part37-4

The Associate Chief Counsel (P&A), acting through the Assistant
Chief Counsel (DPL), is responsible for coordinating all aspects of litigation
arising under the FOIA, 5 U.S.C. § 552. Any complaint alleging jurisdiction
in part under the FOIA and in part under one or more other statutes or theories
falling under the aegis of another Office of Chief Counsel function is to
be coordinated with the Assistant Chief Counsel (DPL). See CCDM 37.1.2.9.
For procedures concerning the administration of FOIA requests, see CCDM 30.11.

Upon receipt by any component of the Office of Chief Counsel of a copy
of a complaint that alleges jurisdiction under the FOIA, in whole or in part,
the complaint will be sent to the Technical Services Support Branch, Room
5329, for case opening. In the event of a short deadline for response to a
complaint, the complaint should also be faxed to the Assistant Chief Counsel
(DPL) at (202) 622-6292.

The DPL attorney assigned to the case should first ascertain the date
of service of process on the United States Attorney’s office in the
district in which the action is filed in order to calculate the due date for
the answer and should confirm that date with the Tax Division attorney.

The attorney should ascertain whether the lawsuit is based upon the
agency’s failure to respond to an initial request or based upon a complete
or partial denial of a FOIA appeal. The attorney should obtain the appeal
file and review the administrative record as it pertains to the issues raised
in the complaint, including any procedural issues (e.g., fee waiver, reasonable
description of records, adequacy of search). The attorney should also review
any withheld records, or portions thereof, and the reasons for the withholdings.
If there is no appeal file or if the appeal file is incomplete, the attorney
should obtain a copy of the initial request file from the disclosure office
responsible for the FOIA request that is the subject of the complaint.

Suit based on failure to timely respond. If the lawsuit is based on
the agency’s failure to timely respond to a FOIA request or appeal,
the attorney should immediately obtain a copy of the request or appeal file
and review the administrative record.

Additionally, it may appear from the FOIA request or the complaint,
or both, that the records are sought in connection with a substantive tax
matter, such as an examination, collection activity, criminal investigation,
or ongoing litigation. In such cases, it may be helpful or necessary to a
proper defense of the FOIA lawsuit to obtain from the disclosure official(s)
who processed the request and/or appeal, and/or from the agency personnel
handling the substantive tax matter, pertinent background information relating
to the FOIA request.

As the FOIA litigation proceeds, the attorney should stay up to date
on the status of the underlying tax matter. Factors such as the closing of
a civil examination, docketing of a case in Tax Court, or referral of a case
for criminal prosecution, may have an impact on the choice of defenses to
the FOIA lawsuit.

The attorney assigned to the case will prepare a defense letter to assist
the Tax Division in defending the Service.

The contents of a defense letter are described below:

As a practical matter, the circumstances of the case or time constraints
may not permit a complete defense letter to be finished in sufficient time
to be of use to the Tax Division in filing an answer to the complaint. In
such situations, the attorney shall prepare an initial defense letter setting
forth all background information gathered up to that point, a recommended
answer to the complaint, and recommended affirmative defenses.

If an initial defense letter is provided in lieu of a complete defense
letter, the attorney should prepare a final defense letter setting forth any
additional background information, a legal analysis of the issues, and executed
declarations to support a dispositive motion, if appropriate.

In the course of preparing the defense letter, the attorney should analyze
the records that have been withheld to evaluate the arguments supporting denial
of the records. To the extent that an exemption has been misapplied, the attorney
should bring the record to the attention of a reviewer to determine if release,
in whole or in part, is appropriate.

In conjunction with preparing the defense letter, the attorney shall
prepare declarations to support the exemption claims and other defenses as
appropriate.

Declarants will often include the agency personnel who search for and/or
maintain the records at issue and the disclosure office personnel who processed
the plaintiff’s FOIA request. Declarations are to be written with input
from the declarants.

Declarations shall be detailed and non-conclusory and avoid the use
of inadmissible hearsay. When appropriate, the attorney will incorporate input
and suggestions from the Tax Division attorney assigned to the case. The attorney’s
reviewer will review the declarations before forwarding them to the declarants
for signature.

Once executed, declarations are to be returned to the DPL attorney.
The DPL attorney will then forward the declarations to the Tax Division.

After the attorney has provided the Tax Division with the defense letter,
declarations necessary to support a motion for summary judgment or other dispositive
motion, and, if necessary, copies of the records at issue in a format suitable
for in camera submission, the attorney is responsible for furnishing any additional
assistance requested by the Tax Division. This responsibility may include
obtaining additional declarations, furnishing or updating background information,
enlarging upon a defense, preparing a court-ordered Vaughn
index, answering interrogatories or other discovery, assessing a settlement
proposal, or assessing a request for attorney fees and court costs.

Coordination with the Tax Division should continue through any post-judgment
filings, such as a motion to alter or amend the judgment under Fed. R. Civ.
P. 59(e) or a motion for relief from the judgment under Fed. R. Civ. P. 60.
For all “significant litigation” within the meaning of Department of Treasury
General Counsel Order No. 10 (January 19, 2001), the reporting requirements
of that order should be followed.

The attorney may be required to prepare a Vaughn Index
(see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973))
of the records being withheld. Generally, the Vaughn Index
will entail a document by document description of the records, along with
an enumeration of the FOIA exemptions claimed for each record, and a detailed
justification for the exemptions.

The index should be detailed, nonconclusory, and avoid the use of inadmissible
hearsay. For any record for which it has been determined that there are no
segregable portions that may be released, such that the record is being withheld
in its entirety, the Vaughn index should include a statement
that nonexempt material in the record could not reasonably be segregated from
exempt material and the justification for that determination.

After court decision or other conclusion (voluntary dismissal, settlement,
etc.) and expiration of the appeal period, the attorney should complete the
case closing documentation, submit the case file for closing, and insure the
case is closed on CASE-MIS.

If an appeal is filed, a new work load item should be opened under the
appropriate appeal category and the work load item for the district court
should be closed. For appellate litigation, see CCDM Part 36.