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Part 11. Communications and Liaison

Chapter 3. Disclosure of Official Information

Section 13. Freedom of Information Act (Cont. 1)

11.3.13  Freedom of Information Act (Cont. 1)

11.3.13.7 
Review and Editing

11.3.13.7.2 
Exemptions

11.3.13.7.2.7 
Exemption (b)(7)

11.3.13.7.2.7.6  (01-01-2006)
Exemption (b)(7)(F)

  1. Exemption (b)(7)(F) applies to the life and safety of individuals. It exempts information the disclosure of which could reasonably be expected to endanger the life or physical safety of any individual.

    Example:

    This exemption might apply to information that would reveal the identity of undercover agents (local, state, or federal) working on such matters as narcotics, organized crime, terrorism, or espionage.

  2. The exemption is not limited to law enforcement personnel. The 1986 amendments to the FOIA broadened the scope of the exemption to encompass danger to any person. This exemption may also be appropriate to protect the identity or location of witnesses if the requester is already known or believed to be violent.

11.3.13.7.2.8  (12-01-2003)
Exemption (b)(8)

  1. Exemption (b)(8) applies to reports related to the regulation of financial institutions. This exempts from disclosure matters contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. It is rarely used by the IRS.

11.3.13.7.2.9  (12-01-2003)
Exemption (b)(9)

  1. Exemption (b)(9) applies to geological and geophysical information and data, including maps concerning wells. It is rarely used by the IRS.

11.3.13.7.3  (10-26-2007)
Record Exclusions

  1. The Freedom of Information Reform Act includes three special exclusions for protecting certain law enforcement records under subsection (c) of the FOIA.

  2. These exclusions expressly authorize Federal law enforcement agencies to treat certain law enforcement records as not subject to the requirements of the FOIA. These provisions apply only to especially sensitive records in specific limited circumstances.

  3. Disclosure personnel must thoroughly familiarize themselves with the exclusion guidelines found in the DOJ Freedom of Information Act Guide and Privacy Act Overview. The publication is available electronically by accessing the DOJ web page at www.usdoj.gov/04foia/04_2.html and clicking on "Reference Materials" link on the left side of the page.

  4. Disclosure personnel must coordinate the assertion of these exclusions through channels with the FOIA Senior Tax Law Specialist who will coordinate as necessary with Branch 6 or 7 of the Office of the Associate Chief Counsel, Procedure and Administration.

11.3.13.7.3.1  (01-01-2006)
Exemption (c)(1)

  1. The (c)(1) exclusion provides that when a request involves access to records described in subsection (b)(7)(A) and under certain conditions, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of the FOIA.

  2. The exclusion may only be applied when the following conditions exist:

    1. The investigation or proceeding involves a possible violation of criminal law

    2. There is reason to believe that the subject of the investigation or proceeding is not aware of its pendency and

    3. Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings

  3. Where the excluded records are just part of other records subject to the request, the request will be handled as a routine request with the other responsive records processed as if they were the only responsive records.

  4. Where the only records responsive to a request fall within the exclusion, advise the requester that no responsive records exist.

  5. The letter to the requester must not mention the (c)(1) exclusion or include the excluded documents in any statement of the quantity of documents located or withheld.

  6. The case history notes must thoroughly document the basis for the exclusion and identify the excluded documents and the functional employee with knowledge of the situation. If possible, the excluded documents shall be kept with the FOIA case file, clearly identified as (c)(1) excluded documents.

  7. After an initial response is issued that involves the (c)(1) exclusion, if the taxpayer learns of the investigation and a FOIA appeal or lawsuit is pending, it is no longer appropriate to claim the exclusion; however, other FOIA exemptions may apply.

11.3.13.7.3.2  (04-05-2002)
Exemption (c)(2)

  1. The (c)(2) exclusion provides that whenever informant records maintained by a law enforcement agency under an informant's name or personal identifier are requested by a third party, the agency may treat the records as not subject to the FOIA unless the informant's status as an informant has been officially confirmed.

  2. This does not preclude the IRS from responding to such requests by denying third party investigative records without searching for or confirming or denying the existence of such records consistent with statutory or regulatory requirements.

11.3.13.7.3.3  (12-01-2003)
Exemption (c)(3)

  1. The (c)(3) exclusion pertains only to classified law enforcement records concerning foreign intelligence or counterintelligence or international terrorism that are generated by the FBI.

11.3.13.7.4  (01-01-2006)
Editing Records

  1. During the review and editing process, Disclosure personnel are responsible for balancing their two roles as enforcer of access statutes and guardian of protected data. Sometimes those roles may appear to work against each other. Case files shall reflect adherence to both roles, and explain the reasoning behind the final determination to withhold or release information.

  2. Some exemptions are discretionary and some are clearly non-discretionary by statute as discussed in IRM 11.3.13.7.1(4) and (5). While citing the non-discretionary exemption is sufficient, clear case file documentation of the reasoning behind the application of the discretionary exemptions is crucial because the requester may appeal the final determination. The use of an index to document these determinations is encouraged.

    Note:

    For more information regarding the usefulness of indexing, See IRM 11.3.13.8.1.

  3. Any reasonably segregable portion of a record must be released after deletion of the portions that are exempt. The deletion must be obvious to the requester and, if feasible, the applicable exemption cited at the point of deletion. The FOIA also requires an explanation in the response letter for any items withheld. See IRM 11.3.13.8.

    Note:

    A reasonably segregable portion is any portion of a requested record which is not exempt from disclosure and which, after deletion of the exempt material, still conveys meaningful information that is not misleading.

  4. When editing portions of a record being released, reasonable effort must be made to clearly indicate to the requester that editing has been done and the extent of the editing. Whiting out is not acceptable. Editing and its magnitude must also be apparent in electronic records.

  5. The volume of information deleted on the released record must be indicated at the place in the record where the deletion was made. Use any suitable means that will clearly indicate that editing has been done and the extent of the editing.

  6. Requesters must be able to identify the exemptions that apply to the information being withheld.

    Note:

    Annotate the exemption at the point of redaction. If this is impossible, annotate the exemption in the margin of the record being partially released. If this is not reasonable, the applicable exemption may be stated in the letter, with references to the pages where material was redacted pursuant to the exemption. The response letter will describe the nature of the information being withheld and the exemption(s) being claimed.

11.3.13.7.5  (10-26-2007)
Open Investigatory Files

  1. Investigatory files generally include returns and return information compiled for law enforcement purposes.

  2. Returns and return information are only available, under the FOIA, to those taxpayers and requesters who meet the criteria contained in IRC §6103(e) and IRC §6103(c). The following instructions apply to those requesters who meet the criteria under IRC §6103(e) and IRC §6103(c).

  3. A requester may not obtain access to the return information of another individual by relying on the provisions of IRC §6103(h)(4). Third party information must be withheld under §6103(a) regardless of any item or transaction test. If a taxpayer requests his or her own open case file and third party return information is contained therein, the third party return information must be withheld using FOIA exemption (b)(3) in conjunction with IRC §6103(a).

  4. Records or information in open investigatory files, or portions thereof, may be exempt under (b)(7)(A) through (b)(7)(F). The other exemptions provided by the FOIA may be applicable to some portions of the records, depending upon the specific records involved. In some cases, exclusions under section (c) may be used. See IRM 11.3.13.7.3.

  5. When a determination has been made to assert exemption (b)(7)(A), generally the (b)(3) exemption will also apply as a basis to withhold the records. The statutory basis for the (b)(3) exemption is IRC §6103(e)(7). IRC §6103(e)(7) requires the IRS to withhold return information relating to the taxpayer-requester unless the Secretary of the Treasury or his/her delegate has determined that disclosure would not seriously impair Federal tax administration.

    Note:

    See Delegation Order 11-2 for who is authorized to withhold information pursuant to IRC §6103(e)(7), and who is authorized to determine that disclosure would not seriously impair Federal tax administration.

  6. FOIA exemptions shall generally not be asserted by Disclosure personnel to deny records that would otherwise be available to the taxpayer during the course of an administrative proceeding (e.g. audit). However, see (3) above.

  7. When processing a FOIA request for records relating to an open civil or criminal investigation, a blanket denial under the (b)(3) and/or (b)(7)(A) exemptions shall not be made.

    Note:

    Requests for records potentially falling under the (b)(5) exemption that are the subject of litigation must be processed in accordance with IRM 11.3.13.7.2.5.

  8. A line by line review is usually necessary to determine whether a particular record is exempt in full or in part from disclosure under the (b)(3) and/or the (b)(7) exemptions.

    Note:

    If all records within a particular category share characteristics that would warrant their exemption, they need not be individually analyzed and may be exempted by category.

    Example:

    Copies of selected cancelled checks and bank statements which would indicate areas of interest may be withheld in this manner.

  9. Records of a taxpayer's own statements can seldom be withheld; such withholding should not be attempted unless justified by the circumstances in a specific case. The agency has the burden of convincing courts of the interference caused by the full or partial release of memoranda of interviews with taxpayers. The release of memoranda of interviews with taxpayers and the underlying IRS employee's notes shall be evaluated on a case by case basis as follows:

    1. IRS personnel shall carefully examine the memorandum to determine whether its disclosure, or any portion thereof, could reasonably be expected to interfere with enforcement proceedings.

    2. Specific line-by-line identification of contemplated interference, accompanied by specific justification for such interference, shall be accomplished and documented in case history notes or any index prepared.

    3. Examples of the types of particularized line-by-line identification of contemplated interference may include admissions or confessions of the taxpayer or conflicting or contradictory statements, the disclosure of which would permit the taxpayer or his/her authorized representative to develop explanations negating the impeachment value of such admissions, confessions, or statements.

    4. In contrast, general conclusive statements that disclosure of the memoranda, or any portions thereof, could reasonably be expected to interfere with enforcement proceedings or provide a "road map" to or reveal the "scope and direction" of the IRS investigation cannot be accepted. The function must articulate how disclosure of each item of information could specifically cause the harms recognized in exemption (b)(7).

    5. Typically, the introductory and biographical sections of these memoranda may not be withheld.

  10. The following classes of records are generally available to the taxpayer requester or authorized representative(s):

    1. Transcripts of verbatim statements or affidavits taken from and signed by the subject taxpayer or authorized representative(s)

      Note:

      IRS employee notes of an interview with the taxpayer may be exempt from FOIA disclosure to the extent that the notes reveal the employee’s thoughts, opinions, or analysis of the questions or answers at the interview.

    2. The subject taxpayer's prior criminal record after ascertaining its releasability from the agency from which it was obtained

    3. The taxpayer's tax returns without any IRS employee's marginal notations.

      Example:

      A return containing markings made to illustrate or highlight those items which the assigned IRS employee considered significant to the investigation may be partially or fully withheld

    4. Correspondence between the taxpayer and the IRS or material originally submitted voluntarily by the taxpayer

    5. Transcripts of accounts of the taxpayer

    6. News clippings relating to the taxpayer. However, there may be some instances where certain news clippings are withheld

      Example:

      Where the IRS employee assigned to the case has placed selected news clippings in the file which would reveal the areas of interest or may identify a related party in a separate investigation, withholding of that information may be appropriate.

    7. Summonses or other records, copies of which were provided to the subject taxpayer in the course of the investigation

    8. Transmittals such as routine standard forms used to request records, or case transfers

    9. File debris and any other seemingly innocuous items like folders and routine forms which, if released, would not indicate the scope or direction of an investigation

    10. Any other items whose release is not prohibited by statute and in the opinion of the IRS employee in charge of the case, in coordination with any counsel attorney assigned to the case, can be released without adverse effect to the law enforcement process

  11. For other records, Disclosure personnel in consultation with affected law enforcement personnel and/or Counsel, must determine whether disclosure meets the criteria of (b)(7).

    Note:

    The IRS maintains contracts with electronic research publishing services. Case related research information that is downloaded and/or printed from these services and retained in an open or closed case file may be provided in response to a FOIA request after a determination is made that release will not harm tax administration.

  12. The IRS employee assigned to the case may be aware that a specific investigation involves circumstances which may require a greater or lesser level of disclosure. Such special circumstances shall be discussed prior to the Disclosure Manager's determination.

  13. Facts that could affect the level of disclosure in a particular case include:

    1. The submission or use of falsified records by the taxpayer or the possible use of the records for impeachment purposes during any judicial proceeding

    2. Involvement of organized crime or narcotics figures

    3. A record of violence on the part of the taxpayer that indicates the possibility of threats toward IRS employees or other persons, or prior record of crime involving assaults and

    4. Attempts to bribe or attempts to threaten the investigating officials

11.3.13.7.6  (01-01-2006)
Title 31 Reports - CTRs, CMIRs, FBARs, and SARs

  1. The Bank Secrecy Act (BSA) provisions found in Title 31 of the United States Code require that certain currency transactions and other financial information be reported to the Secretary of the Treasury. The Financial Crimes Enforcement Network (FinCEN) has jurisdiction over these reports. They are:

    1. FinCEN Form 101, Suspicious Activity Report by the Securities and Futures Industries

    2. FinCEN Form 102, Suspicious Activity Report by Casinos and Card Clubs

    3. FinCEN Form 103, Currency Transaction Report by Casinos (CTRC)

    4. FinCEN Form 103-N, Currency Transaction Report by Casinos Nevada (CTRC-N)

    5. FinCEN Form 104, Currency Transaction Reports (CTR)

    6. FinCEN Form 105, Report of International Transportation of Currency or Monetary Instruments (CMIR)

    7. FinCEN Form 107, Registration of Money Services Business (MSB)

    8. TD F 90–22.1, Report of Foreign Bank and Financial Accounts (FBAR)

    9. TD F 90–22.47, Suspicious Activity Report (SAR) for Depository Institutions

    10. TD F 90–22.53, Designation of Exempt Person

    11. TD F 90–22.56, Suspicious Activity Report by Money Services Business, and

    12. FinCEN Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business, elements as required by 31 USC 5331.

  2. A FOIA request which seeks access to these Title 31 reports and/or information extracted from them is to be denied under FOIA exemption (b)(3) in conjunction with 31 USC 5319, unless the information has been used in a tax administration case (see IRM 11.3.13.7.6(5)).

  3. Forms 8300 filed after December 31, 2001, meet a dual filing requirement under both IRC §6050I and 31 USC 5331. All information pertaining to Form 8300 on the IRS Master File (including Information Return Master File (IRMF) data) is subject to §6103 disclosure standards and therefore may be considered for release under FOIA.

  4. Form 8300 reports filed after December 31, 2001 and accessed through the Currency and Banking Retrieval System (CBRS) are Title 31 information subject to Bank Secrecy Act disclosure standards and are not subject to release under FOIA.

  5. If a FOIA request is made for tax investigatory files, which may include CTRs, CMIRs, FBARs, or SARs, or information extracted from these reports, the determination to withhold or release the reports or information depends upon the status of the underlying investigation and the effect, if any, of disclosure to the taxpayer under investigation. The following information must be used to determine whether BSA data may be released pursuant to the FOIA:

    1. To the extent it is determined that disclosure of the Title 31 reports or information extracted therefrom will interfere with ongoing tax enforcement proceedings, exemptions (b)(7)(A) and (b)(3), in conjunction with IRC §6103(e)(7), will be asserted. 31 U.S.C. 5319 should not be asserted. The reports and information extracted from these reports will be handled in the same manner as other return information contained in the tax investigatory file.

    2. If it is determined that disclosure of the Title 31 reports or information extracted from these reports will not adversely affect ongoing tax enforcement proceedings, exemption (b)(3) in conjunction with 31 U.S.C. 5319 shall be asserted except as noted in (c) below.

    3. Where information from the reports is incorporated into history notes, underreporter documents, a revenue agent report, or other document used to sustain an assessment, such information will be released unless a proper official determines that disclosure will impair tax administration under IRC §6103(e)(7). If an impairment call is made, FOIA exemption (b)(3) in conjunction with IRC §6103(e)(7) should be asserted.

      Note:

      If a taxpayer does not invoke the FOIA, during ongoing tax enforcement proceedings, the case agent may disclose investigatory material, including Title 31 reports or information extracted from these reports, unless the proper official determines that disclosure will adversely affect ongoing tax enforcement proceedings under IRC §6103(e)(7).

  6. Title 31 investigatory files, other than the CTRs, CMIRs, FBARs, or SARs themselves, or information extracted from these reports, are not exempt from access under 31 USC 5319 and FOIA exemption (b)(3). Requests for investigatory files related to "pure" Title 31 investigations must be evaluated under applicable FOIA exemptions (e.g. (b)(7)(A)). Money laundering cases (i.e., most 18 USC 1956 and 1957 cases) follow these same rules.

    Note:

    See IRM Exhibit 11.3.13-4 for assistance in deciding whether to release Title 31 information and the appropriate FOIA (b)(3) statute to cite when withholding.

11.3.13.7.7  (01-01-2006)
Microfilm Requests

  1. Microfilm transcripts and similar records sometimes included in Collection, Examination, and Criminal Investigation enforcement action files contain information about several other taxpayers in addition to the taxpayer to whom the file pertains. This results from the physical limitations of microfilm copying equipment or other reasons not related to the administration of the case. These records require special consideration as follows:

    1. Such extraneous information contained in the file must be withheld from the requester because it is third party return information which is prohibited by law from disclosure.

    2. When withholding such extraneous portions of records, there will be no exemptions cited if the material is not within the scope of the request. If such information is the only material not disclosed, this is considered a grant-in-full for reporting purposes. When the request is framed in terms of seeking information about the requester, such information is not within the scope of the request being processed (i.e., information pertaining to me vs. information in my file).

    3. When the request is framed in terms of seeking "everything in the requester's file" or similar words, the existence of the third party return information will be considered within the scope of the request and withheld pursuant to exemption (b)(3) in conjunction with IRC §6103(a) (if it is retrieved from IRS records), (b)(3) in conjunction with IRC §6103(e)(7), and/or (b)(7)(C).

11.3.13.7.8  (10-26-2007)
Foreign Government Files

  1. In order to administer the tax laws of the United States, the IRS may on occasion receive information concerning taxpayers from foreign governments.

  2. Tax treaties provide that under some circumstances the IRS may provide similar assistance to foreign governments.

  3. IRC §6105 limits the disclosure of information received by IRS from a foreign country and prohibits the disclosure of tax convention information, except as provided by terms of the treaty or Tax Information Exchange Agreement, or as provided by the terms of IRC §6105 itself. For additional information on tax convention information, see IRM 11.3.25, Disclosure to Foreign Countries Pursuant to Tax Treaty.

  4. At times, information may be exchanged or consultations may take place for purposes of coordination, such as may be necessary to determine the extent to which a taxpayer's affairs are subject to the jurisdiction of the United States or one or more foreign governments.

  5. Records of contacts with foreign governments, records which imply the existence or anticipation of contacts with foreign governments concerning specific taxpayers, or records received from foreign governments may become subject to disclosure determinations because of requests to access such records in particular or because of general requests which coincidentally extend to such records.

  6. The complexity and sensitivity of disclosure determinations relating to records of contacts with foreign governments generally require extensive coordination between the Director, Governmental Liaison and Disclosure, the Director, International (LMSB), and the Associate Chief Counsel (International), and sometimes with Branch 6 or 7 of the Office of the Associate Chief Counsel, Procedure and Administration.

    1. Coordination may also be necessary with other Headquarters Office functions, other agencies of the United States Government, and with the foreign government(s) involved

    2. The unique aspects of such disclosure determinations may have national or international implications

  7. In view of the above, for disclosure purposes, records of contacts with foreign governments or records which imply the existence or anticipation of contacts with foreign governments, or records received from foreign governments, are not considered to be records under the control of field officials, regardless of their physical location.

    Caution:

    These records are considered to be under the control of the Baltimore Disclosure Office, and the initial determination to release or withhold these records under IRC §6105 will be made by the Director, International (LMSB) or his/her delegate.

  8. These instructions are not intended to preclude or delay the prompt denial of access to records that field officials have properly determined to be exempt from disclosure requirements for reasons other than the fact that the record involves contacts with, or information received from, foreign governments. Field officials may continue to deny access pursuant to applicable Privacy Act or FOIA exemptions. A copy of the denial must be sent to the Director, International (LMSB), through the Baltimore Disclosure Office, with a memorandum stating the possibility that the information at issue may be tax convention information and briefly explaining the field official’s reasons for this opinion.

  9. Whenever a field official has a request for access from a member of the public that extends to records of contacts with a foreign government, or records received from a foreign government, that are not being denied for other considerations, the following actions will be taken:

    1. Dispose of those portions of the request that do not relate to or imply the existence of contacts with, or information from, a foreign government in accordance with appropriate procedures.

    2. Advise the requester that his or her request extends to records under the control of the Baltimore Disclosure Office and that a further response will be forthcoming from that office.

    3. Transfer the records involved, copies of the request(s) and response(s), any related information, and a recommendation (on the basis of the field activity's interests) to the Baltimore Disclosure Office. (See transfer procedures in IRM 11.3.13.5.12) The Baltimore office will coordinate the response with the Director, International (LMSB).

11.3.13.7.9  (01-01-2006)
Legibility of Copies

  1. Copies of records made in connection with FOIA matters must be as legible as possible.

  2. The burden of proof in defending withholding rests with the Government. Therefore, copies of documents which may ultimately be submitted to a court for in camera inspection must be legible.

  3. When copies are illegible because the originals are poor, the copy should be stamped with the notation "best copy available."

    Note:

    Illegible documents will not be withheld on that basis alone. However, illegible and barely legible documents must be reviewed for FOIA exemptions. Applicable exemptions for illegible material shall be asserted and the material withheld, in the same manner as for legible documents. This is equally true regardless of whether the illegibility is caused by indecipherable handwriting or by poor quality of the original. Disclosure personnel shall work with the function providing the documents to determine the contents of the illegible documents.

11.3.13.8  (10-26-2007)
Response and Closing

  1. The response to the requester and the closing of the case are the final actions in completing a FOIA request.

  2. The response letter must contain specific items of information and explain the exemptions applied for records denied in full or in part, if any. The date the request was received must also be stated.

  3. When the response includes records that have been edited in any fashion, the letter must cite the reason and the associated exemptions applied. The edited records must generally reflect the exemption applied at the point of extraction.

    Note:

    For further discussion of editing requirements, See IRM 11.3.13.7.4.

  4. Whenever a request seeks access to several different records or different classes of records, care shall be taken to ensure the response clearly indicates which records and exemptions claimed are applicable to which portions of the request.

  5. When an office has multiple requests from a single requester,

    1. If one response to all requests is being made, the response shall clearly identify the relevant requests by date, subject matter, certified mail number, and/or by attaching a copy of each request.

    2. If a response is being made to only one (or some) of the requests, the response shall clearly identify the relevant request(s) by date, subject matter, certified mail number, and/or by attaching a copy of the request(s).

  6. Response letters which transmit any records to the requester shall include reference to the:

    1. Total pages responsive

    2. Number of pages denied in full (if applicable)

    3. Number of pages denied in part (if applicable) and

    4. Number of pages granted in full

      Caution:

      The definition of page is one side of a two-sided record. A two-sided record equals two pages. If a record has nothing on the back, the blank page is not counted for FOIA purposes.

      Note:

      The total of the number of pages denied in full, denied in part, and granted in full must equal the total number of pages responsive to the request. It does not, however, need to equal the total number of records reviewed (noted on the closing document for E-DIMS input). Upon review, a number of records provided by searchers may be determined by the Disclosure office to be non-responsive (e.g. outside the scope of the request).

      Note:

      If a large number of pages is denied in full as a category of records, it is not necessary to count the pages. It is acceptable to state an approximate number of pages. For example, the letter could state that "four boxes (copier paper size) of documents are withheld in full as grand jury material" or that "documents filling three linear feet of storage shelving are withheld in full as third party return information."

  7. Case files and history notes must contain sufficient information to permit reviewers to determine precisely what was and/or was not released, and the underlying reasons. In many cases, the response letter itself may be adequate to determine the extent of records released. The history notes must be detailed enough to allow managers and other reviewers to determine all relevant activities, actions, and/or research completed to arrive at the determination made.

  8. The file must contain signed copies of the signed and dated response letter, any edited and/or withheld records, any index that may have been prepared, and any other records that are necessary to document the processing of the request.

    Note:

    Complete copies of what was released in addition to items edited or not released may be necessary to support any administrative appeal or litigation. If the records reviewed are too voluminous to maintain a file copy, the Disclosure office should retain records retrieved from files or the Federal Records Center for 60 days from the date of the response before they are returned. If the records are from an existing open administrative file controlled by a function, Disclosure personnel need not hold the file, but must be able to retrieve the file if necessary in the event of an appeal or litigation. Disclosure personnel must be able to reconstruct the records which were released in the event of an appeal or litigation, and identify the records that were created after the FOIA request was processed.

  9. Except where authority to sign denials and partial denials has been delegated to remote specialists, all cases that are not full grants will be reviewed by either a senior specialist or a manager. The caseworker shall note in case history notes when the case is forwarded to the approving official for review and signature.

11.3.13.8.1  (10-26-2007)
Indexing

  1. Indexing is a technique for creating a detailed list of the records that were reviewed in response to a FOIA request.

  2. The index is useful in making the final FOIA determination whenever a case involves an extensive number of records, some of which may be granted and others denied in whole or in part. It is especially helpful if the records to be denied are subject to several exemptions.

  3. Disclosure personnel must consider the preparation of an index whenever the case is sufficiently complex to warrant one.

    Example:

    More than one type of file is responsive to the request and/or numerous pages are withheld in full or in part and many exemptions apply.

  4. In some cases, Disclosure personnel may determine that a partial index or a handwritten draft is adequate for an initial determination.

    Note:

    A partial or preliminary index may require further amplification if the case advances to the administrative appeal level or results in litigation.

  5. To prepare an index, the records reviewed must be numbered and the index should generally:

    1. Identify the records by type, date, recipient, and originator; (the recipient and originator should be identified by title)

    2. Indicate the nature of the record and, if part of an investigatory file, indicate how the record related to the investigation

    3. Identify the FOIA exemption asserted

    4. Provide justification for the assertion of the exemption and specify the anticipated harm which might result from release, unless assertion of the exemption is mandatory and

    5. Indicate those items being withheld because exemption is mandatory and cite any applicable disclosure statutes

  6. Blocks of substantially identical records may be described generally rather than in individual detail.

  7. The index is not required to be provided to the requester and would generally not be attached to the response.

    Note:

    Some requests ask for an index or listing of all documents withheld in full or in part (some specify a "Vaughn Index" ). Requesters are not entitled to such an index or listing. Disclosure personnel are not required to create such an index or listing in response to a request and are not required to provide to the requester any list created to assist in processing the request.

    Exception:

    In some instances, the Disclosure Manager may determine that providing all or part of the index as an attachment would simplify the response or help avoid an unnecessary appeal.

    Caution:

    Care must be taken to ensure that details included in an index provided to the requester do not compromise the records or information being denied.

  8. The index should generally be prepared by the Functional Coordinator of the function whose records are involved, pursuant to the advice and assistance of the Disclosure Manager.

11.3.13.8.2  (01-01-2006)
File Documentation

  1. History notes must document and explain any actions taken or considered which cannot be inferred from other records in the file.

  2. Notice 393 shall be enclosed for no record, denial, or partial denial closures. The body of the letter must state that Notice 393 is enclosed.

    Example:

    A requester asks for three items: two are provided in full and one has a no record determination. A Notice 393 must be provided with this response. This gives the taxpayer the right to appeal the adequacy of the search. The closure shall be recorded in the inventory management system as a full grant, not a partial denial.

  3. Inventory management system entries shall be made to reflect:

    1. Total time spent by Disclosure personnel on the request

    2. Total time, if any, spent by Functional Coordinators or other individuals as reflected in search memoranda

    3. Number of pages reviewed and released

    4. Type of closure (grant, denial, partial denial, imperfect, or transfer)

      Note:

      See the E-DIMS User Guide, Appendix N, for a further discussion of the disposition codes

      .

    5. Exemption(s) applied and

    6. If (b)(3) exemption applied, the supporting statute

11.3.13.8.3  (10-26-2007)
Extension Letters

  1. Every effort shall be made to meet the statutory 20 business day time limit for response. Disclosure employees are responsible for managing FOIA inventories to ensure all extension letters are sent as required, including during absences from the office and any unforeseen delays while response letters are being reviewed. Early identification and closure of imperfect requests is recommended.

    Note:

    All extension letters must be sent as close to, but no later than, the expiration of the 20 business day period. A copy of every extension letter, signed and dated, must be retained in the case file.

  2. The FOIA (at 552(a)(6)(B)(i)) provides for an additional 10 business days to respond if the requester is notified in writing that Disclosure personnel need more time to:

    1. Search for and collect the requested records from other locations (e.g. Federal Records Center) separate from the responding office

    2. Search for, collect, and review a large volume of records which are, or may be, responsive to the request

    3. Consult with another agency or Treasury bureau which has a substantial interest in one or more of the responsive records or

    4. Consult with business submitters to determine the extent of proprietary information

  3. If it is impossible to locate and review the records within 20 business days, the caseworker determines that the response can be made within an additional 10 business days, and the reason additional time is needed meets the criteria in (2) above, Letter 1522 10-day extension letter shall be mailed to the requester.

    Note:

    See Exhibit 11.3.13-5 for a sample of extension Letter 1522.

    1. The date the Letter 1522 is mailed shall be entered into E-DIMS in the "L 1522-2 Date" field. This date shall match the issuance of the initial extension letter and will not change if additional extension letters are required.

    2. When the "L 1522-2 Date" is entered, an entry is also required in the "Revised Due Date" field. Enter the date that is 10 business days after the original due date.

      Note:

      If a Letter 1522 was sent, and it is later determined that a response cannot be provided by the revised due date, a voluntary extension letter (Letter 1522-B without the text pertaining to the 10-day extension) shall be sent.

  4. Letter 1522-B, the "Voluntary Extension Letter," shall be sent if a response will not be issued until more than 30 business days after receipt of the request. This extension shall not exceed 90 calendar days. The expected response date provided to the requester shall be entered in the "Revised Due Date" field in E-DIMS. If the Letter 1522-B is the initial notification to the requester that an extension is needed, the date the Letter 1522-B is mailed shall be entered into E-DIMS "L 1522-B Date" field.

    Note:

    See Exhibit 11.3.13-6 for a sample of extension Letter 1522-B.

  5. Letter 1522-A can be used if additional time is needed beyond the due date of the first voluntary extension letter (Letter 1522-B). ( See Exhibit 11.3.13-7 for a sample of extension Letter 1522-A.) The "Revised Due Date" field in E-DIMS shall be updated with the new response date that was provided to the requester.

    1. When there is personal or telephone contact with the requester it is not necessary to send the subsequent voluntary letter. If no letter is sent, you must document the case notes with the following information:
      1. Date of the verbal contact
      2. Name of the requester and title, if applicable
      3. Discussion of limiting the scope of records, if applicable
      4. The agreed upon records and new voluntary extension date

      Note:

      If the requester agrees to revise the scope of the request, you must confirm the agreement in a letter to the requester and keep a copy in your case file.

    2. If there is no phone number provided and you cannot get one from internal or external sources you must send the Letter 1522-A.

    3. Update the E-DIMS Revised Due Date field with the new extension date.

  6. In the request for voluntary extension of time to respond (Letter 1522-B), the requester must be provided an opportunity to:

    1. Limit the scope of the request or

    2. Arrange an alternative time frame for processing the request

  7. The Letter 1522-B requesting the initial voluntary extension of time is required even if there has been personal or telephone contact in which the requester has agreed to the additional time to respond. It is important to notify the requester in writing that he/she has a right to file for judicial review to obtain a response. Additionally, the requester shall be notified that the court may find (if there is a refusal either to limit the scope or to accept a reasonable alternate time frame for response) that the agency's failure to comply with the statutory response date is justified.

  8. Where exceptional circumstances require more than 30 calendar days to respond, Disclosure personnel must review open cases at least once every 30 days and take any action deemed appropriate to bring the case to a closure. These reviews and any follow-up activity, such as contact with the function regarding the status, shall be recorded in the history notes.

  9. There is no right to an administrative appeal for failure to meet the statutory 20 business day time limit for response.

    Note:

    See 26 CFR 601.702(c)(12), and IRM 11.3.13.8.5(4).

11.3.13.8.4  (01-01-2006)
Expedited Response

  1. The Freedom of Information Act provides for expedited processing if the requester asks for such processing in writing and demonstrates a compelling need for the information.

  2. A compelling need may exist when:

    1. Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or

    2. The information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity or

    3. Failure to obtain the records expeditiously could cause a loss of substantial due process rights

      Note:

      See 26 CFR 601.702(c)(6) for details about who qualifies as an individual primarily engaged in disseminating information and what situations may meet the "compelling need" requirement.

  3. A request for expedited processing must include a detailed explanation of the circumstances creating the compelling need. The explanation must be sufficient to enable Disclosure personnel to determine whether the asserted need meets the statutory or regulatory requirements. The statement of compelling need must be certified to be true and correct to the best of the requester’s knowledge and belief. A request for expedited processing may be submitted at the time of the initial request for records or at any later time.

  4. If the requester includes a statement explaining the compelling need, notice of the determination to grant or deny expedited processing must be provided within 10 calendar days after receipt of the request. If the request for expedited processing is denied, a Notice 393 must be provided with this determination.

  5. If the requester fails to provide information explaining compelling need, the request for expedited processing is invalid and there is no need to prepare a letter solely addressing the compelling need request or provide a Notice 393.

    1. If the underlying FOIA request is imperfect and is processed in accordance with the instructions in IRM 11.3.13.5.4, the letter shall also inform the requester that the expedited processing request cannot be considered because it lacked the required explanation and invite the requester to provide an explanation.

    2. If the underlying FOIA request is not imperfect, and processing the request requires an extension letter, the extension letter shall explain that the expedited processing request cannot be considered because it lacked the required explanation and invite the requester to provide an explanation.

  6. The following language may be used to deny or imperfect a request for expedited processing. Paragraph a) or b) should be added as appropriate:

    "You have requested that we expedite the processing of your [date] FOIA request. The FOIA provides for expedited processing in circumstances where the requester demonstrates a compelling need for the information. Such compelling need is present when failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or when there is an urgent need to inform the public concerning actual or alleged Federal government activity; or when failure to obtain the records may cause a loss of substantial due process rights."

    1. "Your request does not describe the compelling circumstances for which you seek expedited processing; therefore, we will continue to process your request using our routine procedures. If you would like us to reconsider this determination, please submit a statement describing the compelling need creating your circumstances. The statement must be certified to be true and correct to the best of your knowledge and belief" or

    2. "The circumstances for which you have requested expedited processing of your FOIA request do not meet the criteria established for "compelling" need; therefore, we will continue to process your request using our routine procedures. If you would like us to reconsider this determination, please submit additional information describing the circumstances creating your compelling need. The statement must be certified to be true and correct to the best of your knowledge and belief"

11.3.13.8.5  (01-01-2006)
Administrative Appeals

  1. In accordance with Treasury Regulation 26 CFR 601.702(c)(10)(i), a requester may administratively appeal an initial determination made under the FOIA when a letter is received notifying the requester:

    1. That the request has been denied in full or in part

    2. Of an adverse determination of the requester’s fee category

    3. Of an adverse determination of the requester’s fee waiver or reduction request

    4. That no responsive records exist

    Generally, the appeal must be postmarked within 35 days after the date of the applicable FOIA determination letter.

  2. An administrative appeal for denial of a request for expedited processing may also be submitted. Such an appeal must be postmarked within 10 days of the date of the notification letter.

  3. Processing appeals under the FOIA is the responsibility of the Office of Appeals.

  4. Upon receipt of an appeal, FOIA Appeals processing personnel will notify Disclosure personnel. Disclosure will enter the appeal date on the inventory management system using the postmark date of the letter as the date of the appeal.

  5. FOIA appeals from constructive denials of records (i.e., lack of timely response) will no longer be processed or monitored by Appeals personnel. When any such appeal is received by Appeals, they will respond to the requester advising him/her that there are no administrative appeal rights and if the requester is not willing to wait for an initial determination, the only recourse is to seek judicial review in court.

    Note:

    When requested by Appeals, Disclosure personnel will provide the Appeals Officer with either a written or verbal anticipated response date.

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