How to lose an FOIA appeal: Gennifer Flowers

(United States District Court for the District of Columbia)


A U.S. district court granted the IRS's summary judgment motions concerning an individual's initial and perfected FOIA requests, concluding that the court lacked jurisdiction over the first request for failure to exhaust administrative remedies and for the perfected request. The court found that the IRS had shown that its searches were reasonably calculated to uncover responsive documents and that the IRS fully complied with the perfected request.
   Gennifer Flowers sent a FOIA request to the IRS for all documents and files relating to her and requesting that the documents be sent to her attorney at Judicial Watch. The IRS responded that the request didn't meet all the requirements for a FOIA request.
    Flowers didn't perfect her request. Eight months later she filed suit alleging that the IRS subjected her to retaliatory audits and other actions during the Clinton administration. She sought a declaration that the IRS's refusal to disclose the documents was unlawful and an order directing the IRS to release the documents.
    After a court-directed meeting, Flowers submitted a perfected request for documents from 1992. The IRS directed the IRS offices involved to identify and locate any of Flowers's records. The IRS determined that the 1992 files were destroyed in 2001, under the record retention procedures. The only documents left were the transcripts of her account. The IRS filed for summary judgment arguing that the court lacks jurisdiction over the initial request and that it complied with the perfected request.
    U.S. District Judge Ricardo M. Urbina granted the IRS summary judgment on Flowers's initial request and noted that the request was procedurally deficient and didn't agree to pay the fees or seek a fee waiver. The court, given Flowers's failure to perfect her initial request and premature request for review, granted the IRS's summary judgment motion. The court, construing Flowers's request for discovery as a challenge to the IRS's searches, concluded that the searches were adequate and that Flowers offered no evidence to rebut the presumption of good faith accorded the IRS's affidavits, which provided that the documents had been destroyed under the IRS published document-retention schedules. Judge Urbina dismissed the attempt to investigate why the IRS chose Flowers for audit as not a proper subject of a FOIA discovery request. Judge Urbina granted the IRS's summary judgment motion for Flowers's perfected request. Finally, Judge Urbina noted that Flowers "virtually preordained" the outcome by waiting eight years after her 1992 audit before filing the "error ridden" FOIA request and that had she taken minor steps to perfect her request in 2000, she might have the documents she sought.