DC Circuit Case on IRS Use of Glomar FOIA Response Neither Admitting Nor Denying (7/26/22)

I was reading David Lat’s article, My Latest Theory About The SCOTUS Leaker (Original Jurisdiction 7/26/22), here.  Lat's theory is that the Politico authors publishing the original article about the Supreme Court draft opinion leak in Dobbs, with a link to the draft opinion, do not know the leaker (after the opening in Lat's article), he calls the person "The Leaker."  Lat offers the steps behind this theory, some of which sound cloak and dagger or even conspiracy theories. Nevertheless, it is a good read; well at least an interesting read.  

Among the steps Lat reports he took to confirm his theories

I contacted Gerstein and Ward [the Politico authors] with my theory that they don’t know the name of their source. I invited them to reassure me, even off the record, that they do know The Leaker’s name, in which case I wouldn’t float my theory. They didn’t do that; instead, they put me in touch with Politico spokesperson Brad Dayspring, who emailed me: “Given the sensitivity of the matter and the importance of protecting sources and methods, we are going to decline to comment—as I am sure that you can appreciate.”

This struck me as something like a so-called Glomar response when information is sought through a legal process (say FOIA), and there is an exemption from disclosure under circumstances that the law permits the agency to make a nonresponse.  That is on my mind because I am updating my Federal Tax Procedure Book editions for 2022 (hopefully will be published in early August), I just incorporated a recent case, Montgomery v. IRS, 40 F. 4th 702 (D.C. Cir. July 19, 2022), DCCir here and GS here.  In Montgomery, the taxpayers believe that someone was a whistleblower concerning their investment in a bullshit tax shelter long ago called out, with taxes and penalties visited on the Montgomerys.  The Montgomerys then pursued a long-running quixotic quest via FOIA to find out who the whistleblowers were.  (It is unclear what they would do with the identities, but I suspect it would not be good for the whistleblowers.)  I wrote on an earlier district court opinion in the ongoing saga, Bullshit Shelter Taxpayers Continuing FOIA Litigation to Identify Informants Turning Them In to IRS (Federal Tax Procedure Blog 3/30/20), here.  In relevant part, the IRS gave a Glomar response to the FOIA request.  I thought I would offer the portion of the FTPB as revised to include the new Montgomery case (I omit footnotes except for the Montgomery case which I quote from):

3.        [FOIA] Exemption 7 - Records for Law Enforcement Purposes.

            This exemption generally exempts agencies from disclosing a significant portion of its criminal investigation files, which category includes IRS criminal tax investigations.  Still, FOIA may require disclosure of purely fact based documents and other information in IRS criminal investigations despite this exemption.  Many practitioners routinely file FOIA requests in criminal investigations in the hope that something of value will be learned.  The worst that can happen is that the IRS will say no.  But it might not say no or it might release documents for which it arguably could have asserted an exemption and did not. 

            An important category of law enforcement documents exempt from disclosure are documents that might identify a confidential informant (including whistleblowers providing information for a whistleblower award under § 7623 discussed in Ch. 18).  This is called the 7(D) exemption.  Because of the importance of the general rule requiring open disclosure of government operations, the Supreme Court has held that an agency does not qualify for withholding agency records simply by chanting informant's exception when it does not want to disclose.  The agency must prove that the informant gave the information under circumstances where the informant was given express assurances of confidentiality or the circumstances indicate that such assurances were necessarily assumed by the agency and the informant.  The Court refused to assume that, merely because a citizen gave information to the FBI, there was an assurance, express or implied, of confidentiality.

            The IRS (or any agency) may give what is a “neither confirm nor deny” (“NCND”) response (sometimes referred to as a “Glomar” response) to a question to which an answer could reveal the identity or even existence of a confidential informant.  An NCND response is a FOIA response that “neither confirms nor denies the existence of documents responsive to the request” because it would cause cognizable harm under a FOIA exception.  The D.C. Circuit explains that the broad (7)(d) FOIA exemption to maintain confidential whistleblower sources:

            To this end, the IRS gives a Glomar Response to FOIA requests seeking documents pertaining to whistleblowers, refusing to either confirm or deny the existence of such records. This policy makes sense. If the IRS only asserts Glomar when whistleblower records exist, and gives a negative answer when no records exist, savvy requesters would both (1) recognize that a Glomar Response indicates the positive existence of whistleblower documents; and (2) may well be able to deduce the identity of a potential whistleblower himself, the very information the IRS is required to protect. This is especially true when the pool of potential whistleblowers is very small, leading a revenge-seeking requester to narrow down the informant with relative ease. Far from violating FOIA’s statutory scheme, the IRS’s Glomar Response to FOIA requests for whistleblower documents aligns with the purpose of Exemption 7(D) and the duties of the IRS to protect whistleblower identities. n

      n Montgomery, slip op. 13.