Public.Resource.org v. IRS, No. 13-2789, 2015 WL 393736 (N.D. Cal. Jan. 29, 2015) (Orrick, J.)

Public.Resource.org v. IRS, No. 13-2789, 2015 WL 393736 (N.D. Cal. Jan. 29, 2015) (Orrick, J.)

Re: Request for Modernized E-file (MeF) format of Form 990s for nine tax exempt organizations

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

• Procedural Considerations, Responding to FOIA Requests:  The court orders that "[t]he government shall produce the requested nine form 990s in the [requested] MeF format within sixty days of the date of this Order."  The court explains that, "[a]s an initial matter, there is no dispute that the nine Form 990s at issue were e-filed in the MeF format and are currently maintained by the IRS in the MeF format."  "The only question is whether the fact that the IRS would need to spend $6200 to develop protocols and train staff to be able to redact exempt information from the Form 990s at issue in the MeF format before the nonexempt information is produced means those Form 990s are not 'readily producible' as a matter of law under the FOIA."  The court finds that "[t]he fact that an agency may be under significant financial distress because it is underfunded does not excuse an agency's duty to comply with the FOIA."  "There is no evidence that the general business of the IRS or even the business of the IRS employees tasked with responding to FOIA requests will be significantly burdened or affected by fulfilling [plaintiff's] request for production of nine Form 990s in MeF."  Additionally, the court finds that IRS "has failed to make a compelling showing that accommodating the request to produce nine Form 990s in MeF at a cost of $6200—much of which is characterized by the government as 'one-time expenses' to set up a protocol and train staff—would significantly burden or interfere with the agency's ability to respond to FOIA requests or meet its other responsibilities."  The court explains "[t]hat the IRS will have to develop new protocols and train staff to respond to [plaintiff's] request does not somehow excuse its need to comply with E–FOIA."  "If that was a valid excuse, anytime there was a request for production in a format that the agency has not accommodated before, the agency could argue undue burden."  "To the contrary, in enacting E–FOIA, Congress expressly recognized that new and changing technology could improve both agency FOIA compliance and public access to government information, and as such, Congress demanded that agencies act proactively to enhance public access to and use of government information."  Additionally, the court notes that "the 'one-time expenses' related to developing a protocol and training staff may well be recouped if the IRS receives and responds to other modest requests for Form 990s in MeF in the future."