United States District Court, D. New Hampshire
Citizens for a Strong New Hampshire, Inc.
Internal Revenue Service Opinion No. 2016 DNH 169
McCafferty United States District Judge
case began when Citizens for a Strong New Hampshire, Inc.
(“Citizens”) filed a complaint against the
Internal Revenue Service (“IRS”) to challenge the
IRS's response to a request it had made under the federal
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. The case proceeded to a second round of summary
judgment practice, but the litigation of substantive issues
ended when plaintiff informed the court that it did not
object to defendant's second motion for summary judgment.
Before the court is plaintiff's motion for attorneys'
fees and costs. Defendant objects. For the reasons that
follow, plaintiff's motion is denied.
The Legal Standard
Freedom of Information Act provides that “[t]he court
may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case
under [FOIA] in which the complainant has substantially
prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). The
statute further provides:
purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained
relief through either-
(I) a judicial order, or an enforceable
written agreement or consent decree; or
(II) a voluntary or unilateral change in
position by the agency, if the complainant's claim is not
5 U.S.C. § 552(a)(4)(E)(ii). If the court determines
that a FOIA plaintiff is eligible for an award of
attorneys' fees and costs, because it has substantially
prevailed on its claim, then the court must ask whether the
“plaintiff [is] entitled to an award based on a
balancing of equitable factors.” Maynard v.
CIA, 986 F.2d 547, 568 (1st Cir. 1993) (emphasis added)
(citing Crooker v. U.S. Parole Comm'n, 776 F.2d
366, 367 (1st Cir. 1985)).
facts in this section are drawn from documents previously
filed in this case plus a declaration made by IRS Tax Law
Specialist Denise Higley and submitted by the IRS in support
of its objection to Citizens' motion for attorneys'
of 2014, Citizens made a FOIA request to the IRS, seeking
“[a]ny and all documents or records of emails or
correspondence to or from New Hampshire Senator . . . Jeanne
Shaheen and Congresswoman Carol Shea-Porter . . . to or from
[three high-ranking IRS officials] between the dates of
January I, 2009 and May 21, 2013.” Doc. no.
1-1, at 1. On June 29, the IRS assigned
Citizens' request to Higley.
23, Higley directed the agency's FOIA Coordinator for
Legislative Affairs, Ross Kiser, to search for documents
responsive to Citizens' request. In a letter dated July
23, Higley informed Citizens that she was “unable to
send the information [Citizens] requested by July 23, 2014,
which is the 20 business-day period allowed by law.”
Doc. no. 1-2, at 1. In addition, Higley's letter
informed Citizens that the IRS had “extended the
response date to October 23, 2014, when we believe we can
provide a final response.” Id.
28, Kiser sent Higley 30 documents, totaling 96 pages. Higley
reviewed those documents, made proposed redactions, and
drafted a cover letter to Citizens. On August II, Higley
transmitted the documents Kiser had sent her, along with a
draft cover letter, to the IRS's Office of Chief Counsel
(“OCC”). That material was then placed in queue,
behind 27 other requests for review that involved a total of
approximately 21, 000 pages of responsive documents.
October 22, three things happened: (1) OCC attorneys provided
Higley with suggested changes to her redactions; (2) Higley
reviewed those changes and resubmitted the documents for
final OCC review; and (3) Higley sent Citizens a letter in
which she explained:
On July 23, 2014, I asked for more time to obtain the records
you requested. I am still working on your request and need
additional time to collect, process, and review any
responsive documents. I will contact you by January 27, 2015,
if I am still unable to complete your request.
no. 1-3, at 1.
filed this action on October 30, 2014. On November 5, Higley
learned of this action from OCC. In accordance with agency
policy, Higley closed her file on Citizens' request and
transferred the responsive documents to OCC. According to
Higley, “[b]ut for the filing of the litigation, [she]
would have provided documents to [Citizens] as soon as [she]
received final clearance from OCC.” Doc. no.
38-1, at 5.
November 26, the IRS made a disclosure to Citizens. Of the 96
pages of documents that Kiser found and forwarded to Higley,
the IRS: (1) withheld 51 pages as exempt, under 5 U.S.C.
§ 552(b)(3); (2) provided four pages in redacted form,
pursuant to 5 U.S.C. § 552(b)(6); and (3) provided
41 pages in full. Notwithstanding the IRS's disclosure,
Citizens did not drop its suit against the IRS.
December of 2014, the IRS moved for summary judgment, arguing
that it had conducted a reasonable and adequate search of its
records, and that the information it did not give Citizens
was properly withheld pursuant to 5 U.S.C. § 552(b)(3)
and 26 U.S.C. § 6103(a). Citizens objected to the
IRS's motion for summary judgment and filed a
cross-motion for partial summary judgment in which it argued
that the IRS improperly withheld records, in violation of
FOIA, by: (1) failing to comply with the statutory time
limits for disclosure; and (2) failing to conduct a
reasonable search. Based upon plaintiff's original
complaint and the parties' subsequent pleadings, the
court has characterized Citizens' claim this way:
Citizens has brought a claim against the IRS for violation of
FOIA, alleging that the IRS: (1) conducted an inadequate
search; (2) unduly delayed its disclosure . . .; and (3)
unlawfully withheld the 51 pages of responsive but
purportedly exempt documents.
no. 30, at 6-7.
order dated August 31, 2015, the court ruled on all three
parts of Citizens' claim. First, it denied summary
judgment to both parties on Citizens' assertion that the
IRS conducted an inadequate search. Second, it denied summary
judgment to Citizens on its assertion that the IRS's
response to its FOIA request was untimely. And third, it
granted summary judgment to the IRS on Citizens'
assertion that the IRS had improperly withheld 51 pages of
records. Based upon its resolution ...