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Citizens for a Strong New Hampshire, Inc. v. Internal Revenue Service

United States District Court, D. New Hampshire

September 20, 2016

Citizens for a Strong New Hampshire, Inc.
Internal Revenue Service Opinion No. 2016 DNH 169


          Landya McCafferty United States District Judge

         This 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.

         I. The Legal Standard

         The 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:

         For 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 insubstantial.

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)).[1]

         II. Background

         The 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' fees.

         In June 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.

         On July 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.

         On July 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.

         On 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.

         Doc. no. 1-3, at 1.

         Citizens 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.

         On 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] (2) provided four pages in redacted form, pursuant to 5 U.S.C. § 552(b)(6);[3] and (3) provided 41 pages in full. Notwithstanding the IRS's disclosure, Citizens did not drop its suit against the IRS.

         In 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).[4] 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.

         Doc. no. 30, at 6-7.

         In an 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.[5] 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 ...

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