Thomas A. Montgomery and Beth W. Montgomery v. Internal Revenue Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2022 Decided July 19, 2022
No. 21-5168
THOMAS A. M ONTGOMERY AND BETH W. M ONTGOMERY ,
APPELLANTS
v.
I NTERNAL REVENUE SERVICE ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00918)
Kim Marie Boylan argued the cause for appellants. With
her on the briefs were Nicholas L. Wilkins and Christina M.
Culver.
Norah E. Bringer, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was
Michael J. Haungs, Attorney.
Before: HENDERSON and W ALKER , Circuit Judges, and
SENTELLE , Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
SENTELLE .
SENTELLE , Senior Circuit Judge: In the district court,
Appellants Thomas and Beth Montgomery brought suit against
the Internal Revenue Service for its responses to the
Montgomerys’ twelve Freedom of Information Act (“FOIA”)
requests. The district court ultimately granted summary
judgment to the IRS on all issues. The Montgomerys now
appeal the district court’s May 19, 2021, order awarding
summary judgment to the IRS, as well as seven opinions and
orders supporting the May 19 order. These include
Montgomery v. Internal Revenue Serv., 330 F. Supp. 3d 161
(D.D.C. 2018); 356 F. Supp. 3d 74 (D.D.C. 2019); No. CV 17-
918, 2019 WL 2930038 (D.D.C. July 8, 2019); No. CV 17-918,
2020 WL 1451597 (D.D.C. Mar. 25, 2020); No. CV 17-918,
2020 WL 2994334 (D.D.C. June 4, 2020); 514 F. Supp. 3d 125
(D.D.C. 2021); and No. CV 17-918, ECF No. 116 (D.D.C. May
12, 2021). For the reasons explained below, we affirm the
district court.
I. Background
This lawsuit represents the most recent episode in an
ongoing legal struggle between the Montgomerys and the IRS
in a series of suits dating back over a decade.
a. The Underlying Tax Suits
In the early 2000s, husband and wife Appellants
Thomas and Beth Montgomery, both accountants, undertook a
tax scheme to artificially inflate business losses on their
individual tax returns. To this end, Thomas Montgomery
participated in establishing sham partnerships he then used as

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tax shelters to report losses of over $1 billion. The IRS
subsequently uncovered the scheme and retroactively
disallowed the losses on the Montgomerys’ individual tax
returns in a series of adjustments.
In protest, the Montgomerys and associated
partnerships brought two suits in federal court seeking
readjustment of the IRS’s adjustments, Southgate Master
Fund, L.L.C. ex rel. Montgomery Cap. Advisors, LLC v. United
States, 659 F.3d 466 (5th Cir. 2011) (“Southgate”) and Bemont
Invs., L.L.C. ex rel. Tax Matters Partner v. United States, 679
F.3d 339 (5th Cir. 2012), abrogated on other grounds by
United States v. Woods, 571 U.S. 31 (2013) (“Bemont”). The
Montgomerys ultimately emerged from these cases with a
partial victory. Though holding most of the Montgomerys’
partnership transactions were shams, the Fifth Circuit held that
one of the transactions had a legitimate business purpose.
Southgate, 659 F.3d at 481. In light of this, the Montgomerys
and their partnerships then pursued thirteen separate lawsuits
in the federal courts for various tax refunds associated with the
readjustments assessed them. Before this litigation finalized,
however, the Montgomerys and the IRS entered a global
settlement agreement to resolve all outstanding differences in
2014.
b. FOIA Requests
With the underlying tax matters resolved, the
Montgomerys brought suit to discover how their tax schemes
came to the attention of the IRS. To this end, in May 2016 they
submitted twelve records requests to the IRS under the
Freedom of Information Act, 5 U.S.C. § 552. The IRS
subsequently grouped the Montgomerys’ FOIA requests into
two categories: (1) the first five requests regarding certain
whistleblower forms, including award applications (“Requests

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1–5”); and (2) the second seven requests involving the IRS’s
communications with any third parties about the
Montgomerys’ taxes (“Requests 6–12”).
The IRS first responded to both groups of records
requests by providing no responsive documents. For Requests
1–5, the IRS cited FOIA Exemption 7(D) “exempt[ing] the
disclosure of records or information compiled for law
enforcement purposes to the extent that their release could
disclose the identity of a confidential source.” JA51 (citing 5
U.S.C. § 552(b)(7)(D)). For Requests 6–12, the IRS searched
its files and first found no responsive records. The
Montgomerys filed an administrative appeal with the IRS,
which it subsequently denied via a Final Appeal Response
Letter dated September 23, 2016.
c. District Court
The Montgomerys then brought suit in the United
States District Court for the District of Columbia alleging (1)
the IRS wrongfully withheld documents pertaining to Requests
1–5; (2) the IRS wrongfully withheld documents pertaining to
Requests 6–12; and (3) the IRS violated the Administrative
Procedure Act in doing so.
In its Answer, the IRS asserted a Glomar Response for
Requests 1–5. Named after a ship in a long-ago CIA secrets
case, a Glomar Response refers to an agency’s refusal to either
confirm or deny the existence of the records requested. See
Phillippi v. C.I.A., 546 F.2d 1009, 1010 (D.C. Cir. 1976). The
IRS averred that answering the Montgomerys’ requests “could
violate protections from disclosure under the exemptions
contained in [the Freedom of Information Act].” JA68.
Agencies are permitted to use a Glomar Response when an
acknowledgement—or not—of certain records would reveal

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the very information the agency seeks to protect. Bartko v.
United States Dep’t of Just., 62 F. Supp. 3d 134, 141 (D.D.C.
2014). When using it to answer a FOIA request, an agency
must tether its Glomar Response to at least one of the statutory
FOIA exemptions. See id. (quoting Wolf v. CIA, 473 F.3d 370,
374 (D.C. Cir. 2007)).
i. Requests 1–5
The district court first considered and rejected the
Montgomerys’ procedural arguments that estoppel and the
official acknowledgment doctrine precluded the IRS from
asserting its Glomar Response. Montgomery, 330 F. Supp. 3d
at 168–70. It then granted the IRS summary judgment on the
issue. Id. at 173; see also Montgomery, 356 F. Supp. 3d at 78
(denying reconsideration of the issue). The district court relied
on Exemption 7(D) in granting the IRS summary judgment.
Montgomery, 330 F. Supp. 3d at 170. This exemption exempts
from FOIA disclosure
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)(D). The district court was persuaded by
the IRS’s explanation that it asserted a Glomar Response for

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all documents regarding its whistleblower program because a
confirmation of the existence or absence of whistleblower
documents in a particular case may lead a savvy requester to
the very whistleblower himself. Montgomery, 330 F. Supp. 3d
at 170–71.
ii. Requests 6–12
The matter of Requests 6–12 was not resolved so
quickly. The district court first ruled that the IRS’s search for
records responsive to Requests 6–12 was inadequate. See
Montgomery, 330 F. Supp. 3d at 172 (denying summary
judgment to IRS on adequacy of search with instructions to
renew search); Montgomery, 2020 WL 1451597, at *5 (same);
Montgomery, 514 F. Supp. 3d 125, 136 (D.D.C. 2021) (holding
most of the IRS’s search adequate with one exception and
giving instructions to renew search resolving exception). After
the district court required it to renew its search several times,
the IRS eventually uncovered over 1,000 pages of documents
responsive to Requests 6–12. Montgomery, 2020 WL
1451597, at *5. The district court then ultimately held the IRS
had finally searched in all of the appropriate places, and its
failure to locate certain documents the Montgomerys expected
to find did not make the search inadequate. Montgomery, ECF
No. 116, at *1.
iii. APA Review
Finally, the Montgomerys argued that the IRS’s policy
to assert a Glomar Response for requests seeking
whistleblower documents violated the Administrative
Procedure Act because it constituted a rule without the APA
requirements of notice and comment. The district court held
that APA review remained unavailable to the Montgomerys
because they could receive adequate relief under FOIA;

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namely, the release of certain withheld documents.
Montgomery, 330 F. Supp. 3d at 173.
The Montgomerys now appeal to this Court.
II. Analysis
a. Standard of Review
“We review de novo a district court’s grant of summary
judgment in favor of an agency which claims to have complied
with FOIA.” Nation Magazine v. U.S. Customs Serv., 71 F.3d
885, 889 (D.C. Cir. 1995). We also review the district court’s
collateral estoppel and official acknowledgement
determinations de novo. Hall v. Clinton, 285 F.3d 74, 80 (D.C.
Cir. 2002) (collateral estoppel); Protect Democracy Project,
Inc. v. Nat’l Sec. Agency, 10 F.4th 879, 884 (D.C. Cir. 2021)
(official acknowledgement). However, the district court’s
decision regarding judicial estoppel requires abuse of
discretion review. Marshall v. Honeywell Tech. Sys. Inc., 828
F.3d 923, 928 (D.C. Cir. 2016).
b. Procedural Arguments
The Montgomerys set forth three procedural arguments
averring that the IRS is barred from asserting a Glomar
Response to Requests 1–5: (1) collateral estoppel; (2) judicial
estoppel; and (3) the official acknowledgment doctrine. The
district court considered and rejected these arguments.
Montgomery, 330 F. Supp. 3d at 168–70 (estoppel and official
acknowledgment doctrine). We agree with the district court
and explain why the Montgomerys’ procedural arguments are
unpersuasive. We examine each argument in turn.

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i. Collateral Estoppel
The Montgomerys first allege that the IRS is
collaterally estopped from asserting a Glomar Response
because it successfully argued in the two underlying tax cases
of Bemont and Southgate that no informant existed. Because
the Glomar Response requires at least the possibility of an
informant, the Montgomerys argue that the IRS is collaterally
estopped from now refusing to answer the Montgomerys’
Requests 1–5 pertaining to whistleblower documents.
Collateral estoppel requires that (1) “the same issue
now being raised must have been contested by the parties and
submitted for judicial determination in the prior case;” (2) “the
issue must have been actually and necessarily determined by a
court of competent jurisdiction in that prior case;” and (3)
“preclusion in the second case must not work a basic unfairness
to the party bound by the first determination.” Martin v. Dep’t
of Just., 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha
Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir.
1992)). The Montgomerys fail to meet the first requirement of
this test.
The issue of the existence of a confidential informant,
decided by the previous Fifth Circuit cases of Bemont and
Southgate, is not the same as the issue confronting us now;
namely, whether the IRS possesses any documents pertaining
to a confidential informant. Indeed, the documents requested
by the Montgomerys in Requests 1–5 include such items as
award applications and reportable transaction forms. See
JA43–44. As the IRS and the district court correctly point out,
the IRS does not pay awards for every form submitted to it. So,
these documents may very well exist outside of the presence of
an actual whistleblower. Montgomery, 330 F. Supp. 3d at 169.
Because documents pertaining to a potential whistleblower can

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exist regardless of whether a whistleblower himself exists, the
issue facing us now was not previously litigated in the Fifth
Circuit. The IRS is not collaterally estopped from its Glomar
Response.
ii. Judicial Estoppel
The Montgomerys next assert that the IRS is judicially
estopped from asserting its Glomar Response. Judicial
estoppel “prevents a party from asserting a claim in a legal
proceeding that is inconsistent with a claim taken by that party
in a previous proceeding.” New Hampshire v. Maine, 532 U.S.
742, 749 (2001) (quoting 18 Moore’s Federal Practice
§ 134.30, p. 134–62 (3d ed. 2000)). The Montgomerys argue
that the IRS benefitted from its argument to the Fifth Circuit
that no informant existed, resulting in favorable evidentiary
and statute of limitations rulings. The IRS cannot now, the
Montgomerys assert, change its position that no informant
exists.
As explained for the collateral estoppel issue above, the
IRS has not changed its position on whether a confidential
informant exists in this case. The IRS’s Glomar Response to
the existence of whistleblower documents, as requested by the
Montgomerys in FOIA Requests 1–5, does not bear on its prior
position in the Fifth Circuit cases regarding the existence of a
whistleblower. Since the IRS’s positions are not inconsistent,
the IRS is not judicially estopped from its Glomar Response.
iii. Official Acknowledgment
The Montgomerys finally assert two arguments
regarding the official acknowledgment doctrine: (1) the IRS
officially acknowledged that it did not have a confidential
informant through its disclosures to the Fifth Circuit; and (2)

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the IRS officially acknowledged in its Final Appeal Response
Letter to the Montgomerys that “withheld material” existed
with respect to Requests 1–5. We discuss both in turn.
The official acknowledgment doctrine holds that “when
an agency has officially acknowledged otherwise exempt
information through prior disclosure, the agency has waived its
right to claim an exemption with respect to that information.”
Am. C.L. Union v. C.I.A., 710 F.3d 422, 426 (D.C. Cir. 2013).
We use a three-part test to determine whether an agency has
officially acknowledged otherwise-exempt information: (1)
“the information requested must be as specific as the
information previously released;” (2) “the information
requested must match the information previously disclosed;”
and (3) “the information requested must already have been
made public through an official and documented disclosure.”
Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990).
As to the Montgomerys’ first assertion, for the reasons
stated exhaustively above, the information requested by the
Montgomerys does not match the information previously
released by the IRS and so fails the official acknowledgment
test. Namely, Requests 1–5 seek whistleblower documents,
while the IRS previously disclosed the non-existence of a
whistleblower himself. These two pieces of information differ,
a fact even acknowledged by the Montgomerys in their opening
brief. See Appellants Br. 37 (“The existence of responsive
records is a distinct issue, separate from the existence of a
confidential source.”).
The Montgomerys cite Sea Shepherd Conservation
Soc’y v. Internal Revenue Serv., 208 F. Supp. 3d 58 (D.D.C.
2016), for the proposition that once “the existence or non-
existence of an informant [is] already public record, the IRS
[cannot] establish ‘why the disclosure of the fact of the

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existence or non-existence of any records—as opposed to the
records themselves—would cause harm to the interests
protected by the FOIA exemptions [(3 and 7(D))] cited.’”
Appellants Br. 35 (quoting Sea Shepherd Conservation Soc’y,
208 F. Supp. 3d at 90 (emphasis in original)). However, the
Montgomerys fail to appreciate Sea Shepherd’s narrow scope,
which cautions that “[t]his opinion is not meant to and does not
establish a general principle that the IRS may never issue a
Glomar response for records from its Whistleblower Office.”
Sea Shepherd, 208 F. Supp. 3d at 90. Rather, the Sea Shepherd
Court clarified that its decision was based “on the unique
circumstances presented in [that] case, in which the fact of the
existence of whistleblower records within the agency had
already been made public.” Id. (emphasis added).
No such unique circumstance is present in this case.
The IRS did not officially acknowledge in any prior proceeding
that it did, or did not, possess records pertaining to potential
informants, the subject of Requests 1–5. The official
acknowledgment doctrine therefore does not apply to the
Montgomerys’ first argument.
The Montgomerys’ second argument similarly fails for
the reasons stated by the district court. In its Final Appeal
Response Letter to the Montgomerys, the IRS stated that “[t]he
withheld material contains information which could reasonably
be expected to directly or indirectly disclose the identity of
confidential sources in the course of a criminal investigation.”
JA65. The Montgomerys aver that the IRS’s reference to
“withheld material” constitutes an official acknowledgment
that such material exists. This is incorrect. As the Appeals
Officer who reviewed the Montgomerys’ FOIA requests
explained to the district court, the standard “withheld material”
language contained in the Letter was mistaken. We agree with
the district court that “[i]t would be draconian to penalize the

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Government in a sensitive matter concerning a potential
informant by refusing to permit some leeway for an honest
mistake.” Montgomery, 330 F. Supp. 3d at 169. Moreover, we
further agree with the district court that the IRS’s vague
reference to “withheld material” does not match the
information requested by the Montgomerys under the official
acknowledgement doctrine’s second requirement, thus also
failing that test. See id. at 169–70.
For the reasons stated above, all of the Montgomerys’
procedural arguments fail. We move now to the merits of this
case.
c. Merits
i. Requests 1–5
The Montgomerys argue that the IRS’s Glomar
Response is contrary to law. They allege that the Response
violates FOIA’s existing statutory scheme, runs contrary to
Supreme Court and this Court’s precedent, and improperly
involves the use of ex parte declarations. We address each in
turn.
1. FOIA Statutory Scheme
The Montgomerys first aver that FOIA Exemption
7(D), the exemption on which the IRS and the district court
relied, protects only the identity of a whistleblower and the
information furnished by a whistleblower, not the existence of
a whistleblower.
We disagree. Exemption 7(D) permits the IRS to
withhold information that “could reasonably be expected to
disclose the identity of a confidential source.” 5 U.S.C.

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§ 552(b)(7)(D). As we have stated before, Congress intended
7(D) “to provide a broad exemption for law enforcement” to
allow for “agencies to obtain, and to maintain, confidential
sources, as well as to guard the flow of information to these
agencies.” Parker v. Dep’t of Just., 934 F.2d 375, 380 (D.C.
Cir. 1991). The IRS is in fact required by Treasury Regulations
to “use its best efforts to protect the identity of
whistleblowers.” 26 C.F.R. § 301.7623-1(e).
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. The Montgomerys make several
more arguments on this point, none of which merit discussion.
2. Relevant Precedent
Nor does the IRS’s Glomar Response run afoul of
Supreme Court or this Court’s precedent, as the Montgomerys
next argue. The Montgomerys specifically aver that the IRS
relied on a presumption of confidentiality to assert its 7(D)
Exemption, a practice prohibited by the Supreme Court case of

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Dep’t of Justice v. Landano. 508 U.S. 165 (1993) (“Landano”).
The Montgomerys also cite three cases from this Circuit,
including Roth v. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir.
2011) (“Roth”), Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C.
Cir. 1984) (“Lykins”), and Garza v. U.S. Marshals Svc., 2020
WL 768221 (D.C. Cir. Jan. 22, 2020) (“Garza”) for their
proposition that the IRS must only withhold small portions of
requested records that could identify a whistleblower under
Exemption 7(D) and publicly release the rest.
The abovementioned precedent does not mandate such
a result, and the district court’s decisions in this case align with
precedent. The Montgomerys are correct that Landano
prohibits a presumption of confidentiality for informants. See
Landano, 508 U.S. at 166. Instead, under this Court’s
precedent in Roth, an agency relying on confidential sources
should “publicly explain[] to the extent it can why it has
concluded that certain sources provided information under an
express or implied assurance of confidentiality.” Roth, 642
F.3d at 1185. However, this Court does not require the
explanation to “‘giv[e] away the information [the agency] is
trying to withhold,’” as the Montgomerys seem to suggest. Id.
(quoting Lykins, 725 F.2d at 1463–64). Instead, Roth and
Lykins “recognize[] ‘that there are occasions when extensive
public justification would threaten to reveal the very
information for which a FOIA exemption is claimed.’” Roth,
642 F.3d at 1185 (quoting Lykins, 725 F.2d at 1463). In these
situations, this Court permits an agency relying on Exemption
7(D) to “supplement its explanation by making the documents
available for in camera review.” Roth, 642 F.3d at 1185. In
this way, the court balances the FOIA requester’s interest in the
testing of an agency’s claims with the purpose of Exemption
7(D) in keeping some information non-public. See id.

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In this case, the district court directly followed this
precedent. As explained above, revealing the existence of any
whistleblower documents may have “giv[en] away the
information [the IRS was] trying to withhold,” defeating the
entire purpose of Glomar. Recognizing this, the district court
correctly required the IRS to show in camera either (1) a
confidential informant had been expressly or impliedly assured
confidentiality, in accordance with Roth; or (2) no responsive
records to Requests 1–5 existed. Montgomery, 330 F. Supp. 3d
at 171. The IRS then submitted declarations, which the district
court appropriately reviewed in camera and found “that the
Service ha[d] satisfied one of these two requirements.” Id. No
more is required under this Court’s or the Supreme Court’s
precedent.
3. In Camera Declarations
The Montgomerys finally argue that the district court’s
use of in camera declarations, as opposed to in camera review,
contravenes FOIA and other binding authority. Not so. First,
we review the district court’s use of in camera submissions for
abuse of discretion. Spirko v. U.S. Postal Serv., 147 F.3d 992,
996 (D.C. Cir. 1998). We have explained on numerous
occasions that “the decision whether to perform in camera
inspection is left to the broad discretion of the trial court
judge.” Id. (internal quotation marks and citations omitted).
Indeed, the FOIA statute itself provides that a court “may
examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be
withheld under any of the exemptions . . . .” 5 U.S.C.
§ 552(a)(4)(B) (emphasis added).
This Court has previously given a test for “when an
affidavit disclosing information assertedly exempt from
production under the FOIA is proffered.” Arieff v. U.S. Dep’t

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of Navy, 712 F.2d 1462, 1470 (D.C. Cir. 1983). In these
situations, in camera review is required “when (1) the validity
of the government’s assertion of exemption cannot be
evaluated without information beyond that contained in the
public affidavits and in the records themselves, and (2) public
disclosure of that information would compromise the secrecy
asserted.” Id. at 1471. The district court properly applied this
test and determined that the declarations proffered by the IRS
could not be publicly released. Montgomery, 356 F. Supp. 3d
at 81. It further received, and ultimately rejected the merits of,
three sets of briefs by the Montgomerys on the subject of the in
camera declarations. Id. In other words, the Montgomerys had
their voices heard with regard to the in camera declarations.
The Montgomerys cite Lykins for the proposition that
there exists a distinction between in camera review of records
and in camera declarations or affidavits. In fact, Lykins
supports the use of affidavits, holding that “[t]o the extent
necessary, the government must supply affidavits in support of
its claims of exemption.” Lykins, 725 F.2d at 1463 (emphasis
added). Though Lykins cautions against the overuse of
affidavits, it does not prohibit them and instead provides the
guidance that “[w]hen a trial court does make use of in camera
affidavits, it must see to it that such use is justified to the
greatest extent possible on the public record, . . . and must then
make available to the adverse party as much as possible of the
in camera submission.” Id. at 1465. As previously explained,
the district court carefully reviewed the declarations and,
mindful of the requirement that it make them as public as
possible, concluded it could not publicly release them.
Montgomery, 356 F. Supp. 3d at 81. The district court acted
well within its discretion in doing so.

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ii. Requests 6–12
The Montgomerys renew their argument that the IRS
did not conduct an adequate search for records related to
Requests 6–12. The district court, in a series of opinions,
initially agreed. See Montgomery, 330 F. Supp. 3d at 172;
Montgomery, 2020 WL 1451597, at *5; Montgomery, 514 F.
Supp. 3d at 136. Eventually however, after multiple
instructions, the IRS satisfied the district court of the adequacy
of its search. We agree with the district court’s ultimate
conclusion.
In order to satisfy FOIA’s aims of providing more
transparency into the workings of the government, a recipient
of a FOIA request must make an adequate search in its records
for information answering the request. This Court has
elaborated that an adequate search entails a “show[ing] that
[the agency] 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. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). While
the agency need not “search every record system,” it also may
not “limit its search to only one record system if there are others
that are likely to turn up the information requested.” Id. While
“the adequacy of a FOIA search is generally determined not by
the fruits of the search, but by the appropriateness of the
methods used to carry out the search,” Iturralde v. Comptroller
of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), a “positive
indication[] of overlooked materials” can lead a court to
determine the search was inadequate, Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (internal
citations omitted).
In this case, the IRS initially conducted several
inadequate searches for records related to Requests 6–12. In

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the first, the IRS looked for responsive records only in its
Integrated Data Retrieval System, finding none. Montgomery,
330 F. Supp. 3d at 172. The district court agreed with the
Montgomerys that the IRS should search two other records
systems—namely, the IRS Whistleblower Office databases and
litigation files from the Bemont and Southgate cases—or
explain why these systems were not likely to produce
responsive results. Id.
In its second inadequate search, “[h]istory repeat[ed]
itself,” Montgomery, 2020 WL 1451597, at *1, with the IRS
failing to search another important database, the Office of Tax
Shelter Analysis, id. at *4. The district court lamented that the
IRS had “proceeded in piecemeal fashion to search one
database at a time, without ever commenting on whether other
locations might contain responsive documents,” leaving the
district court “uncertain as to whether there are other
potentially relevant databases . . . .” Id. at *5. In addition, the
IRS’s search of the litigation files resulted in over 1,000 pages
of responsive documents, giving the district court a “positive
indication[] of overlooked materials.” Id. Taken together, the
district court harbored “substantial doubt” regarding the
adequacy of the search and once again instructed the IRS to
renew its review for responsive documents. Id.
The district court was mostly satisfied of the adequacy
of the IRS’s search by the third time the issue came before it.
Montgomery, 514 F. Supp. 3d at 136. By that time, the IRS
submitted declarations that it had searched its Integrated Data
Retrieval System and taxpayer master files; files in the Large
Business and International Division; the Whistleblower Office;
multiple types of files related to the Bemont and Southgate
litigation; and the Office of Tax Shelter Analysis database. Id.
at 131–32. The IRS also finally “recited the magic words” that
“‘it ha[d] searched all locations/systems reasonably likely to

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contain records responsive to [Requests] 6-12.’” Id. at 132
(quoting an IRS declaration). The district court was satisfied
by these assurances. It further rejected the Montgomerys’
assertion, revived in this appeal, that the IRS’s failure to
uncover ten documents identified by the Montgomerys as
relevant constituted an inadequate search. Id. at 134. The only
“relatively minor exception” to the district court’s satisfaction,
id. at 136, was the IRS’s failure to search the emails of several
agency employees associated with the Bemont and Southgate
litigation, id. at 135. The IRS ultimately did so to the district
court’s satisfaction, finally receiving summary judgment on the
adequacy of the search for Requests 6–12. Montgomery, ECF
No. 116, at *1.
We agree that the IRS has finally carried its burden of
showing the adequacy of its search for documents responsive
to Requests 6–12. Although the Montgomerys are not entitled
“to dictate, through search instructions, the scope of [the IRS’s]
search,” Mobley v. C.I.A., 806 F.3d 568, 582 (D.C. Cir. 2015),
they have identified no further databases possibly containing
relevant information, see Montgomery, ECF No. 116, at *1.
More importantly, the IRS has finally “explained its search
process and why [certain] specified record systems are not
reasonably likely to contain responsive records.” Mobley, 806
F.3d at 582.
In this appeal, the Montgomerys chiefly focus on
certain documents, which they number in the hundreds, that
they contend were in the IRS’s possession but were not located
by the IRS. They also take issue with the IRS’s declaration
explaining that these documents were either destroyed or
consolidated. The district court heard and rejected these
arguments. See Montgomery, 514 F. Supp. 3d at 133–34, 135.
We agree with the district court.

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As we have noted before, “particular documents may
have been accidentally lost or destroyed, or a reasonable and
thorough search may have missed them.” Iturralde, 315 F.3d
at 315. This is why we judge the adequacy of a search not by
its fruits, but rather “by the appropriateness of the methods
used to carry out the search.” Id. While true a requester may
cast doubt on the adequacy of a search through “positive
indications of overlooked materials,” id. at 314 (citations
omitted), the Montgomerys have not done so in this case, id. at
315. The Montgomerys do not now “maintain that the [IRS]
failed to search particular offices or files where the
document[s] might well have been found,” id., nor that the IRS
“failed or refused to interview government officials for whom
there was strong evidence that they might have been helpful in
finding the missing documents,” id., nor that the IRS “ignored
indications in documents found in its initial search that there
were additional responsive documents elsewhere,” id. Rather,
the Montgomerys aver only that “hundreds” of documents are
missing from the IRS’s search. Our precedent makes clear,
however, that even if this claim were true, the IRS’s search in
this case was not inadequate, as it “made a good faith effort to
conduct a search for the requested records, using methods
which can be reasonably expected to produce the information
requested.” Oglesby, 920 F.2d at 68. Nothing more is required.
Finally, as the district court explained, the IRS’s
declaration as to the whereabouts of the “missing”
documents—namely that they were either destroyed or
consolidated with other files—easily passes muster. FOIA
declarants are not required to have personal knowledge of the
search itself, but rather “personal knowledge of the procedures
used in handling [a FOIA] request and familiarity with the
documents in question.” Wisdom v. U.S. Tr. Program, 266 F.
Supp. 3d 93, 102 (D.D.C. 2017) (alteration in original)
(citations omitted). As the district court noted, the relevant

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declaration on this matter “reflect[ed] [the declarant’s]
comprehensive understanding of the documents at issue, as
well as her extensive collaboration with the experienced
agency employees who searched them.” Montgomery, 514 F.
Supp. 3d at 135. Again, no more is required.
iii. APA Review
Finally, the Montgomerys argue that the IRS’s policy
of asserting a Glomar Response when a FOIA requester seeks
whistleblower-related documents amounts to a rule, and this
rule violates the Administrative Procedure Act because it did
not undergo the requisite notice-and-comment process. We
disagree.
Judicial review under the APA is only available when
“there is no other adequate remedy in a court . . . .” 5 U.S.C.
§ 704. The remedy for the Montgomerys is a release of certain
documents responsive to their FOIA requests. This remedy is
available in court under the FOIA statute, were the
Montgomerys to prevail on their claims. 5 U.S.C.
§ 552(a)(3)(A) (requiring an agency to “make the [requested]
records promptly available to any person”); see also 5 U.S.C.A.
§ 552(a)(4)(B) (giving courts jurisdiction to “order the
production of any agency records improperly withheld”).
Simply because the Montgomerys do not prevail on their
claims does not make them subject to the exclusive review the
APA provides.
III. Conclusion
For the reasons set forth above, we affirm the district
court on all questions.

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