IRS'S FOIA CLAIM NOT SUFFICIENT TO WITHHOLD RECORDS.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MEMORANDUM OPINION

[1] This matter comes before the Court on Plaintiff Lyndon LaRouche's ("LaRouche") motions to reconsider Judge Greene's ¹ August 26, 1998 opinion and vacate the accompanying order, LaRouche's cross-motion for summary judgment, and a motion by the Defendant Department of Treasury to strike a declaration presented in support of LaRouche's cross-motion for summary judgment. After consideration of the memoranda in support of and in opposition to the motions, the entire record thereto, and the relevant law, plaintiff's motions will be granted in part and denied in part; defendant's motions will be granted. The court will also grant, sua sponte, summary judgment to defendant on all remaining issues, thereby terminating this nine- year old case.

I. BACKGROUND

A. FACTUAL AND PROCEDURAL HISTORY

[2] Plaintiff Lyndon LaRouche initiated this action under the Freedom of Information Act, 5 U.S.C. section 552, ("FOIA"), in 1991. A detailed description of this nearly decade long controversy is neither feasible nor necessary in this opinion that serves to the resolve the remaining issues. Rather, it will be sufficient to summarize the context of this dispute. On December 16, 1988, LaRouche was convicted of eleven counts of mail fraud, one count of conspiracy to impede the Internal Revenue Service ("IRS"), and one count of conspiracy to commit mail fraud. Beginning in April of 1991, LaRouche requested an array of documents pertaining to his conviction from the IRS, an agency of the defendant Department of the Treasury. This request included records of the Criminal Investigation Division of the IRS produced between 1979 and 199,[sic] as well as documentation pertaining to a National Broadcasting Company ("NBC") story regarding the plaintiff. During the next two years the IRS released some records and directed LaRouche to other agency office locations that may house relevant documents.

[3] LaRouche filed suit in District Court alleging that the IRS' searches were inadequate and that several documents were improperly withheld under FOIA exemptions. A stipulated dismissal of LaRouche's suit in 1994 later resulted in a request by the plaintiff to reopen the case. The court granted this request and considered both parties' summary judgment motions.

[4] In a May 22, 1998 opinion, Judge Greene disposed of three of LaRouche's five counts alleging an inadequate search. Judge Greene found, however, the existence of a genuine issue of material fact as to the adequacy of the IRS' search for Criminal Investigation Division documents (Count I). The court also found the defendant's affidavits pertaining to the IRS' search for documents related to the NBC broadcast, (Count III), were insufficient to support summary judgment. The court therefore ordered more detailed explanations with regard to Counts I & III. See Slip Op., Judge Greene, May 22, 1998. The IRS filed seven detailed declarations in compliance with this order. On August 26, 1998, the court found that these declarations were sufficient to prove the adequacy of both searches and granted summary judgment to the defendant on Counts I and III. See Memorandum & Order, Judge Greene, August 26, 1998. In response to this ruling, LaRouche filed motions to reconsider and vacate the court's August 26, 1998 decision.

[5] With reference to LaRouche's argument that documents were still being improperly withheld under several FOIA exemptions, the court in its May 22, 1998 opinion requested a Vaughn Index describing those documents withheld by the defendant under Exemption 3 with reference to Federal Rule of Criminal Procedure 6(e). In submitting the Vaughn Index, the IRS included a preamble that discussed the claimed exemptions and the applicability of the exemptions to the listed documents. Styling this preamble and the Vaughn Index as a motion for summary judgment, LaRouche responded with a cross-motion for summary judgment. ²

[6] In support of this cross-motion for summary judgment regarding the remaining withheld documents, LaRouche submitted a fourth declaration by Mr. George Canning ("Canning"). ³ The IRS responded to this submission with a motion to strike, alleging the inadequacy of this declaration under Federal Rule of Civil Procedure 56(e).

B. THE FREEDOM OF INFORMATION ACT AND THE STANDARD OF REVIEW

[7] The Freedom of Information Act, 5 U.S.C. section 552, as amended by the Freedom of Information Reform Act of 1986, sections 1801-04 of Pub.L.No. 99-570, 100 Stat. 3207, 3207-48 (1986), provides citizens a statutory right of access to government information. Underlying this right to access is the principle that "the public is entitled to know what its government is doing and why." See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). Consequently, FOIA instructs government agencies to disclose agency records, unless the requested records fall within one of the Act's nine enumerated exemptions. See 5 U.S.C. section 552(b)(1)-(9). Accordingly, a FOIA requester usually challenges agency non-disclosure of documentation by demonstrating either that the search conducted was inadequate, or that the claimed exemption has been improperly asserted.

[8] Summary judgment in a FOIA action is appropriate when the pleadings, together with the declarations, demonstrate that there is no genuine issue of material fact and that the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1988) (mere conflict in affidavits insufficient to preclude summary judgment); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

[9] The standard of review for summary judgment in a FOIA action is de novo. See 5 U.S.C. section 552(a)(4)(B); Steinberg v. Dep't of State, 23 F.3d 548, 551 (D.C. Cir. 1994). The burden of justifying non-disclosure falls upon the agency. See 5 U.S.C. section 552(a)(4)(B); Mead Data Central, Inc. v. United States Dep't of Air Force, 566 F.2d 242, 251 (D.C.Cir. 1977) EPA v. Mink, 410 U.S. 73, 79 (1973). Consequently, inferences are construed in the light most favorable to the requester. See Steinberg, 23 F.3d at 551; Miller v. United States Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1986).

[10] In satisfying this burden of proof, agencies may provide declarations of agency officials. See Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). If these declarations are provided in good faith, and are sufficiently clear, specific and detailed, the expertise of the agency officials is presumed. See Pharmaceutical Mfg. Ass'n v. Weinberger, 411 F.Supp. 576, 578 (D.D.C. 1978), Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979). Once a court determines that an agency's affidavits are sufficient, the court need not conduct any further inquiry into their veracity. See Hayden, 608 F.2d at 1387.

II. MOTIONS TO RECONSIDER AND VACATE REGARDING COUNTS I AND III

[11] In his motions to reconsider and vacate the August 26, 1998 opinion and order, LaRouche initially argues that summary judgment cannot be granted sua sponte. This court, however, has ruled that it has the authority to enter summary judgment even in the absence of a motion. Judicial Watch v. U.S. Department of Commerce, 34 F.Supp. 2d 28, at 45 (D.D.C. 1998). Secondly, LaRouche contends that genuine issues of material fact remained regarding both Count I and III searches due to ambiguities in the agency declarations filed in compliance with the court's May 22, 1998 order. The IRS filed an opposition to this motion, substantially clarifying the original declarations and submitting a second, more detailed affidavit by Ms. Johnnie Nix. In response to this opposition, LaRouche conceded that the clarifications by the IRS addressed the remaining ambiguities with the exception of one aspect of the Count I search. ⁴

[12] Count I concerns LaRouche's request for information from the IRS' Criminal Investigation Division. In response to LaRouche's 1991 request, several searches were conducted at various offices, such as the Office of the Assistant Chief Counsel (Criminal Tax), IRS National Office Inspection Division, and the IRS National Office's Criminal Investigation Division.

[13] LaRouche's remaining contention concerns exclusively the search of the Office of the Assistant Chief Counsel (Criminal Tax). LaRouche alleges that this search was inadequate due to an ambiguity raised in a 1992 Memo from Mr. Michael B. Frosch, Chief, Office of the Assistant Chief Counsel (Criminal Tax), Disclosure Litigation, to Mr. Irving C. J. Porter, which states that "no documents SPECIFICALLY responsive to [LaRouche's] request were located." March 17, 1992 Memorandum from Assistant Chief Counsel/Disclosure Litigation to Irving Porter, attachment to Defendant's Notice of Further Compliance (emphasis added).

[14] According to LaRouche, neither Mr. Porter nor Mr. Frosch have explained the meaning of this qualifying language beyond mere speculation. LaRouche further argues that the absence of an additional declaration or affidavit by Mr. Porter explaining this qualifying language is telling, especially in contrast to the numerous supplemental declarations filed in the IRS' compliance. ⁵ The IRS' entire response to this argument is contained in a footnote in their Opposition Motion that terms this allegation "frivolous" and concludes that the use of the word "specifically" is not indicative of a material fact necessitating a modification of the grant of summary judgment.

[15] Critically, the heart of LaRouche's "specifically" argument is not that the entire search was flawed. Instead LaRouche in substance alleges that the search of this one office of the Criminal Tax Division might have produced additional documents. Under FOIA, the standard of review of the adequacy of an agency search is whether the search was "reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986). In assessing the reasonableness of a search, a court is not guided by whether the search actually uncovered every document or whether the search was exhaustive. See Miller, 779 F.2d at 1383-85 (finding a search reasonable, although the agency did not disclose specifically referenced documents, known to exist, and listed by the requester for disclosure). Nor is speculation that other documents might exist that are possibly responsive to the request sufficient to overcome summary judgment. See Steinberg, 23 F.3d at 551-52 (concluding that the inferences raised by an agency affidavit that noted that "some, but not all" of file materials were returned to the agency office was speculative); SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (reasoning that "[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search"); Goland v. CIA, 607 F.2d 339, 369 (D.C. Cir. 1978) ("The issue [is] not whether any further documents might conceivably exist but whether CIA's search for responsive documents was adequate."). The court's inquiry is limited to whether the search itself, and not the results of that search, were reasonable. See Miller, 779 F.2d at 1385 (discounting the requesters argument that the "search was insufficient because the Department did not do all that it could," concluding that the agency "did all that the Act required").

[16] Even if the court construed the substance of LaRouche's argument to appropriately allege the inadequacy of the search of the Criminal Tax Division Office, the IRS has provided sufficient declarations to contradict this allegation. Mr. Frosch's Declaration, contained in the IRS' June 1998 Compliance, attests that he signed the 1992 memo and that the office of the Assistant Chief Counsel (Criminal Tax) is the only office of the Criminal Tax Division likely to possess records responsive to LaRouche's request. See Frosch Decl. at paragraphs 3 & 4. Although the Frosch Declaration does not discuss the details of the search, the IRS has also submitted a declaration by Ms. Michele Palmer. The Palmer Declaration describes the organization of records maintained in the Office of the Assistant Chief Counsel (Criminal Tax) and details how a search in 1991 would have been conducted in that office, including the search methods utilized. See Palmer Decl. at paragraphs 3-9. Most significantly, Ms. Palmer details a search as recently as June 3, 1998, in response to LaRouche's request that retrieved no responsive documents. See Palmer Decl. at paragraph 10

[17] To prove the adequacy of a search, agencies may rely upon relatively detailed, non-conclusory affidavits that are submitted in good faith. See Goland, 607 F.2d at 352 (reasoning summary judgment is appropriate on the basis of affidavits meeting this criteria). Affidavits that included search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient. See Weisberg, 705 F.2d at 1348 (delineating criteria for sufficient affidavits). The details of the 1991 and 1998 searches provided by the Palmer declaration are consistent with both the standard of reasonableness for an adequate search and the requirements of an agency affidavit. Additionally, the court is justified in presuming the good faith of these affidavits in contrast to LaRouche's contentions regarding possibilities. Ground Saucer Watch Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) ("Agency affidavits enjoy a presumption of good faith, which will withstand purely speculative claims about the existence and discoverability of other documents.").

[18] Once an agency has met the burden of proving the reasonableness of a search, the requester has the burden of rebutting this evidence by alleging bad faith. See Miller, 779 F.2d at 1383-84. LaRouche has not alleged bad faith in regard to this particular search.

[19] Given the reasonableness of the search and the presumption of expertise and validity necessarily accorded to the accompanying declarations, summary judgment as to the entirety of Count I & III is affirmed. Consequently, LaRouche's motions to reconsider and vacate the August 26, 1998 opinion and order are denied.

III. CROSS-MOTION FOR SUMMARY JUDGMENT

[20] In response to the court's request for further justification for the withholding of documents retrieved in response to LaRouche's 1991 request, the IRS filed a Notice of Compliance that included a Vaughn Index ("Index"). In the preamble accompanying this Index the IRS set forth arguments for the assertion of Exemption 3, with reference to Federal Rule of Criminal Procedure 6(e) ("Rule 6(e)"), to withhold the majority of the requested documents. The IRS asserted other exemptions, including Exemptions 5, 7(C), and 3 with reference to Section 6103 of the Internal Revenue Code ("Section 6103").

[21] The purpose of a Vaughn Index is to adequately describe for the court the withheld information and explain how the asserted exemption is relevant. See Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Consistent with FOIA's goal of access, any reasonably segregable portions of requested records must be disclosed once the exempt portions have been redacted. See Oglesby v. United States Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).

A. EXEMPTION 3 CLAIMS

[22] Exemption 3 shields information that is "specifically exempted from disclosure by statute provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. section 552(b)(3). Assertion of Exemption 3 thus first requires an agency to raise an appropriate federal non- disclosure statute, and secondly, that the records requested are covered by that particular non-disclosure statute. See Reporters Comm. for Freedom of the Press v. United States Dep't. of Justice, 816 F.2d 730, 734 (D.C. Cir.), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other grounds 489 U.S. 749 (1989).

[23] The IRS asserts Exemption 3 in conjunction with Rule 6(e), which preserves the secrecy of grand jury materials. ⁶ The IRS additionally raises Section 6103(b)(2)(A) of the Internal Revenue Code to withhold third party tax return information and thereby avoid an unwarranted invasion of person privacy. See 26 U.S.C. section 6103 (West Supp. 1998). LaRouche has not contested the applicability of Exemption 3 in conjunction with Section 6103. Further, the Court finds that the redactions are narrowly drawn to shield the identities of third party taxpayers. Therefore, the IRS is entitled to summary judgment with reference to documents contained at pages 143-145, 408- 409, 420-421, and 422-423, which are withheld exclusively under Section 6103. See Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C. Cir. 1997); Stebbins v. Sullivan, No. 90-5361, 1992 U.S. Dist. LEXIS 17729, at *1 (D.C. Cir. July 22, 1992). The IRS' arguments regarding the application of Rule 6(e), however, are not amenable to such a swift or facile resolution.

[24] LaRouche contends initially that the IRS has failed to prove the need for Rule 6(e)'s protection as much of the information requested has already been publicly disclosed, primarily through the subsequent grand jury indictment and Jencks disclosures. LaRouche reasons that this public disclosure obviates the need for maintaining Rule 6(e)'s "veil of secrecy." See Senate of the Commonwealth of Puerto Rico v. United States Debit of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (discussing the purposes, and limitations, to Rule 6(e)'s prohibitions); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir. XXX). LaRouche further argues that the information requested concerns THE IRS' investigation, and not the GRAND JURY investigation, thereby failing to meet the "before the grand jury" requirement. ⁷

[25] The IRS justifies application of Exemption 3 by predicting that the disclosure of the requested documents would reveal the "inner workings of the grand jury." See Fund for Constitutional Gov't v. National Archives & Records Service, 656 F.2d 856, 870 (D.C. Cir. 1981). The IRS explains that the contents of the requested documents include the identities of principals, source of the case, and method of proof -- such as identities of witnesses, testimony and documents accompanying their testimony -- such that Rule 6(e) protection is warranted. In response to LaRouche's allegations that this information is already in the public domain, the IRS argues that LaRouche has failed to link these previous disclosures to the documents currently withheld. The ultimate issue in resolving the applicability of Exemption 3, therefore, is whether release of these particular documents would reveal still secret information of the grand jury. ⁸

[26] The application of Exemption 3 requires a nexus between the disclosure of information and revelation of a protected interest under Federal Rule of Criminal Procedure 6(e) and. See Senate of Puerto Rico, 823 F.2d at 584. Courts must assess whether disclosure would "tend to reveal some secret aspect of the grand jury's investigation." See id. at 582. The court in Senate of Puerto Rico delineated "identities of witnesses or jurors, the substance of testimony, [and] the strategy or direction of the investigation' as properly withheld information. Id. The appropriate analysis of the requested documents, however, does not seek a "veil of secrecy" over all information that might coincidentally have been disclosed to the grand jury. See id. Rather, the analysis must consider the quality and nature of the withheld information. In sum, the agency must specifically show HOW disclosure could reveal a secret aspect of the grand jury. See id. at 585-87. In response to the agency's assertion of Rule 6(e) protection, a FOIA requester must prove, with similar specificity, that the protection is unnecessary as the information is already within the public domain. See Kronberg v. United States Dep't of Justice, 875 F.Supp. 861, 867 (D.D.C. 1995) (describing the requester's burden of production as "pointing to specific information in the public domain that appears to duplicate that being withheld) (citations omitted).

[27] Although an agency must provide specific explanations of how the claimed exemption applies, however, by necessity an agency need not reveal the particular information withheld. See Oglesby, 79 F.3d at 1176 ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document without actually disclosing information that deserves protection."); Fund for Constitutional Gov't, 656 F.2d at 869 (recognizing the "necessarily broad" scope of Rule 6(e) in order to achieve the Rule's goals of secrecy of proceedings); United States Student Ass'n v. CIA, 620 F.Supp. 565, 571 (D.D.C. 1985) (reasoning that the government's general assertions regarding prior disclosure defeated the plaintiff's delineation of specific documents). Courts have recognized that too detailed a description may jeopardize the very information deserving of protection. See Oglesby, 79 F.3d at 1176. By contrast, courts have reasoned that a FOIA requester must prove the prior disclosure of information with specificity. The enunciated standard requires that a FOIA requester demonstrate how public information duplicates that still withheld by the government. In Davis v. United States Dep't of Justice, the court reasoned that a requester must "point to 'SPECIFIC' information IDENTICAL to that being withheld." Davis, 968 F.2d 1276, 1280 (D.C. Cir. 1992) (emphasis added).

[28] Application of this analysis to the IRS' Index demonstrates an appropriate application of Exemption 3. The IRS notes how each document could reveal witness identities, method of proof, and strategy. See Fund for Constitutional Gov't, 656 F.2d at 869 (concluding that the "naming or identifying grand jury witnesses; quoting or summarizing grand jury testimony; evaluating testimony; discussing the scope, focus and direction of the grand jury investigations" were appropriate deletions under Exemption 3). Compare Senate of the Commonwealth of Puerto Rico, 823 F.2d at 584 (concluding that the government failed to justify Exemption 3 when it merely recited "[t]his material is withheld pursuant to [Rule 6(e)] in order to protect the secrecy of the Grand Jury process"). LaRouche has failed however to provide the requisite specificity in alleging that the information withheld is already in the public domain. LaRouche does not provide the necessary "match" between the documents previously disclosed and those documents for which Exemption 3 is claimed. Instead, LaRouche is merely alleging that the INFORMATION is already disclosed, without pointing to how this information is duplicated by those documents still withheld. Because LaRouche has failed to link the documents requested with publicly known information, disclosure could still reveal some secret aspect of the grand jury. For instance, it is unclear if the names of witnesses that are publicly known, as documented on pages 9-16 of LaRouche's cross-motion, are the same as those witnesses redacted from the requested documents.

[29] In addition to LaRouche's more general arguments regarding the inapplicability of Rule 6(e) due to the previous release of information, two particular allegations warrant some discussion. LaRouche argues that the IRS' withholding of information, such as the locations of IRS District offices and subpoenas, by alleging that disclosure could reveal the "geographic range" of the investigation is not within a "proper interpretation" of Rule 6(e). LaRouche alleges that this information would not reveal secret information of the grand jury, as a witness could be found in any state at any time. The court, however, perceives the link between revelation of the location of a subpoena and the scope of the investigation. Other courts have approved withholding of both time and place of subpoenas in accordance with Rule 6(e)'s protection of grand jury proceedings. See Voinche v. FBI, 940 F.Supp. 323, 329 (D.D.C. 1996).

[30] Additionally, LaRouche's argument pertaining to when the withheld information was compiled is similarly ineffective. In Fund for Constitutional Gov't, the court reasoned that the crucial concern in a Rule 6(e) analysis was not when the information was created, but instead whether the information withheld was of a type that would reveal the inner workings of the grand jury. This emphasis on the quality and type of information, rather than chronological proximity, seeks to prevent liberal disclosure that could impede the functioning of future grand juries and undermine the policy of Rule 6(e). Fund for Constitutional Gov't, 656 F.2d at 869 & n.32.

[31] Consistent with the foregoing analysis, the IRS is entitled to summary judgment for the documents contained at pages 14- 55, 55-63, 64-74, 75-81, 82-142, 148-149, 152, 153, 154, 391-397, 398-404, 405, 406-407, 415-418, 424-427, 428-430, 431-432, 433-437, and 438, which are primarily withheld under Exemption 3.

[32] Although the IRS has alleged with sufficient specificity in many instances how Exemption 3 and Rule 6(e) are applicable, there are several documents for which the required nexus between the information withheld and a protected interest has not been demonstrated. Specifically, the description of the documents contained at pages 146-147 is not consistent with the explanation the application of Exemption 3. Although the index describes the withholding of the case name and agent's identity, the exemption explanation claims to protect information pertaining to the location of grand jury activity. Further, it is unclear how disclosure of the case number would reveal the inner workings of the grand jury. Similarly, the document contained at page 4l9 is not described with sufficient clarity to justify withholding under Exemption 3. Finally, the memorandum contained at pages 410-414 contains a disclaimer indicating that "no grand jury information" is therein contained. Upon review, however, the IRS is claiming the application of Exemption 3 and Rule 6(e). Given that the document itself denies a connection with the grand jury, the IRS was required to assert the exemption with more specificity, including how the information would reveal the scope and direction of the investigation. Consequently, LaRouche is entitled to release of these documents.

B. ADEQUACY OF THE VAUGHN INDEX

[33] In addition to substantive allegation, LaRouche argues that the Index suffers from several inadequacies in form. LaRouche specifically contends that the use of one entry to describe a range of documents, the lack of differentiation as to which exemption is being claimed for which redacted passage, the general and conclusory terming of exemptions, and the IRS' failure to demonstrate segregability render the Index inadequate.

[34] The IRS correctly responds that there is no required format for indices. Courts have reasoned that in assessing the adequacy of a Vaughn Index, it is the function served, rather than form, that is crucial. See Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994) ("[I]t is the function, not the form, which is important."); Coleman v. FBI, 13 F.Supp.2d 75, 78 (D.D.C. 1998) (requiring "substance over form" in preparation of Vaughn Index to facilitate de novo review). The degree of specificity is therefore dependent upon the nature of the case, the document at issue, and the exemption claimed. See Information Acquisition Corp. v. Dep't of Justice, 444 F.Supp 458, 462 (D.D.C. 1978). The use of a combined entry is appropriate, therefore, given the similarity of documents and the consistent use of particular exemptions for those documents.

[35] Similarly, there is no requirement that the IRS label each redaction with the asserted exemption in contradiction to LaRouche's second allegation. See Davis v. United States Dep't of Justice, 968 F.2d 1276, 1282 n.4 (D.C. Cir. 1992) (concluding that the precise matching of exemptions with particular withheld items was not necessary for the trial court's disposition as all the government's claims were meritorious). Such a requirement could obviate the purposes of the Vaughn Index. See King v. United States Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (noting that the Vaughn Index seeks to render trial court's review of documents more manageable and ease appellate review); see also Oglesby, 79 F.3d at 1176 (raising concerns of release of protected information should agencies be required to submit too detailed a description). Further, such a pairing of the exemption and the redaction is especially unnecessary in the context of Rule 6(e), which protects from disclosure ANY information that might tend to identify witnesses. Therefore, agencies are required to redact more than just the name and address of the witness in order to fulfill the Rule's purposes. See, e.g., Fund for Constitutional Gov't, 656 F.2d at 869 (finding that Rule 6(e) prohibits both direct and indirect disclosure of grand jury information).

[36] As noted in the preceding discussion, with the exception of a few entries, the IRS' description of documents and accompanying exemption arguments are not conclusory, but rather are consistent with the standard enunciated in Senate of Puerto Rico.

[37] LaRouche's fourth and final argument, regarding the absence of non-segregability justifications for those documents withheld in full, cannot be summarily dismissed. The IRS' [sic] responds by noting the amount of redacted material already released in this nearly decade long matter. This response, however, is only effective as to those particular documents already released in redacted form.

[38] Consistent with the Act's statutory right to access of information, FOIA expressly requires that "[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C. section 552(b). The burden is on the agency to explain with specificity why it is withholding each document in full. See Mead Data Central, 566 F.2d at 261 ("In addition to a statement of its reasons, an agency should also describe what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document."). A court must be able to determine from the description of each document that there are no segregable portions, consequently, an agency must provide a "supporting justification" for non- segregability, not just conclusory allegations. Id. at 260-61. In response, a district court must make specific findings of segregability as to each document. See Krikorian v. Dep't of State, 985 F.2d 461 (D.C. Cir. 1993). The importance of an agency's release of reasonably redacted information is underscored by the requirement that district courts consider segregability issues even when the parties have not specifically raised such claims. See Trans-Pacific Policing Agreement v. U.S. Custom Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999).

[39] None of the IRS' entries that withhold documents in full provides a supporting justification for the absence of segregable portions. Although a justification as to non-segregability may not be necessary where the type of document, or the document's brevity, make the non-segregability obvious, an agency is generally required to explain how a lengthier document is non-segregable. See Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 233 (1st Cir. 1994). Careful review of those documents currently withheld in full reveal that several entries require more justification as to the lack of segregability. Specifically, the document contained at page 150 appropriately redacts identities of investigation targets, third party return information, and individual third parties under Rule 6(e), Section 6103, and Exemption 7(C). The description of the document as a "memo," however does not justify the absence of segregable portions once these names are redacted. Although short, this document is in marked contrast to other documents withheld in full for which non-segregability is self-evident, such as the documents contained at pages 148-149, which are merely lists of persons subpoenaed.

[40] Several lengthier documents, specifically those documents contained at pages 1-13, 155-206, 207-258, 260-324, 325-369, 370-390, and 442-774, have no corresponding justification for non- segregability, nor is the description of the document and the exemption sufficient to overcome the absence of such an explanation. As discussed in the proceeding [sic] sections, however, these documents should be released for additional reasons. The Court notes, therefore, that in addition to granting summary judgment to LaRouche as to these documents for the inadequacy of the claimed exemption, the Court also grants summary judgment as to these documents due to the lack of a justification for non-segregability. ⁹

C. EXEMPTION FIVE

[41] The IRS raises Exemption 5 to withhold in entirety the Special Agent's Final Report ("Report"), contained at pages 155-206, 207-258, 260-324, 325-369, and a letter from IRS Regional Counsel to an Assistant Attorney General, contained at pages 370-390. These documents are initially withheld under Exemption 3 and the protection of grand jury materials. The IRS invokes additionally Exemption 5. Under Exemption 5 "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" are excluded from disclosure. 5 U.S.C. section 552(b)(5). Consistent with case law construing the scope of Exemption 5, the IRS asserts that the withheld documents are exempt under the deliberative process privilege, attorney-client privilege, and the work product doctrine. See Coastal States Gas Corp., 617 F.2d at 862 (recognizing that Exemption 5 protects those material shielded from disclosure by the attorney-client privilege, attorney work-product privilege, and the deliberative process privilege).

[42] In response, LaRouche alleges that the attorney-client privilege is inapplicable because there has been no showing that the IRS and the United States Attorney are in an attorney-client relationship, nor that they are communicating "confidential" information. LaRouche further alleges that the work product doctrine is also inapplicable as IRS guidelines require the IRS to retain control over special agent operations. As IRS agents and the production of these reports were not under the supervision of a U.S. Attorney, information contained therein was not generated at the direction of an attorney in preparation for litigation. Finally, LaRouche asserts that the deliberative process privilege allows facts to be disclosed, and, as the IRS Handbook governing the Report mandates that such reports ONLY include facts, the Report is entirely non-exemptible.

[43] As an initial matter, the Court notes that the IRS has additionally failed to satisfy it [sic] burden of proving how the information withheld is protected under the Exemption 5. See Mead Data Central, 566 F.2d at 253 (requiring demonstration by the agency of how the privilege is applicable). In its Notice of Compliance, the IRS discusses only the relevant legal standards for each privilege, declining to explain how the description in the Index meets these applicable standards. In the IRS' Memorandum in Opposition, the particular application of the three privileges under Exemption 5 is not elaborated further, the IRS instead focuses on Exemption 3 and the concession by LaRouche that the deliberative process privilege applies to opinions and recommendations contained in the Report. The IRS cites as support a 1997 District Court case, Linn v. U.S. Dep't of Justice, 80 AFTR2d 97-5242, at 97-5243 to 5244 (D.C. C. 1997), in which the court affirmed an earlier ruling that had held a report prepared by a special agent at the conclusion of a grand jury exempt entirely under Exemption 3. Neither this case, nor the earlier decision, however, provide detail or reasoning for the conclusion that Exemption 3 excludes such reports in their entirety.

[44] By consequence, the IRS' assertion of the three privileges in conjunction with Exemption 5 proves insufficient. For example, although courts have reasoned that an agency is a client and the agency lawyer is the attorney for purposes of the attorney-client privilege, see Coastal States Gas Corporation, 617 F.2d 854, 863 (D.C. Cir. 1980), the IRS has made no showing as to how the information that is specifically subject to this privilege is confidential. See Mead Data Central, 566 F.2d at 254. It is unclear from the descriptions provided in the Index if the information that would be exempt under the attorney-client privilege is confidential merely because is [sic] pertains to the grand jury.

[45] This lack of explanation is compounded by the agency's failure to specify where the application of Exemption 3 ends, and the protection of Exemption 5 begin. Although the Report may be "the embodiment of matters before the grand jury" the IRS has not shown with specificity which portions are exempt under Exemption 3 and which are susceptible to Exemption 5; or how the entire document could be susceptible to Exemption 3. The Court considered this lack of differentiation appropriate as to several documents, however, in the context of this lengthy report and the absence of a justification for non-segregability, the Index's description is inadequate. While the deliberative process privilege could exempt those opinions and recommendations contained in the report, and Exemption 3 could exclude the remaining facts, the Index entries are not sufficient at this time to permit the IRS to withhold these documents in full and the Court cannot rule on such conjecture. Consequently LaRouche is entitled to summary judgment regarding these documents.

D. EXEMPTION (7)(C)

[46] The IRS has asserted Exemption (b)(7)(C) to withhold names of third party targets and lower level IRS employees contained in the requested documents. Exemption 7(C) shields from disclosure law enforcement information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. section 552(b)(7)(C)

[47] Similar to the IRS' assertion of Exemption 3 with reference to Section 6103, LaRouche has not challenged the assertion of Exemption 7. Further, the Index descriptions demonstrate proper application for the exemption. Consequently, the withholding of identities under Exemption 7 for documents contained at pages 143- 145, 151, and 259 should be upheld. See SafeCard Serv., Inc., 926 F.2d at 1206 (concluding that "categorical withholding" of identifying information in law enforcement records is appropriate); see also Billington v. Dep't of Justice, 11 F.Supp.2d 45, 60 (D.D.C. 1998) (granting summary judgment and declining to address in detail the assertion of exemptions 3 and 5 where the FOIA requester had failed to challenge the assertion and the agency's arguments were "persuasive").

E. MISCELLANEOUS DOCUMENTS

[48] The IRS has referred those documents contained at pages 1- 13 and 442-774 to the Department of Justice. As of this date, the Court has received no response from the Department of Justice regarding the withholding of the entirety of these documents. As neither entry contains a sufficient description of the document and the exemption, nor a justification of the non-segregability, LaRouche is entitled to summary judgment as to these documents.

IV. MOTION TO STRIKE THE DECLARATION OF GEORGE CANNING

[49] In support of his cross-motion for summary judgment, LaRouche submits a fourth declaration of Mr. George Canning ("Canning"). The declaration consists primarily of a summary of events leading up to the indictment of LaRouche. In response, the IRS moves to strike the declaration under Federal Rules of Civil Procedure 12(f) and 56(e). ¹⁰ In footnote 1 of Judge Greene's May 22, 1998 Order, the court struck the second declaration of Canning in its entirety. The court held that the declaration was largely argument, did not contain personal knowledge, and included inadmissible hearsay in violation of Federal Rule of Civil Procedure 56(e) ("Rule 56(e)"). ¹¹ In moving to strike the fourth declaration, the IRS argues that this declaration also lacks personal knowledge, contains no relevant material, and includes inadmissable hearsay.

[50] Granting a motion to strike is considered an exceptional remedy and is generally disfavored. See Moore's Federal Practice ("Moore's") at section 12.37[1]. However, such a ruling is in the trial court's discretion. See id.

A. PROPRIETY OF THE MOTION TO STRIKE

[51] LaRouche's initial argument concerns the procedural validity of the IRS' motion to strike. According to LaRouche, such a motion is procedurally barred as Federal Rule of Civil Procedure 12(f) ("Rule 12(f)"), which governs motions to strike, does not apply to affidavits. Rather, Rule 12(f) only applies to "pleadings." See Fed. R. Civ. Proc. 12(f) (authorizing a court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter"). In delineating those filings that are considered "pleadings," Federal Rule of Civil Procedure 7(a) omits motions to strike. Adhering to a textual reading of these Rules, many courts have declined to consider a motion to strike an affidavit or declaration. See Moore's section 12.37[2] (listing cases following a textual approach to the rule).

[52] Although the text of Rule 12(f) does not include affidavits, several courts have reasoned that a motion to strike is the only method of attack against a defective affidavit, otherwise, the defects are waived. See Humane Soc'y of the United States v. Babbitt, 46 F.3d 93, 97 n.5 (D.C. Cir. 1995) (citing De Cintio v. Westchester County Med. Ctr., 821 F.2d 111, 114 (2d Cir. xxxx) as holding that six circuits are in "unanimous accord" as to the waiver of defects absent a motion to strike). LaRouche even relies on one such case, albeit for a different proposition. LaRouche cites Williams v. Evangelical Retirement Homes of Greater St. Louis, 594 F.2d 701 (8th Cir. 1979) in arguing that his failure to attach copies of all referenced documents, as required by Rule 56(e), is not fatal due to his subsequent compliance. See Pl. Opp'n to Mot. to Strike at 7 n.2. Consistent with the reasoning in Humane Society, however, Williams assumes that the motion to strike is the only appropriate device to object to such defects at the trial court level. See Williams, 594 F.2d at 703.

[53] Although the Humane Society rule is persuasive, there are additional reasons bolstering the Court's decision to consider the motion. Some courts that have conceded that Rule 12(f) is, by its terms, inapplicable to non-pleadings, have still disregarded the affidavit. See Lombard v. MCI Telecommunications Corp., 13 F.Supp.2d 621, 625 (N.D. Ohio 1998) (reasoning that there is "no basis" in the Federal Rules for striking an affidavit, however, the court should exclude from its consideration evidence that is "hearsay, not based on personal knowledge, irrelevant or otherwise inadmissible"). As a general rule, the court cannot consider inadmissable hearsay or incompetent evidence. See, e.g., Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949) (disregarding statements in an affidavit that failed personal knowledge requirements). If the affidavit fails to follow "substantially the same form as though the affiant were giving testimony in court," the court cannot consider it. See Seward v. Nissen, 2 F.R.D. 545, 546 (D.C. Del. 1942). Formally striking the motion, rather than merely disregarding, advances the litigation without prejudicing the non-movant. See Moore's at 12.37[1] (noting the court's discretion to grant a motion to strike is appropriately invoked when "doing so advances the progress of litigation").

[54] Finally, Judge Greene in his May 1998 Order struck Canning's second declaration without argument or discussion of this procedural bar. See Slip. Op. at 4. n.1. Therefore, under the reasoning of Humane Society, Lombard, and Judge Greene's May 1998 Opinion, consideration of the motion to strike the declaration is appropriate.

B. LACK OF PERSONAL KNOWLEDGE

[55] The IRS argues that Canning has no direct personal knowledge of the events contained in the declaration and thereby fails Rule 56(e)'s mandatory requirement of personal knowledge. See Fed. R. Civ. P. 56(e); Jameson, 176 F.2d at 60 (construing "shall" in the text of the Rule 56(e) as mandatory).

[56] LaRouche argues that Canning does have the requisite personal knowledge as he had either, reviewed the documents to which he refers, or was present at the testimony that he related. In support of this argument, LaRouche cites Londrigan v. FBI, 670 F.2d 1164 (D.C. Cir. 1981). A closer reading of Londrigan, however, actually weakens this argument. In Londrigan, an agent of the FBI relayed his "own observations upon review of documents," as well as the agency procedural history relating to the investigation. See Londrigan, 670 F.2d at 1175. The agent however, did not directly participate in the investigation. See id. at 1167. Although the court permitted those portions of the affidavit that relayed the agent's own observations, the court did strike the "most critical part" of the affidavit. See id. at 1174. Namely, after a "[c]areful reading" of the affidavit, the court concluded that "a great deal" of the affiant's statements regarding the details of these documents and the related investigation were not based on the requisite personal knowledge. See id. at 1175. Therefore, while the court permitted that portion of the agent's affidavit that relayed the general procedure of the agency during an investigation, as well as the affiant's OWN observations after reviewing the documents, the court appropriately disregarded those portions of the affidavit that attempted to interject into the record specific details, assumptions, and facts for which the affiant was not competent to testify. See id.; see also Williams, 594 F.2d at 703 (concluding that the affidavit of an employee hired after the disputed discharge of the plaintiff was not based on personal knowledge, despite the affiant's participation in the later investigation). Further, unlike the agent in Londrig, Canning is one step removed from the agency activity upon which he reports. Instead of being an internal agency observer, with direct personal knowledge of the general procedures surrounding the investigation, Canning is an outside observer reporting on events from second-hand knowledge. See, e.g., Canning decl. at paragraphs 36-43 (prefacing the statements therein with "According to Special Agent Lucey's notes").

[57] Although not every paragraph of the Canning declaration is inadmissable due to the personal knowledge requirement, that portion of the declaration that accurately reflects Canning's firsthand, personal knowledge, fails to meet other requirements of Rule 56(e) due to the inclusion of irrelevant information or hearsay. ¹²

C. IRRELEVANT MATTERS UNDER RULE 12(f)

[58] Consistent with the Rule 12(f) standard, the IRS argues that the Canning declaration places before the court matters that are "impertinent and immaterial." The crux of the IRS' argument is that the only pertinent issue to be resolved by the cross-motion is whether the documents requested in 1991 were properly subject to a FOIA exemption. As the primary exemption asserted is Exemption 3 with reference to Federal Rule of Criminal Procedure 6(e), the only relevant inquiry is whether release of the withheld documents would reveal the inner workings of the grand jury.

[59] LaRouche argues that the declaration material is relevant to the resolution of whether the documents requested antedated the grand jury or have been publicly released such that the protection of Rule 6(e) is no longer necessary. Therefore, contrary to the IRS assertions, the information contained in the Canning declaration could provide information relevant to the substantive issues Exemption 3 application.

[60] Exemption 3 and Rule 6(e) substantive law require that documents already in the public domain must "duplicate" those documents withheld in order to render the exemption inapplicable. Critically, the Canning declaration does not attempt to "match" the documents described therein with those currently withheld. Rather, the declaration summarizes the events culminating in LaRouche's indictment. Consequently, much of the declaration is irrelevant to the ultimate resolution of the applicability of Exemption 3 with reference to Rule 6(e).

[61] Additionally, the Canning declaration attempts to raise the inference that there are additional responsive documents that could exist, however, the existence of such documents, is not relevant to whether Rule 6(e) is properly utilized. Further, much of the declaration repeats information already contained in LaRouche's cross-motion at pages 9-16. Specifically, paragraphs 9, 11, and 15 of the Canning declaration are taken verbatim from pages 10-13 of LaRouche's cross-motion. Consequently, these portions of the declaration must be struck as violative of Rule 12(f)'s prohibition on "redundant" matter. See Fed. R. Civ. P. 12(f).

D. INADMISSABLE HEARSAY

[62] The IRS challenges 86 of the 106 paragraphs of the Canning declaration as inadmissable hearsay. LaRouche contends that the statements may satisfy an exception to hearsay and therefore the Court may consider the evidence prior to a definite evidentiary ruling at trial. See Corley v. Life & Cas. Ins. Co. of Tennessee, 296 F.2d 449, 450 (D.C. Cir, 1961) (holding that Rule 56(e) does not require an "unequivocal ruling" during the summary judgment stage as to the admissibility of statements in an affidavit).

[63] The bulk of the Canning declaration is hearsay as the affiant did not personally witness most of the events that he describes. In several instances, this relaying of secondhand information is not attributable to a primary source. See paragraph 57 (relating statements "by someone" who contacted the IRS Chief Counsel). Other statements contain hearsay within hearsay or have no obvious hearsay exception that could apply. See paragraph 47 & paragraph 56 (relaying a news announcement). The court in Corle permitted an affidavit containing hearsay on the rationale that it was "possible" that the statements could be admissible. See Corley, 296 F.2d at 450. The Corley court noted that this was in direct contrast to the "many cases" wherein it is "possible to say without qualification" that the evidence would not be admissible. Id. at 450. As noted, there are numerous instances in the Canning Declaration where there appears to be no possibility of admissibility.

[64] In the alternative, LaRouche requests additional discovery under Rule 56(f) to cure any defects in the affidavit's form. In most instances, however, the source of the information is already known, such that additional discovery is unnecessary.

[65] Given the susceptibility of all but a few of the declaration's paragraphs to one or more the prohibitions of Rules 12(f) and 56(e), the Court strikes the Canning declaration in its entirety. ¹³

V. CONCLUSION

[66] For the reasons set forth herein, the plaintiff's motion to reconsider and vacate is denied and summary judgment for the defendant regarding Counts I and III are affirmed. Plaintiff's cross motion for summary judgment is denied in part and granted in part, and summary judgment is granted sua sponte, to defendant on all remaining issues. Finally, the defendant's motion to strike the Canning declaration is granted and the entirety of the fourth amended Canning declaration is struck.

[67] A separate order shall issue this date.

                                   Royce C. Lamberth

² The Court remains genuinely concerned with the defendant's failure to cite Rule 56(e) and properly seek summary judgment regarding the Index. Although the defendant "respectfully requests that the court award summary judgment for the defendant on the remaining issues and deny all relief," the rules and adherence to procedure are XXXX. See Def's Resp. to Pl's Cross Motion at 4.

³ Canning has submitted four declarations during the pendency of this litigation. The court struck Canning's second declaration in its May 22, 1998 opinion. See Slip. Op. at 4 n.1.

⁴ LaRouche states that he "has no further objection to the Court granting summary judgment to defendant" with the exception of this one particular search under Count 1. Reply to Def. Opp'n to Pl. Mot. to Reconsider & Vacate at 3. The court notes that the IRS did respond to this allegation by arguing that, given the long history to this litigation and extensive discovery, LaRouche was on notice that summary judgment without a renewal of a summary judgment motion was appropriate. See Def's Opp'n at 2. The court is therefore justified in granting summary judgment in part on LaRouche's cross-motion without the IRS' submission to these procedural requirements.

⁵ Notably, LaRouche does not direct the Court's attention at this time to Mr. Porter's 1995 declaration submitted in support of the IRS' Motion for Summary Judgment and Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed with the court on July 5, 1995. In that declaration Mr. Porter discusses how he processed LaRouche's 1991 FOIA request. See Porter Decl. at paragraphs 5 & 6. Not only did Mr. Porter utilize additional search functions than requested to "be certain that a comprehensive search was made;" but in describing the results of these searches Mr. Porter states "I determined that it was reasonable to conclude that the National Office, and specifically the Criminal Investigation Division within the National Office, did not possess any records responsive to plaintiff s FOIA request." Porter Decl. at paragraph 11. Nowhere in this declaration is the qualifier "specifically" used to modify the results of the search, although it is used to describe which offices were searched.

⁶ Federal Rule of Criminal Procedure 6(e) prohibits, with exceptions not pertinent to our analysis, the disclosure of "matters occurring before the grand jury." Fed. R. Crim P.6(e)(2).

⁷ LaRouche supports much of this argument by reference to the Fourth Canning Declaration. The court has struck this declaration in its entirety. See infra Section IV. The Court's rationale for striking the motion rest primarily on the repetitive and irrelevant nature of the information contained therein. Consequently, the striking of this motion is not itself fatal to LaRouche's Exemption 3 allegations.

⁸ A considerable portion of LaRouche's cross-motion specifically argues that the prior release of information regarding the grand jury constitutes a "waiver" of Exemption 3 protection. Recent cases in this circuit address this issue, but do not appear to provide any uniformity as to the validity of the waiver argument. The Court need not decide whether the "waiver" argument is a meritorious one, however, as LaRouche contends in his Reply that he is not asserting the waiver argument, rather, he is merely alleging that the IRS has not met the minimal burden of proving how disclosure will reveal still secret information. See Reply to Def's Opp'n to Pl.'s Cross-Motion for Summary Judgment at 1.

⁹ Although the IRS agrees to submit to an in camera review of the documents, such a device is generally disfavored and appropriate "only when the issue . . . could not be otherwise resolved." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).

¹⁰ The Canning Declaration originally submitted with LaRouche's cross-motion was defective in that it failed to attach copies of all referenced documentation. In response to the IRS' contention regarding this defect, LaRouche submitted a Canning declaration substantially similar to the original, except for the addition of those referenced documents. See Fourth Amended Canning Decl. The IRS appropriately directed its arguments at this corrected and amended fourth declaration and the Court reviewed only this amended declaration in its determination of the present motion.

¹¹ "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. Proc. 56(e).

¹² The court strikes two paragraphs of the declaration, without resort to the Londrigan rationale or hearsay and relevancy concerns, as these statements include speculation and inferences. See paragraph 20 & 49.

¹³ For example, paragraph 8 would appear to meet the personal knowledge requirement of Rule 56 in that Canning personally witnessed the described raid. This paragraph could be susceptible to hearsay, however, in that Canning initially received a telephone report of the raid and the declarant is unknown. See Fed. R. Evid. 801 & 901(b)(6).