of the taxpayer, 26 U.S.C. § 6103(c), certain disclosures to state government officials, id. § 6103(d), certain disclosures “to persons having a material interest,” id. § 6103(e), disclosures pursuan t to written requests by

5certain members of Congress, id. § 6103(f), and disclosures to the President, to executive offici als, or to the heads of federal agencies. Id. § 6103(g). 2 I. Defendant describes an adequate search for records responsive to items one and two of plaintiff’s FOIA request, but not for records responsive to items three and four. “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 , 705 F.2d at 1351. To demonstrate that it has performed an adequate search for records r esponsive to a FOIA request, an agency must submit a reasonably detailed affidavit describing the search. Oglesby , 920 F.2d at 68 (finding summary judgment improper where agency’s affidavit lac ked sufficient detail); see also

2 Section 6103(g) provides, in part: (1) In general. --Upon written request by the President, signed by him personally, the Secretary shall furnish to the President, or to such employee or employees of the White House O ffice as the President may des ignate by name in such request, a return or return information with respe ct to any taxpayer named in such request. * * * (2) Disclosure of return informat ion as to Presidential appointe es and certain other Federal Government appointees. --The Secretary may disclose to a duly authorized representative of the Executive O ffice of the President or to the head of an y Federal agency, upon written re quest by the President or head of such agency, or to the Federal Bureau of I nvestigation on behalf of and upon written reque st by the President or such head, return information with respect to an individual who is designated as being under consideration for appointment to a position in the executive or judicial branch of the Federal Government. * * * Within 3 days of the receipt of any request for any return info rmation with respect to any individual under this paragraph, the Secretary s hall notify such individual in writing that such information has been reque sted under the provisions of this paragraph. 26 U.S.C. § 6103(g). 6Defenders of Wildlife v. U.S. Border Patrol ( Defenders II ), 623 F. Supp. 2d 83, 91–92 (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 likely to contain responsive materials (if such records exist) were searched.” Oglesby , 920 F.2d at 68; see also Defenders II, 623 F. Supp. 2d at 91–92 (finding declaration deficient where it failed to detail t he types of files searched, the filing methods, and the search terms use d). In addition, an affidavit s hould include the “rationale for searching certain locations and not others.” Defenders II , 623 F. Supp. 2d at 92; see also Nat’l
Sec. Counselors v. CIA , 849 F. Supp. 2d 6, 11 (D.D.C. 2012) (holding affidavit was suff icient where it “outline[d] with reasonable detail the CIA’s decision to limit the search” to a particular area). An agency’s declarations “need not ‘set forth with meticulous do cumentation the details of an epic search for requested records,’” Defenders II , 623 F. Supp. 2d at 91, quoting Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982), but they should “describe w hat 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 “si ngle, conclusory affidavit” to be inadequate), quoting Perry , 684 F.2d at 128. At the same time, however, where an “affidavi t could in theory be more detaile d, that fact alone does not warr ant denying summary judgment in favor of” a defendant. White v. DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012). Agency affidavits attesting to a reasonable search “are afforded a presumption of good faith” that “can be rebutted only ‘with evidence that the agency’s search was not made in go od faith.’” Defenders of Wildlife v. U.S. Dep’t of Interior ( Defenders I ), 314 F. Supp. 2d 1, 8 (D.D.C. 2004), first citing SafeCard

7Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), and then quoting Trans Union LLC v.
FTC , 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Defendant submitted an affidavit by Denise Higley, a Tax Law Spec ialist assigned to the IRS’s Headquarters Freedom of In formation Act group, describing the agency’s search for records responsive to items one through four of plaintiff’s request. 3 Higley Decl. Plaintiff argues that the Higley declaration is insufficiently detailed and does not desc ribe an adequate search. 4 Pl.’s Mem. at 29–33; Pl.’s Reply at 11–16. The Court finds that the Higley declaration does describe a search that was adequate with respect to items one and two of the FOIA request, but not with respect to items three and four. A. The search for records responsive to items one and two was adequate. Items one and two of plaintiff’s FOIA request sought records per taining to any FOIA requests or lawsuits relating to section 6103(g) of the Interna l Revenue Code. FOIA Req. at 2.

3 The IRS did not conduct a search for records responsive to ite ms five and six of plaintiff’s request. Def.’s Mem. at 21; Higley Decl. ¶ 24. 4 In its opening brief, plainti ff also contended that the searchdescribed in the Higley declaration was ins ufficient because it did not uncover documen ts related to a 2012 FOIA request by another organization, Citizens for Responsibility and Ethics in Washington (“CREW”), and because it construed item four of the request too narrowly by l imiting the search to requests for “tax checks” under section 6103(c). Pl.’s Mem. at 32–33. The IR S responded that the CREW request did not involve section 6103(g), and so any records ass ociated with the CREW request would not be responsive to items one or two of the FOIA requestat issue here. Def.’s Reply at 20; see also Decl. of Jennifer Black in Supp. of Def.’s Mot. [Dkt. # 26-3] ¶ 3 . Defendant also pointed out that, in fact, the Higley declaration indicates that the search for records responsive to items three and four was not limited to “tax checks.” Def.’s Re ply at 20–21; see also Higley Decl. ¶¶ 17–21. Plaintiff did not contest this evidence or address th ese points further in its reply brief, and so the Court finds that it has conceded these arguments. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood i n this Circuit that when a plaintiff files an opposition to a disposit ive motion and addresses only certain arguments raised 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 Lewis v. District of Columbia , No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. 2011). 8Higley explains that at the time she began searching for records , she was aware that plaintiff had previously submitted a FOIA request pertaining to section 6103(g) in March of 2012, and she determined that records related to the March 2012 request would be responsive to the October 2012 request at issue here. Higle y Decl. ¶¶ 5, 7. Higley retrieved all records related to plaintiff’s March 2012 request from the IRS’s Automated Freedom of Informati on Act (“AFOIA”) database, which is “the image-based document management system used by th e Office of Privacy, Governmental Liaison and Disclos ure to process FOIA requests.” Id. ¶¶ 7–8. Higley learned that plaintiff had filed a lawsuit related to it s March 2012 FOIA request in October 2012. 5 Higley Decl. ¶ 9. She worked with the attorney in the Office of Chief Counsel who was handling that lawsuit, Deborah Lambert-Dean, to conduct an additional search for records that might be responsive to items one and two of the instant req uest, and the two searched the AFOIA database, as well as the Electronic Disclosure Information System (“E-DIMS”) database, the predecessor database to AFOIA. Id. ¶¶ 8–10 & n.1. Those databases were searched using the terms “6103g, White House, Preside nt of the United States, POTU S, Barack, Obama, George, and Bush” in a manner that would have returned records containing a ny one of those terms. Id. ¶ 10 & n.3. The only responsive records that this search revealed p ertained to plaintiff’s March 2012 FOIA request and the associated lawsuit. Id. ¶ 10. Higley reviewed those records, consulted with her colleagues, a nd identified the individuals who were involved w ith plaintiff’s March 2012 FOIA re quest and might therefore possess responsive records. Higley Decl. ¶ 11. She directed eac h of those individuals to conduct a search for records that would be responsive to items one and two of the request at issue in this

case. Id.

5 Cause of Action v. IRS , No. 12-cv-1633 (RLW) (D.D.C. dismissed Dec. 5, 2012). 9Based on the records she received from those searches, and uponconsultation with Lambert-Dean, Higley determined that the IRS Media Relations Offi ce and the IRS Office of Appeals might possess responsive records. Higley Decl. ¶ 12. Sh e sent those offices a copy of plaintiff’s request and a memorandum directing them to search fo r records responsive to items one and two. Id. She also requested a copy of the appeal letter related to plain tiff’s March 2012 FOIA request from the Office of Appeals. Id. Based on the response she received from the Media Relations Office, she sent a copy of plaintiff’s request and a search memorandum to the IRS Office of Communications and Liaison. Id. Higley followed the trail of the records yielded by those searches, and she determined that specific individuals in the Of fice of Privacy, Governmental Liaison, and Disclosure might also possess records responsive t o items one and two. Id. ¶ 13. She forwarded plaintiff’s request to them and asked them to search for records responsive to items one and two. Id. Higley states that she received responses from everyone to whomshe sent a search request, and that she determined that pl aintiff’s March 2012 request was the only FOIA request the IRS had received relating to section 6103(g). Id. ¶¶ 14–15. In total, she found 790 pages of responsive documents, made redactions to 289 pa ges, and identified 6 pages t o be withheld in full. 6 Id. ¶ 16. The parties do not dispute that, “[i]n cases where documents are collected from several different offices, unit-specific descriptions are not required, and the affidavit of the officer ultimately responsible for the supe rvision of the FOIA search i s sufficient.” Trans Union , 141 F.

6 The IRS’s initial response to p laintiff erroneously stated that there were 796 pages responsive to items one and two of plaintiff’s FOIA request, but the correct number was in fact 790. Def.’s Mem. at 4; Higley Decl. ¶ 16. During the pendency of this case, the IRS identified three additional pages of records responsive to the first two i tems in plaintiff’s FOIA request, bringing the total number of pages to 793. Def.’s Mem. at 4.

10Supp. 2d at 68–69; see also Judicial Watch, Inc. v. U.S. Dep’t of Health & Human Servs. ( Judicial
Watch v. HHS ), 27 F. Supp. 2d 240, 244 (D.D.C. 1998) (“Unit-specific descri ptions are not required, at least where plainti ff has failed to raise some iss ue of fact necessitating rebuttal.”). Nevertheless, plaintiff argues that the Higley declaration is i nadequate because it does not provide enough information about each of the individual searches that w as performed and the people who performed them. Pl.’s Mem . at 30–32; Pl.’s Reply at 11–15. But the Higley declaration devotes five pages to describing a c omprehensive search for records responsive to items one and two, including the specific terms she used to search AFOIA, the review of responsive records, and the process of identifyin g and issuing search memoranda to individuals and offices that were likely to possess additional records. See Higley Decl. ¶¶ 7–16;
see also Judicial Watch v. HHS , 27 F. Supp. 2d at 244 (“[T]he declaration’s five-page overvie w of the search effort is adequate to support the reasonableness of the search.”). The Court finds that the description provided in the declaration is sufficient to in dicate “what records were searched, by whom, and through what processes” with respect to items one and two of the request. See Defenders II , 623 F. Supp. 2d at 91, quoting Steinberg , 23 F.3d at 552. Moreover – and contrary to plaintiff’s allegations, see Pl.’s Mem. at 30; Pl.’s Reply at 11–12 – Higley avers that she “searched all of the sources and databases that might reasonabl y contain responsive records.” Higley Decl. ¶ 28; see also Oglesby , 920 F.2d at 68. In light of the sufficiently detailed descript ion provided in the affidavit, as we ll as the absence of any indicati on that the search was conducted in bad faith, the Court concludes that defendant’s search for recor ds responsive to items one and two of plaintiff’s FOIA request was adequate. See Defenders I , 314 F. Supp. 2d at 8.

11B. The search for records responsive to items three and four was not adequate. Items three and four of plaintiff’s FOIA request sought records related to requests for “taxpayer or ‘return information’” by anyone in the Executive O ffice of the President that were not made pursuant to section 6103(g). FOIA Req. at 2. Higley s tates that, based on her own experience and in consultation with Lambert-Dean and Gary Pruts man, the Associate Director of the Disclosure Office, she determined that “correspondence betw een the IRS and the Executive Office of the President [was] most likely maintained by the Offi ce of Legislative Affairs,” and that the Services and Enforcement Office , the Small Business/Self Emp loyed function, the IRS Media Relations Office, and the Office of the Commissioner might also possess responsive documents. Higley Decl. ¶¶ 10, 17–18. She issued search memoranda to all but one of those offices requesting that they search for records responsive to plaintiff’s FOIA req uest. 7 Id. ¶¶ 19–20. Higley received responses to all of the search memoranda she issued, but none o f the offices found any records related to plaintiff’s request. Id. ¶ 21. Higley conferred with her colleagues, and obtained annual IRS r eports to Congress for the dates in question “regarding dis closures of return information within the Federal government.” Higley Decl. ¶ 22. She determined from these reports that there h ad been “a number of requests for ‘tax checks’” that could b e responsive to plaintiff’s reque st. Id. ¶ 23. “‘Tax checks,’” she explains, “are requests for the return information of individua ls under consideration for employment within the Executive Branch or appointment by the Pr esident” that are made with the written consent of the candi date under 26 U.S.C. § 6103(c). Id. ¶ 23. Higley did not conduct a

7 Higley did not issue a search m emorandum to the Small Business /Self Employed function because it had already informed her by email that it would not have any responsive records. Higley Decl. ¶ 19. 12search for “tax checks” and related records because she determin ed that they were exempt from disclosure under FOIA Exe mption 3 and section 6103(a). Id. The Court finds that the descrip tion of the search for records responsive to items three and four of the request is not ade quate. Higley provides no explan ation for her conclusion that records of requests made by the Executive Branch would be located in th e Office of Legislative Affairs or in any of the other offices she named, or why they would not be elsewhere. See Higley Decl. ¶¶ 17–18. Also, this portion of the FOIA request sought a broad r ange of records – those related to requests for “taxpayer or ‘return information’” by the Execut ive Office of the President that

were not made pursuant to section 6103(g), FOIA Req. at 2 – and Higley’s fa ilure to identify any key words or search terms that were used, or to describe the typ es of searches that were performed in any detail, undermines any claim that the search was “reasonab ly calculated to uncover all relevant documents.” See Valencia-Lucena , 180 F.3d at 325, quoting Truitt , 897 F.2d at 542. Therefore, the Court finds that defendant has not carried its b urden to show that the search for records responsive to items thr ee and four of plaintiff’s reque st was adequate. II. Defendant’s withholdings under Exemption 5 were proper. The IRS redacted and withheld records responsive to items one and two of plaintiff’s FOIA request pursuant to FOIA Exemption 5, Def.’s Mem. at 28–36, which permits agencies to withhold “inter-agency or intra-agency memorandums or letters which woul d not be available by law to a party other than an agency in litigation with the agency.” 8 5 U.S.C. § 552(b)(5); see also U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 8 (2001) (holding that a record may be withheld under Exemption 5 only if “its source [i s] . . . a [g]overnment agency, and

8 In addition, defendant redacted the personal phone numbers of employees from the records produced to plaintiff, citing FOIA Exemption 6. Def.’s Mem. at37. Plaintiff does not object to this withholding. Pl.’s Mem. at 19 n.2. 13it . . . fall[s] within the ambit of a privilege against discov ery under judicial standards that would govern litigation against the agency that holds it”). In suppo rt of these withholdings, defendant has supplied two declarations by Francis McCormick, an attorney in the IRS’s Office of Chief Counsel. Decl. of Francis McCor mick in Supp. of Def.’s Mot. [D kt. # 16-4] (“McCormick Decl.”); 1st Supplemental Decl. of Francis McCormick in Supp. of Def.’s M ot. [Dkt. # 26-2] (“Supp. McCormick Decl.”). Although plai ntiff concedes that the record s at issue here qualify as “interagency or intra-agency memorandums or letters” within the meani ng of Exemption 5, Pl.’s Mem. at 23 n.3, plaintiff contends that defendant has not adequately justified its reliance on Exemption 5, and requests that the Court conduct an in camera review of the 289 pages defendant has released with redactions. 9 Id. at 22–29. But the Court finds that plaintiff’s reliance on Exe mption 5 is appropriate and that in camera review is therefore unnecessary. A. Legal Standard Exemption 5 “encompass[es] the protections traditionally afford ed certain documents pursuant to evidentiary privile ges in the civil discovery conte xt,” including the attorney-client privilege, the attorney work-pr oduct privilege, and the executi ve “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 showing thata FOIA exemption applies. Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n , 216 F.3d 1180, 1190 (D.C. Cir. 2000).

9 Plaintiff’s request for in camera review of the 289 redacted pages does not appear to include the additional 6 pages that defendant withheld in full. See Pl.’s Mem. at 28 (“[G]iven the relatively modest 289 pages thatDefendant has attempted to withhold under Exemption 5, in camera review would not be onerous.”). 141. Deliberative Process Privilege “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, quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 151 (1975), and citing EPA v. Mink , 410 U.S. 73, 86–87 (1973). Thus, the privilege only “protects agency documents that are both predecisional and deliberative.” 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] predecisional if ‘it wa s generated before the adoption of an ag ency policy’ and deliberative if ‘it reflects the give-and-take of the consultative process.’” Judicial Watch, Inc. v. FDA , 449 F.3d at 151, quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980). Records fall within the scope of the deliberative process privil ege “only if they ‘reflect[] advisory opinions, recommendations , and deliberations comprisin g part of a process by which governmental decisions and policie s are formulated, [or] the pe rsonal opinions of the writer prior to the agency’s adoption of a policy.’” Public Citizen, Inc. v. Office of Mgmt. & Budget , 598 F.3d 865, 875 (D.C. Cir. 2009), quoting Taxation with Representation Fund , 646 F.2d at 667. Records that do not provide advice to a superior, suggest the dispositi on of a case, discuss the relative pros and cons of a specific approach, or constitute “one step of an established adjudicatory process” are not deliberative. See Coastal States , 617 F.2d at 868. It is incumbent upon the agency to establish “what deliberative process is i nvolved, and the role played by the documents in issue in the course of that process.” Id. at 869, citing Vaughn v. Rosen , 523 F.2d 1136, 1146 (D.C. Cir. 1975); accord Senate of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 585–86 (D.C. Cir. 1987).

152. Attorney Work Product Privilege The attorney work product privilege protects materials that ref lect the “mental processes of the attorney,” Klamath , 532 U.S. at 8, quoting United States v. Nobles , 422 U.S. 225, 238 (1975), when the materials were “prepared in anticipation of litigation or for trial.” Judicial Watch, Inc.
v. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005), quoting Fed. R. Civ. P. 2 6(b)(3). An agency can satisfy the “anticipation of litigation” standard by “demonstrat ing that one of its lawyers prepared a document in the course of an investigation that was undertake n with litigation in mind,” even if no specific lawsuit has begun. SafeCard Servs. , 926 F.2d at 1202. 3. Attorney-Client Privilege 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 protects communications from attorneys to their clients that “rest on confidential information obtained 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 Cent., Inc. v. U.S. Dep’t of
Air Force , 566 F.2d 242, 254 (D.C. Cir. 1977). In the FOIA context, the agency is the “client” and the agency’s lawyers are the “attorneys” for the purposes o f the attorney-client privilege. See In re Lindsey , 148 F.3d 1100, 1105 (D.C. Cir. 1998), citing Coastal States , 617 F.2d at 863. B. Defendant’s Withholdings Of the 793 pages of records that defendant identified as respon sive to items one and two of plaintiff’s request, defendant withheld 289 pages in part and 6 pages in full. Pl.’s Mem. at 4; McCormick Decl. ¶ 8. Defendant asserts that these withholdings are justified by FOIA Exemption 5, invoking the deliberative process privilege, the attorney wo rk product privilege, and the

16attorney-client privilege. Def. ’s Mem. at 29. Plaintiff contends that defendant ha s not adequately justified its reliance on any of these privileges. Pl.’s Mem. at 23. The material defendant withheld falls into three general categor ies: (1) records related to defendant’s media response to a press release issued by plainti ff on October 2, 2012, in connection with its October 2012 FOIA lawsuit; (2) records related to defe ndant’s litigation response to plaintiff’s October 2012 FOIA lawsuit; and (3) records related to defendant’s “calendar year 2009 reports to the Joint Committee on Taxation under 26 U.S.C. § 610 3.” McCormick Decl. ¶ 18. Defendant contends that all of these records are protected by t he deliberative process privilege, and that some of them are also protected by the attorney work p roduct and attorney-client privileges. Def.’s Mem. at 33–36 & n.11; McCormick Decl. ¶ 18. The Court finds that these records fall under the deliberativ e process privilege, with the exception of one record, which falls under the attorney work product pr ivilege. Therefore, defendant’ s withholdings and redactions were appropriate. 1. Records Related to Defendant’s Media Response Defendant has carried its burden to show that all of the redact ed records related to the media response are protected by the deliberative process privilege. Despite plaintiff’s protestations to the contrary, see Pl.’s Mem. at 24, “Exemption 5 has indeed been found to cover a gency deliberations about how to respond to media inquiries” as long as the deliberations are “predecisional.” Competitive Enter. Inst. v. EPA , 12 F. Supp. 3d 100, 118 (D.D.C. 2014) (collecting cases). In this case, the withheld portions of the records precede the finalization of the IRS’s media response. Def.’s Mem . at 32; McCormick Decl. ¶ 18(a) . In addition, defendant’s declaration makes it plain that the redacted material is delibe rative because it “reflect[s] the giveand-take” of the consultative process, see Judicial Watch, Inc. v. FDA , 449 F.3d at 151 (citation

17omitted), including discussions between the IRS Office of Media R elations and the IRS Office of Chief Counsel, leading up to a “governmental decision[]” about th e IRS’s public position with respect to the issues raised in plaintiff’s press release. 10 See Public Citizen , 598 F.3d at 875 (citation omitted); see also Supp. McCormick Decl. ¶ 3 (attesting that “[i]t is the standard practice of the Office of Media Relations ” to consult the Office of Chie f Counsel “prior to commenting on a matter related to pending litigation”). Defendant has therefor e carried its burden to show that the deliberative process privile ge applies to the records relat ed to the media response. 2. Records Related to Defendant’s Litigation Response In addition, defendant has estab lished that the deliberative pr ocess privilege applies to all but one of the records related to its litigation response to pla intiff’s October 2012 FOIA lawsuit.

10 See McCormick Decl. ¶¶ 16, 18(b) (desc ribing “an e-mail message . . . fr om [Senior Counsel in the IRS Office of Chi ef Counsel A.M.] Gulas to [Publ ic Affairs Specialist in the IRS Office of Media Relations] Dean Patterson providing . . . strat egic recommendations (not involving legal analysis) regarding the IRS response to the October 2, 20 12, press release”); id. ¶ 18(e)(i) (“The redacted lines in the ema il messages . . . contain a draft IRS media response for review and comment.”); id. ¶ 18(f)(i) (“The redacted lines in these e-mail messages convey . . . information . . . regarding the IRS’ possible strategy in responding to the Octob er 2, 2012, press release, as well as opinions regarding the impact of that press release.”); id. ¶ 18(h)(i) (“The redacted lines in this email message . . . convey a question by John Davis regarding th e development of the IRS response to the October 2, 2012, press release.”); id. ¶ 18( l ) (describing an “email message . . . concerning advice from the IRS Office of Chi ef Counsel regarding developme nt of the IRS response to the October 2, 2012 press release); id. ¶¶ 11, 18(d), 18(n)(i) (“The redacted lines in the e-mail messages . . . convey . . . statemen ts from [Supervisory Public Aff airs Specialist in the IRS Office of Media Relations] Michelle Eldridge to attorney [and Branch C hief, IRS Office of Chief Counsel (Procedure and Administration) Ric hard] Goldman regarding the de velopment of the IRS’ response to the October 2, 2012, pr ess release, as well as draf t IRS statements and revisions.”); id. ¶ 18(o)(i) (“The redacted lines in the e-mail message . . . contai n a draft IRS media response for review and comment.”); id. ¶ 18(p)(i) (“The redacted lines in the e-mail messages . . . conta in draft IRS statements and revisions.”); id. ¶¶ 16(a)(i), 18(q)(i) (“The redacted lines convey . . . strategic advice (not involving legal analy sis) from attorney Gulas to [C hief, IRS Communications & Liaison] Frank Keith concerning the IRS response to the press r elease.”); id. ¶¶ 18(d), 18(r)(i) (“The redacted lines in the e-mail message . . . convey . . . strateg ic advice (not involving legal analysis) from attorney [and Senior Technician Reviewer, Office of Chief Counsel (Procedure and Administration) Donald] Squires t o [Associate Director, Disclosu re Office] Gary Prutsman concerning the IRS respons e to the press release.”). 18The redacted portions of these records precede agency decisions about litigation strategy, including what recommendations the IRS woul d make to its attorneys in the Department of Justice (“DOJ”) Tax Division, who had not yet taken action in the case at the tim e. Def.’s Mem. at 32–34. As with the media-related materials, def endant’s declaration demonstrat es that the withheld materials, with one exception, contain “the give-and-take” of the consultative p rocess, see Judicial Watch, Inc. v.
FDA , 449 F.3d at 151 (citation omitted), with respect to those “gove rnmental decisions.” 11 See Public Citizen , 598 F.3d at 875 (citation omitted). There is also some overlap between the mediarelated and litigation strat egy-related withholdings. 12

11 See McCormick Decl. ¶ 18(a)(ii) (“The redacted lines in the e-mail messages . . . contain the opinions and recommendations of attorneys Gulas and Lambert -Dean in development of the IRS Office of Chief Counsel recommendations to the Department o f Justice Tax Division regarding the October 2, 2012 FOIA suit.”); id. ¶ 18(d)(i) (“The redacted lines in this e-mail message contain a . . . descrip tion of possible recommendations to the Department of Justice regarding litigation strategy with respect to the October 2, 20 12, FOIA suit.”); id. ¶¶ 18(i), 18(i)(i) (“The redacted lines contain ques tions from attorney Goldman to attorneys [Sarah] Tate and Squires concerning development of the IRS Office of Chief Couns el recommendations to the Department of Justice Tax Divi sion regarding the October 2, 201 2 FOIA suit.”); id. ¶ 18(j)(i) (“The redacted lines contain a stateme nt of an opinion about the IRS litigating position in the October 2, 2012, FOIA suit in light of the IRS response to the October 2, 2012 press release.”); id. ¶ 18(k)(i) (“The redacted lines in the e-mail messages . . . contain statemen ts and questions about issues regarding the IRS litigating position in the October 2, 2012, F OIA lawsuit.”); id. ¶¶ 18(c), 18(m)(i) (“The redacted lines in the e-mail message . . . convey a quest ion, comments, and opinions from attorney Lambert-Dean to [DOJ Tax Division Trial Attorney Carme n] Banerjee about the March 2012 FOIA request in the context of developing the IRS litigatin g position in the October 2, 2012, FOIA suit.”). The Court notes that defendant has not fully id entified attorney Sarah Tate in its pleadings or declarations, but thi s oversight is not material t o this decision.
12 See, e.g. , McCormick Decl. ¶ 18(a)(i)(“The redacted lines in the e-mail m essages . . . describe the . . . strategic advice (not involving legal analysis) that attorney Gulas had previously given . . . during the development of the IRS media response . . . [and] communications that attorney Gulas had with attorneys at the Department of Justice . . . regarding the development of the IRS media response with respect to litigation concerns.”); id. ¶ 18(c) (describing e-mail messages between attorney Gulas and three DOJ attorneys with “r edacted text [that] discusses the development of the IRS respons e to the October 2, 2012, press r elease in light of the October 2, 2012, FOIA suit . . . as well as discussions of litigation strategy.”).

19The remaining withholding falls squarely within the attorney wor k product privilege. Paragraph 18(a)(iii) of the McCormick declaration provides: “Th e redacted lines in the e-mail message . . . contain information regarding attorney Gulas’ inv estigation regarding the March 2012 FOIA request, which attorney G ulas conducted after plaintiff fi led its October 2012 FOIA suit.” McCormick Decl. ¶ 18(a)(iii). It further states that “[t]he wi thheld information involves discussions amongst [Office of Chief] Counsel attorneys regardi ng active FOIA litigation with the plaintiff.” Id. Even if it does not fall within the deliberative process privile ge, the withheld material contains details about an investigation undertaken by anIRS attorney with respect to plaintiff’s then-pending 2012 FOIA lawsuit, see Judicial Watch, Inc. v. DOJ , 432 F.3d at 369, and it indicates that the redacted material reflects the “mental pro cesses” of Office of Chief Counsel attorneys regarding active litigation. See Klamath , 532 U.S. at 8, quoting Nobles , 422 U.S. at 238. Thus, the Court finds that the redactions described in paragrap h 18(a)(iii) of the McCormick declaration are protected by the attorney work product privileg e and were properly withheld on that basis. 13
3. Records Related to Defendant ’s Calendar Year 2009 Reports to the Joint Committee on Taxation In addition to the documents relat ed to the IRS’s response to p laintiff’s 2012 press release and FOIA lawsuit, defendant’s decl aration indicates that it withheld certain “administrative materials concerning the development of the IRS calendar year 2 009 reports to the Joint Committee on Taxation under 26 U.S.C. § 6103.” McCormick Decl. ¶ 18(g). Plaintiff has not

13 Because the Court has determined that all of the litigation s trategy-related redactions are justified by the deliberative process privilege or the attorney work product privilege, it need not consider whether the attorney-clie nt privilege might also apply , or whether the attorney work product privilege applies to the i nformation that was properly withheld under the deliberative process privilege.

20contested this withholding beyond its blanket assertion that “the IRS has failed to provide adequately specific justificati ons for its deliberative process withholdings.” Pl.’s Reply at 8. Defendant’s explanation for its withholdings with respect to th is record – that “it contains draft documents for consideration by the Commissioner, rather than final versions of those documents,” McCormick Decl. ¶ 18(g )(i) – sufficiently indicates that the deliberative process privilege applies. Thus, in the a bsence of any other objectionby plaintiff, the Court finds that the redactions described in paragra ph 18(g) of the McCormick declar ation are appropriate.
III. Defendant has not e stablished that all of its withholdings under Exemption 3 and section 6103 were justified. The IRS takes the position that “ [a]ll of the requests for retu rn information described in items 3 through 6” of plaintiff’s request “would themselves be return information protected from disclosure under Section 6103(a) and Exemption (b)(3).” Def.’s Mem. at 12. For that reason, defendant argues, it was not even required to search for records responsive to those portions of the request. Id. at 11–16; see also Lehrfeld v. Richardson , 132 F.3d 1463, 1465 (D.C. Cir. 1998) (holding that the IRS’s failure to search for particular record s “was reasonable because those documents were not subj ect to disclosure”). Nevertheless, defendant did conduct a search for some records r esponsive to items three and four of plaintiff’s FOIA request, Def.’s Mem. at 17 n.5, wh ich sought records related to requests by “anyone in the Executive Office of the President” f or “taxpayer or ‘return information’ . . . that were not m ade pursuant to § 6103(g).” FOIA Req. at 2. Through that search, defendant identified “a number of requests for ‘tax checks,’” w hich are “requests for the return information of individuals under consideration for employment w ithin the Executive Branch or appointment by the President” made under section 6103(c). Higl ey Decl. ¶ 23. Because defendant determined that “tax checks” and related records would necessar ily constitute “return

21information,” it did not search further for those records. Id. And defendant did not search for any records related to items fiv e and six of the request. See Def.’s Mem. at 22. The Court ordered the IRS to pr ovide a representative sample of the “tax check” records for in camera review. Minute Order (Aug. 3, 2015); see Arieff v. U.S. Dep’t of Navy , 712 F.2d 1462, 1469 (D.C. Cir. 1983) (“[T]he receipt of in camera affidavits . . . when necessary, [is] ‘part of a trial judge’s procedural arsenal.’”), quoting United States v. Southard , 700 F.2d 1, 11 (1st Cir. 1983). Upon review of the records, the Court finds that “tax che cks” and related records do constitute “return information” and are therefore exempt from di sclosure under FOIA Exemption 3 and 26 U.S.C. § 6103. But the Court does not agree that any and all records responsive to items three through six of the FOIA request would necessarily constitute exempt “return information.” For that reason, and because the Court has already determined t hat the search for records responsive to items three and four of the request was inadequat e, see supra § I(B), the Court will remand the case to defendant so that it may conduct an adequate search for records responsive to items three through six and release all reasonably segregable, n on-exempt information to plaintiff. A. Legal Standard FOIA Exemption 3 authorizes agencies to withhold information th at is “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). Inresponse to items three through six of the FOIA request, defendant invokes Exemption 3 by point ing to section 6103 of the Internal Revenue Code, which requires thatreturns and return informatio n be kept confidential subject to certain exceptions. See 26 U.S.C. § 6103(a). “That § 6103 is the sort of nondisclosure statute contemplated by FOIA exemption 3 is beyond dispute.” Tax Analysts , 117 F.3d at 611. The “core purpose” of section 6103 is to “protect[] taxpayer pr ivacy.” Id . at 615, citing Church of Scientology of Cal. v. IRS , 484 U.S. 9, 16 (1987). It was amende d into its current form

22in 1976, “in the wake of Watergate and White House efforts to h arass those on its ‘enemies list,’” and it “restricts government officers and employees from reveal ing ‘any return’ or ‘return information.’” Id. at 611. The definition of “return i nformation” is very broad, and it includes: 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 payments, whether the taxpayer's return was, is being, or will be examine d or subject to other investigation or processing, or any other data, receiv ed by, recorded by, prepared by, furnished to, or collected by the Secretary wi th respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person un der this title for any tax, penalty, interest, fine, forfeiture, or other impo sition, or offense. 26 U.S.C. § 6103(b)(2)(A). Although this definition does not lend itself to easy interpretation, courts agree that it “reaches far beyond what the phrase ‘return information’ would normally conjure up.” Landmark Legal Found. v. IRS , 267 F.3d 1132, 1138 (D.C. Cir. 2001); see also Hull v. IRS , 656 F.3d 1174, 1183 (10th Cir. 2011) (“The Code expansively defines return inf ormation . . . .”); Judicial Watch
v. Rossotti , 285 F. Supp. 2d 17, 29 (D.D.C. 2003) (“The terms ‘returns and return information’ are broadly defined in [the] statute . . . .”). S till, the definition has limits. As the Court of Appeals observed in Church of Scientology of California v. IRS , 792 F.2d 146 (D.C. Cir. 1986), aff’d , 484 U.S. at 18, “Congress would not have adopted such a detailed def inition of return information in Section 6103 if it had simply inte nded the term to cover all inf ormation in IRS files.” Id. at 151. To qualify as “return informati on,” the information need not “i dentify a particular taxpayer,” Church of Scientology , 484 U.S. at 15, but it must be “unique to a particular taxpayer ,” or “taxpayer-specific.” Tax Analysts , 117 F.3d at 614. “[T]he mere removal of identifying details” does not alter the confidentiality of documents that constitute “return information.” Church of Scientology , 484 U.S. at 15. At the same time, when a record that is not its elf “return information”

23contains both return informati on and non-return information, the non-return information can be released if it is reasonably segregable. See, e.g. , Tax Analysts , 117 F.3d at 616, 620 (holding that the IRS could redact “true return information” from certain fie ld memoranda, but that the legal analyses contained in the memoranda were not exempt “return info rmation”). B. The “tax check”-related records responsive to items three and four of plaintiff’s FOIA request constitute “return information.” Items three and four of plaintiff’s FOIA request sought information related to “communications by or from anyone in the Executive Office of th e President constituting requests for taxpayer or ‘return information’ . . . that were not made p ursuant to § 6103(g),” FOIA Req. at 2, which is the subsection of the Code that authorizes a partic ular set of disclosures to the President and other designated execu tive branch employees. See 26 U.S.C. § 6103(g). Although it contends that it did not have to search for records responsive to items three and four, Def.’s Mem. at 11–12, defe ndant did conduct a search, and it determined that the only responsive records would be “tax checks” and related records. Id. at 17 n.5. Defendant characterized these “tax checks” as “requests for the return inf ormation of individuals under consideration for employment within the Executive Branch or app ointment by the President” made

24with the written consent of the individual pursuant to 26 U.S.C . § 6103(c). 14 Id. ; Higley Decl. ¶ 23. Defendant claims that the r ecords related to these requests , and the requests themselves, are “return information.” Def.’s Mem. at 17. After reviewing the sample of “tax checks” and related records supplied by the IRS, the Court questions as a preliminary matter whether these records are responsive to this FOIA request at all. The “tax check” document itself is a request made by a taxpayer – not by the Executive Office of the President – who is a sking the IRS to disclose certa in aspects of his or her return information to an individual in the Executive Office of the Pre sident. So it is not clear that these records respond to plaintiff’s re quest for records related to “co mmunications by or from anyone in the Executive Office of the President .” See FOIA Req. at 2 (emphasis added). But even if “tax checks” and records related to “tax checks” ar e responsive to the FOIA request, the Court finds that they are exempt from disclosure under Exemption 3 and section 6103. It is undisputed that any personally identifying information co ntained in the records related to “tax checks” would constitute “return information” within the plain l anguage of section 6103. See 26 U.S.C. § 6103(b)(2)(A) (defining “return information” to includ e “a taxpayer’s identity”); see also

14 In a notice filed nearly a year after the briefing in this ca se concluded, plaintiff objects for the first time that section 6103(c) does not authorize disclosur es to the Executive Office of the President, and that, instead, “Congress clearly intended that the President perform tax checks pursuant to 6103(g)(2).” Pl.’s Notice of Supplemental Authorit y [Dkt. # 45] at 2. Plaintiff further contends that “there are no reporting requirements for 26 U.S.C. § 6103(c)” and that “the Presidential circumvention mechanism for the unauthorized discl osure of taxpayer information under 6103(c) has become so rampant that the IRS attempts compli ance by reporting to [the Congressional Joint Committee on Taxation] some ‘tax checks’ . . . leaving the taxpayer in the dark about the actual nature of the tax checks the IRS is repor ting.” Id. at 4 (footnote omitted). Plaintiff appears to urge the C ourt to find that “[t]he Preside nt should not be allowed to trump the specific restrictions of 6103(g) by invoking the broad consent provisions of 6103(c).” Id. at 6. But none of these contentions – or the 59 pages of supporting materials attached by plaintiff as exhibits to the notice – is germane to the question before the Cou rt, which is whether the IRS has complied with the requireme nts of the FOIA statute. 25Pl.’s Mem. at 13 (“Plaintiff seeks information that can be reas onably segregated such that nonpersonally identifying informati on could be disclosed.”). The parties differ, however, as to whether the “tax check” records are, themselves, “return informat ion,” or merely records that
contain “return information.” The IRS contends that the “tax check” records fit within the catch -all “other data” provision in the definition of “return inf ormation.” Def.’s Mem. at 17; see also 26 U.S.C. § 6103(b)(2)(A). For any withholding under this provision – and therefore, Exempt ion 3 – to be proper, the records must be: (1) data, (2) “received by, recorded by, prepared by, furnished to, or collected by the Secretary,” (3) “with respect to a return or . . . to the determination of the existence, or possible existence, of liability . . . of any person” under the Internal Re venue Code. 26 U.S.C. § 6103(b)(2)(A). Plainly, any records responsive to items three and four of the request would have been “received by, recorded by, prepared by, [or] furnished to” the Sec retary of the Treasury. See id. And a review of the records themselves shows that they relate b oth to returns 15 and to determinations of the existence of liability of a taxpayer: th e “tax check” requests seek information about the individual taxpayer’s t ax returns and tax liability, a nd the IRS’s responses convey that information. See Landmark , 267 F.3d at 1136 (discussing “the extremely general character ” of the phrase “‘with respect to’”).

15 “The term ‘return’ means any tax or information return, declar ation of estimated tax, or claim for refund required by, or provided for or permitted unde r, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect t o any person, and any amendment or supplement thereto, including supporting schedules, attachments , or lists which are supplemental to, or part of, the return s o filed.” 26 U.S.C. § 6103(b)(1). 26But are “tax checks” and affiliated records “data”? The text of the statute does not provide an answer, and the limited case law interpreting the statute do es not directly address the question before the Court. The D.C. Circuit has issued two opinions interpreting the term. See Tax Analysts , 117 F.3d 607; Landmark , 267 F.3d 1132. In Tax Analysts , the Court of Appeals considered whether IRS Field Service Advice Memoranda (“FSAs”) constituted “return i nformation” under section 6103. 117 F.3d at 608, 611–12. FSAs are issue d by the IRS Office of Chief Counsel in response to requests from field personnel for legal guidance, usually wi th respect to a specific taxpayer. Id. at 608–09. The parties agreed that any FSAs related to individual taxpayers contained at least some return information, and the dispute centered upon whether t he IRS could properly withhold the documents in their entirety under Exemption 3. Id. at 611. Specifically, the Court was asked to decide: “Are the legal interpret ations and analyses contained in the FSAs ‘any other data . . . ’?”
Id. at 612. If those portions were deemed to constitute “data,” then , in light of the Supreme Court’s holding in Scientology , it would not matter whether the legal analyses identified any particular taxpayer or not – they would be “re turn information” shielded by section 6103. Id. The Court accorded the agency’s interpretation of the Internal R evenue Code the heightened deference derived from Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc. , 467 U.S. 837 (1984), 16 but it concluded nonetheless: “[w]h ile the IRS’s interpretation of ‘data’ in [section 6103] may be linguistically possible . . . it is not a permissible construction of

16 In this case, the IRS does not contend that its interpretatio n of section 6103 is owed Chevron deference, nor does it claim that the Court should accord it a lessened degree of deference under the Skidmore doctrine. Def.’s Reply at 8. Rather, defendant’s claims are “ based on a direct application of the Court’s holding in Scientology .” Id. The Scientology case established the principle that “Congress did notintend [section 6103] to allowthe disclosure of otherwise confidential return information m erely by the redaction of iden tifying details.” 484 U.S. at 16. 27the statute in light of its structure and purposes.” Id. at 613, 616; see also id. at 614–15 (stating that although “we cannot say that the term ‘data’ is incapable of bearing the meaning the IRS ascribes to it,” the Court was “hard pressed to find any reason derived from § 6103 in favor of the IRS’s interpretation”). The Court went on to observe that the term “data” appears at the end of a list of items such as “the taxpayer’s identity, inc ome, payments, exemptions, liab ilities, net worth and so forth” that were “factual in nature.” Id. at 613–14. The Court made reference to the canon of statutory construction that “limit[s] ‘general terms which follow specifi c ones to matters similar to those specified,’” id. at 614, quoting Gooch v. United States , 297 U.S. 124, 128 (1936), and it determined that, like the other terms liste d in section 6013(b)(2)(A), the term “data” is meant to refer to information that is “unique t o a particular taxpayer.” Id. The Court concluded that the legal analyses and conclusions were not “taxpayer-specific,” and ther efore that they were not “return information.” Id. at 615. The Court also stated that the IRS had failed to justify the argument that “non-taxpayer-specific” information constituted “return information,” since withholding it “ha[d] nothing to do with § 6103’s core purpose of protecting taxpayer privacy.” Id. , citing Church of Scientology , 484 U.S. at 16. Here, by contrast, the “tax check s” and the documents generated in response to them are taxpayer specific. So the Tax Analysts holding is not enough to carry the day for plaintiff, and that conclusion remains the same eve n if the individual taxpayers’ i dentities can be redacted from the material. See Tax Analysts , 117 F.3d at 612 (“If these portions of the FSAs are within the catchall ‘other data,’ the Supreme Court’s Scientology opinion makes it irreleva nt whether the legal analyses and conclusions themselves identify any individual tax payers.”), citing Church of

28Scientology , 484 U.S. at 18; see also Church of Scientology , 484 U.S. at 15 (“‘[R]eturn information’ remains such even w hen it does not identify a part icular taxpayer.”).
In Landmark , the D.C. Circuit looked at the language of section 6103 again. It determined that the identities of third parties who contacted the IRS to r equest audits or investigations of 501(c)(3) tax-exempt organizations, as well as the contents of their communications with the agency, constituted “data,” and therefore “return information,” that was exempt from disclosure. 267 F.3d at 1136–38. The Court found the identities of the thirdparties calling for the audits to be

“ factual in nature,” id. at 1136 (emphasis in original), quoting Tax Analysts , 117 F.3d at 613–14, concluding that since the catch-all phrase “ other data” suggests that Congress regarded all of the preceding items, including the taxpayer’s identity, to be data, a third-party complainer’s identity would also qualify. Id. Furthermore, the Court stated, “rev elation of any third-party co mplainer ‘identity’ expresses the factual proposition that the person id entified has communicated with the IRS about the status of a taxpa yer or a potential taxpayer.” Id. The Court also concluded that the c ontents of the third parties’ letters were “data” because they “characteristically assert[ed] obviously factual propositio ns.” Id. at 1137. Moreover, even the “exhortational” parts of the communications were still “uni que to a particular taxpayer,” which was “the factor [the Court] used in Tax Analysts to help distinguish between non-disclosable facts and disclosable legal conclusions.” Id. , citing Tax Analysts , 117 F.3d at 614. Noting that the Tax Analysts opinion “rested primarily on the distinction between facts, whi ch are ‘data,’ and legal analysis, which we held was not,” the Court declined to decide whether “propositions that were neither factual nor legal” constituted “data.” Id. at 1138. But the Court concluded that “the taxpayer-specific character of the entirety of these communicat ions points under Tax Analysts toward their classifi cation as ‘data.’” Id. , citing Tax Analysts , 117 F.3d at 614.

29In light of these cases, the Court finds that the “tax checks” and related records constitute “data” within the meaning of section 6103. First of all, unlik e the legal conclusions at issue in Tax Analysts , all of these records are unquestionably taxpayer-specific: t hey relate to requests for the “taxpayer or ‘return information’ ” of individual candidates for Ex ecutive Branch employment or presidential appointment. FOIA Req. at 2; see Tax Analysts , 117 F.3d at 614; Landmark , 267 F.3d at 1137. Indeed, the very existence of these records is “unique” to the individual taxpayer in question. See Landmark , 267 F.3d at 1137–38

. Second, although the question is closer, the Court finds that it is bound by the decision in Landmark to hold that these records are sufficiently “factual in nature” to be data; they assert the “obviously factual propos itions” that a person was under consideration for Executive Branch employment, that he or she re quested that confidential return information be disclosed to the Executive Office of the Presiden t, and that the IRS responded. See
id. at 1137; see also id. at 1136 (“[R]evelation of any thi rd-party complainer ‘identity’ expresses the factual proposition that the person identified has communic ated with the IRS about the status of a taxpayer or potential taxpayer.”); 26 U.S.C. § 6103(c) (pro viding that the Secretary of the Treasury may release the taxpayer’s return information “to such person or persons as the taxpayer may designate in a request for o r consent to such disclosure”). Following the available precedent, the Court concludes that “the taxpayer-specific character of the entirety of these [tax check] communications points under Tax Analysts toward their classification as ‘data.’” See Landmark , 267 F.3d at 1138, citing Tax Analysts , 117 F.3d at 614. Therefore, the “tax checks” and related records constitute “return information” that is exempt from disclo sure under FOIA Exemption 3 and 26 U.S.C. § 6103. Plaintiff argues that defendant ’s interpretation of section 6103 in this case is undermined by the fact that defendant redacted and released “substantially s imilar records – namely, tax checks

30for credit worthiness under § 6103( l )(3)” in response to another FO IA request by plaintiff. Pl.’s Mem. at 7; see also Decl. of Allan Blutstein [Dkt. # 22] ¶¶ 7–8 (describing the FOIA request and the records released by the IR S). But plaintiff does not serious ly contend that the IRS’s allegedly inconsistent interpretation of section 6103 constitutes a waive r of its ability to withhold the “tax checks” and associated records, 17 and it is not clear that the protections of section 6103 are sub ject to waiver, in any event. See First Heights Bank, F.S.B. v. United States , 46 Fed. Cl. 827, 832 (2000) (“The government merely acts as a steward of the [sectio n 6103] privilege.”). Thus, even if “[t]he IRS has indulged in . . . an inconsistency on this po int,” that does not alter the Court’s finding that defendant properly withheld the “tax checks” and r elated records under Exemption 3 and section 6103. See Landmark , 267 F.3d at 1136–37 (finding that “the term ‘data’ is correct ly understood to cover the identity of third parties who urge the IRS to withdraw or reexamine an entity’s tax-exempt status,” even though the IRS had released the names of Members of Congress who had conveyed constituent con cerns or written similar letter s themselves). C. Other records responsive to items three and four of plaintiff’s FOIA do not necessarily constitute “return information.” The determination set forth above relates to the “tax check” rec ords only. Plaintiff broadly sought “[a]ny communications by or from anyone in the Executive Office of the President constituting requests for taxpayer or ‘return information’ . . . t hat were not made pursuant to § 6103(g)” and related records, FOIA Req. at 2, and the Court doe s not accept the agency’s

17 Rather, plaintiff argues that the IRS’s prior release of simi lar records is “proof that the IRS’s current view of Section 6103 must be flawed, in that it h as historically treated Section 6103 in a narrower fashion.” Pl.’s Reply at 3. 31assertion that any and all docum ents that might be responsive t o items three and four of the request would be exempt as a matter of law. First, it is not clear that all records related to requests for “taxpayer or ‘return information’” would necessarily constitute info rmation received or compiled “w ith respect to a return” or “with respect to . . . a determination” of liab ility under Title 26, as was the case with the “tax checks.”
See 26 U.S.C. § 6103(b)(2)(A). We don’t know what the Executive Offic e may have asked for. So whether a particular request from that office is itself retur n information, as opposed to a record containing return information, is a determination that must be m ade on a case-by-case basis in light of the nature and conten t of the request. It is true that there is some language in Landmark that could be read to suggest that any request for return information, by anyone, itself constitutes “ data.” But that interpretation does not sit well with this Court since the mere making of a request , even if it is taxpayer-specific, may not be factual in nature. 18 There seems to be something fundame ntally different between the
Landmark scenario – an outside entity submitting information to the IRS wi th the request that it be considered as part of the tota lity of the information containe d in the metaphorical file marked “X’s Return Information,” upon wh ich a determination of liabili ty is based – and a simple request for the file itself by someone in the Executive Office of the Presid ent. (“Can I see ‘X’s Return Information?’”) A simple reque st for information might do nothi ng to alter or add to the content of the file, and it might have no bearing upon the outcome of the IRS’s review of the file, so it

18 The Court further notes that a lthough “data” must be “taxpaye r-specific,” see Landmark , 267 F.3d at 1138, citing Tax Analysts , 117 F.3d at 614, it does not follow that all information that is “taxpayer-specific” must be “data.” See Church of Scientology , 792 F.2d at 151 (“Congress would not have adopted such a de tailed definition of return inf ormation in Section 6103 if it had simply intended the term to cove r all information in IRS files . . . .”).

32might not be “factual in nature” like the other items in the series contained in the statutory definition of “return information,” 19 see Tax Analysts , 117 F.3d at 614, and it might not assert any factual proposition under the Landmark precedent. Indeed, the Landmark Court was careful to carve out “non-cognitive” material that was neither factual nor legal – which a simple request for information might be. See 267 F.3d at 1138 (declining to determine “whether propositions that were neither factual nor leg al qualified as ‘data’”). Finally, the Court observes that the Court in Tax Analysts modeled an approach that can be instructive here when it measured the agency’s interpretation o f the statutory phrase against the congressional purpose underlying the confidentiality provision. See 117 F.3d at 615

. As that Court noted, Congress amended se ction 6103 in 1976 “in the wake of Watergate and White House efforts to harass those on its ‘enemies list,’” in order to “re strict[] government officers and employees from revealing ‘any return’ or ‘return information,’” id. at 611, and its “core purpose” is to “protect[] taxpayer privacy.” Id . at 615. So, this Court questions whether section 6103 should or would shield records that indicate that confidential taxpaye r information was misused, or that government officials made an impr oper attempt to access that in formation. The IRS argues that “section 6103’s definition of ‘return inform ation’ . . . makes no distinction based on the purpose for which a person might seek disclosure of the documents.” Def.’s Reply at 15. But accepting this argument would require a finding that even requests for return information that could i nvolve a violation of section 6103 constitute “return information” that is exempt from disclosure under FOIA Exemption 3 and sectio n 6103. The Court is unwilling

19 It would be tautological to hold that the mere fact that a re quest was made conveys the fact that a request was made and there fore the request itself is fac tual in nature. 33to stretch the statute so far, and it cannot conclude that secti on 6103 may be used to shield the very misconduct it was enacted to prohibit. Accordingly, the Court finds that defendant has not established that every record it could conceivably uncover that responds to items three and four of the FOIA request would fall within the definition of “return inf ormation” as clarified by Tax Analysts and Landmark . For that reason, and in light of the Court’s findingthat the search for records responsive to items three and four of the request was inadequate, the Court will remand those portion s of the request to defendant so that it may conduct an adequate s earch, provide a more detailed declaration, and release any reasonably segregable, non-ex empt information to plaintiff. D. Records responsive to ite ms five and six of plaintiff’s FOIA request do not necessarily constitute “return information.” Items five and six of plaintiff’s FOIA request sought records relat ed to “requests for disclosure by any agency pursuant to” sections 6103(i)(1), (i)( 2), and (i)(3)(A). FOIA Req. at 2. Defendant argues that any records responsive to these portions o f the request would constitute confidential “return informati on,” and so it did not conduct a search. Def.’s Mem. at 21; see also Higley Decl. ¶ 24. The Court disagrees that all records responsiv e to these portions of the request would necessarily be exempt, and s o it will remand this aspect of the case to defendant. Section 6103(i)(1) provides for th e disclosure of “any return o r return information . . . pursuant to and upon the grant of an ex parte order by a Federa l district court judge or magistrate judge . . . [to] officers and employees of any Federal agency who are personally and directly engaged in” activities related to the adjudication or investigation of a crime “not involving tax administration.” 26 U.S.C. § 6103( i)(1)(A). Section 6103(i)(2) p rovides that the Secretary of the

34Treasury shall disclose “return i nformation (other than taxpaye r return information)” 20 to certain agencies to facilitate the adjudi cation or investigation of a c rime not involving tax administration, or a grand jury proceeding not involving tax administration, 21 upon receipt of a request that meets specified requirements. 26 U.S.C. § 6103(i)(2)(A)–(B). And sec tion 6103(i)(3)(A) provides that the Secretary of the Treasury may disclose “return information ( other than taxpayer return information) . . . which may cons titute evidence of a violation of any Federal criminal law (not involving tax administration) to the extent necessary to apprise the head of the appropriate Federal agency charged with the responsibility of enforcing such law,” including the taxpayer’s identity.
Id. § 6103(i)(3)(A). Subsections (i)(2 )(C) and (i)(3)(A)(ii) both pr ovide that, for purposes of those provisions, a taxpayer’s identity may also be disclosed. Id. § 6103(i)(2)(C), (3)(A)(ii). Defendant contends that there c ould be no records to produce of “re quests for disclosure by any agency” under the first and third of these provisions – se ctions 6013(i)(1) and 6013(i)(3)(A) – because these provisions do not supply any mechani sm for agencies to “request” information from the IRS in the first place. Def.’s Mem. at 18. Plaintiff did not respond to this argument in either its opposition brief or its cross-reply, and so the Court considers it to be conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d 98 F. App’x 8 (D.C. Cir. 2004). As for section 6103(i)(2), defen dant argues that any agency requests for return information under this prov ision, and any related documents,

20 “The term ‘taxpayer return inf ormation’ means return informat ion as defined in [26 U.S.C. § 6103(b)(2)] which is filed with, or furnished to, the Secretar y by or on behalf of the taxpayer to whom such return information rel ates.” 26 U.S.C. § 6103(b)(3). 21 Section 6103(i)(2)(A) expressly incorporates the requirement set forth in 6103(i)(1)(A) that the enforcement action, investigation, or grand jury proceeding in question must involve “a specifically designated Federal criminal statute (not involving tax administration).” See 26 U.S.C. § 6103(i)(1)(A), (2)(A)(i)–(iii). 35are necessarily exempt from disc losure under Exemption 3 and sec tion 6103 because, like the “tax check” documents, they fall under the catchall “other data” port ion of the definition of “return information.” Def.’s Mem. at 20; see also 26 U.S.C. § 6103(b)(2)(A). But even if these requests lodged by agencies in connection withthe investigation of a crime qualify as “data” under section 6103(b)(2)(A), would they b e data “with respect to a return or with respect to the determination of the existence, or possi ble existence, of liability . . . of any
person under this title for any tax, pe nalty, interest, fine, forfe iture, or other imposition, or offense ”? 26 U.S.C. § 6103(b)(2)(A) (emphasis added). A request for “ret urn information (other than taxpayer return information),” id. § 6103(i)(2)(A), is not necessarily a request “with respect
to a return.” See id. § 6103(b)(2)(A), (b)(3). And a request made in connection with an investigation of “a specifically designated Federal criminal st atute ( not involving tax
administration ),” id. § 6103(i)(1)(A), (2)(A)(i)–(iii) (emphasis added), would not be “wi th respect to” a determination of actual or potential liability under Title 26, the Internal Revenue Code. See
id. § 6103(b)(2)(A). Thus, records related to requests for return in formation under section 6103(i)(2) are not definitively, the mselves, “return information.” Accordingly, the Court cannot conclude that any and all record s responsive to items five and six of plaintiff’s request would be fully exempt from disclosure under Exemption 3 and section 6103

.

36IV. Defendant has not established that Exe mptions 6 and 7(C) appl y to the records responsive to items five and six of plaintiff’s FOIA request. Defendant claims, in the alternative, that records responsive t o items five and six of plaintiff’s FOIA request were pr operly withheld under FOIA Exemp tions 6 and 7(C). 22 Def.’s Mem. at 21–26. Exemption 6 shields from mandatory disclosure “per sonnel and medical files and similar files the disclosure of which would constitute a clearl y unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Ex emption 7(C) protects informatio n that was (1) compiled for law enforcement purposes, if (2) the disclosure “could reasonabl y be expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). To determine whether either Exemption 6 or 7(C) applies in a case, a court balances the defen dant’s asserted privacy interest against the public interest in disclosure of information. See DOJ v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 758–59 (1989). In items five and six of its request, plaintiff sought “request s for disclosure by any agency” pursuant to sections 6103(i)(1), (i)(2), and (i)(3)(A) of the I nternal Revenue Code, and all documents relating to those requests. FOIA Req. at 2. Plaintif f has conceded defendant’s

22 Defendant also claims that records responsive to items three and four of the request were subject to withholding under Exemption 6. Def.’s Mem. at 26–28 . But the Court has already found that the only records thatdefendant has identified, at this time, as responsive to items three and four of the request – the “tax check”-related records – are e xempt from disclosure under Exemption 3 in conjunction with section 6103, and so it need no t determine whether any other exemptions might apply. The Court observes, however, that much of the information contained within the “tax check”-related r ecords seems to be precisely th e type of information that has been deemed exempt under Exemption 6 in other cases. See Nat’l Ass’n of Retired Fed. Emps. v. Horner , 879 F.2d 873, 875 (D.C. Cir. 1989) (“The Supreme Court has ma de clear that Exemption 6 is designed to protect personal information in public records , even if it is not embarrassing or of an intimate nature,” including “‘[i]nformation such as place of birth, date of birth, date of marriage, employment history, and comparab le data,’” if the public releas e of that information would constitute a “clearly unwarranted invasion of personal privacy” ), quoting Dep’t of State v. Wash. Post Co. , 456 U.S. 595, 600 (1982).

37argument that there are no responsive records related to sectio ns 6103(i)(1) and (i)(3)(A), see supra § III(D), and so the only provision at issue here is section 6103( i)(2). That section of the Internal Revenue Code provides that, upon re ceipt of a request that comp orts with the statutory requirements, the Secretary of the Treasury “shall” disclose ret urn information to certain agencies to facilitate the adjudication or investigation of a federal cr ime not involving tax administration, or a grand jury proceeding with respect to a federal crime not involving tax administration. 26 U.S.C. § 6103(i)(1)(A)(i), (2)(A)(i)–(iii). Defendant has not conducted a se arch for records responsive to items five and six of plaintiff’s FOIA request, see Def.’s Mem. at 21; Higley Decl. ¶ 24, so the Court cannot yet determine whether any responsive records could be redacted to avoid an “unwarranted invasion of personal privacy” under Exemptions 6 or 7(C). Defendant asked the Court “to remand the matter to the [IRS] to examine the r ecords and make appropriate withho ldings or redactions,” in the event that the Court determined that Exemption 3 and section 6103 did not completely shield these records from disclosure, Def.’s Reply at 5 n.3, and that is the appropriate course of action. Defendant is instructed to searchfor records responsive to ite ms five and six of the request that relate to section 6103(i)(2), to release any reasonably segrega ble, non-exempt portions of the responsive records to plaintiff, and to supply a Vaughn index spe cifically identifying any material that has been withheld and the g rounds for those withholdings.
CONCLUSION For the reasons stated above, th e Court finds that defendant ha s established that it conducted an adequate search for r ecords responsive to items on e and two of plaintiff’s FOIA request, but not for records res ponsive to items three and four . The Court further finds that defendant has shown that “tax checks” and related records are ex empt from disclosure under FOIA

38Exemption 3 in conjunction with 26 U.S.C. § 6103, but that it ha s not shown that any and all records responsive to items three, four, five, and six of plaint iff’s FOIA request would necessarily be exempt. Therefore, each party’s motion for summary judgment will be granted in part and denied in part, and the Court will remand the case to defendantso that it may conduct an adequate search for records responsive to items three through six of pla intiff’s FOIA request and release all reasonably segregable, non-exempt information to plaintiff. A s eparate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: August 28, 2015

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