United States Court of Appeals, District of Columbia Circuit
September 12, 2019
from the United States District Court for the District of
Columbia (No. 1:16-cv-02406)
D. Prins argued the cause for appellant. With him on the
briefs was Gregory in den Berken.
Douglas C. Rennie, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Richard E. Zuckerman, Principal Deputy Assistant Attorney
General, Travis A. Greaves, Deputy Assistant Attorney
General, Gilbert S. Rothenberg, and Michael J. Haungs,
Before: Pillard and Rao, Circuit Judges, and Williams, Senior
Williams, Senior Circuit Judge.
non-profit, public interest law firm Institute for Justice
seeks information kept by the Internal Revenue Service about
asset forfeitures. In its request, the Institute followed a
lead supplied by the IRS. The latter's own manual
repeatedly refers to the Asset Forfeiture Tracking and
Retrieval System ("AFTRAK") as the
"database" in which the agency compiles information
about asset forfeitures. See Internal Revenue Manual,
§§ 18.104.22.168, 22.214.171.124.1(1). Accordingly, the
Institute submitted a Freedom of Information Act
("FOIA") request for "all records contained
in" the AFTRAK database.
IRS's legal response, both in the district court and
here, is that the Institute's FOIA request fails from the
start because AFTRAK "is not a 'database'"
and therefore its "'contents' do not qualify as
'records' under the FOIA." Joint Meet &
Confer Statement 2, ECF No. 10. The modifier
"legal" is critical in the sentence above, as the
factual declaration the IRS submitted conspicuously includes
no assertion that AFTRAK is not a database. More
affirmatively, the IRS says that AFTRAK is (legally and
factually) "a web-based application that aggregates
information from various other sources within the [IRS] into
a single user interface." Def.'s Mem. Supp. Summ. J.
3, ECF No. 14-1. According to the IRS, this distinction
renders the Institute's request not just imprecise, but
unintelligible: "[b]ecause AFTRAK only generates
reports, there was  no traditional search to perform in
AFTRAK." Def.'s Reply Br. Supp. Mot. Summ. J. 7, ECF
No. 26. Nonetheless, after the Institute filed suit, the IRS
created what it describes as the "most comprehensive
standard report from the AFTRAK system, the Open/Closed Asset
Report," Joint Status Report 5, ECF No. 12, saved the
Report in PDF format, heavily redacted it, and provided it to
the Institute. Pl.'s Br. Supp. Mot. Discovery 9-10, ECF
No. 15-1. By the IRS's telling, creating the Report was
"arguably" an act of administrative grace; FOIA
imposes no duty on agencies to create new records in response
to FOIA requests, but here the agency created the Open/Closed
Report. Appellee's Br. 44.
with that result, the Institute filed a cross-motion for
summary judgment, but the district court awarded summary
judgment in large part in favor of the IRS. The court
reasoned that "there is no need to resolve the technical
question of whether AFTRAK is or is not a database,"
because regardless of that determination, "[t]he IRS
generated a comprehensive report that revealed every possible
data point on seized assets in the AFTRAK system during the
relevant timeframe." Institute for Justice v.
IRS, 340 F.Supp.3d 34, 41 (D.D.C. 2018). The court also
granted summary judgment on the IRS's application of FOIA
Exemptions 7(A) and 7(C), 5 U.S.C. § 552(b)(7)(A), (C),
and deemed the Institute to have forfeited its objection to
the IRS's redaction of Asset Description column entries
under Exemption 7(F), id. § 552(b)(7)(F).
Institute for Justice, 340 F.Supp.3d at 41-45.
reverse the district court and remand the case for further
proceedings. First, whether the Open/Closed Report covers all
records "contained in" AFTRAK is itself a material,
genuinely disputed question of fact, and the answer in turn
depends on other disputed and material facts. Second, whether
AFTRAK is correctly classified as a database, a matter on
which the IRS's Manual and other official documents
contradict its legal denial here, appears to be an
intermediate fact with potential consequences for resolving
the parties' claims. The disputes on these matters
preclude summary judgment.
review de novo the district court's grant of
summary judgment, Nation Magazine v. U.S. Customs
Serv., 71 F.3d 885, 889 (D.C. Cir. 1995), and "must
draw 'all justifiable inferences' in favor of the
non-movant," Aguiar v. Drug Enforcement
Administration, 865 F.3d 730, 735 (D.C. Cir. 2017)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)).
agency "fulfills its obligations under FOIA 'if it
can demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant
documents.'" Ancient Coin Collectors Guild v.
U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir.
2011) (quoting Valencia-Lucena v. U.S. Coast Guard,
180 F.3d 321, 325 (D.C. Cir. 1999)). In the context of a
request for a database, "FOIA requires agencies to
disclose all non-exempt data points," National
Security Counselors v. CIA, 898 F.Supp.2d 233, 272
(D.D.C. 2012), subject, as always, to limits aimed at
protecting agencies from undue burdens.
the case in this light, we are not convinced beyond a
material doubt that the Open/Closed Report contains all
AFTRAK records or that its delivery to the Institute could
serve as a substitute for the search required by FOIA.
passage from the IRS's sole declaration on the matter
explains that the Open/Closed Report is "the most
utilized and complete standard report available from the
AFTRAK system" and "contains comprehensive data
about every asset seized by [the Criminal Investigation
section of the IRS] within a specified time period."
Dean Martin Decl. ¶ 10 (July 10, 2017), ECF No. 14-3.
But this ...