Case 1:13-cv-00920-ABJ Document 69-1 Filed 07/01/16 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION,

)
)
Plaintiff,
)
)
v.
)
)
INTERNAL REVENUE SERVICE,
)
)
Defendant.
)
____________________________________)

Case No. 13-cv-920-ABJ

PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION

TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

INTRODUCTION
Plaintiff Cause of Action Institute (CoA Institute) filed a request under the Freedom of
Information Act (FOIA), 5 U.S.C. 552, with Defendant Internal Revenue Service (IRS or
the agency) on October 9, 2012, seeking, inter alia, records relating to requests from the White
House to the IRS for the disclosure of confidential taxpayer information. In relevant part, CoA
Institute sought records of requests authorized under the Internal Revenue Code, as well as those
that were unauthorized. These records could reveal abuses of Executive Branch authority and
IRS complicity in facilitating the unauthorized disclosure and inspection of return information.
The Court previously determined that the IRS response to the October 9, 2012 CoA
Institute FOIA Request was inadequate. Last year, the Court ruled, in relevant part, that the IRS
failed to conduct a search reasonably calculated to locate records of unauthorized disclosure
requests and requests outside of I.R.C. 6103(c). See Mem. Op. at 13, 3134, Aug. 28, 2015,
ECF No. 51. The Court remanded the October 9, 2012 FOIA Request to the IRS for
supplemental searches. Mem. Op. at 39. Nonetheless, the IRS maintains that it cannot locate a
single responsive record. The agency fails to submit evidence sufficient to support this claim.

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The agency instead proffers two affidavits that lack adequate support and demonstrate, on their
face, that IRS employees failed to search all potential record locations. The affidavits also
evidence an unjustified refusal by the IRS to search e-mail correspondence for responsive
material. Finally, the affidavits include statements objectionable under Fed. R. Civ. Pro. 56(c),
which should be stricken. In short, the IRS appears determined not to perform an adequate
search for records that may demonstrate serious wrongdoing by Federal officialsthe same
officials who are tasked with the duty to protect the confidentiality of taxpayer information.
Thus, for the reasons set forth below, the Court should deny the IRS motion for summary
judgment and grant the CoA Institute cross-motion for summary judgment and motion to strike.
PROCEDURAL BACKGROUND
CoA Institute incorporates by reference its Statement of Undisputed Material Facts,
which it submits with this cross-motion for summary judgment and motion to strike.
On October 9, 2012, CoA Institute submitted a FOIA request to the IRS, seeking eight
categories of records. Compl. 7, Ex. 1, ECF No. 1; Pl.s Statement of Undisputed Material
Facts (Pl.s SUMF) 1. After exhausting its administrative remedies, CoA Institute filed the
present action to obtain access to the requested records. Pl.s SUMF 6. On November 4, 2013,
with the non-opposition of CoA Institute, the Court dismissed all claims concerning Items 7 and
8 of the October 9, 2012 FOIA Request. Pl.s SUMF 7.
On August 28, 2015, in response to cross-motions for summary judgment,1 the Court
issued a Memorandum Opinion granting the CoA Institute motion in part and denying the IRS
motion in part. Pl.s SUMF 9; Mem. Op.2 The Court held that the IRS conducted an adequate

The IRS moved for summary judgment on April 14, 2014. Pl.s SUMF 8. CoA Institute opposed the IRS motion
and cross-moved for summary judgment on June 9, 2014. Pl.s SUMF 8.
2
Cause of Action v. Internal Revenue Serv., 125 F. Supp. 3d 145 (D.D.C. 2014).

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search for records responsive to Items 1 and 2, Pl.s SUMF 10, but the agency search with
respect to Items 3 and 4 was inadequate, Pl.s SUMF 10.3
The Court further ruled that tax checks and related records were exempt from
disclosure under Exemption 3, in conjunction with I.R.C. 6103, as they were unquestionably
taxpayer-specific and sufficiently factual in nature to be data. Pl.s SUMF 11. The Court
specified that this determination . . . [was] related to the tax check records only, but other
records that indicate that confidential taxpayer information was misused, or that government
officials made an improper attempt to access that information, would not be protected as return
information. Pl.s SUMF 11 (citing Mem. Op. at 34 ([The Court] cannot conclude that
section 6103 may be used to shield the very misconduct it was enacted to prohibit.)). The Court
remanded the October 9, 2012 FOIA Request to the IRS for supplemental searches for records
responsive to Items 3 through 6. Pl.s SUMF 12.
On March 24, 2016, the parties filed a Joint Stipulation agreeing that the IRS had
satisfied its obligations under the FOIA with respect to Items 5 and 6. Pl.s SUMF 18. The
only items of the October 9, 2012 FOIA Request that remain at issue are Items 3 and 4:
3)

Any communications by or from anyone in the Executive Office of

the President constituting requests for taxpayer or return
information within the meaning of [26 U.S.C.] 6103(a) that were
not made pursuant to 6103(g); [and]

4)

All documents, including notes and emails, referring or relating to

any communication described in request #3[.]

Pl.s SUMF 1 (citing Compl. 7, Ex. 1); Pl.s SUMF 18.

Among other things, the Court also found that the IRS withholdings under Exemption 5 were proper, but the
agency had failed to adequately justify its application of Exemptions 6 and 7(C). Pl.s SUMF 10.

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STANDARD OF REVIEW
Congress enacted the FOIA to introduce transparency into government activities. Stern
v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). It is a means for citizens to
know what the Government is up to and it defines a structural necessity in a real democracy.
Natl Archives & Records Admin. v. Favish, 541 U.S. 157, 17172 (2004) (citation omitted); see
Natl Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (The basic
purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.). The rights afforded under the FOIA are a bulwark to the fundamental principle of
public access to records of the administrative state, which can be shielded unnecessarily from
public view . . . [by] possibly unwilling official hands. John Doe Agency v. John Doe Corp.,
493 U.S. 146, 151 (1989) (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 (1973)).
Summary judgment should be granted if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). In determining whether a genuine issue of material fact exists in a FOIA case,
all underlying facts and inferences are analyzed in the light most favorable to the FOIA
requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is
summary judgment appropriate. Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 985 F.
Supp. 2d 1, 1 (D.D.C. 2014), vacated on other grounds, 60 F. Supp. 3d 1 (D.C. Cir. 2014). In
this instance, where the adequacy of the IRS search for responsive records is at issue, the IRS
bears the burden of demonstrating beyond material doubt that it undertook a search
reasonably calculated to uncover all relevant documents. Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation omitted); see Nation Magazine v. U.S.

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Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). The Court reviews IRS FOIA determinations
de novo. 5 U.S.C. 552(a)(4)(B).
ARGUMENT
The IRS relies on the declarations of Ms. Sarah Tate and Ms. Linda McCarty to support
its claim that it conducted adequate supplemental searches for records responsive to Items 3 and
4 of the October 9, 2012 FOIA Request. Def.s Mem. & P. & A. in Support of the Internal
Revenue Serv.s Mot. for Summ. J. at 4 (Def.s Br.), June 3, 2016, ECF No. 66-2; see Decl. of
Sarah Tate, June 3, 2016, ECF No. 66-3 (Tate Decl.); Decl. of Linda J. McCarty, June 3, 2016,
ECF No. 66-4 (McCarty Decl.). Each declarant fails to show that the agency carried out an
adequate search. The IRS argument fails for two reasons: First, the agency again refuses to
construe liberally the scope of the CoA Institute FOIA Request, as required under controlling
law, and to include a search mechanism for targeting records concerning unauthorized requests
for the disclosure of taxpayer information. Second, the IRS improperly refuses to search e-mail
correspondence for responsive records. The Court should also strike certain statements from the
McCarty Declaration as they are objectionable under Fed. R. Civ. Pro. 56(c). See infra pp. 12
15. Ms. McCarty has not demonstrated that these statements are based on personal knowledge.
The Court should therefore find that the IRS search was inadequate and grant the CoA Institute
cross-motion for summary judgment and motion to strike.
The IRS bears the burdening of demonstrating that it made a good faith effort to
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested. Nation Magazine, 71 F.3d at 890 (quoting Oglesby v.
Dept of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To satisfy this burden, the IRS may
submit reasonably detailed affidavit[s], setting forth the search terms and the type of search

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performed. Oglesby, 920 F.2d at 68; Morley v. Cent. Intelligence Agency, 508 F.3d 1008, 1114
(D.C. Cir. 2007) (The court applies a reasonableness test to determine the adequacy of a
search methodology, consistent with congressional intent tilting the scale in favor of
disclosure[.] (citation omitted)). The affidavits must be detailed enough to afford a FOIA
requester an opportunity to challenge the adequacy of the search and to allow the district court to
determine if the search was adequate in order to grant summary judgment. Oglesby, 920 F.2d at
68. While the court may rely on agency affidavits in determining the adequacy of the search,
Founding Church of Scientology, Inc. v. Natl Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979),
such reliance is only appropriate when the agencys supporting affidavits are relatively
detailed and nonconclusory. Morley, 508 F.3d at 1116 (citation omitted). The IRS failed to
meet its burden under FOIA and relevant case law of demonstrating that its search, which failed
to produce a single responsive record, was reasonably designed in good faith to capture
responsive records.
As an initial matter, it is also worth noting that the IRS misspelled the given name of
President Barack Obama in identifying the search terms it used for its supplemental search for
responsive records. Tate Decl. 5, 11; Def.s Br. at 6, 9 (search terms included Barak, but
not Barack). The terms adopted by the agency were supposed to have been duplicative of
those used for the search conducted for records responsive to Items 1 and 2 of the October 9,
2012 FOIA Request. See Def.s Br. at 6. To the extent this was a typographical error in its
briefing, the IRS is under an obligation to clarify the matter. See, e.g., Bigwood v. Dept of Def.,
132 F. Supp. 3d 124, 137 n.6 (D.D.C. 2015) (agency declarant filed a supplemental declaration
to clarify a typographical error). If the error was in the search term employed, the search is
inadequate on its face.

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I.

THE IRS IMPROPERLY CONSTRUED THE SCOPE OF THE

OCTOBER 9, 2012 COA INSTITUTE FOIA REQUEST.
The IRS description of its supplemental searches fails to meet the foregoing legal

standards. The IRS declarants do not reasonably detail the agency search methodology and, in
certain instances, demonstrate its prima facie inadequacy. For instance, the IRS continues to
construe the scope of Items 3 and 4 too narrowly. See Nation Magazine, 71 F.3d at 890
(agencies have a duty to construe a FOIA request liberally (citing Truitt v. Dept of State, 897
F.2d 540, 54445 (D.C. Cir. 1990)). As this Court previously held, the deficiency of the initial
search was due, in part, to the failure of the IRS to search for records of unauthorized disclosure
requestssimple requests for information that may represent improper attempt[s] to access
confidential tax information. Mem. Op. at 3233; see Mem. Op. at 13. CoA Institute repeatedly
requested that the IRS target its supplemental searches to locate such records.4 See, e.g., Pl.s
SUMF 14; Mulvey Decl. 5, Ex. 2 ([W]e want to ensure that the IRS is properly construing
Items 3 and 4 . . . [which] seek those communications from EOP requesting taxpayer returns or
return information that were made outside of Section 6103(g). This includes formal or informal
requests, as well as authorized or unauthorized requests.). The IRS, however, fails to describe
how it searched for unauthorized requests and why it chose to restrict its search to the Office of
the Commissioner. Def.s Br. at 45.
The apparent justification for doing so is two-fold. First, the IRS relies on the unfounded
assertion by Ms. McCarty that [i]t was the apparent business practice of the White House to

The parties disagree as to the potential responsiveness of records of tax checks that do not conform to the IRS
regulations implementing I.R.C. 6103(c). See, e.g., Pl.s SUMF 16; Mulvey Decl. 7, Ex. 4. (The Court
determined that [tax check] records [submitted in camera] were return information and, therefore, exempt from
disclosure under Exemption 3. . . . If, however, any 6103(c) requests were not in conformity with the statute and
implementing regulations, 26 C.F.R. 301.6103(c)-1(a), then the records would not be protected[.]). An
imperfect request under I.R.C. 6103(c)e.g., one with an improperly designated recipient, see 26 C.F.R.
301.6103(c)-1(e)(3)is an example of an unauthorized request that would fall outside of return information as
defined under I.R.C. 6103(b)(2)(a).

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send all correspondence pertaining to taxpayer-specific matters to the Office of the Executive
Secretariat. McCarty Decl. 3. But Ms. McCarty is not an employee of White House and she
offers no support for her alleged personal knowledge of White House practices.5 McCarty Decl.
1. The Court, moreover, cannot rely on this undetailed and conclusory statement. Morley, 508
F.3d at 1116. The IRS unreasonably restricted its search to the Office of the Executive
Secretariat on her assumption that the White House never communicates with other IRS
componentsincluding the Tax Check Officeand on her unsubstantiated belief that no other
component would control potentially responsive records.6 See Concepcion v. U.S. Customs &
Border Prot., 767 F. Supp. 2d 141, 146 (D.D.C. 2011) (agency must demonstrate that
responsive documents would not reasonably be found in other record systems[.]).
Another aspect of the IRS search that demonstrates its inadequacy is the agency refusal to
identify those components whose correspondence is tracked by the E-Trak database. Ms. Tate
associates [t]he E-Trak database [with] the Services leadership and business units[.] Tate
Decl. 4; see Def.s Br. at 5. But this is vague, at best. See Oglesby, 920 F.2d at 68 (agency
affidavits must be detailed enough to afford a FOIA requester an opportunity to challenge the
adequacy of the search and to allow the district court to determine if the search was adequate in
order to grant summary judgment). CoA Institute repeatedly requested that the IRS provide, at
the least, an exhaustive list of the components whose correspondence is captured by E-Trak.
E.g., Pl.s SUMF 14; Mulvey Decl. 5, Ex. 2. But the IRS refused, relying on inapposite
provisions of the Internal Revenue Manual. Pl.s SUMF 15; Mulvey Decl. 6, Ex. 3; see Pl.s

As described below, this portion of paragraph three of the McCarty Declaration is objectionable under Fed. R. Civ.
P. 56(c)(4). The Court should strike it. See infra pp. 1215.
6
Considering that the IRS regularly reports to the United States Joint Committee on Taxation the number of tax
checks it processes in any given year, and thereby systemically tracks and records such information relating to tax
checks, the IRS failure to identify and produce any records in response to Item 4 is inexplicable. See, e.g., Internal
Revenue Serv., Disclosure Report for Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C)
for Calendar Year 2010 (May 2011), available at http://1.usa.gov/28JsWrw.

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SUMF 16; Mulvey Decl. 7, Ex. 4. As a result, neither CoA Institute nor the Court has any
knowledge as to the individuals or IRS components whose correspondence is stored in E-Trak.
Further, Ms. McCarty makes the baseless and conclusory assertion that IRS employees
recognize that [they] do[] not have the authority to disclose tax information to the White House,
and would have promptly arranged to forward such communication to the Office of the
Executive Secretariat for appropriate handling. McCarty Decl. 5. Not only is this a
speculative conclusion of which Ms. McCarty lacks personal knowledge,7 but Items 3 and 4 are
purposefully intended to capture records that evidence improper actions by IRS employees in
disclosing confidential taxpayer information to the White House. This Court has recognized as
much. Mem. Op. at 33 (discussing records that indicate . . . that government officials made an
improper attempt to access [Section 6103-protected] information.). The IRS cannot refuse to
search for records of unauthorized requests for taxpayer information on the generalizedand
demonstrably untrueground that IRS employees never break the law. Cf. Tax Reform
Research Grp. v. Internal Revenue Serv., 419 F. Supp. 415, 418 (D.D.C. 1976) (IRS records
concerning serious abuses of an essentially political nature . . . may . . . not be protected from
disclosure.); see also In re United States (United States v. NorCal Tea Party Patriots), 817 F.3d
953, 960 (6th Cir. 2016) (In this country taxpayer privacy has a checkered history.).
The IRS also refuses to search the Office of Disclosureor, more precisely, the Office of
Privacy, Governmental Liaison, and Disclosure (PGLD)for responsive records because Tax
Check Program [c]orrespondence is no longer at issue[.] Tate Decl. 3 n.1; Def.s Br. at 8 n.1.
The IRS cites to the August 28, 2015 Memorandum Opinion to support this claim, but the
agency misinterprets that ruling. As the Court indicated, it is not clear that all records related to

Ms. McCarty lacks the personal knowledge to make such a statement under Fed. R. Civ. P. 56(c)(4). As described
below, the Court should strike paragraph five of the McCarty Declaration. See infra pp. 1215.

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requests for disclosure of taxpayer information would necessarily constitute [return]

information[.] Mem. Op. at 32. Instead, a determination . . . must be made on a case-by-case
basis in light of the nature and content of the request and any responsive records. Mem. Op. at
32. [R]ecords that indicate that confidential taxpayer information was misused, or that
government officials made an improper attempt to access that informationwhether those
records are maintained by the Tax Check Program or any other IRS componentwould be
outside the scope of the Court ruling. See Mem. Op. at 33. The claim that PGLD
correspondence and, by implication, any other PGLD records,8 are no longer at issue, is simply
incorrect as a legal matter, see, e.g., Mem. Op. at 3134, and as a factual matter given consistent
CoA Institute representations to the agency, see, e.g., Pl.s SUMF 11.
II.

THE IRS IMPROPERLY REFUSED TO SEARCH E-MAIL

CORRESPONDENCE FOR RESPONSIVE RECORDS.
Another flaw in the IRS search methodology is the blanket refusal to search IRS e-mail

correspondence for responsive material. See Oglesby, 920 F.2d at 68 ([An] agency cannot limit
its search to only one record system if there are others that are likely to turn up the information
requested.). The IRS failed to address this refusal to search e-mail in its motion for summary
judgment, Def.s Br. at 49, despite ongoing disagreement between the parties over the matter.
Pl.s SUMF 1417.9 This shortcoming is all the more egregious given numerous attempts by
CoA Institute to collaborate with the IRS in identifying a discrete number of potential record

This would include records potentially responsive to Item 4, such as non-taxpayer-specific records about tax
checks generally, as opposed to records about an individual instance of a tax check. See also supra note 6.
9
In this regard, the IRS decision to search AFOIA and EDIMS is without moment as to IRS obligations under the
FOIA. The IRS contends that these databases could not contain records responsive to items 3 or 4 . . . because
[they] are used by IRS employees who are not authorized to produce records to the White House. Def.s Br. at 8.
Yet, as the IRS admits, AFOIA and EDIMS are used to track and process requests for agency records made
pursuant to section 6103 of the Internal Revenue Code[.] Def.s Br. at 7. The CoA Institute FOIA Request,
moreover, specifically seeks records of authorized and unauthorized requests for disclosure of taxpayer information.

10

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custodians at the agency whose computers could be search for responsive e-mail records.
Mulvey Decl. 5, 78.
Given the political sensitivity of unauthorized requests for disclosure of tax returns or
return information, individuals involved with such requests would likely employ less formal
methods of communication, including e-mail. As one recent scandal at the IRS demonstrates,
IRS employees have likely used official and non-official e-mail accounts in contravention of
Federal law in order to illicitly target certain applicants for tax-exempt status. See, e.g., U.S.
H.R. Comm. on Oversight & Govt Reform, Staff Report: The Internal Revenue Services
Targeting of Conservative Tax-Exempt Applicants: Report on the Findings for the 113th
Congress at 76 (Dec. 2014), available at http://1.usa.gov/1tyX94r. It is therefore reasonable to
assume that e-mail correspondence was used in other instances of agency wrongdoing.
To the extent that E-Trak, AFOIA, and EDIMS already capture e-mail correspondence,
this does not relieve the IRS from its obligation to search for potentially responsive materials in
other records systems. See Jefferson v. Bureau of Prisons, No. 05-00848, 2006 WL 3208666, at
*6 (D.D.C. Nov. 7, 2006) (Even if an agency states that it has searched its central file system,
the failure to aver that all files likely to contain responsive records were searched, should
preclude[] the Court from findings that the search was adequate.). This is especially the case in
light of the IRS refusal to provide CoA Institute and the Court with an exhaustive list of the IRS
components whose correspondenceincluding e-mailis captured by E-Trak. See, e.g., Pl.s
SUMF 14; Mulvey Decl. 5, Ex. 2.
In short, vague references to alleged internal agency guidance and practices concerning
the forwarding and processing of incoming correspondence does not vitiate the IRS obligation
under the FOIA to search e-mail correspondence at the individual level for records potentially

11

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responsive to Items 3 and 4 of the October 9, 2012 FOIA Request. See Negley v. Fed. Bureau of
Investigation, 658 F. Supp. 2d 50, 58 (D.D.C. 2009) (Regardless of any policy or conventional
operating procedures, it is clear that Plaintiffs requests required Defendant to perform more
rigorous searches for responsive documents. (citing Weisner v. Fed. Bureau of Investigation,
577 F. Supp. 2d 450, 457 (D.D.C. 2008)).
III.

THE MCCARTY DECLARATION CONTAINS INADMISSIBLE

STATEMENTS.

Several allegations in the McCarty Declaration are speculative and are not based on
personal knowledge. Specifically, CoA Institute objects to the final sentence of paragraph three,
as well as paragraph five in its entirety. McCarty Decl. 3, 5. CoA Institute respectfully
moves the Court to exclude these statements from this case.10 Federal Rule of Civil Procedure
56(c)(4) requires that [a]n affidavit or declaration used to support . . . a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify to the matters stated. [T]he requirement of personal
knowledge by [an] affiant is unequivocal, and cannot be circumvented. Londrigan v. Fed.
Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981). The burden is on the IRS to
show that the material contained in its declarations is admissible as presented[.] Fed. R. Civ.
Pro. 56(c) Advisory Notes (2010 Amends.).11

10

Pursuant to LCvR 7(m), the parties conferred on June 20, 2016 and again on June 26, 2016 regarding CoA
Institutes intention to move to strike certain statements from the McCarty Declaration. The IRS, through its
counsel, has informed CoA Institute that it will oppose this motion.
11
In FOIA cases, courts can extend personal knowledge to supervisory agency officials who rely on information
provided by those who actually performed the search and/or who have a general familiarity with the responsive
records and procedures used to identify those records, even if the declarant did not independently verify the
information contained in each responsive record. Inst. for Policy Studies v. Cent. Intelligence Agency, 885 F. Supp.
2d 120, 133 (D.D.C. 2012) (citing Safecard Servs., Inc. v. Secs. & Exch. Commn, 926 F.2d 1197, 1201 (D.C. Cir.
1991), and Schoenman v. Fed. Bureau of Investigation, 575 F. Supp. 2d 166, 172 (D.D.C. 2008)). The statements at
issues here, by contrast, do not relate to the actual performance of the search nor to the responsive records and
procedures used to identify the records. To the extent that there is a unique extension of the personal knowledge
requirement of Fed. R. Civ. Pro. 56(c) in FOIA cases, that extension is not warranted here.

12

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The most serious deficiency in the McCarty Declaration concerns the assertion that [i]t
was the apparent business practice of the White House to send all correspondence pertaining to
taxpayer-specific matters to the Office of the Executive Secretariat. McCarty Decl. 3. Ms.
McCarty is not an employee of White House, has never been an employee of the White House,
and offers no support for her alleged personal knowledge of White House business practices.
See, e.g., McCarty Decl. 1. As set forth in her declaration, Ms. McCarty has only been
employed as the Director of the Executive Secretariat for the past nine monthslong after the
relevant time period for the creation of the records at issue in this case. In addition, she fails to
provide any information about her responsibilities in this position, or any other previous IRS
position during the past ten years, from which anyone could infer familiarity with White House
practices. McCarty Decl. 1; see also Londrigan, 670 F.2d at 117475 (finding affiant not
competent to testify to several matters because a [c]areful reading of the affidavit reveals that
a great deal of what it says could not possibly have been based on the affiants personal
knowledge).
Ms. McCarty also makes broad assertions about the IRS and the behavior of all IRS
employees about which she lacks personal knowledge. In paragraph five of her declaration, Ms.
McCarty states that the IRS takes seriously the confidentiality provisions of the Internal
Revenue Code and trains its employees accordingly and that IRS employees not assigned to
the Office of the Executive Secretariat recognize that [they] do[] not have the authority to
disclose tax information to the White House, and would have promptly arranged to forward such
communication to the Office of the Executive Secretariat for appropriate handling. McCarty
Decl. 5. Ms. McCarty also states that IRS staff in the Office of the Executive Secretariat would
have follow[ed] a standard practice of logging such communications in E-Trak. McCarty

13

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Decl. 5. These statements are speculative. There is nothing in her declaration to indicate that
Ms. McCarty has any personal knowledge of these topics. See Harris v. Gonzales, 488 F.3d 442,
446 (D.C. Cir. 2007) (an affidavit based on knowledge and belief without language to convey
actual personal knowledge should fail).
Ms. McCarty does not explain how, or why, she knows that the IRS takes seriously the
confidentiality provisions of the Internal Revenue Code, nor does she provide any information in
support of this statement. For example, there is nothing in her declaration that reveals how Ms.
McCarty has knowledge as to the training, if any, the IRS provided to tens of thousands of
employees during the relevant time period regarding taxpayer confidentiality, let alone what such
training might have involved vis--vis handling unauthorized requests for disclosure. Instead,
Ms. McCarty makes sweeping, unsupported statements for which she lacks personal knowledge.
Ms. McCarty, moreover, does not explain the basis for her knowledge, if any, of how IRS
employees outside of her current component dealt with unauthorized disclosure requests during
the relevant time period. She fails to explain how, in theory, she could form any assumption
about employee behavior within her own component. The IRS cannot take for granted that its
employees understand the full extent of their obligations under the Internal Revenue Code.
Similarly, Ms. McCarty lacks personal knowledge as to what employees in her component would
have done during the relevant time period had they actually received an unauthorized request
from the White House for the disclosure of confidential taxpayer information. Referring to an
undefined, undescribed, and unnamed standard practicewhich employees may or may not
have followedis no substitute for personal knowledge. The IRS should not be able to avoid its
duty to conduct a search for responsive records on the basis of such a declaration.

14

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Accordingly, this Court should only accept[] those statements in the [McCarty
Declaration] that clearly indicate personal knowledge . . . or are supported by adequate
documentation. Elzeneiny v. Dist. of Columbia, 125 F. Supp. 3d 18 (D.D.C. 2015). The
remainder should be excluded from this case.
CONCLUSION
For the foregoing reasons, Plaintiff CoA Institute requests that this Court deny the IRS
motion for summary judgment and grant the CoA Institute cross-motion for summary judgment
and motion to strike. CoA Institute has demonstrated that there is no genuine issue of material
fact and that CoA Institute is entitled to judgment as a matter of law.

Dated: July 1, 2016

Respectfully submitted,
/s/ Ryan P. Mulvey
Ryan P. Mulvey
D.C. Bar No. 1024362
CAUSE OF ACTION INSTITUTE
1875 Eye Street, N.W., Ste. 800
Washington, D.C. 20006
Phone: (202) 499-4232
Facsimile: (202) 330-5842
ryan.mulvey@causeofaction.org

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