Cause of Action v. Treasury Inspector Gen. for Tax Admin., No. 13-1225, 2014 WL 4809423 (D.D.C. Sept. 29, 2014) (Jackson, J.)

Cause of Action v. Treasury Inspector Gen. for Tax Admin., No. 13-1225, 2014 WL 4809423 (D.D.C. Sept. 29, 2014) (Jackson, J.)

Re: Request for records concerning investigation by Treasury Inspector General for Tax Administration (TIGTA) into unauthorized disclosure of 26 U.S.C. § 6103 'return information' to anyone in Executive Office of the President

Disposition: Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment

• Exemption 3:  "The Court finds that, in this case, defendant has pushed [the] limits too far: the mere existence of records of investigations into unlawful disclosures of return information is not, itself, return information compiled by the IRS 'in connection with its determination of a taxpayer's liability' for a violation of Title 26."  The court notes that "[d]efendant invokes Exemption 3 by pointing to section 6103 of the Internal Revenue Code, which requires that tax '[r]eturns and return information' be kept confidential subject to certain exceptions."  The court relates that "[d]efendant contends that it cannot confirm or deny the existence of any records relating to investigations of unlawful disclosures of return information to anyone in the Executive Office of the President because whether an investigation exists is, itself, return information."  However, the court points to "[t]he fact that TIGTA has publicly announced that it has investigated unlawful disclosures of, or access to, that body of information protected by statute as 'return information' strongly suggests that the fact of an investigation is not, itself, 'return information.'"
   
• Exemption 7(C):  "[T]he Court cannot sustain defendant's Glomar response because defendant has waived the protections of Exemption 7(C) by officially acknowledging the existence of an investigation into [the third party at issue] on the public record."  The court relates that "the Inspector General for Tax Administration sent a letter to several U.S. Senators stating that he would commence a 'review' into [the third party's] comment."  "And . . . a TIGTA Special Agent sent an email to the Chief Legal Counsel of Koch Industries, stating that 'the final report relative to the investigation of [the third party's] press conference remark is completed, has gone through all the approval processes, and would now be available through a [FOIA] request.'"  "The Court finds that even if the Inspector General's letter to the Senators was not alone sufficient to constitute a waiver, the letter combined with the email supplies official confirmation of the existence of responsive records—the one fact that the Glomar response was intended to withhold."