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Part 11. Communications and Liaison

Chapter 3. Disclosure of Official Information

Section 13. Freedom of Information Act

11.3.13  Freedom of Information Act

11.3.13.1  (10-26-2007)
Background

  1. The Freedom of Information Act (FOIA) 5 USC 552, as amended by the 1974 Amendments to the Freedom of Information Act ( PL 93-502), the Freedom of Information Reform Act of 1986 (PL 99-570), and the Electronic Freedom of Information Act Amendments of 1996 (PL 104-231), provides for public access to records and information maintained by Federal agencies. The IRS Restructuring and Reform Act of 1998 (PL 105-206) also affects the FOIA request process.

  2. Prior to the enactment of FOIA, first effective July 4, 1967, there were no effective guidelines to help a person obtain information about how the government operated, and no judicial remedies for those denied access to governmental records. With the passage of FOIA, the burden shifted from the requester having to justify access to governmental records, to the government having to justify why information would not be released.

  3. The premise of the FOIA is that the public has a right to know what goes on in government without having to demonstrate a need or reason, and a right to file an administrative appeal or a suit in U.S. District Court if denied access to records.

  4. This section deals primarily with processing requests pursuant to Section (a)(3) of the Act for reasonably described records maintained by the IRS which are not required to be published or otherwise made available under Sections (a)(1) or (a)(2) of the Act.

    Note:

    See IRM 11.3.7, Freedom of Information Reading Room Operations, for the interaction of these provisions and maintenance of IRS' Freedom of Information Reading Room.

  5. Treasury Directive 25-05, dated March 1, 2000, establishes policy and procedures and assigns responsibilities for carrying out the requirements of the Act within the Department of the Treasury.

  6. In October, 2001, Attorney General John Ashcroft issued a new FOIA policy directive that the Department of Justice will defend an agency's decision on FOIA exemptions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records. The Attorney General's new FOIA policy memorandum supersedes the FOIA memorandum issued by Attorney General Janet Reno on October 4, 1993. Attorney General Ashcroft's policy statement pertains to the DOJ's legal defense policy and does not contradict President Clinton's FOIA policy statement of October 4, 1993, in support of government openness and accountability associated with the agency's initial determinations. In this policy directive, the Attorney General advised agencies to make discretionary disclosures of information protected under the FOIA only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

  7. Effective April 23, 2004, the IRS issued Policy Statement 11-13, Freedom of Information Act Requests. (Formerly P-1-192). This Policy Statement affirms the commitment of the IRS to administering the FOIA in a manner consistent with "the fundamental values held by our society, including public accountability, safeguarding national security, enhancing the effectiveness of law enforcement agencies and the decision-making processes, protecting sensitive business information, and protecting personal privacy." The policy statement goes on to note that the "administrative cost and impact on operations involved in furnishing information in response to a FOIA request is not to be a material factor in deciding to deny a request unless the cost or impact would be so substantial as to seriously impair IRS operations."

    Note:

    See IRM 11.3.13.7.2.5 for further discussion of applying these guidelines when processing FOIA requests and asserting the (b)(5) exemption.

  8. All actions taken and determinations made in response to FOIA requests will be in accordance with procedural rules appearing at:

    • 31 CFR Part 1, and Appendix B; and

    • 26 CFR 601.702.

  9. Treasury is in the process of issuing guidelines to change the identification of "Official Use Only" (OUO) documents to "Sensitive But Unclassified" (SBU). References throughout this IRM to OUO material should be considered synonymous with SBU.

  10. Disclosure is in transition from the Electronic Disclosure Information Management System (E-DIMS) to a new management system, Automated Freedom of Information Act (AFOIA). During this transition, new initiatives, such as the inventory balancing system, may be implemented. All case processing must be consistent with procedures established by these new processes.

11.3.13.2  (10-26-2007)
Authority

  1. The Director, Governmental Liaison and Disclosure, and his/her delegate, have authority to make FOIA determinations concerning records under their jurisdiction.

  2. Officials who make FOIA determinations must request the recommendation of the function(s) having primary interest or issuing authority for the record(s) unless the same or substantially similar information has already been made available to the public or to the subject requester (as appropriate), or the determination is consistent with an established practice. Under these circumstances, coordination with the interested function or issuing authority will usually be unnecessary.

  3. If the deciding official disagrees with the recommendation of the affected function, discussions must be initiated with the function to resolve the disagreement or to afford the function a chance to provide further justification regarding the recommendation.

    Note:

    The recommendations may be useful in considering the application of FOIA exemptions to the records or may help to identify the harm which would result from the release of the requested records.

    Reminder:

    Recommendations are not binding upon the official who has the authority to make FOIA determinations and who must release or withhold records in accordance with his/her knowledge of the law.

  4. Requests for records written by the Office of Chief Counsel or known to involve matters in litigation where the IRS is a party, or that would otherwise be of interest to Counsel shall be coordinated with the affected Counsel office. If Disclosure personnel are uncertain as to the Counsel point of contact, contact Branch 6 or 7 of the Office of the Associate Chief Counsel, Procedure and Administration, who can assist in identifying the appropriate Counsel office.

    Note:

    In litigation not involving the IRS, coordination with Counsel is not generally required unless the responsive documents were written by Counsel or otherwise evidence Counsel interest or advice.

  5. Requests for records originating in other Federal agencies that require coordination with the appropriate agencies will be forwarded to the following address:

         IRS FOIA Request
         Disclosure Office
         SE:S:CLD:GLD:D
         1111 Constitution Avenue, NW
         Washington, DC 20224

  6. See IRM 11.3.13.5.6 for further guidance related to records originating in another agency.

  7. Requests involving the news media or subject matter believed to be of interest to the news media are to be coordinated with the Office of Communications, National Media Relations, through the local Public Affairs Specialist.

    Note:

    See IRM 11.3.13.9.26 for a definition of news media requester.

  8. FOIA requests for Treasury Inspector General for Tax Administration (TIGTA) records require special processing.

    1. FOIA requests for access to TIGTA records, (other than those publicly available as discussed below) created after January 18, 1999, are processed by TIGTA's Disclosure Officer and must be referred to:
           TIGTA
           Office of Chief Counsel
           IG:CC:Disclosure
           Room 700
           1125 15th St. NW
           Washington, DC 20005

      Note:

      The Disclosure Manager receiving the request shall inform the requester of the referral. See 26 CFR 601.702(c)(3)(i).

    2. Copies of records created prior to the move of Inspection from IRS to Treasury (January 18, 1999) may occasionally be found in an IRS file. For FOIA purposes, any determinations made regarding release of these documents must be coordinated with the Disclosure Officer, TIGTA. The IRS will make the final determination after considering TIGTA's input.

    3. Certain reports of audits given to the IRS by TIGTA, the operations manual, delegation orders, and other publicly available information, may be accessed by using the TIGTA E-FOIA website at:

      http://www.treas.gov/tigta/foia/available-documents.htm.

      Note:

      If a FOIA request seeks this information, the requester can be directed to this website.

    4. If a TIGTA Report of Investigation is part of an agency grievance file, it may be provided to the grievant in response to a FOIA request unless it is flagged. See IRM 11.3.20.12.2.

11.3.13.3  (10-26-2007)
Responsibility

  1. FOIA requests must be considered as requests for records under the jurisdiction of the receiving office unless:

    1. The request contains some indication that access to records located elsewhere is desired, or

    2. Research suggests that transfer to another office would provide better service to the requester. See IRM 11.3.13.5.12 below.

  2. Requests for Counsel records are processed by the Disclosure office in whose jurisdiction the underlying tax case originated. Requests for records of an Appeals Office are processed by the Disclosure office in whose jurisdiction the underlying tax case originated.

  3. Requests concerning investigation records will be processed by the office where the records originated. Disputes concerning the release of records will be resolved using the procedures in IRM 11.3.13.2(3).

  4. Requests may involve records pertaining to more than one office. In such a case, processing responsibility should be determined on the basis of major interest (i.e., in terms of volume of records, requester's address or location of any current activity). Hence, the response may be split among several offices or consolidated in one office. Disclosure Managers shall discuss such situations prior to making transfers. See IRM 11.3.13.5.12 for further discussion of transfers.

  5. Complex situations may require the assistance of the GLD Area or Headquarters Disclosure office. See IRM 11.3.13.5.5 regarding requests addressed or sent to multiple offices.

  6. Campuses should not be considered the responsible processing office for records which may be in their possession for computer input or retention, but which are primarily field office records.

    Note:

    Requests for transcripts should not be transferred when they can be obtained by the recipient office.

  7. Records retired to the Federal Records Centers are the responsibility of the originating office, and shall be retrieved when needed to process a request.

  8. A request for records received in the local IRS office after a case has been referred to the Department of Justice remains the responsibility of the local office.

    1. The Disclosure office will make determinations as to the records which exist at the local office.

    2. Any response must be coordinated with the assigned Division Counsel attorney and the assigned attorney in the Department of Justice.

    3. If the local office has not retained copies of any records sent to the Department of Justice, advise the requester that other records are in the custody of the Department of Justice. With the permission of the assigned Department of Justice attorney, the requester should be advised of the name, address and phone number of that attorney.

    4. Disclosure personnel will not refer a third party requester who has not established a right to access the requested information to the Department of Justice.

      Note:

      See IRM 11.3.13.5.4 regarding imperfect requests.

11.3.13.3.1  (10-26-2007)
Disclosure Managers

  1. Disclosure Managers are responsible for administering the FOIA Program. Responsibilities related to processing FOIA requests may involve:

    1. Establishing procedures to ensure uniform and consistent treatment of FOIA requests. Use of standardized language or paragraphs in communications with the requester should be encouraged as much as possible.

    2. Educating requesters on the proper procedures for filing a valid FOIA request, and educating IRS employees on the provisions of FOIA that affect them.

    3. Using the inventory management system to control FOIA inventory to ensure timely responses.

    4. Completing reviews of work in process for accuracy, completeness, and timeliness.

    5. Coordinating requests with the functions providing responsive data.

    6. Providing direction to functional coordinators on the procedures related to their responsibilities in the FOIA process.

    7. Providing assistance with respect to administrative appeals and lawsuits.

    8. Determining if records marked "official use only" or "limited official use" should be declassified and released to a FOIA requester.

      Note:

      See IRM 11.3.13.12. for further discussion regarding classification of records.

      Note:

      At the time of this IRM revision, Main Treasury is in the process of revising procedures for document classification.

  2. In addition, each Disclosure office should develop sufficient Functional Coordinators or other staff with an adequate level of disclosure experience to constitute a reliable reserve to assist Disclosure Managers in the event that unexpected increases in FOIA requests cause inventories to build up more rapidly than new staff can be developed.

  3. Disclosure Managers have been delegated the authority to make agency determinations. Delegation order 11-2, can be found in IRM 1.2.49.2.This authority includes the responsibility for deciding what is releasable and signing the response letter to the requester. Some authorities can be re-delegated to Disclosure Specialists and Assistants. The re-delegation order can be found at: http://mysbse.web.irs.gov/CLD/GLD/Disclosure/Office/Guidance/Memos/5602.aspx.

  4. Disclosure Managers are authorized to re-delegate the authority to sign partial and full denials to Senior Disclosure Specialists (GS-12) and Disclosure Specialists (GS-11). This authority is limited to only those instances where the Disclosure staff is located in a remote site away from the Disclosure Manager. This re-delegation order can be found at: http://mysbse.web.irs.gov/CLD/GLD/Disclosure/Office/Guidance/Memos/5594.aspx

    Note:

    Neither of these delegation orders affects who can authorize FOIA responses where information is withheld under IRC §6103(e)(7) impairment of Federal tax administration). This authority cannot be re-delegated below the supervisory level (see Delegation Order 11-2). Any denial or partial denial of records pursuant to FOIA exemption (b)(3) in conjunction with IRC §6103(e)(7) must be authorized by the Disclosure Manager, or an individual designated to act in that capacity in his/her absence. A brief phone call between the off-site Specialist reviewing the case and the Disclosure Manager (or his or her designated acting) to describe the circumstances and obtain concurrence would be sufficient. The Disclosure Manager shall add a history note documenting the discussion and his/her concurrence with the decision to withhold information pursuant to IRC §6103(e)(7).

11.3.13.3.2  (01-01-2006)
Functional Coordinators

  1. The role of Functional Coordinators in processing FOIA requests will depend upon local circumstances.

  2. The Functional Coordinator, as the contact point between the Disclosure Manager and the function, will serve in whatever way is necessary to facilitate the disclosure process. As such, he/she will request or secure such functional resources and cooperation as may be necessary. Functional Coordinators may, for example:

    1. Advise which records fall within the scope of the request

    2. Conduct record searches

    3. Obtain necessary copying services

    4. Analyze records

    5. Perform any necessary editing, sanitizing or segregating of records

    6. Prepare the functional recommendation, if any

    7. Assist in verifying requester identity

    8. Prepare indexes and

    9. Possibly serve as a witness in litigation regarding the scope of the search or the reasons certain exemptions were claimed.

  3. As the point of contact in that function, the Coordinator shall provide the following information with each response:

    1. Which offices were contacted and why

    2. Person(s) spoken to in each office and who conducted the search

    3. Files searched, if other than those initially recommended in the records search request

    4. Search terms used

    5. Volume and location of records found and

    6. Time spent by the function working the case (locating, reviewing, editing, and copying records)

    Caution:

    If total time is reported rather than separating search time, a requester could be overcharged. See IRM 11.3.13.6.3(10)(e) regarding the use of a search memo response questionnaire to ensure accurate reporting of time.

  4. Functional Coordinators may occasionally be called upon to assume the total responsibility (except for signing the response) for responding to selected FOIA requests, subject to Disclosure Manager control and direction. Such assignments may develop the Coordinator's expertise as an adequate backup or as a resource to reduce temporarily excessive inventories.

11.3.13.3.3  (10-26-2007)
Unique FOIA Aspects

  1. Requests involving unique FOIA aspects, those requiring multi–office coordination or those having national implications shall be brought to the attention of the Chief, Disclosure, through appropriate channels.

  2. The Chief, Disclosure, may determine that certain cases require special handling and may direct that cases be transferred accordingly. Requests involving the following will be transferred to the Baltimore Disclosure Office:

    1. Requests involving national contracts;

    2. Requests involving background records for Office of Management and Budget approval pertaining to a specific form; and

    3. Requests for written determinations and background file documents.

      Note:

      See IRM 11.3.13.9.1 for procedures related to written determinations.

  3. Information obtained from Interpol may be included in enforcement action files. Coordination with the Chief, Disclosure, is required before releasing Interpol information.

11.3.13.4  (01-01-2006)
Overview and Processing

  1. Processing a request under the FOIA consists of five basic steps:

    1. Receipt and control - classification, assignment and logging of requests;

    2. Analysis - review of the request for validity or other special features;

    3. Search - search procedures for responsive records;

    4. Review - review of responsive records and application of exemptions or exclusions;

    5. Response and closing - drafting of response to requester and closing the case.

  2. Each of the five basic steps has specific procedural and technical requirements, which will be discussed in detail in this section of the IRM.

    Note:

    Caseworkers will take substantial action that moves a case forward toward completion (e.g. ordering IDRS research or sending a search memo) within 10 calendar days of assignment of a request. All activities, including reasons for any delays, shall be documented in the inventory management system by notating the case history and updating the status code.

11.3.13.4.1  (01-01-2006)
Receipt and Control of FOIA Requests

  1. Receipt and control of requests for information under the FOIA include:

    1. Date stamping the request to show receipt date.

    2. Determining the type of request using definitions found in the FOIA and in the Electronic Disclosure Information Management System (E-DIMS) User Guide, available through the E-DIMS HELP menu.

    3. Inputting the request into the inventory management system, including the assigned caseworker, type of case and all other required information.

    4. Foldering the request based on national guidelines and forwarding it to the assigned caseworker.

  2. The date stamp shall be placed on the request to establish the date the request was received in the Disclosure office. This will allow computation of the statutory 20 day time period for a response or a request for a voluntary extension.

  3. Requests are classified as either Section (a)(1), (a)(2), or (a)(3), depending upon the nature of the information requested.

  4. Section (a)(1) requests are for agency records required to be published in the Federal Register. Requests for IRS Regulations or for Privacy Act System of Records Notices fall under this category.

  5. Section (a)(2) requests are requests for agency records required to be made publicly available for inspection and copying. Requests for Reading Room materials such as IRMs and Field Directives fall under this category.

  6. Section (a)(3) requests are for agency records that are not required to be made available to the public under Section (a)(1) or (a)(2). Requests for tax records or information protected by the Privacy Act fall under this category.

  7. The order of priority for requests seeking records that fall under more than one category is (a)(3), (a)(2), and (a)(1). The request shall be categorized and logged under the highest category of records requested, with (a)(3) being the highest.

    Example:

    A request for IRM 11.3 (under (a)(2)), combined with a request for tax records (under (a)(3)) will be logged as an (a)(3) request.

  8. The Disclosure Manager or other responsible employee should, wherever feasible, review the request after it is date stamped to designate the assigned caseworker. The request will then be provided to the employee with responsibility for input, foldering, and forwarding to the assigned caseworker.

11.3.13.5  (10-26-2007)
Initial Analysis of FOIA Request

  1. Requests must be thoroughly analyzed by the assigned caseworker to determine if a response is appropriate under the FOIA. Analysis of the correspondence may reveal:

    1. The request may be imperfect under the FOIA ( See IRM 11.3.13.5.4).

    2. The information requested may be under the jurisdiction of another agency or office ( See IRM 11.3.13.5.6 and IRM 11.3.13.5.7).

    3. The request may be directed to multiple offices requiring coordination of efforts ( See IRM 11.3.13.5.5).

    4. The request may be unclear as to the statute under which access is being sought ( See IRM 11.3.13.5.11) and

    5. Information requested may be available outside of the FOIA under other provisions of the law or under routine established agency procedures. See IRM 11.3.13.5.13).

  2. Proper analysis of the request by the assigned caseworker will result in determining how best to handle the request and will ultimately provide better customer service.

  3. The initial review of any request must include an analysis of the content of the request to determine if it complies with FOIA regulations or if not, whether the information could be provided under other provision of law or under established agency procedures, as appropriate. See IRM 11.3.13.5.4, IRM 11.3.13.5.9, IRM 11.3.13.5.10, and IRM 11.3.13.5.13.

  4. The FOIA, as implemented through regulations found at 26 CFR 601.702(c)(4), requires that a request:

    1. Be made in writing and signed by the person making the request

    2. State that it is made pursuant to the FOIA, or the regulations thereunder

    3. Be addressed to and mailed or hand delivered to the local Disclosure office or the office having control of the records, generally this is the office serving the state where the requester resides

    4. Reasonably describe the records sought

    5. In the case of records subject to IRC §6103 or the Privacy Act, establish the identity of the requester and the requester's right to receive the records

      Note:

      A stamped signature is not sufficient to establish a requester’s identity or right to obtain access to records the disclosure of which is restricted by statute or other authority. A FOIA request for such records under (a)(3) must, therefore, be physically signed by the requester. Any such request for (a)(3) records that is "signed" with a stamped signature will be rejected as imperfect.

      Note:

      IRS does not accept digital signatures for FOIA requests.

    6. Set forth the address to which the response is to be sent

    7. State whether the requester wishes to inspect the records or have copies made without prior inspection

    8. State the requester's agreement to pay for search, review, and reproduction charges as applicable (however, See IRM 11.3.13.5.4(3))

    9. Furnish an attestation under penalties of perjury as to the status of the requester (e.g. commercial use, media, noncommercial, scientific, educational, or other requester), and state how the records will be used, unless the requester is an "other" requester

  5. Upon receipt, a FOIA request must be analyzed properly to ensure that the recipient office has jurisdiction over the requested records.

  6. If it is determined that another Disclosure office has jurisdiction over the records, the request must be promptly transferred to the correct office within the 20 day response period. Further delay may unnecessarily cause an administrative exhaustion and possible litigation.

    Note:

    Treasury Regulation 601.702(c)(4)(i)(C) states that a FOIA request should generally be directed to the office serving the requester's geographic area of residence. Therefore, the calculation of the statutory response date begins on the date a valid FOIA request is received in such office. Transferring a request for internal jurisdictional or inventory management considerations does not change the received date or the statutory response date. If it is necessary to transfer the case, the receiving office must log it onto the inventory management system with the date it was received in the initial office. However, where a request is sent to an office outside of the requester’s geographic area, the statutory response time does not begin to run until the request is received in the correct office.

    Note:

    During the reorganization of GLD into CLD, a number of changes were made to the organizational structure that are not reflected in the Treasury Regulation. Requests transferred as a result of these changes shall be logged in as of the date received in the original office.

  7. No FOIA request can be deemed to be imperfect because the request was improperly addressed to a local Disclosure office. Disclosure personnel are required to respond to the request or forward the request to the appropriate IRS Disclosure office. See IRM 11.3.13.5.6 for procedures when records of another Agency or Treasury Component are requested.

    Note:

    Disclosure Managers may not respond by telling the requester that he or she sent the request to the wrong office and providing the address of the correct office or offices. Requests must be transferred by Disclosure personnel.

  8. When a request seeks tax records of a taxpayer other than the requester, it must include proof that the requester is authorized to obtain the records sought. This authority may be proven:

    1. By a properly completed Form 8821 , Tax Information Authorization, or equivalent.

      Note:

      This may be enclosed with the request or may have been separately sent to the IRS. A Form 8821 or equivalent must be received by the IRS within 60 days of the date the taxpayer signed and dated the document and must comply with all of the other requirements of 26 CFR 301.6103(c)-1.

      Note:

      To compute the 60-day limitation, day 1 is the day after the authorization was signed by the taxpayer. The authorization must be received by the IRS on or before the 60th day after the taxpayer signed the authorization.

    2. By a properly completed Form 2848, Power of Attorney and Declaration of Representative, or equivalent.

      Note:

      This may be enclosed with the request or may have been separately sent to the IRS. (A Form 2848 or equivalent need not be received within 60 days of the date the taxpayer signed it.)

      Note:

      Part II of the Form 2848 must be completed (or the information provided in an equivalent document). If this information is not provided, the document is incomplete and the FOIA request is considered imperfect.

      1. A valid Form 2848 sent to any office of the IRS should be assumed to be for representation purposes, unless there is evidence to the contrary (e.g. the Form 2848 specifically states "For FOIA request purposes" .)

      2. When processing the request, Disclosure personnel should not require that the Form 2848 be filed with the CAF Unit or that there be an open or closed tax case on the taxpayer.

        Note:

        Disclosure personnel should not forward Forms 2848 received in connection with a FOIA request to the CAF for input.

        Note:

        The filing of a FOIA request alone does not constitute practice before the IRS and is therefore, not covered by Circular 230.

      3. Generally, the receipt of a properly executed Form 2848 is sufficient to establish the representative’s identity and right to access the requested information. However, where the Disclosure Manager has reason to question the validity of the information submitted, additional proof of an individual’s identity and right to access may be requested. The caseworker must document the case history to explain why additional verification was necessary.

    3. If the taxpayer is an entity, by documentation demonstrating that the relationship between the taxpayer and the requester meets the applicable provision of IRC §6103(e). See IRM 11.3.13.5.1(9) and IRM 11.3.2, Disclosure to Persons with a Material Interest.

      Note:

      In March 2004, the Service stopped accepting Form 2848 as authority to disclose tax information to a designee if the designee was not eligible to practice before the Service. (See Instructions to Form 2848). Thus, the designee must complete Part II of the Form 2848 (or provide the Part II information in an equivalent document). If the designee is ineligible to complete Part II, the taxpayer must use Form 8821, or an equivalent, to authorize disclosure of returns or return information to that designee. Designees who cannot use a Form 2848 include organizations and individuals who are not eligible to practice before the IRS.

  9. Upon receipt of a request that has an imperfect disclosure authorization because of the 60 day rule, Disclosure personnel shall promptly contact the requester for a timely authorization. For customer service considerations, if the request is otherwise valid, and the requester states that a valid authorization will be submitted promptly, then search efforts may be initiated. However, records must not be provided until a valid disclosure authorization is received.

  10. If the request does not meet one of the other provisions of the regulations, the request should be treated as an imperfect request and the requester so advised.

11.3.13.5.1  (01-01-2006)
Identity of Requester

  1. The establishment of the identity of the requester is an important part of determining the overall validity of the FOIA request. Identity must be established prior to releasing any records which would be available to the requester only, and not to the general public. Examples are tax or personnel records.

  2. If in-person contact is made, the requester may establish his or her identity by presenting either one document bearing a photograph (such as a passport, driver's license, or identification badge) or two items of identification which do not bear a photograph, but do bear both a name and signature.

    Note:

    Expired identification documents will not be accepted.

  3. If contact is by mail, identity can be established by a signature, address, and one other identifier (such as a photocopy of a driver's license) bearing the requester's signature.

  4. An individual may also establish identity by presenting a notarized statement swearing to or affirming his or her identity.

    1. The notarized statement need not necessarily meet all the requirements of State law, so long as it appears to be adequate to establish the requester's identity.

      Note:

      See IRM 11.3.13.5.1(7) for factors to consider when determining whether to accept the notarized statement.

    2. The notarized statement need not be on the same sheet of paper as the request or bear the same date, as long as it is consistent with the request and is adequate to allow access to the records requested. The notary seal must be on the same page as the sworn statement.

      Note:

      If the notarized statement is on a page separate from the FOIA request, the requester’s signature on the notarized statement is sufficient to meet the regulation requirement that the FOIA request be signed.

    3. If the notarization does not swear to or affirm the requester's identity, then it does not meet the FOIA identification standard. The following is an example of a valid notary statement.

      Example:

      Mr. John Maple, known to me to be the person who executed the foregoing instrument and having acknowledged to me that he executed the same as his free act and deed.

    4. After consideration of all the factors, Disclosure personnel must exercise sound judgment in determining whether the requester has proven his or her identity. The notarized statement must be sufficient to reasonably assure an employee that the requester is the taxpayer whose records are being sought. If the notarization meets that standard, IRS can accept it as establishing the requester’s identity for purposes of considering the FOIA request valid. If there continues to be doubt, the request shall be deemed imperfect and additional verification of identity sought.

  5. A sworn statement as to identity, under penalty of perjury, is acceptable in lieu of a notarized statement. The sworn statement must meet the requirements of 28 USC 1746. If the declaration is sworn outside the United States, the sworn statement must include the following language: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." If the declaration is sworn within the United States, its territories, possessions, or commonwealths, the sworn statement must include the following language: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)."

  6. The Disclosure Manager may require additional proof of an individual's identity if it is determined to be necessary to verify the requester's right of access.

    Note:

    If additional proof of identity is requested, the case history shall be fully documented to explain why the verification submitted was not sufficient.

  7. Consideration should be given to the consistency of names, addresses, Social Security Numbers and other identifying information in the request with similar items in the records requested. Copies of notices, correspondence, and other records which the requester received from the IRS can help to establish identity, especially when the records requested are closely related to the subject matter of the record presented. See IRM 11.3.13.5.8(4).

  8. If the request is made in connection with a tax administration matter, an IRS employee (such as the examining agent) may provide verification of the requester's identity if necessary.

  9. Persons requesting records on behalf of or pertaining to another person must provide adequate proof of the legal relationship under which they assert the right to access the requested records. Such requests must meet the requirements of 26 CFR 601.702(c)(5)(iii). Requests for tax records must be consistent with the provisions of 26 CFR 301.6103(c)-1 and IRC §6103(e). A valid Form 2848, Power of Attorney and Declaration of Representative, is sufficient authorization. A Tax Information Authorization (Form 8821) meeting the standards of 26 CFR 301.6103(c)-1(b) is also sufficient authorization.

  10. In the event of multiple requests, it is unnecessary to provide separate documentation of identity for each request. Once the identity of the requester has been established at a local office, that identification should suffice for a continuing series of requests, as long as the thrust of the requests, the address, and the signature of the requester remain constant.

    Example:

    A single envelope contains six specific requests for information from the same requester. One of the requests does not establish identity when the remaining five are adequate. Do not consider the one request imperfect for this reason alone.

    Example:

    You receive requests routinely from the same requester and have been provided sufficient identifying information in the past. A recently received request does not adequately identify the requester. To the extent all other information is consistent, do not consider this request imperfect for this reason alone.

    Note:

    Disclosure offices are not required to maintain a system whereby a taxpayer's identifying information is maintained for later reference in the event a FOIA request is received. The above will apply only if it is readily apparent. However, because a Form 8821, Form 2848, or equivalent can be revoked by the taxpayer, Disclosure offices are expected to make reasonable efforts to confirm their continuing validity.

    Note:

    If the reason for accepting the requester’s identity is not readily apparent, document the case history notes to explain your determination.

11.3.13.5.2  (01-01-2006)
Definition of Agency Record

  1. The FOIA provides for the disclosure of "agency records." Not every record within the possession of an agency is an agency record subject to the FOIA. "Agency records" are records that are either created or obtained by an agency, and are under agency control at the time of the FOIA request. Courts have identified four relevant factors to consider when determining whether a record is an agency record:

    1. The intent of the record’s creator to retain or relinquish control over the record

    2. The ability of the agency to use and dispose of the record as it sees fit

    3. The extent to which agency personnel have read or relied upon the record for agency business and

    4. The degree to which the record was integrated into the agency’s record keeping system or files

  2. Records that are not agency records are not responsive to a FOIA request, regardless of whether the subject matter or type of record would otherwise appear to be responsive to the request.

  3. Whenever a request seeks records that originated outside of the IRS, Disclosure personnel will make a determination, after coordination with the record's originator, whether the records are agency records based upon the factors mentioned above.

11.3.13.5.3  (10-26-2007)
Joint Committee on Taxation

  1. The Joint Committee on Taxation is authorized to receive information, including returns and return information, from the IRS pursuant to various provisions in the Internal Revenue Code. See IRC §6103(f)(2), IRC §6405, and IRC §8023.

  2. IRC §8021 authorizes the Joint Committee to request information, including returns and return information pursuant to § 6103(f), for the purpose of carrying out its oversight authority. Whenever the Joint Committee corresponds with the IRS under this general oversight authority, it includes a legend on the incoming correspondence that restricts the dissemination and use of both the inquiry and responsive records. The Joint Committee reserves the right to adjust the legend as needed, after coordination with the Service.

    Note:

    At this time, the legend provides: This document is a record of the Joint Committee on Taxation ("Joint Committee" ) and is entrusted to the IRS for your use only in handling this matter. Additionally, any documents created by the IRS in connection with a response to this Joint Committee document, including (but not limited to) any replies to the Joint Committee, are records of the Joint Committee and shall be segregated from agency records and remain subject to the control of the Joint Committee. Accordingly, the aforementioned documents are not ‘agency records’ for purposes of the FOIA. Absent explicit Joint Committee authorization, access to this document and any responsive documents shall be limited to IRS personnel who need such access for the purposes of providing information or assistance to the Joint Committee.

  3. Whenever the Joint Committee’s inquiry letter includes a restrictive legend, the file that is created for the IRS’s reply, as well as any accompanying documents, may only be accessed by IRS personnel for the purpose of providing information to, or otherwise assisting, the Joint Committee. Copies of the inquiry letter and the IRS response are maintained by the Office of Legislative Affairs in their Executive Correspondence Management System (ECMS). Copies of records compiled by the IRS to respond to the Joint Committee inquiry are maintained in the office of the IRS component chiefly responsible for preparing the response.

  4. Whenever the Joint Committee’s inquiry letter includes a legend, that letter remains a congressional record. In addition, any records created by the IRS in connection with the agency’s response to the Joint Committee’s inquiry, including (but not limited to) the IRS reply letter, will also be treated as congressional records. Accordingly, the inquiry letter from the Joint Committee, and any records created by the IRS as a result of, or in response to, that inquiry, are not agency records responsive to a FOIA request and must not be released under the FOIA. Moreover, the IRS file(s) associated with providing records to the Joint Committee need not be searched for responsive records because the records the files contain are not agency records.

  5. FOIA requests received in the field that seek access to records involving the Joint Committee will be coordinated with the Headquarters FOIA Group. Disclosure personnel will consult with the Joint Committee, as well as any affected IRS function(s), before determining whether to release or withhold any agency records that are the subject of a Joint Committee oversight inquiry.

  6. Depending upon the wording of the FOIA request, copies of records created and maintained by the IRS in the normal course of its operations that are subsequently provided to the Joint Committee in response to a general oversight inquiry may be agency records subject to the provisions of the FOIA, or may be considered congressional records not subject to the FOIA:

    1. If the FOIA request specifically asks for records reviewed by the Joint Committee, the disclosure of any records, or even the acknowledgement that these records exist in the context of a Joint Committee inquiry, may confirm that the Joint Committee had exercised its general oversight responsibilities. These records are congressional records because the Joint Committee inquiry letter bears a legend, the records are maintained in files pertaining to the Joint Committee oversight inquiry, segregated from agency files, and accessible only by IRS personnel involved in responding or providing assistance to the Joint Committee.

      Note:

      Where a FOIA requester asks for "all requests by the Joint Committee for [a particular matter]," the IRS will issue a determination that, to the extent such records exist; they are congressional records and are not subject to the FOIA.

    2. If the FOIA request seeks a file, such as an examination file, which happens to contain records generated in the normal course of its operations that were subsequently furnished to the Joint Committee as part of its general oversight responsibilities, the records in the requested file are agency records subject to the FOIA. Because neither the acknowledgement nor the release of the records reveals the existence or the subject of a Joint Committee oversight inquiry, they remain agency records. In the absence of any applicable FOIA exemption, the records in the file will be provided to the requester. For treatment of Joint Committee records in IRC §6405 refund or credit cases, see IRM 11.3.4.6 and IRM 4.36.3.10.

      Note:

      Where a FOIA requester asks for "all records on me" and it is determined that the IRS is in possession of copies of, for example, an incoming Joint Committee general oversight inquiry letter bearing a Joint Committee legend, the IRS reply to the Joint Committee or any records prepared by the IRS as part of its response to the Joint Committee inquiry, then such records are not agency records. These records must not be identified as part of the agency’s responsive records in the FOIA determination letter. However, any other records responsive to the request that are agency records are to be processed under the normal FOIA procedures.

  7. In addition to its general oversight authority under IRC §8023, the Joint Committee may also conduct a review under IRC §6405 of the IRS’s proposed issuance of refunds or credits that meet the jurisdictional threshold. §6405 directs the IRS to delay the issuance of large refunds or credits for a thirty day period to afford the Joint Committee an opportunity to review the proposed action. Correspondence or other documentation reflecting the Joint Committee’s review of these proposed credits or refunds will be maintained separately within the administrative file of the taxpayer to whom it pertains. Joint Committee correspondence in this context does not contain a legend, and any documents or information received from the Joint Committee or prepared by the IRS in response thereto will constitute agency records subject to the FOIA. See IRM 4.36.1.2, IRM 4.36.3.10, IRM 4.36.4.6 and IRM 11.3.4.6.

  8. After consulting with the Joint Committee as to whether correspondence from the Joint Committee pertaining to its §6405 review will be withheld from the taxpayer-requester, the IRS may assert a number of FOIA exemptions to withhold the information. For example, correspondence or other information provided by the Joint Committee to the IRS for the latter’s consideration before issuing the refund or credit may be withheld on the basis of FOIA exemption 5, which encompasses the deliberative process privilege. In addition, the FOIA exemption 7 law enforcement exemptions, as well as exemption 3 in conjunction with IRC §6103(e)(7), may be available if the case is pending at the time of the request. If the requester is a third party seeking such records without the consent of the taxpayer, such records are protected by FOIA exemption 3 in conjunction with IRC §6103(a).

11.3.13.5.4  (10-26-2007)
Imperfect Requests

  1. The FOIA requires requesters to reasonably describe the records sought. While compliance with the procedural regulations is also required, Disclosure personnel must take care not to read a request so strictly that the requester is denied information the agency knows exists. However, if the request is not specific enough to process or it is too broad in scope, including language such as "I request all records concerning me," or otherwise lacks specificity, it can be determined to be imperfect and closed accordingly. See IRM 11.3.13.5.8.

  2. Letter 1526, or similar format on word processing applications, can be used to notify the requester that the request does not meet certain requirements of the FOIA and that more information is needed before the request can be processed. The specific deficient item(s) must be pointed out to the requester. The letter must advise the requester that he/she has 35 calendar days to perfect the request. Requests that do not comply with FOIA regulations are to be closed as imperfect. Every effort shall be made to close requests deemed to be imperfect as soon as possible.

    Note:

    Responses to imperfect requests must not include Notice 393 because no appeal rights are available to imperfect requests. The response must include a statement that the 20 day response time does not begin until a perfected request is received.

  3. Requests should not be determined to be imperfect because they do not state an agreement to pay fees if, based upon the information requested, it appears a fee would not be charged.

    Note:

    However, if the requester has an outstanding unpaid bill for any request(s) previously processed by the IRS, the current request will be considered imperfect, even if it appears no fees will be charged. The requester should be notified that no further requests will be processed until the balance due is paid in full. IRM 11.3.5.5.4(1).

  4. Notwithstanding any imperfection under FOIA, if records can be provided to requesters that they would be otherwise entitled to receive under the provisions of IRC §6103(e), and no FOIA fees are applicable, the records should be provided. An exception to this is when the request should be processed under an existing Agency procedure. See IRM 11.3.13.5.13, Routine Established Agency Procedures.

    Example:

    Even though the request fails to prove identity, if the request is for a transcript of account or other tax information that can be provided using authentication standards appropriate for the type of product requested under IRC §6103(e), the inclusion of this information should be made part of the response. See IRM 11.3.2 and IRM 21.1.3, Accounts Management and Compliance Services Operations - Operational Guidelines Overview, for authentication standards. If records are provided, be sure to indicate in your transmittal letter that the request is invalid under FOIA, but that records are being provided under another statute and state the governing statute that allows release. Appeal rights are not available for imperfect FOIAs.

    Note:

    These requests must be logged on the inventory management system as FOIA requests. A closing code "E" has been established on the inventory management system for cases citing the FOIA where records are released under IRC §6103(e).

  5. If providing information under (4) above would require more than a minimal amount of review and/or redaction, the request should be closed as imperfect. The closing letter should identify the specific information required to perfect the request. It is especially important to perfect the request and process it under the FOIA in situations where processing under IRC §6103(e) would provide no appeal rights and would cite no FOIA exemptions for redacted material.

    Note:

    Where the IRS has established a strong legal precedent for withholding information (e.g. a DIF score on an AMDISA print or return information of a spouse filing a separate return on a transcript), the information may be deleted and the redacted document provided under IRC §6103(e). However, the deletion shall be explained in the response letter, even though no appeal rights are offered. Systemic IRC §6103(e)(7) redactions require no additional approval by an official with IRC §6103(e)(7) withholding authority under Delegation Order 11-2.

  6. Verbal communication with the requester may be used to clarify the request or to ask for missing information necessary to process the request. Such verbal communication must be documented in the history notes.

  7. If the request cannot be processed, to assist the requester in perfecting it, the requester shall be informed, as applicable:

    1. The IRS does not maintain central administrative or compliance files

    2. Proof of identity is required if the request involves access to tax or Privacy Act