United States District Court For The District of Columbia

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 1 of 32
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
____________________________________
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SEA SHEPHERD CONSERVATION
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SOCIETY,
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Plaintiff,
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v.
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Civil Action No. 13-1422 (ABJ)
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INTERNAL REVENUE SERVICE,
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Defendant.
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____________________________________)
MEMORANDUM OPINION
Plaintiff Sea Shepherd Conservation Society made a Freedom of Information Act (FOIA)
request to the Internal Revenue Service (IRS), seeking all records related to itself in IRS files
dated from January 1, 2006 to May 13, 2013. In particular, plaintiff requested records related to
any complaints lodged with the IRS about Sea Shepherd, and the examination of Sea Shepherds
tax-exempt status that began in January of 2013. In this lawsuit, plaintiff contends that the IRS
failed to conduct an adequate search for responsive records, and that it has withheld or redacted
records without justification. Defendant filed a motion for summary judgment on May 20, 2014.
The Court finds that defendant has failed to establish that it conducted an adequate search
for records under FOIA, and that it has not demonstrated on this record that most of its
withholdings were justified. Therefore, the Court will remand this case and direct the agency to
conduct additional searches, provide more detailed descriptions of its searches and more detailed
justifications for its withholdings, and release any non-exempt portions of responsive records to
plaintiff.
BACKGROUND
I.
Sea Shepherd Conservation Society

Sea Shepherd is a 501(c)(3) non-profit environmental organization dedicated to the
preservation of oceanic habitats and wildlife, including whales. Pl.s Mem. of P. & A. in Opp. to
Def.s Mot. for Summ. J. at 2 [Dkt. # 17] (Pl.s Opp.) at 2. Since 2003, plaintiff has engaged
in numerous direct confrontation campaigns against the Institute of Cetacean Research
(Cetacean), which plaintiff describes as an organization that hunts whales in the Southern Ocean
for commercial purposes in violation of international law. Id. Plaintiff claims that Cetacean is
funded, in part, by the Japanese government. Id.
Sea Shepherd maintains that, in response to its campaigns against Cetacean, the Japanese
government and Cetacean have targeted Sea Shepherd diplomatically and through litigation in the
United States. See id. at 45. Some of this litigation has been successful. See Inst. of Cetacean
Research v. Sea Shepherd Conservation Socy, 725 F.3d 940, 944, 947 (9th Cir. 2013) (declaring
that Sea Shepherds acts amounted to piracy and granting preliminary injunction). Other matters
remain pending. 1 On the diplomatic side, and as background for the instant litigation, plaintiff
points to two classified cables, authored by United States government officials and published in
January 2011 by the online organization Wikileaks, that reflect conversations between the United
States and Japanese governments about Sea Shepherds activities and tax-exempt status. See Ex.
1 to Rule 56(d) Decl. of Christopher Rizek [Dkt. # 17-3] at 12 (stating that General Machida of
Japan appreciates the [U.S. government] initiative to address [Sea Shepherds] tax exempt
1
See Inst. of Cetacean Research v. Sea Shepherd Conservation Socy, No. C11-2043JLR,
2014 WL 3579639, at *1 (W.D. Wash. July 21, 2014) (Cetacean alleges that Sea Shepherds
tactics include ramming Cetaceans ships, dragging ropes in the water to disable propellers, and
directing smoke bombs, flares, butyric acid-filled containers, and lasers at Cetaceans ships.).
2
status, and that U.S. official Monica Medina believes the [U.S. government] can demonstrate
the group does not deserve tax exempt status based on their aggressive and harmful actions); Ex.
2 to Rule 56(d) Decl. of Christopher Rizek [Dkt. # 17-3] at 2 (stating that General Yamashita of
Japan said [Sea Shepherds] actions have kept the fleet from reaching its [whaling] quota the last
few years and that the government of Japan would come under pressure domestically if [Sea
Shepherd] harassment continues to keep Japanese whalers from filling their quota, and noting
that U.S. official Marc Wall said the [U.S. government] is concerned about the safety of life at
sea and is looking at the activity of [Sea Shepherd]).
In January 2013, Sea Shepherd became the subject of an IRS examination into its taxexempt status for the year 2010. See Def.s Statement of Undisputed Material Facts [Dkt. # 16-1]
(Def.s SOF) 1; Pl.s Statement of Genuine Issues in Opp. to Def.s SOF [Dkt. # 17-2] 1. On
October 29, 2014, the IRS notified Sea Shepherd by letter that its 2010 return would be accepted
and that the investigation was closed. Attach. 1 to Pl.s Notice of Change in Facts [Dkt. # 22-1]
at 1. In addition, the IRS informed plaintiff in an addendum to its letter that, [s]hould the courts
with its [sic] authority find the Sea Shepherd in violation of laws, a subsequent examination may
be initiated. Id. at 4.
II.
Plaintiffs FOIA Request

Plaintiff contends that, [b]ased on revelations in the media, Sea Shepherds past
experiences with very public attempts by both [Cetacean] and the Japanese government to shut
down the organization, and the timing and nature of the audit, Sea Shepherd has reason to believe
that the IRS started the audit in response to a request of the Japanese government or [Cetacean].
Pl.s Opp. at 5. These suspicions led plaintiff to file a FOIA request with the IRS on May 13,
2013, seeking any and all documents, from January 1, 2006, through [May 13, 2013], related to
Sea Shepherd, including documents related to the examination of Sea Shepherd commenced by
the Internal Revenue Service on or about January 4, 2013, and any complaint lodged with the
Internal Revenue Service expressing concerns regarding Sea Shepherds activities or qualification
for tax-exempt status after January 1, 2006. Ex. A to Compl. [Dkt. # 1] at 1. Plaintiff also sought
any and all documents related to any request from any person that the Internal Revenue Service
examine Sea Shepherd and any and all documents that relate to the examination of Sea Shepherd.
Id. at 12.
Plaintiff specifically requested that the IRS search the following locations: the files of the
agent who handled the examination of plaintiffs tax-exempt status, Peter Huang; the National and
Area Chief Counsel Offices of the Tax-Exempt and Government Entities (TEGE) function of
the IRS; the office of the Director of the Exempt Organizations Exams in Dallas, Texas; and the
office of Exempt Organizations Rulings and Agreements in the TEGE National Office. Id. at 1.
III.
Procedural History
On June 17, 2013, the IRS informed plaintiff that it would not be able to respond within
the twenty-day statutory period, and it extended its response date to August 2, 2013. Compl. [Dkt.
# 1] 6; see also 5 U.S.C. 552(a)(6)(A)(ii). After the IRS missed this deadline, plaintiff filed a
complaint in this Court on September 19, 2013. See Compl. 79. On January 30, 2014,
defendant produced over 3000 pages of records to plaintiff, and moved for an extension until
March 7, 2014, to complete its response. Def.s Mot. Proposing Production Schedule [Dkt. # 8].
The Court granted defendants motion for an extension of the production schedule. Minute Order
(Jan. 31, 2014).
On March 7, 2014, defendant produced a second set of documents to plaintiff, which it
described as its final release. Def.s Status Report (Mar. 7, 2014) [Dkt. # 10]. On March 21,
2014, however, defendant filed another status report in which it stated that it had discovered on
March 19, 2014, that its initial search was incomplete, and that it was taking steps to expeditiously
complete its search and production of IRS counsel records. Def.s Status Report (Mar. 21, 2014)
[Dkt. # 12] at 1; see also Decl. of A.M. Gulas [Dkt. # 12-1] (1st Gulas Decl.) 6.
On May 20, 2014, the IRS filed a motion for summary judgment. Def.s Mot. for Summ.
J. [Dkt. # 16] (Def.s Mot.); Mem. in Supp. of Def.s Mot. [Dkt. # 16] (Def.s Mem.). Among
the arguments advanced by the agency was the contention that documents should be withheld
because the audit of plaintiffs tax-exempt status was ongoing. See Def.s Mem. at 12. Plaintiff
filed an opposition on July 18, 2014. Pl.s Opp. Defendant replied on August 8, 2014, Def.s
Reply Mem. in Supp. of Def.s Mot. [Dkt. # 19] (Def.s Reply), and filed an additional
declaration by Kieu Ta, which corrected an exhibit filed with the motion for summary judgment.
See Decl. of Kieu Ta, Attach. 1 to Def.s Errata [Dkt. # 18-1] (Ta Decl.). In light of the
supplemental declaration, plaintiff was granted leave to file a sur-reply on August 25, 2014.
Minute Order (Aug. 25, 2014); see also Pl.s Sur-reply to Def.s Reply [Dkt. # 21].
On November 5, 2014, plaintiff notified the Court that the IRS had concluded its
investigation without consequence for plaintiff, and it took the position that this event vitiated
defendants reliance on FOIA Exemptions 7(A) and 7(D) to withhold records. Pl.s Notice of
Change in Facts [Dkt. # 22] (Pl.s Notice) at 12. The Court ordered the IRS to state whether it
wished to continue to stand on its previous withholdings and explanations, or to withdraw and
resubmit its motion for summary judgment. Minute Order (Nov. 5, 2014). On November 12,
2014, the IRS notified the Court that it would stand on its previous pleadings. Def.s Notice in
Resp. [Dkt. # 24] (Def.s Resp.) 14.
On March 3, 2015, the Court ordered defendant to deliver a series of records to the Court
for its in camera review: redacted and unredacted versions of the pages 003708 and 003715 in the
Vaughn Index for IRS Examination Records [Dkt. # 16-3] (Examination Vaughn Index), and
pages 012398, 012400012401, 012404, 012467, 012533012534, 012569012571, 012208
012210, and 012215012216 in the Vaughn Index for IRS Counsel Records [Dkt. # 16-5]
(Counsel Vaughn Index). Minute Order (Mar. 3, 2015), citing Ray v. Turner, 587 F.2d 1187,
1195 (D.C. Cir. 1978). Defendant complied with this order, see Pl.s Notice of Compliance [Dkt.
# 26], and the Court has reviewed the records in connection with its consideration of defendants
motion for summary judgment.
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agencys decisions de novo and the burden
is on the agency to sustain its action. 5 U.S.C. 552(a)(4)(B); Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). FOIA cases are typically and appropriately decided on
motions for summary judgment. Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009).
On a motion for summary judgment, the Court must view the evidence in the light most
favorable to the nonmoving party, draw all reasonable inferences in [its] favor, and eschew making
credibility determinations or weighing the evidence. Montgomery v. Chao, 546 F.3d 703, 706
(D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986). But
where a plaintiff has neither alleged nor provided evidence that an agency acted in bad faith, a
court may award summary judgment solely on the basis of information provided by the agency in
declarations. Moore, 601 F. Supp. 2d at 12.
ANALYSIS
FOIA requires government agencies to release records upon request in order 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. NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). But because legitimate governmental and private interests
could be harmed by [the] release of certain types of information, Congress provided nine specific
exemptions to the disclosure requirements. FBI v. Abramson, 456 U.S. 615, 621 (1982); see also
Ctr. for Natl Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (FOIA represents a balance
struck by Congress between the publics right to know and the governments legitimate interest in
keeping certain information confidential.). These nine FOIA exemptions are to be construed
narrowly. Abramson, 456 U.S. at 630.
To prevail in a FOIA action, an agency must, first, demonstrate that it has 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. Oglesby v. U.S. Dept of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). Second, the agency must show that materials that are withheld . . . fall within
a FOIA statutory exemption. Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp.
2d 246, 252 (D.D.C. 2005). Any reasonably segregable information in a responsive record must
be released, 5 U.S.C. 552(b), unless the nonexempt portions are inextricably intertwined with
exempt portions. Wilderness Socy v. U.S. Dept of Interior, 344 F. Supp. 2d 1, 18 (D.D.C.
2004), quoting Mead Data Cent., Inc. v. U.S. Dept of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977).
I.
Defendants declarations do not describe an adequate search for responsive records.

A. Legal Standard
An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents. Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999), quoting Truitt v. Dept of State, 897 F.2d
540, 542 (D.C. Cir. 1990); see also Oglesby, 920 F.2d at 68; Weisberg v. DOJ, 705 F.2d 1344,
1351 (D.C. Cir. 1983). The Court finds that the IRS did not meet this burden, and will remand the
case to defendant to continue its search and amend its declarations.
To demonstrate that it has performed an adequate search for documents responsive to a
FOIA request, an agency must submit a reasonably detailed affidavit describing the search.
Oglesby, 920 F.2d at 68 (finding summary judgment improper where agencys affidavit lacked
sufficient detail); see also Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 91
(D.D.C. 2009) (same). A declaration is reasonably detailed if it set[s] forth the search terms
and the type of search performed, and aver[s] that all files likely to contain responsive materials
(if such records exist) were searched. Oglesby, 920 F.2d at 68; see also Defenders, 623 F. Supp.
2d at 92 (finding declaration deficient where it failed to detail the types of files searched, the filing
methods, and the search terms used). A declaration, therefore, must at least include the agencys
rationale for searching certain locations and not others. Defenders, 623 F. Supp. 2d at 92; see
also Natl Sec. Counselors v. CIA, 849 F. Supp. 2d 6, 11 (D.D.C. 2012) (finding affidavit sufficient
where it outline[d] with reasonable detail the CIAs decision to limit the search to a particular
area); Hooker v. U.S. Dept of Health & Human Servs., 887 F. Supp. 2d 40, 51 (D.D.C. 2012)
(finding that the agencys declaration fail[ed] to explain . . . why those offices were the reasonably
likely locations of the records sought). Agency affidavits attesting to a reasonable search are
afforded a presumption of good faith that can be rebutted only with evidence that the agencys
search was not made in good faith. Defenders of Wildlife v. U.S. Dept of Interior, 314 F. Supp.
2d 1, 8 (D.D.C. 2004), quoting Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001).
An agencys declarations need not set forth with meticulous documentation the details of
an epic search for requested records, Defenders, 623 F. Supp. 2d at 91, quoting Perry v. Block,
684 F.2d 121, 127 (D.C. Cir. 1982), but they should describe what records were searched, by
whom, and through what processes. Id., quoting Steinberg v. DOJ, 23 F.3d 548, 552 (D.C. Cir.
1994). Conclusory assertions about the agencys thoroughness are not sufficient. See Morley v.
CIA, 508 F.3d 1108, 112122 (D.C. Cir. 2007) (finding agencys single conclusory affidavit to
be inadequate). At the same time, however, where an affidavit could in theory be more detailed,
that fact alone does not warrant denying summary judgment in favor of a defendant. White v.
DOJ, 840 F. Supp. 2d 83, 89 (D.D.C. 2012).
B. Defendants Searches and Declarations
Plaintiffs FOIA request sought three types of records: (1) records related to the IRSs
audit of Sea Shepherd; (2) records related to any complaint lodged with the [IRS] expressing
concerns regarding Sea Shepherds activities or qualification for tax-exempt status between
January 1, 2006, and May 13, 2013; and (3) any and all documents, from January 1, 2006, through
[May 13, 2013], related to plaintiff. Ex. A to Compl. at 1. In addition, plaintiffs request
identified several offices and one agent, in various branches of the IRS, that it believed might
possess responsive files: the office of the Director of Exempt Organizations Examinations in
Dallas, Texas; Peter Huang, the agent assigned to the examination of Sea Shepherd; the offices of
the National and Area Tax Exempt and Government Entities (TEGE) Counsel; and the Rulings
and Agreements division of the office of Exempt Organizations. Id.
To demonstrate the adequacy of its search efforts, the IRS submitted four declarations: 2
x
The declaration of Denise Higley, a Tax Law Specialist in the IRSs Headquarters
Disclosure Offices FOIA function, describes the agencys initial search efforts after
receiving plaintiffs FOIA request, including Higleys coordination with (1) Kieu Ta,
the FOIA coordinator for the office of Exempt Organizations Examinations, (2) the
National Office of Chief Counsel, and (3) revenue agent Peter Huang. See Decl. of
Denise Higley [Dkt. # 16-6] (Higley Decl.).
The declaration of Kieu Ta, a Senior Program Analyst in the IRSs office for Tax
Exempt and Government Entities, describes her coordination with agent Huang and the
Exempt Organizations Referral group. See Ta Decl.
Two declarations from A.M. Gulas, Senior Counsel in Branch 7 of the Office of the
Associate Chief Counsel (Procedure and Administration), describe Gulass
coordination with Denise Higley, Peter Huang, Mark Weiner in the Pacific Coast Area
Chief Counsel Office, Courtney Jones in the National Office of Chief Counsel, and
Elizabeth Goff in the office of Exempt Organizations Rulings and Agreements. See 1st
Gulas Decl.; Second Decl. of A.M. Gulas [Dkt. # 16-4] (2d Gulas Decl.).
As will be set out in more detail below, the Court concludes that defendants declarations
are deficient on several grounds. First, none of the declarations adequately addresses plaintiffs
request for any and all documents related to it within the designated time period, or even
indicates that a search for any and all documents related to plaintiff was actually conducted.
Second, none of the declarations describes defendants overall rationale for searching certain
locations and not others. See Defenders, 623 F. Supp. 2d at 92; see also Natl Sec. Counselors,
849 F. Supp. 2d at 11. And, third, the individual declarations suffer from numerous other
deficiencies that are described below. Thus, the Court cannot conclude that the agency has
2
Defendant also submitted a fifth declaration by Michael Franklin, an attorney in Branch 6
of the Office of the Associate Chief Counsel (Procedure and Administration), in support of its
withholdings under various FOIA exemptions. Decl. of Michael Franklin [Dkt. # 16-2].
10
described a search that was reasonably calculated to uncover all relevant documents, see
Valencia-Lucena, 180 F.3d at 325, and it will remand the case to defendant on this basis. 3
1. The Higley and Ta declarations do not describe an adequate search of the
Exempt Organizations Examinations function.
Plaintiffs FOIA request asked defendant to search for records in the office of the Director
of Exempt Organizations Exam[inations]. Ex. A to Compl. at 1. The Court finds that defendant
has failed to describe an adequate search of the Exempt Organizations Examinations function.
Denise Higley was assigned to process and coordinate plaintiffs FOIA request, and she
began her search on May 20, 2013, by contacting Peter Huang, the agent assigned to the
examination of Sea Shepherds tax-exempt status, as plaintiff specified in its FOIA request. Higley
Decl. 13; see also Ex. A to Compl. at 1. Agent Huang informed Higley that he had
approximately 3,000 pages of material related to an open examination for 2010. Higley Decl.
3.
On June 19, 2013, Higley broadened her search by sending a search request memorandum
to Kieu Ta, requesting a copy of the open examination file and any records other than those in
[Huangs] possession. Id. 56. On June 20, 2014, after receiving the formal search request
from Higley, Ta reached out to agent Huang to coordinate a response. Ta Decl. 4. Ta states that
agent Huang conducted a thorough search in his area to ensure all responsive documents were
3
Plaintiff disputes the adequacy of the scope of IRSs search on the additional ground that
the agencys declarations do not reflect a search of either the Whistleblower Office or the
Communications and Liaison Office. See Pl.s Opp. at 9. Because the Court is remanding this
case to the IRS on other grounds, it need not rule on this issue at this time. The Court notes,
however, that plaintiff did not mention either of these offices in its FOIA request, and that the IRS
was not obliged to look beyond the four corners of the request for leads to the location of
responsive documents. See Kowalczyk v. Dept of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).
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gathered for this FOIA request, including records he received from Walt Waldram, the initial
examining agent before the examination was transferred to [agent] Huang. Id. 6.
With respect to Higleys request to search for records other than those in [Huangs]
possession, Higley Decl. 5, Ta states that because the examination was initiated from several
referrals from confidential sources, and to ensure a thorough search was conducted, [she] checked
with the [Exempt Organizations] Referral group to gather any responsive documents that Mr.
Huang did not have. Ta Decl. 5. Ta then explains that [t]he [Exempt Organizations] Referral
group confirmed that all referrals had been sent to the exam group. Id.
Between July 1, 2013, and July 18, 2013, Higley received both electronic and paper copies
of documents relating to the pending examination from Huang and Ta. Higley Decl. 7. And
according to Higley, [t]hese . . . records were all the records [E]xamination had. 4 Id.
The Court finds that the Higley and Ta declarations fail to describe an adequate search for
records in the Exempt Organizations Examinations function. First, neither declarant meets the
basic requirement of averring that all files likely to contain responsive materials . . . were
searched. Oglesby, 920 F.2d at 68. Ta simply states without further description that agent
Huang conducted a thorough search in his area, and describes her own search of the Exempt
Organization Referral group, Ta Decl. 56, without explaining why these were the only
locations she elected to search and without stating that no other record system was likely to
produce responsive documents. See Oglesby, 920 F.2d at 68. Moreover, Ta fails to describe any
other details of her search, such as the relevant file systems or search terms that she may have
employed. See White, 840 F. Supp. 2d at 89. And, in light of these deficiencies, Higleys
4
Several months later, on or around March 20, 2014, Senior Counsel A.M. Gulas also
contacted Huang, who then produced one additional responsive e-mail. 2d Gulas Decl. 8.
12
conclusory statement that the records she received from Ta were all the records [E]xamination
had, is not entitled to credence. See Higley Decl. 7; see also Morley, 508 F.3d at 112122.
Finally, both Higley and Ta fail to indicate that a search was conducted for the broader category
of records requested by plaintiff and not solely records related to the audit of plaintiff. The Court
finds, therefore, that the Ta declaration and the relevant portions of the Higley declaration do not
describe an adequate search of the Exempt Organizations Examinations function.
2. The Higley and Gulas declarations do not describe an adequate search of the
National and Area Chief Counsel Offices of the Tax-Exempt and Government
Entities function.
Plaintiff also requested that the IRS search for records in the National and Area Chief
Counsel Offices of the Tax-Exempt and Government Entities, or TEGE, function. Ex. A to
Compl. at 1. So, Higley sent a search memorandum on June 21, 2013, to Melva Tyler, Supervisory
Legal Administrative Specialist in the Legal Processing Division for the Office of the Associate
Chief Counsel (Procedure and Administration) in Washington, D.C. Higley Decl. 6. According
to Higley, Tyler is the chief of the branch . . . responsible for coordinating searches for Counsel
records within National Office Chief Counsel offices. Id.
Higleys declaration, however,
provides no indication that Tyler or anyone else in the National TEGE Counsel Office ever
responded to the request to search for responsive records, nor does the declaration indicate that
Higley contacted anyone in the Area Chief Counsel offices of TEGE. See id.
On March 19, 2014, while this case was already pending, Senior Counsel A.M. Gulas
discovered these omissions from the Higley declaration. 1st Gulas Decl. 6, 8. Gulas attempted
to cure this deficiency by reaching out to the Disclosure and Litigation Support Branch, which she
explains is the office that processes FOIA requests for National Office of Counsel records, in order
to learn if they had ever received any records from TEGE Counsel. Id. 78. On March 20,
13
2014, she received a copy of the one file the office had identified as responsive from TEGE
Counsel attorney Courtney Jones. Id. 8. Gulas asked Jones whether any other responsive records
might be found in the National TEGE Counsel office, and Jones responded that there were none.
2d Gulas Decl. 2. Gulas corroborated Joness statement by reviewing the Counsel case time
reporting database, which indicated [Jones] had billed only five hours to the [Sea Shepherd] case.
Id.
As for Area TEGE Counsel, Gulas contacted Mark Weiner, a senior counsel in the Pacific
Coast Area TEGE Counsel office, who provided legal assistance to Peter Huang, the agent
assigned to plaintiffs case at the IRS. 1st Gulas Decl. 10. Weiner stated that the only records
in his possession were those that agent Huang had already produced, and Gulas confirmed this to
be true based on descriptions provided by Weiner. 2d Gulas Decl. 4. Gulas also asked Weiner
to provide her with any emails he had exchanged with revenue agents related to this case, and
Weiner forwarded to her his emails with Huang and with Walt Waldram, the agent initially
assigned to the examination of plaintiff. Id. 57.
As IRS Senior Counsel Gulas acknowledged, the original Higley declaration failed to
describe an adequate search for responsive records in either the National or Area TEGE Counsel
offices. See 1st Gulas Decl. 6, 8. Moreover, despite Gulass efforts to cure the deficiencies of
the Higley declaration, Gulass declarations do not sufficiently indicate that defendant conducted
a search for records responsive to all portions of plaintiffs request. Moreover, Gulas fails to
explain the rationale for only contacting Weiner in the Pacific Coast Area TEGE Counsel office,
and no other individuals or offices, with respect to plaintiffs full request. See Defenders, 623 F.
Supp. 2d at 92; Natl Sec. Counselors, 849 F. Supp. 2d at 11. Thus, the search for records in the
National and Area TEGE Counsel offices was inadequate.
14
3. The Second Gulas declaration does not adequately describe the search of the
Exempt Organizations Rulings and Agreements function.
Although plaintiffs FOIA request specifies that plaintiff believed that responsive records
might be found in the Exempt Organizations Rulings and Agreements function of the national
TEGE office, see Ex. A to Compl. at 1, the Higley declaration does not indicate that she
coordinated any search in that location. See Higley Decl. Thus, [t]o confirm that the IRS had
searched all offices that plaintiffs counsel specifically identified in the initial request, Gulas
contacted Elizabeth Goff, FOIA Coordinator for Exempt Organizations in the National Office, and
requested that she conduct a search for responsive records in the Rulings and Agreements function.
2d Gulas Decl. 11. Goff responded that Rulings and Agreements would have no files while an
examination is pending in the field. Id.
But even if Goffs assertion might be sufficient to explain why Rulings and Agreements
did not possess records responsive to the portion of plaintiffs FOIA request that sought records
related to the then-ongoing examination of its tax-exempt status, it does not address the portion of
plaintiffs request that sought any and all records related to Sea Shepherd within the specified
timeframe, see Ex. A to Compl. at 1, nor does it indicate that all reasonably likely locations of
responsive records were searched. See Hooker, 887 F. Supp. 2d at 51. Accordingly, the Court
cannot conclude that this aspect of the search was sufficient.
4. The Court will remand the case to defendant.
For all of these reasons, then, the Court finds that defendants affidavits do not attest to a
search that was reasonably calculated to uncover all relevant documents with respect to
plaintiffs FOIA request. See Valencia-Lucena, 180 F.3d at 325. Therefore, the Court will remand
this case to the IRS so that it may conduct additional searches and provide more detailed
declarations consistent with this opinion.
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II.
Defendant has not justified its withholdings under FOIA Exemptions 6 and 7.
Turning to those records that the IRS did identify, the agency declined to produce numerous
responsive documents under FOIA Exemptions 6 and 7. The Court finds that these withholdings
have not been justified on this record.
Exemption 6 shields from mandatory disclosure personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy. 5 U.S.C. 552(b)(6). In this case, the IRS acknowledges that the information at issue
here is not in a personal or medical file, but contends that it was found in a similar file[].
Def.s Mem. at 18 (alteration in original).
Exemption 7 permits agencies to withhold records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information would undermine one of six enumerated interests. 5 U.S.C. 552(b)(7)(A)(F).
As a threshold matter, the IRS contends that all of the records it withheld under Exemption
7 were compiled for a law enforcement purpose because there is a nexus between [the IRSs]
activity . . . and its law enforcement duties. Def.s Mem. at 12, quoting Keys v. DOJ, 830 F.2d
337, 340 (D.C. Cir. 1987). Plaintiff contends that defendant has not made this showing because
the descriptions of the records it found are insufficiently detailed, and because plaintiff suspects
that the IRSs audit may have been motivated by a non-law enforcement purpose. Pl.s Opp. at
18. Although defendant has said little to address these objections, the Court need not rule on that
issue at this time because it finds that defendants withholdings under Exemption 7 were
unsupported on other grounds. In addition, and for the same reason, the Court need not determine
at this time whether any of the records defendant withheld under Exemption 6 were found in
similar files, as defendant contends. See Def.s Mem. at 18.
16
A. Defendant has not justified its withholdings under Exemption 7(A).

FOIA Exemption 7(A) permits agencies to withhold records or information compiled for
law enforcement purposes, but only to the extent that the production of such law enforcement
records or information . . . could reasonably be expected to interfere with enforcement
proceedings. 5 U.S.C. 552(b)(7)(A). At the time it filed its dispositive motion, defendant
argued that Exemption 7(A) applies to the Services examination records for Sea Shepherd
Conservation Society, because the Services examination of the Sea Shepherds tax exempt status
is ongoing. Def.s Mem. at 12, citing Decl. of Michael Franklin [Dkt. # 16-2] (Franklin Decl.)
5. It also contended that the disclosure of the information could hamper the Services progress
in the examination by revealing the scope, progress and direction of the investigation. Id. at 13,
citing Franklin Decl. 33; see also Examination Vaughn Index at 113; Counsel Vaughn Index at
13, 513. The agency has not revised its position. See Def.s Resp.
But whether or not the records at issue here qualify as law enforcement records, the IRSs
statement that the release of the records could reasonably be expected to interfere with
enforcement proceedings, see 5 U.S.C. 552(b)(7)(A), is no longer sufficient to justify their
retention because the investigation of plaintiff has now closed. See Pl.s Notice. On November 5,
2014, plaintiff notified the Court that, on October 29, 2014, it received a letter from the IRS stating
that the audit had ended and that [plaintiffs] organization continues to qualify for exemption
from Federal income tax. Attach. 1 to Pl.s Notice at 1.
In light of plaintiffs notice, the Court ordered defendant to explain whether it wished to
stand on its previous withholdings and explanations, or to withdraw and resubmit its motion for
summary judgment. Minute Order (Nov. 5, 2014). On November 12, 2014, defendant responded
that it continue[d] to stand on its previous withholdings and explanations, and that it would not
17
withdraw and resubmit its motion. Def.s Resp. 4. In addition, defendant pointed out that its
October 29, 2014 letter to plaintiff had included an addendum in which it cautioned plaintiff that,
[s]hould the courts . . . find the Sea Shepherd in violation of laws, a subsequent examination may
be initiated. Id. 1. Defendant took the position that this addendum demonstrates that its
investigation of Plaintiff is not conclusively closed and therefore Exemption 7(A) continues to
apply. Id. 2.
But the IRS has not provided any authority for the proposition that the possibility that
another investigation might be launched in the future is sufficient to give rise to the risk that
disclosure of records of the previous investigation would interfere with enforcement
proceedings, which is the necessary predicate for the cited exemption. Indeed, the only basis on
which the IRS invoked Exemption 7(A) was the fact that its investigation was ongoing. See
Def.s Mem. at 12. Therefore, the Court finds that defendant has not carried its burden to show
that Exemption 7(A) applies to any of the withholdings it has made in this case.
B. Defendant has not justified its withholdings under Exemptions 6 or 7(C).
Defendant has also invoked FOIA Exemptions 6 and 7(C) to withhold third-party
identifying information. Def.s Mem. at 17; Franklin Decl. 1719. Exemption 6 shields from
mandatory disclosure personnel and medical files and similar files the disclosure of which would
constitute
clearly
unwarranted
invasion
of
personal
privacy.
U.S.C.
552(b)(6). Exemption 7(C) protects information that was: (1) compiled for law enforcement
purposes, if (2) the disclosure could reasonably be expected to constitute an unwarranted invasion
of personal privacy. Id. 552(b)(7)(C). To determine whether either Exemption 7(C) or 6
applies, a court balances an agencys asserted privacy interest against the public interest in
18
disclosure of information. See DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 758
59 (1989).
Defendant asserts that Exemptions 6 and 7(C) justify its redactions from two types of
records. The first group of records consists of copies of plaintiffs own QuickBooks data, from
which defendant has redacted the Social Security numbers and Taxpayer Identification Numbers
of third parties. See Examination Vaughn Index at 6, 13. 5 The second group is made up of two
Tax Exempt Organization Referral Packages, and defendant has redacted [t]he names,
telephone numbers, fax numbers, and emails of third parties listed on these referral documents.
Id. at 6. 6
Defendant asserts that [t]he release of this information could reasonably be expected to
lead to the identification of certain third parties, which could conceivably subject them to
harassment or annoyance in their private lives. Def.s Mem. at 20. Therefore, defendant
continues, [t]he Service determined and the Court should agree that there is little or no public
interest in this information. Id.; Def.s Reply at 10. But in this case, plaintiff has pointed to the
public interest in knowing whether the IRSs audit was in any way related to the statements
revealed by the Wikileaks cables, which indicate that United States government officials discussed
the IRSs investigation of plaintiffs tax-exempt status with Japanese government officials who
were concerned about plaintiffs activities. Pl.s Opp. at 26; see also Ex. 1 to Rule 56(d) Decl. of
5
The specific records at issue are Bates numbered 004069, 004071, 004073,
004078, 004080, 004083, 008758, 008769, 008791, 008810, 008829, 008842, 008867,
008889, 008952, 008963, 008985, 009004, 009023, 009036, 009061, 009080, 009083,
009157, 009179, 009198, 009217, 009230, 009255, 009274, 009277, 010060, 010061,
010067, 010071, 010074, and 010075.
004075,
008886,
009146,
010063,
6
The specific records at issue are Bates numbered 003708 and 003715. The latter record is
also referred to as document number 003664.
19
Christopher Rizek; Ex. 2 to Rule 56(d) Decl. of Christopher Rizek. In addition, plaintiff has
articulated a public interest in knowing whether the IRSs audit was related to the Cetacean lawsuit.
Pl.s Opp. at 26.
Whether or not these records meet the threshold requirements of Exemptions 6 and 7, and
whether or not the private interests asserted by defendant outweigh the public interest identified
by plaintiff, the Court finds that plaintiff has pointed to a public interest in disclosure that the IRS
did not consider in the balancing test. Accordingly, the Court will remand the case to the IRS so
that it may weigh the privacy interest in non-disclosure against the public interest in the release of
the records. See Judicial Watch v. U.S. Dept of Homeland Sec., 598 F. Supp. 2d 93, 96 (D.D.C.
2009) ([A]n agency must, for each record, conduct a particularized assessment of the public and
private interests at stake.).
C. Defendant has not justified its withholdings under Exemption 7(D).
The IRS has also failed to justify its reliance on Exemption 7(D). This provision permits
agencies to withhold records or information compiled for law enforcement purposes to the extent
that the records or information could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority or any private
20
institution which furnished information on a confidential basis. 7 5 U.S.C. 552(b)(7)(D). The

agency invoking Exemption 7(D) bears the burden of showing that the source is a confidential
one. Citizens for Responsibility & Ethics in Washington v. DOJ (CREW), 746 F.3d 1082, 1101
(D.C. Cir. 2014), citing DOJ v. Landano, 508 U.S. 165, 172 (1993). It is not enough for an agency
to simply state that the sources in question provided information on a confidential basis. Id.,
quoting Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011).
Rather, the agency must either
present probative evidence that the source did in fact receive an express grant of confidentiality,
id., quoting Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998), or else it must point to more
narrowly defined circumstances that . . . support the inference of confidentiality. Id., quoting
Roth, 642 F.3d at 1184. The key question is not whether the requested document is of the type
that the agency usually treats as confidential, but whether the particular source spoke with an
understanding that the communication would remain confidential. Landano, 508 U.S. at 172.
In this case, the IRS has entirely failed to carry its burden to show that its sources did in
fact receive an express grant of confidentiality, and it has also failed to articulate circumstances
that would support the inference of confidentiality. See CREW, 746 F.3d at 1101 (citations and
internal quotation marks omitted). Defendant merely states that the confidential sources[]
In full, Exemption 7(D) states that agencies may withhold

records or information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information . . . (D) could reasonably be expected to disclose the identity of
a confidential source, including a State, local, or foreign agency or authority
or any private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source[.]
5 U.S.C. 552(b)(7).
21
requested anonymity, without anything more. Franklin Decl. 38; see also 2d Gulas Decl. 24
(the confidential source . . . requested anonymity). Indeed, the IRS does not even claim that
these sources received an assurance of confidentiality at all, see CREW, 746 F.3d at 1101 only
that they requested it. Under these circumstances, the Court cannot find that the IRS has carried
its burden to establish that any of the particular source[s] spoke with an understanding that the
communication would remain confidential. See Landano, 508 U.S. at 172. Thus, the IRS has
not justified its withholdings under Exemption 7(D).
III.
Some of defendants withholdings are not justified by FOIA Exemption 3 in

conjunction with 26 U.S.C. 6103.
Defendant withheld several records, in part and in full, under FOIA Exemption 3 in
conjunction with 26 U.S.C. 6013(a) and 26 U.S.C. 6103(e)(7). Def.s Mem. at 14, 16. FOIA
Exemption 3 authorizes agencies to withhold information that is specifically exempted from
disclosure by statute. 5 U.S.C. 552(b)(3)(A)(i), (b)(3)(B). In this case, defendant has pointed
to two provisions of section 6103 of the Internal Revenue Code as the exempting statutes: 26
U.S.C. 6103(a), and 26 U.S.C. 6103(e)(7). Def.s Mem. at 1416. That [section] 6103 is the
sort of nondisclosure statute contemplated by FOIA exemption 3 is beyond dispute. Tax Analysts
v. IRS, 117 F.3d 607, 611 (D.C. Cir. 1997).
A. Some of defendants withholdings under Exemption 3 and section 6103(a) are not
justified.
Section 6103(a) requires that tax returns and return information be kept confidential
subject to certain exceptions. 26 U.S.C. 6103(a). Return information is defined as
a taxpayers identity, the nature, source, or amount of his income, payments,
receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax
liability, tax withheld, deficiencies, overassessments, or tax payments,
whether the taxpayers return was, is being, or will be examined or subject
to other investigation or processing, or any other data, received by, recorded
by, prepared by, furnished to, or collected by the Secretary with respect to
22
a return or with respect to the determination of the existence, or possible

existence, of liability (or the amount thereof) of any person under this title
for any tax, penalty, interest, fine, forfeiture, or other imposition, or
offense . . . .
Id. 6103(b)(2)(A).
Defendant invokes Exemption 3 and section 6103(a) in connection with its redaction of the
names and contact information of the authors of certain marine shipping notices from the Office
of Naval Intelligence from records found on pages 003708 and 003715 of defendants production.
Pl.s Opp. at 13; see also Examination Vaughn Index at 6.8 The remainder of each document has
been produced in its entirety, but plaintiff challenges the redactions for two reasons: that the
information is otherwise publicly available, and that it does not constitute return information.
See Pl.s Opp. at 1314. Plaintiff has provided a link to a website that, according to plaintiff,
contains an unredacted version of page 003708. See id. at 13.
The IRS contends that the information it withheld from these two pages is confidential
return information because it constitutes personally identifying information that is specific to a
taxpayer other than plaintiff. 9 Def.s Reply at 78, citing Tax Analysts, 117 F.3d at 618. The
Court has reviewed the two pages in camera and finds that, under the circumstances of this case
where the information withheld does not appear to relate to the individuals status as a taxpayer in
any way the IRS has not carried its burden to establish that the redacted information qualifies as
8
Defendant also asserted that these redactions were justified under Exemptions 6 and 7(C),
see Examination Vaughn Index at 6, but the Court has already determined that defendants reliance
on those exemptions was unjustified for the reasons stated above.
9
The IRS does not deny that unredacted versions of these two pages are publicly available,
although it points out that plaintiff has not actually produc[ed] the documents 003708 or 003715
in an unredacted form. See Def.s Reply at 7. The Court notes, however, that it is the IRSs
burden, and not plaintiffs to prove that a FOIA exemption applies. 5 U.S.C. 552(a)(4)(B);
Military Audit Project, 656 F.2d at 738.
23
return information under section 6103. Therefore, the Court will remand this issue to the agency
so that it may fully address plaintiffs contention that these redactions were not justified and release
any reasonably segregable, non-exempt information as required by FOIA. See 5 U.S.C. 552(b);
Wilderness Socy, 344 F. Supp. 2d at 18.
The Court notes, however, that plaintiff has not challenged defendants redaction of the
[n]ame of [a] 3rd party taxpayer (unrelated to [Sea Shepherd]) . . . to protect confidential return
information on the page Bates numbered 012229. See Counsel Vaughn Index at 4. The IRS
justified this withholding based on Exemption 3 in conjunction with IRC 6103. Id. Therefore,
the Court finds that plaintiff has conceded the propriety of this withholding. See, e.g., Hopkins v.
Womens Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (It is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.), affd 98 F. Appx 8 (D.C. Cir. 2004); see also Tax
Analysts, 117 F.3d at 610 (treating argument raised by the defendant as conceded where the
plaintiff failed to oppose it).
B. Defendants withholdings under Exemption 3 and section 6103(e)(7) are not
justified.
Section 6013(e)(7) states that [r]eturn information with respect to any taxpayer may be
open to inspection by or disclosure to any person authorized by this subsection to inspect any
return of such taxpayer if the Secretary determines that such disclosure would not seriously impair
24
Federal tax administration. 10 26 U.S.C. 6103(e)(7). The Courts review of the Secretarys
determination that a disclosure would seriously impair Federal tax administration is de novo,
and the IRS bears the burden of proof to justify nondisclosure. Casa Investors, Ltd. v. Gibbs,
No. 88-cv-2485, 1990 WL 180703, at *2 (D.D.C. Oct. 11, 1990), citing Church of Scientology,
792 F.2d 146, 150 (D.C. Cir. 1986); see also 5 U.S.C. 552(a)(4)(B).
First, plaintiff objects to defendants withholding of third-party identifying information
under Exemption 3 and section 6103(e)(7) because, it claims, 26 U.S.C. 7602(c) and 26 C.F.R.
301.7602-2(3) compel the Service to disclose the names of third parties contacted in the course
of the Services investigation of Sea Shepherd. Pl.s Opp. at 16. But plaintiff has brought a
lawsuit under FOIA, not these provisions, and offers no explanation as to why it should be
permitted to raise a new cause of action in its opposition to defendants motion for summary
judgment. See Taylor v. Mills, 892 F. Supp. 2d 124, 137 (D.D.C. 2012) (In the main, a plaintiff
is not permitted to raise new claims at the summary judgment stage, where those claims were not
pleaded in the complaint.).
10
The Internal Revenue Code provides that [t]he term tax administration -(A) means
(i) the administration, management, conduct, direction, and supervision of
the execution and application of the internal revenue laws or related statutes
(or equivalent laws and statutes of a State) and tax conventions to which the
United States is a party, and
(ii) the development and formulation of Federal tax policy relating to
existing or proposed internal revenue laws, related statutes, and tax
conventions, and
(B) includes assessment, collection, enforcement, litigation, publication,
and statistical gathering functions under such laws, statutes, or conventions.
26 U.S.C. 6103(b)(4).
25
For its part, however, defendant has failed to carry its burden to show that its withholdings
under Exemption 3 and section 6103(e)(7) were justified. The only explanation defendant has
given in its pleadings for all of its withholdings under section 6103(e)(7) is that Senior Counsel
A.M. Gulas has been delegated the authority to determine whether the release of return information
would seriously impair the federal tax administration, and she made that determination as to the
material designated as withheld in the Vaughn indexes. Def.s Reply at 10, citing Franklin Decl.
14, and 2d Gulas Decl. 15; see also Def.s Mem. at 1516. Defendant also claims that [r]elease
of the material designated as withheld in the Vaughn indexes would impair federal tax
administration by revealing the scope, direction and nature of the Services investigation into Sea
Shepherd . . . and by identifying confidential informants. Def.s Mem. at 16. In addition, in the
Vaughn Indexes, defendant repeatedly contends that the information it has withheld would
seriously impair Federal tax administration because it would result in a chilling effect on
confidential sources coming forward, thereby hampering future investigations. See Examination
Vaughn Index at 112; Counsel Vaughn Index at 23, 68, 1013.
But defendants investigation of plaintiff is now closed, see Attach. 1 to Pl.s Notice, and,
as the Court has already found, defendant has not established that its informants did in fact receive
an express grant of confidentiality or that other circumstances exist that would support the
inference of confidentiality. See CREW, 746 F.3d at 1101 (citations and internal quotation marks
omitted). So neither the status of the investigation nor the concerns about revealing sources
justifies defendants reliance on section 6103(e)(7) here.
Defendants declarations shed no further light on this question. The Franklin declaration
merely repeats the assertion that Gulas had the authority to decide whether to withhold information
on this basis. Franklin Decl. 14. And Gulas provides no additional insight into her determination
26
in her two declarations, other than to suggest that the ongoing nature of an investigation could be
a basis for a finding that the release of certain information would impair federal tax administration.
See 2d Gulas Decl. 14.
Although the D.C. Circuit has not provided specific guidance as to how the IRS may show
that the release of certain records would compromise federal tax administration, FOIA requires
more than the conclusory assertions presented here. See Natl Sec. Counselors, 849 F. Supp. 2d
at 11. Moreover, the cases cited by the IRS to support its withholdings also indicate that more is
required. See Currie v. IRS, 704 F.2d 523, 53032, 534 (11th Cir. 1983) (upholding district courts
determination that withholding was justified under Exemption 3 and section 6103(e)(7) where
district court had engaged in extensive in camera review of documents and concluded that [t]he
release of the documents would hamper an ongoing investigation ); Radcliffe v. IRS, 536 F. Supp.
2d 423, 436, 43940 (S.D.N.Y. 2008) (finding IRSs withholdings under Exemption 3 and section
6103(e)(7) justified where IRS declarants had provided detailed descriptions of withheld
information and the investigation was ongoing). Under these circumstances, the Court finds that
defendant has not adequately justified its reliance on Exemption 3 and section 6103(e)(7) in
withholding third-party identifying information.
Plaintiff also challenges the IRSs redaction of third-party taxpayer identification numbers
from copies of Sea Shepherds own QuickBooks data found at pages 004069, 004071, 004073,
004075, 004078, 004080, and 004083. Pl.s Opp. at 14; see also Examination Vaughn Index at 6.
Plaintiff contends that this data, which it states pertains to its payees, constitutes its own return
information, and should not be withheld. Pl.s Opp. at 1415. Plaintiff further notes that the IRS
has failed to redact other portions of these records that would also constitute return information
under the IRSs approach, such as the payees names and identities. Id. at 15. Defendant responds
27
that its withholding of this information was justified by Exemption 3 and section 6013(e)(7)
because the withheld information is return information, and because, again, Senior Counsel
A.M. Gulas has been delegated the authority to determine whether the release of return information
would seriously impair the federal tax administration, and she made that determination with
respect to these records. Def.s Reply at 10, citing Franklin Decl. 14, and 2d Gulas Decl. 15;
see also Def.s Mem. at 1516.
Neither partys pleadings, however, address the fact that, in its Vaughn Index, defendant
actually justified these particular withholdings on the basis of FOIA Exemption 3 and section
6103(a), not section 6103(e)(7). Compare Examination Vaughn Index at 6 (invoking section
6103(a)), with Def.s Reply at 8 (stating that this material was withheld under Exemption 3 and
section 6103(e)(7)). The IRS bears the burden of justifying its withholdings under FOIA, 5 U.S.C.
552(a)(4)(B), and because it has not clearly identified and explained the basis for its withholding,
it has not carried that burden here. Moreover, to the extent that the IRSs withholding of this
information was based on section 6103(e)(7), the IRS has also not justified its redactions for the
reasons stated above in connection with the IRSs other withholdings under that provision.
IV.
Many of defendants withholdings under Exemption 5 are justified.

Plaintiff has only challenged a handful of the numerous redactions and withholdings made
by defendant under FOIA Exemption 5. 11 See Pl.s Opp. at 2930. Exemption 5 permits agencies
to withhold inter-agency or intra-agency memorandums or letters which would not be available
11
Specifically, plaintiff contends that defendant has not justified its invocation of Exemption
5 and the deliberative process privilege with respect to the pages Bates numbered 012398, 012400
012401, 012404, 012467, 012533012534, and 012569012571, and that defendant has not
justified its invocation of Exemption 5 and the attorney-client privilege with respect to pages
012208012210 and 012215012216. Pl.s Opp. at 29 & n.16. The propriety of any redactions
under Exemption 5 that plaintiff has not challenged is conceded. See Hopkins, 284 F. Supp. 2d at
25, affd 98 F. Appx 8; Tax Analysts, 117 F.3d at 610.
28
by law to a party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5); see
also U.S. Dept of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 8 (2001) (holding
that a record may be withheld under Exemption 5 only if its source [is] . . . a Government agency,
and it . . . fall[s] within the ambit of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it). Exemption 5 encompass[es] the
protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil
discovery context, including the attorney-client privilege and the executive deliberative process
privilege. Taxation with Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). The
agency seeking to withhold a document bears the burden of showing that an exemption applies.
Natural Res. Def. Council, Inc. v. Nuclear Regulatory Commn, 216 F.3d 1180, 1190 (D.C. Cir.
2000). After conducting an in camera review of the withholdings that plaintiff has challenged, the
Court finds that Exemption 5 justifies some, but not all, of the agencys redactions.
A. Defendants Deliberative Process Withholdings
The deliberative process privilege rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery, and its
purpose is to enhance the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government. Klamath, 532 U.S. at 89 (citations
omitted), quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus, the privilege
only protects agency documents that are both predecisional and deliberative. Judicial Watch,
Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006); accord McKinley v. Bd. of Governors of Fed.
Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011). [A] document [is] predecisional if it was
generated before the adoption of an agency policy and deliberative if it reflects the give-and-take
29
of the consultative process. Judicial Watch, 449 F.3d at 151, quoting Coastal States Gas Corp.
v. Dept of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
In this case, plaintiff challenges the withholdings described in the Vaughn Index for IRS
Counsel Records with respect to the pages Bates numbered 012398, 012400012401, 012404,
012467, 012533012534, and 012569012571. Pl.s Opp. at 29. After conducting an in camera
review of these pages, the Court makes the following findings:
x
Page 012398: The deliberative process privilege justifies the withholding of all of the
redacted material except for the information described in defendants Vaughn index as
[t]wo lines consisting of Waldrams discussion of information received from a
confidential informant. See Counsel Vaughn Index at 6.
Pages 012400012401: The deliberative process privilege does not justify any of the
redactions defendant made to these pages.
Page 012404: Defendant states that it has redacted [e]ight lines from this record.
Counsel Vaughn Index at 7. The Court finds that the deliberative process privilege justifies
the withholding of lines one, two, four, five, and eight in their entirety. In addition, the
deliberative process privilege justifies the withholding of the final word of line three and
the final two words of line seven. The redactions of the remainder of line three, all of line
six, and the remainder of line seven are not justified by the deliberative process privilege.
Page 012467: The deliberative process privilege justifies the withholding of all of the
redacted material.
Pages 012533012534: The deliberative process privilege justifies the withholding of both
pages in their entirety.
Pages 012569012571: These pages are substantially identical to pages 012400012401

and 012398 and the Courts findings with respect to those pages apply.
The Court notes that defendant also withheld all of the challenged material under
Exemptions 7(A), 7(D), and 3 in conjunction with section 6013(e)(7). See Counsel Vaughn Index
at 67, 10, 13. Therefore, on remand, defendant must provide a more detailed justification for why
these exemptions would justify the withholding of any material that the Court has concluded is not
30
covered by Exemption 5 and release any reasonably segregable non-exempt information to

plaintiff.
B. Defendants Attorney-Client Privilege Withholdings
The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services, and is not limited to
communications made in the context of litigation or even a specific dispute. Coastal States, 617
F.2d at 862. The privilege also protects communications from attorneys to their clients that rest
on confidential information obtained from the client. Tax Analysts, 117 F.3d at 618, quoting In
re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984); see also Mead Data, 566 F.2d at 254. In the
FOIA context, the agency is the client and the agencys lawyers are the attorneys for the
purposes of attorney-client privilege. See In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998),
citing Coastal States, 617 F.2d at 863.
Plaintiff has challenged defendants reliance on Exemption 5 and the attorney-client
privilege to withhold information from the pages Bates numbered 012208012210 and 012215
012216. After reviewing these pages in camera, the Court finds that all of defendants redactions
are justified by Exemption 5 and the attorney-client privilege.
31
CONCLUSION
For the reasons stated above, the Court finds that defendants search for records responsive
to plaintiffs FOIA request was inadequate, and that defendant has failed to justify its reliance on
most of the FOIA exemptions that it invokes. Therefore, defendants motion for summary
judgment will be denied, and the Court will remand this case to the agency. Defendant is instructed
to conduct a further search for responsive records, to provide a more detailed justification for the
adequacy of its search and for any withholdings of responsive material, and to release any
reasonably segregable non-exempt material to plaintiff consistent with the FOIA statute and this
opinion. A separate order will issue.
AMY BERMAN JACKSON

United States District Judge
DATE: March 31, 2015
32
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
SEA SHEPHERD CONSERVATION

SOCIETY,
Plaintiff,
v.
INTERNAL REVENUE SERVICE,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 1:13-cv-01422-ABJ
PLAINTIFFS STATUS REPORT
This Court entered a Memorandum Opinion on March 31, 2015, and required the
defendant, the Internal Revenue Service (IRS), to submit a status report by April 30, 2015.
Since the Court entered its opinion on March 31, the plaintiff, Sea Shepherd Conservation
Society (Sea Shepherd or SSCS), has obtained additional evidence regarding the initiation of
the IRS audit of Sea Shepherd and the identity of the alleged informants that the IRS is trying to
protect.
Separate from this litigation, Sea Shepherd had submitted a Freedom of Information Act
request to the National Oceanic and Atmospheric Administration (NOAA), the government
agency that has significant responsibility with respect to the International Whaling Convention
(IWC) and world whaling activities generally. (A copy of that FOIA request, dated April 22,
2014, is attached hereto as Exhibit 1.) Sea Shepherd requested:
all documents of any written or oral communications in the possession of NOAA,
including the National Marine Fisheries Service (NMFS), from: 1) the Institute
for Cetacean Research (ICR), or any party acting on its behalf, regarding SSCS
from January 1, 2006, and the date of this request; and 2) any party relating to the
examination of SSCS by the Internal Revenue Service (IRS).
1003882
After some intermediate correspondence, NOAA responded to this FOIA request by letter dated
April 27, 2015, see Exhibit 2, and provided a link to a portal for obtaining nine pages of
responsive documents, a copy of which is enclosed as Exhibit 3. None of these documents
mentions the Institute for Cetacean Research, the first category of documents requested by Sea
Shepherd.
The documents from NOAAs files do clearly indicate, however, repeated efforts by the
Japanese Government to induce the IRS to revoke Sea Shepherds tax exemption. The very first
page, consisting of handwritten notes by an unnamed individual, states:
Japan Embassy in DC approached IRS directly. IRS said the more neg. info abt
[negative information about] SSCS, the better to maybe revoke tax exempt status.
Japan will cont. [continue] to provide info to IRS + ask State and DOC
[Department of Commerce] to also do so. Shingo Fukuihe is person in Japan
DC Embassy that reached out to IRS.
See Ex. 3 (emphasis in original). The next page indicates that as early as January 5, 2009,
NOAA was inquiring of the IRS how to obtain revocation of Sea Shepherds exemption. The
fourth and fifth pages, an email to NOAA employees from Mr. Fukui, identified as First
Secretary (Fisheries Attach) of the Embassy of Japan in Washington, D.C., is dated January 10,
2013immediately after the IRS examination of Sea Shepherd had commencedand captioned
Follow-up of bilateral meeting regarding IRS. It states that, according to discussion at
bilateral meeting in Tokyo last November [i.e. in November, 2012], I would like to inform you
of two IRS officials in charge as attached, and encloses the cards of Lois G. Lerner, Director
Exempt Organizations, and Justin J. Lowe, Technical Advisor. See id.
These documents correspond with additional evidence Sea Shepherd has located from the
State Department cables published online by the Wikileaks organization, which indicate that
Japanese Government officials repeatedly and explicitly linked Japans cooperation on whaling
issues to the U.S. Governments revocation of Sea Shepherds tax-exempt status. For instance, a
cable dated February 10, 2009, discusses a meeting of that date, in which the Director General of
the Japanese Fisheries Agency, Shuji Yamada, called in the EMIN [Economics Minister
Counselor] of the U.S. Embassy in Tokyo, Robert F. Cekuta, specifically to complain about Sea
Shepherd. According to this cable, Mr. Yamada stated:
the GOJ [Government of Japan] finds it inappropriate that the U.S. grants the Sea
Shepherd Conservation Society tax exempt status and asked that the USG [U.S.
Government] take appropriate legal measures . . . . [Mr. Cekuta] agreed to report on the
meeting and convey the materials Yamada provided and the GOJs request regarding the
tax exempt status of the SSCS back to the concerned USG agencies.
See Ex. 4, available at https://wikileaks.org/plusd/cables/09TOKYO322_a.html. Similarly,
according to a cable dated June 9, 2009, Deputy Director General of the Japanese Fisheries
Agency Jun Yamashita reiterated to Mr. Cekuta:
the previous GOJ request for the USG to look into the tax exempt status of the
Sea Shepherd Conservation Society (ref B). He said the problem of the Sea
Shepherd must be solved before Japan can make progress in the IWC
negotiations . . . . [Mr. Cekuta] replied the tax status of the Sea Shepherd is a
legal issue and the Japanese Embassy in Washington should talk to the Internal
Revenue Service.
See Ex. 5, available at https://wikileaks.org/plusd/cables/09TOKYO1286_a.html
(emphasis added).
The Japanese Government was even blunter in whaling discussions that were held
in Tokyo in November, 2009. A cable dated November 2, 2009, states:
[Japanese Fisheries Agency official Mr.] Yamada inquired about an investigation
into the tax status of the U.S.-based NGO Sea Shepherd Conservation Society and
repeated Japan's request for the U.S. to take action against the organization,
which he said created a very dangerous situation on the seas. The DCM replied
that the U.S. places the highest priority on the safety of vessels and human life at
sea, and added that if any violations of U.S. law are discovered, we will take
appropriate enforcement action. Morishita went on to say it would be easier for
Japan to make progress in the IWC negotiations if the U.S. were to take action
against the Sea Shepherd.
See Ex. 6, available at https://wikileaks.org/plusd/cables/09TOKYO2529_a.html (emphasis

added). Shortly thereafter on November 4, 2009, was when Monica Medina of NOAA assured
the Japanese Government that the United States could demonstrate Sea Shepherd does not
deserve tax exempt status, as recited in a cable previously obtained and provided to the Court,
see https://wikileaks.org/plusd/cables/09TOKYO2588_a.html. In a third cable from the same
period, on November 9, 2009, Mr. Yutaka Aoki, Ministry of Foreign Affairs, Fisheries Industry
Director, stated that U.S. cooperation in addressing Japans complaints against the Sea
Shepherd Conservation Society (SSCS) will benefit the negotiations and help the GOJ to easily
sell any compromise to the Japanese public. See Ex. 7, available at
https://wikileaks.org/plusd/cables/09TOKYO2592_a.html (emphasis added). Note that all of
these cables were copied to NOAA officials; we assume, therefore, that they are among the 14
pages of State Department documents that NOAA declined to produce in response to Sea
Shepherds FOIA request. See Ex. 2.
This information unambiguously demonstrates that the Japanese Government sought
revocation of Sea Shepherds tax exempt status as a diplomatic bargaining chip in negotiations
over whaling restrictions. This sequence of events, moreover, suggests that the U.S. Government
did follow up and examined Sea Shepherd in order to satisfy diplomatic demands from Japan,
rather than for any tax-related reasons. Undeniably, the IRS did in fact open such an
investigation, subjecting Sea Shepherd to extensive scrutiny, and then closed that examination,
without any change to Sea Shepherds status, after Sea Shepherd fought back and proved that the
audit was baseless.
There is a strong public interest in confirming the sequence of these events with the
information that the IRS has withheld, which more than outweighs the IRSs desire to continue
concealing the improper origins and purpose of this audit. See Mem. Op. 18-20 (Mar. 31, 2015,
ECF No. 28).
Respectfully submitted,
Date: May 11, 2015
/s Christopher S. Rizek
Christopher S. Rizek
D.C. Bar No. 370796
CAPLIN & DRYSDALE, CHARTERED
One Thomas Circle, N.W., Suite 1100
Washington, D.C. 20005
Tel: (202) 862-8852
Email: crizek@capdale.com
Attorney for Plaintiff
Case 1:13-cv-01422-ABJ Document 30-1 Filed 05/11/15 Page 1 of 3

UNITED BTATEB DEPARTMiiNT DF CDMMERCE
Natlonl Do-nlo nd Atrnophrlo Adrnlnltr.tlon
NATIONAL MARINE FISHERfES SERVICE
Silver Spring, MO 20910
APR Z7 2015
Christopher S. Rizek
One Thomas Circle
Washington, DC 20005
Re: FOIA Request No. DOC-NOAA-2014-000915
Dear Mr. Rizek:

This Ietter is in response to your Freedom oflnformation Act (FOIA) request entered into
FOIAonline on 05/09/2014, in which you requested " ... all documents from 1) Institute of
Cetacean Research regarding SSCS from January 6, 2006 to the date ofthe request; and 2) any
party relating to the examination ofSSCS by the Internal Revenue Service."
Wehave located 9 pages ofresponsive records. Parts oftbis docurnent have been withheld
because these sections are not responsive to your request.
Another 14 pages were located that originated with the U.S. State Department and have been
referred to Marianne Manheim (foiareferrals@state.gov) for arelease determination/direct
response to you.
You have the right to appeal this (partial denial or denial) ofthe FOIA request. An appeal must
be received within 30 calendar days ofthe dateoftbis response Ietter by the
Assistant General Counsel for Administration (Office),
Room 5898-C, U.S. Department of Commerce,
14th and Constitution Avenue, N.W.,
Washington, D.C. 20230
An appeal may also be sent by e-mail to FOIAAppeals@doc.gov, by facsimile (fax) to 202-4822552, or by FOIAonline, ifyou have an account in FOIAonline, at
https://foiaonline.regulations.gov/foia/action/publiclhome#.
The appeal should include a copy ofthe original request and initial denial, ifany. Allappeals
should include a statement of the reasons why the records requested should be made available
and why the adverse determination was in error. The appealletter, the envelope, the e-mail
subject line, and the fax cover sheet should be clearly marked "Freedom of Information Act
Appeal."
Printed on Recycled Paper
The e-mail, fax machine, FOIAonline, and Officeare monitored only on working days during
normal business hours (8:30a.m. to 5:00p.m., Eastern Time, Monday through Friday). FOIA
appeals posted to the e-mail box, fax machine, FOIAonline or Office after normal business
hours will be deemed received on the next normal business day. lfthe 30th calendar day for
submitting an appealfalls on a Saturday, Sunday or legal public holiday, an appeal received by
5:00p.m., Eastem Time, the next business day will be deemed timely.
Ifyou choose not to appeal, but have any questions about the way we handled your request, or
about our FOIA regulations or procedures, please contact Samuel Dixon at
Samuel.Dixon@NOAA.gov.
Sincerely,
----
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I
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811212014
Nauonal Ocaanlc and Atmospherlc Adrri ristraUen Miiil - (F'Ml: IRS COf'l1llal nt Process ror Tax E:lerr.,t Org anlzatlonsJ
Roger Eckert- NO.AA Federal <roger.b.eckert@noaa.gov>
[Fwd: IRS Complaint Process for Tax Exempt Organizations]

Roger B Eckert <Roger.B.Eckert@noaa.goV>
To: Lindy S Johnson <Lindy.S.Johnson@noaa.goV>
Wed, Jan 7, 2009 at 8:11 AM
FYI
- - Original Message-Subject: JRS Complaint Process for Tax Exempt Organizations
Date: Mon, 05 Jan 2009 10:44:32-0500
From: Roger B Eckert <Roger.B.Eckert@Noaa.goV>
Organization: NOAA
To: bill.hogarth@marine.usf.edu,Douglas Demaster
<Oouglas. Demaster@noaa.goV>, Cheri Mccarty <Cheri. Mccarty@noaa.goV> ,Ryan
Wulff <Ryan.Wulff@noaa.gov.>,Shannon Dlonne <Shannon.Dionne@noaa.goV>
All, I spoke with Judith Kindell, 202~283-8964, a 501(c)(3) expert at
the iRS, about how the IRS could re~ew the tax exempt status of an
organization such as the Sea Shepherd Conservation Society. She
indicated that the IRS does not comment on any indl~duai matter. in
general, Judith lndicated that, among other thlngs, the IRS can re\Qke
the tax exempt status of an organization that: (1) has been identified
by the USG as a terrorist organization, or (2) has been engaging in
illegal acti~ties.
She further indlcated that IRS fact sheet FS-2008-13 describes the JRS
compl aint/re~ew process with regard to organizations that may be
abusing thelr tax exempt status. Here is a link to that fact sheet:
http://www.irs.govfirs/article/O, ,id= 178241 ,OO.html
Roger
https:f/rrell.goog le.com'maJI/calu/Onul=2&ik= 1c966998b9&'oieYFpl&cat=IWCo/o2FSafet}&earc:hoocat&msg"' 11eb1381e128acdd&sim=11 eb1381e128acdd
111

811212014
Natiooal Ocea-Vc andAimospherlc Admnlstrallcn Mail- COIT1llaint process fa' 501(c)(3) organlzaticns
Roger Eckert. NOAA Federal <roger.b.eckert@noL!a .gov>
Complaint process for 501(c)(3) organizations

Roger B Eckert <Roger.B.Eckert@noaa.goV>
Mon, Feb 9, 2009 at 12:32 PM
Ta: phelpse@state.gov
Lisa, IRS fact sheet FS-2008-13 describes the IRS complainUre'.1ew
process with regard to organizations that may be abuslng their tax
exempt status. Hereis a linktothat fact sheet:
http:/lwww.irs.govirs/article/O,, id= 178241 ,00. html
Normally, IRS form 13909 would be submitted by someone, and the IRS
would acknowtedge recefpt ofthat form . The fact sheet indicates that
the IRS code otheiWise prohlbits the IRS from disclosing whether it has
initlated an examination.
I do not know lf this form was submitted regarding the SSCS, or whether
the IRS ls using some other process to re\ew their 501(cX3) status.
Roger
htlps:l/rmil.goog le.com'ITIIil/ca'uiOI?I.i= 2&i~ 1c966998b9&~ew=pl&cat: IWC%2FSafet)&search=cal&nEg 11f5c18e25f5f14e&si m1 1115c 18e2515f14e
1/1
---- - --
Follow-up of bilateral meeting regarding IRS

Roger Eckert- NOAA Federal <roger.b.eckert@noaa.gov>
Fri, Feb 15, 2013 at 9:13AM
To: Melissa Andersen- NOAA Federal <melissa.andersen@noaa.gaV>
Ce: Ryan Wulff <ryan.wulff@noaa.gov>, "Eiizabeth Phelps (OES)" <PhelpsE@state.gov>
lf he does, we can tell him that the IRS is barred by law from discussing any imestigation . I belie~e Japan
already knows this.
Roger
On Fri, Feb 15, 2013 at 8:55AM. Melissa Andersen- NOAA Federal <melissa.andersen@noaa. ga~> wrote:
Hi Ryan and Lisa,
Do you think Shingo may raise this issue at dinner tonight (IRS issue)?
Thanks,
Melissa
- - - Forwarded message - From: FUKUI SHINGO <shingo.fukui@mofa.go.jp>

Date: Thu, Jan 10, 2013 at 7:03PM
Subject: Follow-up of bilateral meeting regarding IRS
To: "ryan.wutff@noaa.go-v" <ryan.wulff@noaa.go~>
Ce: "Phelps, Elizabeth (OES)" <PhelpsE@state.go\1>, Melissa Andersen <melissa.andersen@noaa.go11>,
Russell Smith <Russeii.Smith@noaa.go\1>, ARAI WAKANA <wakana.arai@mofa.go.jp>, MURAMOTO AKIKO
<akiko.muramoto@mofa.go.jp>, UMEZAWA AKIMA <akima.umezawa@mofa.go.jp>,
"takaaki_sakamoto@nm. maff.go.jp" <takaak i_sakamoto@nm. maff.go.jp>, "s_numata36@nm. maff.go.jp"
<s_numata36@nm. maff.go.jp>
Dear Ryan,
I hope that you and your famly had an enjoyable holiday.
According to discussion at bilateral meeting in Tokyo last November, I would like to inform you
of two IRS officials in charge as attached.
I expect your support on this issue.
I Iook Forward to seeing you here. Piease Iet me know if you will be traveling around.
Best regards,
Shingo
**************************
Shingo FUKUI
First Secretary (Fisheries Attache)
Embassy of Japan
2520 Massachusetts Ave. NW,

Washington DC 20008-2869, USA
Tel: +1-202-238-6727
Fax: +1-202-265-9473
E-mail: shingo.fukui@rrofa.go.jp
**************************
Roger 8. Eckert
Attomey-Ad\risor
Fisheries and Proteeted Resources Section
NOAA Office of the General Counsel
U.S. Department of Commerce
1315 East West Hwy, Room 15128
Sih.er Spring, MD 20910
(301) 713-9665
Lols G. Lerner
~
lRS
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---
--
-- - -
----~
---
of bilateral meeting regarding IRS
Allison Reed - NOAA Federal <allison.reed@noaa.gov>

To: Melissa Garcia- NOAA Federal <Melissa.Garcia@noaa.gov>
Tue, Aug 12, 2014 at 11:44 AM
- - Forwarded message - From: Ryan Wulff- NOAA Federal <ryan.wulff@noaa .ga"li>

Subject: Fwd: Follow-up of bilateral meeting regarding IRS
To: Roger Eckert <roger.b.eckert@noaa.go"li>, Allison Reed <allison.reed@noaa.gall>, Melissa Andersen
<melissa.andersen@noaa.go\1>, "Phelps, Elizabeth (OES)" <PhelpsE@state.ga\l>
l'm sorry, but as a man with a background in musical theater, the attachment made me laugh (Iook at the last
names).
Forthose not so Broadway inclined, consider it an FYI
- - Forwarded message - From: FUKUI SHINGO <shingo.fukui@mofa.go.jp>
Subject: Follow-up of bilateral meeting regarding IRS
Ta: "ryan.wulff@noaa.go\1" <ryan.wulff@noaa.go\1>
Ce: "Phelps, Elizabeth (OES)" <PhelpsE@state.go\i>, Melissa Andersen <melissa.andersen@noaa.go\1>,
Russell Smith <Russeii.Smith@noaa.go">, ARAI WAKANA <wakana.arai@mofa.go.jp>, MURAMOTO AKIKO
<akiko.muramoto@mofa.go.jp>, UMEZAWA AKIMA <akima.umezawa@mofa.go.jp>,
"takaaki _sakamoto@nm. maff. go. jp" <takaaki_s akamot o@nm.maff. go.jp>, "s_numata36@nm .maff.go.jp"
<s_numata36@nm. maff. go.jp>
Dear Ryan,
I hope that you and your family had an enjoyable holiday.
According to discussion at bilateral meeting in Tokyo last Noverrber, I would like to infonn you of
two IRS officials in charge as attached.
I expect your support an this issue.
I Iook forward to seeing you here. Piease Iet me know if you will be traveling around.
Best regards,
,
Shingo
**************************
Shingo FUKUI
First Secretary (Fisheries Attache)
Embassy of Japan
2520 Massachusetts Ave. NW,

Washington DC 20008-2869, USA
Tel: +1-202-238-6727
Fax: +1-202-265-9473
E-mail: shingo.fukui@mofa.go.jp
**************************
Allison D. Reed
International Affairs Specialist
Office of International Affairs
National Oceanic and Atmospheric Administration
14th and Constitution A~oe, NW
Washington, DC 20230
(202) 482-5'144
~ IRS.pdf
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http://wikileaks.org/plusd/cables/09TOKYO322_a.html
Canonical ID: 09TOKYO322_a

Subject: WHALING: JAPAN ASKS USG TO EXAMINE TAX EXEMPT STATUS
OF ANTI-WHALING NGO
From: Japan Tokyo
To: Australia Canberra, Japan Fukuoka, Japan Naha, Japan
Osaka-Kobe, Japan Sapporo, Netherlands The Hague, RHMFISS FBI, RUCPDC
NOAA NMFS WASHINGTON DC, Secretary of State
Original Classification: CONFIDENTIAL
Current Classification: CONFIDENTIAL
Previous Handling Restrictions: -- Not Assigned -Archive Status: -- Not Assigned -Type: TE
Locator: TEXT ONLINE
Reference(s): -- N/A or Blank -Executive Order (E.O.): -- Not Assigned -Markings: -- Not Assigned -Enclosure: -- Not Assigned -Concepts: -- Not Assigned -TAGS: Economic Affairs--Fishing [EFIS]
International Whaling Commission [IWC-1]
Japan; Okinawa; [JA]
Political Affairs--External Political Relations [PREL]
Social Affairs--Environment [SENV]
Office: -- N/A or Blank -Document Character Count: 3589
Date: 2009 February 10, 08:55 (Tuesday)
C O N F I D E N T I A L TOKYO 000322
SIPDIS
STATE FOR EAP/J AND OES/OA - MHAYES/LPHELPS
USDOC FOR NOAA/NMFS - CMCCARTY AND RWULFF
FBI FOR COUNTERTERRORISM DIVISION ATTN: DOMESTIC TERRORISM
OPERATIONS UNIT (DTOU)
E.O. 12958: DECL: 02/09/2019
TAGS: SENV, EFIS, IWC-1, PREL, JA
SUBJECT: WHALING: JAPAN ASKS USG TO EXAMINE TAX EXEMPT
STATUS OF ANTI-WHALING NGO
Classified By: Economic Minister Counselor Robert F. Cekuta, reasons 1.
4 (b) and (d)

1. (U) Please see action request contained in para 5.
2. (C) Fisheries Agency of Japan Director General Shuji
Yamada called in EMIN Feb. 10 to raise the recent incident in
which a Sea Shepherd Conservation Society (SSCS) vessel
allegedly collided with a Japanese research whaling vessel in
the Southern Ocean and to request USG action against the
SSCS. Japanese officials had called in the Dutch Ambassador
and the Australian DCM in the last few days as well to seek
action against SSCS. (Note: the SSCS's vessel "Steve Irwin"
is registered in the Netherlands and has been resupplied and
fueled at Australian ports; SSCS is an NGO registered in the
U.S. End note.) ESTHoffs also participated in the Feb. 10
meeting.
3. (C) Yamada began the discussion by showing two short
videos of the collision between the "Steve Irwin" and the
Japanese catcher ship the "Yushin Maru 2" February 6. Yamada
said the protesters also threw bottles containing an acid
onto the Japanese ship and attempted to foul its propellers.
Yamada also provided prints of photos he said were taken
during the incident. Drawing from prepared points, Yamada
called the incident "a premeditated collision" and "a crime,"
something which had threatened the lives and well-being of
the crew members on the Japanese vessel. Japan, he
continued, is conducting research whaling according to the
terms of international conventions. He noted as well the
USG's participation in the International Whaling Commission's
consensus resolutions condemning this sort of activity by
anti-whaling groups. Against this background, he said the
GOJ finds it inappropriate that the U.S. grants the Sea
Shepherd Conservation Society tax exempt status and asked
that the USG take appropriate legal measures.
4. (C) EMIN utilized points sent by the Department noting
the USG is concerned about the violent incidents and the USG,
including appropriate law enforcement authorities, will
cooperate with the GOJ; that the USG considers safety at sea
a serious matter and does not condone action that would
intentionally jeopardize the crew or safety of the vessel.
Per the points sent by the Department, he pointed to U.S.
support for action taken in the International Maritime
Organization and the IWC in this regard and that while the
U.S. is opposed to Japan's lethal research whaling program,
we believe the appropriate way to resolve these differences
is through the International Whaling Commission. He agreed
to report on the meeting and convey the materials Yamada
provided and the GOJ's request regarding the tax exempt
status of the SSCS back to the concerned USG agencies.
5. (C) Action Request - Post would appreciate points to use
in response to the GOJ's questions about SSCS' tax exempt
status and whether and under what circumstances it might be
reviewed. Post is scanning the photos Yamada provided and
e-mailing them to EAP/J (Dresser) and OES/OA (Phelps). We
also asked for a copy of the video clips Yamada showed and
will transmit them back as well as soon as they are received.
ZUMWALT
VZCZCXRO7057
OO RUEHFK RUEHKSO RUEHNH
DE RUEHKO #0322 0410855
ZNY CCCCC ZZH
O 100855Z FEB 09
FM AMEMBASSY TOKYO
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0701
INFO RUEHBY/AMEMBASSY CANBERRA PRIORITY 3023
RUEHTC/AMEMBASSY THE HAGUE PRIORITY 1090
RUEHFK/AMCONSUL FUKUOKA PRIORITY 2376
RUEHNH/AMCONSUL NAHA PRIORITY 4720
RUEHOK/AMCONSUL OSAKA KOBE PRIORITY 6163
RUEHKSO/AMCONSUL SAPPORO PRIORITY 2929
RHMFISS/FBI WASHDC PRIORITY
RUCPDC/NOAA NMFS WASHINGTON DC PRIORITY
Powered by TCPDF (www.tcpdf.org)

Subject: WHALING: JAPAN SUPPORTS ANOTHER YEAR FOR FUTURE OF THE
IWC PROCESS
From: Japan Tokyo
To: Australia Canberra, Barbados Bridgetown, China Beijing,
Iceland Reykjavk, Japan Fukuoka, Japan Naha, Japan Osaka-Kobe, Japan
Sapporo, Netherlands The Hague, New Zealand Wellington, RUCPDC NOAA
NMFS WASHINGTON DC, Secretary of State, South Korea Seoul, Sweden
Stockholm, Switzerland Bern, United Kingdom London
Science Counselors and Attachs [KSCA]
Date: 2009 June 9, 03:22 (Tuesday)
C O N F I D E N T I A L SECTION 01 OF 02 TOKYO 001286
SIPDIS
STATE FOR EAP/J AND OES/OA - MHAYES/LPHELPS
STATE PASS CEQ
USDOC FOR NOAA/NMFS - CMCCARTY AND RWULFF
BRIDGETOWN FOR ANTIGUA AND BARBUDA
E.O. 12958: DECL: 06/08/2019
TAGS: EFIS, KSCA, PREL, SENV, IWC-1, JA
SUBJECT: WHALING: JAPAN SUPPORTS ANOTHER YEAR FOR FUTURE OF
THE IWC PROCESS
REF: A. STATE 57029
B. TOKYO 322
Classified By: EMIN Robert F. Cekuta, reasons 1.4 b and d.
1. (C) Summary: Japan supports continuing the Future of the
International Whaling Commission process until the 2010 IWC
Annual Meeting, Fisheries Agency of Japan Deputy Director
General Jun Yamashita told Emboffs June 8. However, Japan is

concerned the "starting point" for the Small Working Group
(SWG) discussion has shifted from negotiating a medium term
plan to address a range of issues and has become focused on
elimination of Japan's research whaling program. Japan would
like the SWG to get back to what the GOJ sees as the group's
original mandate. Japan also supports retaining Alvaro de
Soto as SWG chair. Regarding selecting a new IWC Chair and
Vice-chair, Japan's preference is for Dr. Hogarth to continue
as Chair for another year, but it would support others who
offered a balance between the two positions, such as
Switzerland and Antigua-Barbuda. Yamashita restated Japan's
request that the USG look into the tax exempt status of the
Sea Shepherd Conservation Society. Per points received from
Washington, EMIN advised Yamashita to ask the Japanese
Embassy in Washington to approach the Internal Revenue
Service regarding the issue. Yamashita added the issue of
the Sea Shepherd's actions vis a vis Japanese whaling vessels
on the high seas needs to be addressed before Japan can move
forward in the IWC negotiations. End summary.
2. (C) EMIN accompanied by ESTH Unit Chief, delivered
demarche points contained in ref A to Fisheries Agency of
Japan Deputy Director General and Japan's Alternate
Commissioner to the IWC Jun Yamashita June 8. Yamashita said
Japan supports the SWG chair's recommendation that the Future
of the IWC process continue for another year until the 2010
IWC Annual Meeting. However, he said the GOJ is concerned
the original concept of the process, which he said is to
negotiate a five year agreement that gradually addresses a
range of issues to reform the IWC, has changed. Instead, he
said the new "starting point" in the Process as advocated by
Australia in particular, is to eliminate research whaling.
3. (C) While Japan will continue to work for resolution
within the SWG, Yamashita said there are two stumbling blocks
for the GOJ in the current proposals: 1) phasing out research
whaling, and 2) IWC Scientific Committee advice for Japan's
coastal whaling program. He added the GOJ already made a
compromise before the negotiations started when it put on
hold its plans to take humpback whales in 2007. (Note: EMIN
pushed back on Yamashita's statement about the humpbacks and
also noted the work IWC Chair Hogarth had done relating to a
possible compromise way forward on coastal whaling and
limitation on research whaling activities. Yamashita dropped
any further reference to the humpbacks. End note.)
4. (C) In response to the questions contained in ref A,
Yamashita said Japan believes in limiting participation in
the SWG to at most ten members balanced between anti- and
pro- whaling countries, and no observers. Regarding
selecting a new IWC Chair and Vice-chair, Yamashita praised
the work of Dr. Hogarth and said Japan's first choice is for
Dr. Hogarth to continue for another year to see the process
through. If that is not possible, he said the positions
should represent a balance between the two sides and the

rumored candidates, Switzerland and Antigua-Barbuda, in the
GOJ's view, would be good choices.
5. (C) Regarding the SWG Chair, Yamashita said Alvaro de
Soto has done a good job and should remain in that position
for another year. The lack of progress within the SWG is not
de Soto's fault, Yamashita said, and he then put the blame on
TOKYO 00001286 002 OF 002
the Australian government's extreme position. Nevertheless,

de Soto, he said, had created a "good atmosphere" at the SWG
meetings.
6. (C) Yamashita reiterated the previous GOJ request for the
USG to look into the tax exempt status of the Sea Shepherd
Conservation Society (ref B). He said the problem of the Sea
Shepherd must be solved before Japan can make progress in the
IWC negotiations. Drawing on points OES provided, EMIN
replied the tax status of the Sea Shepherd is a legal issue
and the Japanese Embassy in Washington should talk to the
Internal Revenue Service.
ZUMWALT
VZCZCXRO3775
DE RUEHKO #1286/01 1600322
ZNY CCCCC ZZH
O 090322Z JUN 09
FM AMEMBASSY TOKYO
INFO RUEHBJ/AMEMBASSY BEIJING IMMEDIATE 9737
RUEHSW/AMEMBASSY BERN IMMEDIATE 1887
RUEHWN/AMEMBASSY BRIDGETOWN IMMEDIATE 0128
RUEHBY/AMEMBASSY CANBERRA IMMEDIATE 3206
RUEHLO/AMEMBASSY LONDON IMMEDIATE 2440
RUEHRK/AMEMBASSY REYKJAVIK IMMEDIATE 0215
RUEHUL/AMEMBASSY SEOUL IMMEDIATE 5763
RUEHSM/AMEMBASSY STOCKHOLM IMMEDIATE 0738
RUEHTC/AMEMBASSY THE HAGUE IMMEDIATE 1106
RUEHWL/AMEMBASSY WELLINGTON IMMEDIATE 1195
RUEHFK/AMCONSUL FUKUOKA IMMEDIATE 4466
RUEHNH/AMCONSUL NAHA IMMEDIATE 6799
RUEHOK/AMCONSUL OSAKA KOBE IMMEDIATE 8268
RUEHKSO/AMCONSUL SAPPORO IMMEDIATE 4995
RUCPDC/NOAA NMFS WASHINGTON DC IMMEDIATE

Subject: DCM URGES GOJ TO SHOW FLEXIBILITY IN WHALING TALKS
From: Japan Tokyo
To: Australia Canberra, Barbados Bridgetown, China Beijing,
Iceland Reykjavk, Japan Fukuoka, Japan Naha, Japan Osaka-Kobe, Japan
Sapporo, Netherlands The Hague, New Zealand Wellington, RUCPDC NOAA
NMFS WASHINGTON DC, Secretary of State, South Korea Seoul, Sweden
Stockholm, Switzerland Bern, United Kingdom London
Date: 2009 November 2, 07:09 (Monday)
SIPDIS
STATE FOR EAP/J AND OES/OA - LPHELPS
STATE PASS CEQ
USDOC FOR NOAA/NMFS - RWULFF
E.O. 12958: DECL: 11/01/2019
SUBJECT: DCM URGES GOJ TO SHOW FLEXIBILITY IN WHALING TALKS
Classified By: DCM James P. Zumwalt, reasons 1.4 b and d.
1. (C) Following up on an October 22 letter from the

Ambassador to Agriculture, Forestry and Fisheries (MAFF)
Minister Hirotaka Akamatsu, the DCM met with MAFF Vice
Minister for International Affairs Shuji Yamada November 2 to
convey U.S. commitment to build upon progress at
recently-concluded talks in Santiago and reach an agreement
in negotiations on the future of the International Whaling
Commission (IWC). Yamada, along with Fisheries Agency
Counselor Joji Morishita and Assistant Director of the Far
Seas Fisheries Division Toshinori Uoya, readily acknowledged

that progress in talks in Santiago presented an opportunity
to move forward in the IWC. They urged the U.S. to show
leadership in this "last chance" to ensure a positive future
of the IWC, and said they looked forward to discussions on
November 4 with U.S. Commissioner to the IWC Monica Medina.
2. (C) Yamada inquired about an investigation into the tax
status of the U.S.-based NGO Sea Shepherd Conservation
Society and repeated Japan's request for the U.S. to take
action against the organization, which he said created a very
dangerous situation on the seas. The DCM replied that the
U.S. places the highest priority on the safety of vessels and
human life at sea, and added that if any violations of U.S.
law are discovered, we will take appropriate enforcement
action. Morishita went on to say it would be easier for
Japan to make progress in the IWC negotiations if the U.S.
were to take action against the Sea Shepherd.
ROOS
VZCZCXRO5951
DE RUEHKO #2529 3060709
ZNY CCCCC ZZH
O 020709Z NOV 09
FM AMEMBASSY TOKYO
RUEHSW/AMEMBASSY BERN IMMEDIATE 1893
RUEHSM/AMEMBASSY STOCKHOLM IMMEDIATE 0746
RUEHTC/AMEMBASSY THE HAGUE IMMEDIATE 1115

Subject: WHALING: MOFA WORKING LEVEL THOUGHTS
From: Japan Tokyo
To: Australia Canberra, Barbados Bridgetown, Belgium Brussels,
Chile Santiago, China Beijing, Iceland Reykjavk, Japan Fukuoka,
Japan Naha, Japan Osaka-Kobe, Japan Sapporo, National Security
Council, New Zealand Wellington, Norway Oslo, RUCPDC NOAA NMFS
WASHINGTON DC, Secretary of State, South Korea Seoul, United Kingdom
London
Original Classification: CONFIDENTIAL, NOFORN
Current Classification: CONFIDENTIAL, NOFORN
Date: 2009 November 9, 08:39 (Monday)
NOFORN
SIPDIS
STATE FOR EAP/J AND OES/OA - LPHELPS
STATE PASS CEQ
USDOC FOR NOAA/NMFS - RWULFF
E.O. 12958: DECL: 11/09/2019
SUBJECT: WHALING: MOFA WORKING LEVEL THOUGHTS
REF: TOKYO 02588
Classified By: A/EMIN Paul Horowitz, reasons 1.4 b and d.

1. (C/NF) Ministry of Foreign Affairs working level
officials would prefer to postpone any public announcement of
a U.S.-Japan commitment to conclude an agreement on whaling
by a date certain, and keep our bilateral negotiations
confidential until we are closer to an agreement, MOFA
Fisheries Division Director Yutaka Aoki told EST Chief

November 9. Aoki said he is not casting doubt on our ability
to come to agreement, but wants to avoid being too optimistic
at this point. Referring to a possible announcement at the
November 14 summit meeting in Tokyo, Aoki said a general
reference to both nations' desire to continue talks would be
acceptable, but there should be no specifics. Aoki added
that U.S. cooperation in addressing Japan's complaints
against the Sea Shepherd Conservation Society (SSCS) will
benefit the negotiations and help the GOJ to "easily sell"
any compromise to the Japanese public.
ROOS
VZCZCXRO2985
DE RUEHKO #2592 3130839
ZNY CCCCC ZZH
O 090839Z NOV 09
FM AMEMBASSY TOKYO
RUEHBS/AMEMBASSY BRUSSELS IMMEDIATE 2345
RUEHNY/AMEMBASSY OSLO IMMEDIATE 1297
RUEHSG/AMEMBASSY SANTIAGO IMMEDIATE 0001
RHEHAAA/NSC WASHDC IMMEDIATE

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Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 1 of 32

UNITED STATES DISTRICT COURT

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 2 of 32

Sea Shepherd Conservation Society

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 3 of 32

Plaintiffs FOIA Request

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 4 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 5 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 6 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 7 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 8 of 32

Defendants declarations do not describe an adequate search for responsive records.

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 9 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 10 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 11 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 12 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 13 of 32

Higleys declaration, however,

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 14 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 15 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 16 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 17 of 32

A. Defendant has not justified its withholdings under Exemption 7(A).

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 18 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 19 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 20 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 21 of 32

institution which furnished information on a confidential basis. 7 5 U.S.C. 552(b)(7)(D). The

Rather, the agency must either

In full, Exemption 7(D) states that agencies may withhold

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 22 of 32

Some of defendants withholdings are not justified by FOIA Exemption 3 in

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 23 of 32

a return or with respect to the determination of the existence, or possible

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 24 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 25 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 26 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 27 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 28 of 32

Many of defendants withholdings under Exemption 5 are justified.

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 29 of 32

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 30 of 32

Pages 012569012571: These pages are substantially identical to pages 012400012401

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 31 of 32

covered by Exemption 5 and release any reasonably segregable non-exempt information to

Case 1:13-cv-01422-ABJ Document 28 Filed 03/31/15 Page 32 of 32

AMY BERMAN JACKSON

Case 1:13-cv-01422-ABJ Document 30 Filed 05/11/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

SEA SHEPHERD CONSERVATION

PLAINTIFFS STATUS REPORT

Case 1:13-cv-01422-ABJ Document 30 Filed 05/11/15 Page 2 of 5

Case 1:13-cv-01422-ABJ Document 30 Filed 05/11/15 Page 3 of 5

Case 1:13-cv-01422-ABJ Document 30 Filed 05/11/15 Page 4 of 5

See Ex. 6, available at https://wikileaks.org/plusd/cables/09TOKYO2529_a.html (emphasis

Case 1:13-cv-01422-ABJ Document 30 Filed 05/11/15 Page 5 of 5

Date: May 11, 2015

Case 1:13-cv-01422-ABJ Document 30-1 Filed 05/11/15 Page 1 of 3

Case 1:13-cv-01422-ABJ Document 30-1 Filed 05/11/15 Page 2 of 3

Case 1:13-cv-01422-ABJ Document 30-1 Filed 05/11/15 Page 3 of 3

Case 1:13-cv-01422-ABJ Document 30-2 Filed 05/11/15 Page 1 of 2

Re: FOIA Request No. DOC-NOAA-2014-000915

Dear Mr. Rizek: