United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER
TIMOTHY S. HILLMAN UNITED STATES DISTRICT JUDGE.
Niro (“D. Niro”) and Shirley Niro (together with
D. Niro, “Plaintiffs” or “Niros”)
filed a Complaint (Docket No. 1) against the Internal Revenue
Service (“IRS”) under the Freedom of Information
Act, 5 U.S.C. §552 (“FOIA”) seeking
disclosure and release of agency records they allege were
improperly withheld from then in regards to the audit of
their 2010, 2011 and 2013-2015 tax returns.
support of this request, the Niros assert that beginning in
2013, the IRS began auditing their tax returns, first for the
years 2010 and 2011, and thereafter, for the 2013-2015 tax
years. The audit of the Niros' tax returns was apparently
prompted by their having claimed deductions in the amount of
$570, 000, which the IRS disallowed. D. Niro a former IRS
employee, subsequently wrote the IRS seeking copies of the
case files of the Revenue Agent conducting the audits. D.
Niro does not feel that the FOIA coordinator complied with
his request. More specifically, he asserts that information
was wrongfully withheld on the grounds that he was under
criminal investigation, which D. Niro alleges was untrue. D.
Niro continued to file FOIA requests as he was suspicious of
the motivation for the audits. Based on his former employment
with the IRS, D. Niro contends that he is aware of what types
of case notes and documentation are generally maintained by
IRS Revenue Agents and other IRS employees involved in the
IRS process. The Plaintiffs further contend that they have
requested such case notes and documentation and have not been
provided the same.
Niros assert that they were targeted for audit by the IRS
because they were members of, or had contributed to, various
conservative organizations that were hostile to the Obama
administration. D. Niro also asserts that he was targeted for
audit because he was a former IRS whistle blower. More
specifically, D. Niro asserts that when he was working as an
IRS Group Manager in the IRS Criminal Investigation Unit,
first in Providence, Rhode Island and later in Brockton,
Massachusetts, he became aware of and/or reported a number of
serious allegations of improprieties involving senior IRS
their Complaint, the Plaintiffs seek to obtain records
requested from the IRS relative to the audit of their tax
returns. On July 27, 2018, the IRS filed its Motion for
Summary Judgment (Docket No. 24) in which it argued that the
undisputed facts establish that: (1) it has performed an
adequate search for the records responsive to Plaintiffs'
FOIA request; and (2) properly withheld a limited number of
pages that are exempt from disclosure. For the reasons set
for the below, I find that the IRS has complied with its
obligations under the FOIA and therefore, the motion for
summary judgment is granted.
Judgment is appropriate where, “the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”
Carroll v. Xerox Corp., 294 F.3d 231, 236
(1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)).
“‘A “genuine” issue is one that could
be resolved in favor of either party, and a “material
fact” is one that has the potential of affecting the
outcome of the case.'” Sensing v. Outback
Steakhouse of Florida, LLC, 575 F.3d 145, 152
(1st Cir. 2009) (quoting Calero-Cerezo v. U.S.
Dep't. of Justice, 355 F.3d 6, 19 (1st
considering a motion for summary judgment, the Court
construes the record in the light most favorable to the
nonmoving party and makes all reasonable inferences in favor
thereof. Sensing, 575 F.3d at 153. The moving party
bears the burden to demonstrate the absence of a genuine
issue of material fact within the record. Id., at
152. “‘Once the moving party has pointed
to the absence of adequate evidence supporting the nonmoving
party's case, the nonmoving party must come forward with
facts that show a genuine issue for trial.'”
Id. (citation to quoted case omitted).
nonmoving party “may not rest upon mere allegations or
denials of the [movant's] pleading, but must set forth
specific facts showing that there is a genuine issue of
material fact as to each issue upon which [s/he] would bear
the ultimate burden of proof at trial.” Id.
(citation to quoted case omitted). The nonmoving party cannot
rely on “conclusory allegations” or
“improbable inferences”. Id. (citation
to quoted case omitted). “‘The test is whether,
as to each essential element, there is “sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.”' ” Id.
(citation to quoted case omitted).
the FOIA context, a district court reviewing a motion for
summary judgment conducts a de novo review of the record, and
the responding federal agency bears the burden of proving
that it has complied with its obligations under the FOIA.
Because the court must analyze all underlying facts and
inferences in the light most favorable to the FOIA requester,
summary judgment for an agency is only appropriate after the
agency proves that it has ‘fully discharged its [FOIA]
obligations.'” Neuman v. United States, 70
F.Supp.3d 416, 421-22 (D.D.C. 2014)(internal citations and
citation to quoted case omitted); see also Carpenter v.
U.S. Dep't of Justice, 470 F.3d 434, 438
(1st Cir. 2006)(“The government bears the
burden of proving that withheld materials fall within one of
the statutory exemptions, and district courts are required to
make de novo determinations as to the validity of the
asserted exemptions.” (internal citation omitted)).
letter dated January 23, 2017, the Plaintiffs submitted a
FOIA request to the IRS seeking four categories of documents:
(1) All records relating to the examination of their 2013 and
2014 taxes; (2) certain specific records relating to the
examination of their 2010 and 2011 taxes; (3) records related
to the purported denial of their appeal rights; and (4)
records related to the purported dissemination of their tax
information to other government agencies. On or about January
27, 2017, Kimberly Wilson (“Wilson”), a
Disclosure Specialist for the IRS in the Government Liaison,
Disclosure & Safeguards, Disclosure Field West Area,