37.2.2  Freedom of Information Act (FOIA) Litigation  (08-11-2004)

  1. The Associate Chief Counsel (P&A), acting through the Assistant Chief Counsel (DPL), is responsible for coordinating all aspects of litigation arising under the FOIA, 5 U.S.C. § 552. Any complaint alleging jurisdiction in part under the FOIA and in part under one or more other statutes or theories falling under the aegis of another Office of Chief Counsel function is to be coordinated with the Assistant Chief Counsel (DPL). See CCDM For procedures concerning the administration of FOIA requests, see CCDM 30.11.  (08-11-2004)
Procedures upon Receipt of Complaint

  1. Upon receipt by any component of the Office of Chief Counsel of a copy of a complaint that alleges jurisdiction under the FOIA, in whole or in part, the complaint will be sent to the Technical Services Support Branch, Room 5329, for case opening. In the event of a short deadline for response to a complaint, the complaint should also be faxed to the Assistant Chief Counsel (DPL) at (202) 622-6292.

  2. The DPL attorney assigned to the case should first ascertain the date of service of process on the United States Attorney’s office in the district in which the action is filed in order to calculate the due date for the answer and should confirm that date with the Tax Division attorney.

  3. The attorney should ascertain whether the lawsuit is based upon the agency’s failure to respond to an initial request or based upon a complete or partial denial of a FOIA appeal. The attorney should obtain the appeal file and review the administrative record as it pertains to the issues raised in the complaint, including any procedural issues (e.g., fee waiver, reasonable description of records, adequacy of search). The attorney should also review any withheld records, or portions thereof, and the reasons for the withholdings. If there is no appeal file or if the appeal file is incomplete, the attorney should obtain a copy of the initial request file from the disclosure office responsible for the FOIA request that is the subject of the complaint.

  4. Suit based on failure to timely respond. If the lawsuit is based on the agency’s failure to timely respond to a FOIA request or appeal, the attorney should immediately obtain a copy of the request or appeal file and review the administrative record.

    1. Generally, if the request or appeal is still being processed, the office having jurisdiction over the request or appeal should conclude the processing as expeditiously as possible. If an adequate search for responsive records has not been conducted, the attorney should ensure that such a search is promptly carried out. Once a response is issued, copies of the response and any withheld records should be obtained. The determination whether to continue the agency’s administrative processing of the request or appeal or to process them through the Tax Division will be made by the DPL attorney in consultation with Tax Division counsel and the affected Service offices.

  5. Additionally, it may appear from the FOIA request or the complaint, or both, that the records are sought in connection with a substantive tax matter, such as an examination, collection activity, criminal investigation, or ongoing litigation. In such cases, it may be helpful or necessary to a proper defense of the FOIA lawsuit to obtain from the disclosure official(s) who processed the request and/or appeal, and/or from the agency personnel handling the substantive tax matter, pertinent background information relating to the FOIA request.

  6. As the FOIA litigation proceeds, the attorney should stay up to date on the status of the underlying tax matter. Factors such as the closing of a civil examination, docketing of a case in Tax Court, or referral of a case for criminal prosecution, may have an impact on the choice of defenses to the FOIA lawsuit.  (08-11-2004)
Defense Letter

  1. The attorney assigned to the case will prepare a defense letter to assist the Tax Division in defending the Service.

  2. The contents of a defense letter are described below:

    1. Background. The background discussion shall cover the events leading up to the commencement of the litigation including all actions taken on a FOIA request submitted by the plaintiff. The background discussion shall, when relevant, also describe the plaintiff’s substantive tax case to the extent it pertains to the lawsuit. If the records are voluminous or multiple FOIA exemptions are being asserted, a short index may be included in the letter.

    2. Proposed Answer. The proposed answer in the defense letter shall be in numbered paragraphs corresponding to the paragraphs in the complaint, and generally phrased as an admission or denial.

    3. Affirmative Defenses. The recommended affirmative defenses in the defense letter shall be briefly stated and shall include dismissal of any individual defendants on the ground that the FOIA authorizes suit only against the agency.

    4. Legal Analysis. The legal analysis section of the defense letter shall discuss the applicable law in depth and relate it to the facts of the case. Case law relating to the recommended defenses shall be cited and discussed, especially opinions of the district court or court of appeals for the judicial district and circuit in which the litigation has been brought. Unfavorable controlling precedent shall be brought to the Tax Division’s attention in the letter.

    5. Declarations supporting the recommended defenses shall, when possible, be enclosed with the letter. See CCDM for format. If executed declarations are not available, draft unexecuted declarations should be provided to inform the Tax Division attorney of the factual basis supporting the Government’s motion.

  3. As a practical matter, the circumstances of the case or time constraints may not permit a complete defense letter to be finished in sufficient time to be of use to the Tax Division in filing an answer to the complaint. In such situations, the attorney shall prepare an initial defense letter setting forth all background information gathered up to that point, a recommended answer to the complaint, and recommended affirmative defenses.

    1. If the attorney cannot presently determine what exemptions to the FOIA the Service shall assert, he or she should recommend that 5 U.S.C. § 552(b) be asserted as an affirmative defense.

    2. The attorney should also determine if 5 U.S.C. § 552(c) excludes any of the records at issue from the provisions of the FOIA and, if appropriate, provide information to support an argument based on the subsection.

    3. The initial defense letter should conclude with a statement that a full discussion of the law supporting the recommended defenses and any necessary declarations will be furnished later.

  4. If an initial defense letter is provided in lieu of a complete defense letter, the attorney should prepare a final defense letter setting forth any additional background information, a legal analysis of the issues, and executed declarations to support a dispositive motion, if appropriate.

  5. In the course of preparing the defense letter, the attorney should analyze the records that have been withheld to evaluate the arguments supporting denial of the records. To the extent that an exemption has been misapplied, the attorney should bring the record to the attention of a reviewer to determine if release, in whole or in part, is appropriate.

  6. In conjunction with preparing the defense letter, the attorney shall prepare declarations to support the exemption claims and other defenses as appropriate.

  7. Declarants will often include the agency personnel who search for and/or maintain the records at issue and the disclosure office personnel who processed the plaintiff’s FOIA request. Declarations are to be written with input from the declarants.

  8. Declarations shall be detailed and non-conclusory and avoid the use of inadmissible hearsay. When appropriate, the attorney will incorporate input and suggestions from the Tax Division attorney assigned to the case. The attorney’s reviewer will review the declarations before forwarding them to the declarants for signature.

  9. Once executed, declarations are to be returned to the DPL attorney. The DPL attorney will then forward the declarations to the Tax Division.  (08-11-2004)

  1. After the attorney has provided the Tax Division with the defense letter, declarations necessary to support a motion for summary judgment or other dispositive motion, and, if necessary, copies of the records at issue in a format suitable for in camera submission, the attorney is responsible for furnishing any additional assistance requested by the Tax Division. This responsibility may include obtaining additional declarations, furnishing or updating background information, enlarging upon a defense, preparing a court-ordered Vaughn index, answering interrogatories or other discovery, assessing a settlement proposal, or assessing a request for attorney fees and court costs.

  2. Coordination with the Tax Division should continue through any post-judgment filings, such as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) or a motion for relief from the judgment under Fed. R. Civ. P. 60. For all "significant litigation" within the meaning of Department of Treasury General Counsel Order No. 10 (January 19, 2001), the reporting requirements of that order should be followed.  (08-11-2004)
Vaughn Index

  1. The attorney may be required to prepare a Vaughn Index (see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)) of the records being withheld. Generally, the Vaughn Index will entail a document by document description of the records, along with an enumeration of the FOIA exemptions claimed for each record, and a detailed justification for the exemptions.

  2. The index should be detailed, nonconclusory, and avoid the use of inadmissible hearsay. For any record for which it has been determined that there are no segregable portions that may be released, such that the record is being withheld in its entirety, the Vaughn index should include a statement that nonexempt material in the record could not reasonably be segregated from exempt material and the justification for that determination.  (08-11-2004)
Closing the Case

  1. After court decision or other conclusion (voluntary dismissal, settlement, etc.) and expiration of the appeal period, the attorney should complete the case closing documentation, submit the case file for closing, and insure the case is closed on CASE-MIS.

  2. If an appeal is filed, a new work load item should be opened under the appropriate appeal category and the work load item for the district court should be closed. For appellate litigation, see CCDM Part 36.

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