11.3.7  Freedom of Information Reading Room Operations

Manual Transmittal

March 11, 2015

Purpose

(1) This transmits revised text for IRM 11.3.7, Freedom of Information Reading Room Operations.

Material Changes

(1) Made editorial changes throughout to improve coherence and clarity and to update organizational titles from Disclosure Officer to Disclosure Manager. Verified and updated web references and links.

(2) Added information about the IRS Freedom of Information Reading Room in Washington, DC to 11.3.7.1(6).

(3) Removed section 11.3.7.2 Freedom of Information Reading Room after removing pertinent information to 11.3.7.1(6).

(4) Added new section 11.3.7.2, Electronic FOIA (E-FOIA) Considerations for Instructions to Staff, which includes information about the FOIA requirement to disclose proactively in electronic fashion "instructions to staff that affect a member of the public." These instructions and the following dependent subsections were previously part of IRM 1.11, Internal Management Documents System, but as they are specific guidance relating to proactive disclosure, Disclosure Office should issue them.

(5) Added subsection 11.3.7.2.1, Complying with E-FOIA, containing information about how IRS complies with its electronic proactive disclosure responsibilities and pointing developers of instructions to staff to helpful resources available to them.

(6) Added subsection 11.3.7.2.2, E-FOIA Criteria, which defines the criteria that trigger the E-FOIA proactive disclosure requirement.

(7) Added subsection 11.3.7.2.3, Disclosure Exemptions for Instructions to Staff, defining the criteria that allow IRS to withhold information that otherwise meets the E-FOIA proactive disclosure requirements.

(8) Removed references to field Disclosure handling inspection requests in IRS offices other than the Reading Room in 11.3.7.5.1, 11.3.7.5.2 and 11.3.7.5.3.

(9) Removed 11.3.7.7, Obtaining Form 5500 Series Returns, and added reference to public access procedures in IRM 21.5.11, Employee Plans Accounts.

(10) Renumbered sections, as appropriate.

Effect on Other Documents

This material supersedes IRM 11.3.7, Disclosure of Official Information, Freedom of Information Reading Room Operations, dated August 8, 2008.

Audience

All Operating Divisions and Functions.

Effective Date

(03-11-2015)

Related Resources

The Disclosure intranet home page can be found at: http://discl.web.irs.gov/Default.asp



Edward T. Killen
Director, Governmental Liaison, Disclosure and Safeguards

11.3.7.1  (03-11-2015)
Background

  1. The Freedom of Information Act, (FOIA) 5 USC 552, as amended provides for public access to records and information maintained by Federal agencies.

  2. Subsection (a)(1) of the FOIA requires agencies to publish certain information relating to the transaction of agency business in the Federal Register, including:

    1. Descriptions of agency organizations, functions, and procedures

    2. Substantive agency rules and

    3. Statements of general agency policy

  3. Subsection (a)(2) of the FOIA requires agencies to make available for public inspection and copying:

    1. Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases

    2. Those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register (e.g., revenue rulings, Coordinated Issue Papers, Actions on Decisions, field directives)

    3. Administrative staff manuals and instructions to staff that affect a member of the public (e.g., IRM, Interim Guidance, etc.)

  4. In 1996, subsection (a)(2) was amended to require agencies to include in their reading room any records processed and disclosed in response to a FOIA request "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records" 5 USC 552(a)(2)(D). The Director, Governmental Liaison, Disclosure and Safeguards, makes this determination.

    Note:

    Based on guidance from the Department of Justice, while records placed in reading rooms under subsection (a)(2) cannot ordinarily be the subject of regular FOIA requests under subsection (a)(3), this rule does not apply to records that are in the Reading Room because they have been requested frequently.

  5. Subsection (a)(2) of the FOIA requires each agency to maintain a current index of the material available for public inspection and also make the index available for public inspection and copying.

  6. Internal Revenue regulations appearing at 26 CFR 601.702(b)(3) require Internal Revenue Service (IRS) to make the records mentioned above and their indexes available for public inspection. One method by which IRS complies is through the IRS Freedom of Information Reading Room in Washington, DC, open by appointment at (202) 317-4997. The Reading Room is located at IRS Headquarters at:

    Internal Revenue Service
    Freedom of Information Reading Room
    Room 1621
    1111 Constitution Avenue, NW
    Washington, DC 20224

  7. In 1996, the FOIA was also amended to require agencies to use electronic information technology to enhance the availability of the records required to be made available for public inspection and copying that were issued after November 1, 1996. The IRS maintains an " electronic reading room" at http://www.irs.gov/uac/IRS-Freedom-of-Information to fulfill this requirement. The "electronic reading room" shall also provide electronically accessible indexes for any subsection (a)(2) records issued after November 1, 1996.

  8. The Freedom of Information Reading Room also serves as a place of inspection for:

    1. Written determinations (e.g., private letter rulings, technical advice memoranda, determination letters, and Chief Counsel advice) subject to public inspection under IRC §6110

    2. Exempt and political organization information subject to public inspection under IRC §6104

    3. Employee plan information subject to public inspection under IRC §6104 and

    4. Comments received in response to Notices of Proposed Rulemaking and other solicitations for public comments

    5. Limited information made available under subsection (a) (1) of the FOIA, but not mandated for inclusion in reading rooms

11.3.7.2  (03-11-2015)
Electronic FOIA (E-FOIA) Considerations for Instructions to Staff

  1. The FOIA, 5 USC 552 (a)(2), requires proactive electronic disclosure of certain IRS records, among which are "administrative staff manuals and instructions to staff that affect a member of the public." Proactive disclosure means the public must have direct access to the records without having to file a formal request. IRS complies with this requirement by making instructions to staff and other records meeting the proactive disclosure requirement available through its Electronic Reading Room (ERR), unless the records or portions of the records are exempt from disclosure under the FOIA, 5 USC 552(b).

    Note:

    IRS removes information from records intended for publication that is exempt from disclosure under the FOIA and after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated by disclosure of the information. Content authors propose an internal "Official Use Only" (OUO) marking for the content and collaborate with the Disclosure Office to ensure compliance with applicable disclosure laws and policy guidelines. An official in the content author's business unit with delegated authority under Delegation Order 11-1 approves and authorizes the designation. IRS withholds from disclosure any records or portions of records marked OUO.

  2. IRS uses the Internal Revenue Manual (IRM) as the primary repository of instructions to staff. It also uses interim guidance to issue instructions to staff to supplement the IRM between IRM publications. The proactive disclosure requirements of the FOIA extend to all instructions to staff affecting a member of the public regardless of form or format. Organizations that deliver procedural instructions outside of the IRM must still comply with the proactive disclosure requirements of the FOIA. See IRM 11.3.7.2.1 and IRM 11.3.7.2.2 .

11.3.7.2.1  (03-11-2015)
Complying with E-FOIA

  1. Most instructions to staff are included in an IRM. IRMs 1.11.1, 1.11.2, 1.11.9 and 1.11.10 describe the procedures and protocols to follow for creating, updating and clearing IRMs and other IMDs for publication. Media & Publications posts cleared and approved IRMs to the ERR page on IRS.gov as part of the publishing process.

  2. Servicewide Policy, Directives and Electronic Research (SPDER) posts recently issued Policy Statements and Servicewide Delegation Orders to the ERR on IRS.gov. See IRMs 1.11.3 and 1.11.4.

  3. The program owner is responsible for ensuring the proper posting of other instructions to staff meeting E-FOIA criteria to the ERR web page, such as interim guidance memoranda and Servicewide Electronic Research Program IRM Procedural Updates (SERP IPUs). See IRM 1.11.10.3 for procedures related to proactive disclosure of interim guidance, including SERP IPUs.

  4. A web-based tool, the E-FOIA Decision Tool, is available at http://spder.web.irs.gov/imd/ig/E-FOIA/Decide/ to assist authors to determine whether particular instructions meet E-FOIA criteria and require posting in the Electronic Reading Room on IRS.gov.

  5. When uncertain if E-FOIA applies to interim guidance or unsure about other procedural records that may meet E-FOIA requirements, IMD authors may consult their Disclosure Technical Liaison. A listing of Disclosure Technical Liaisons is available at: https://portal.ds.irsnet.gov/sites/PGLD/DO/DisclosureTechnicalLiaisonsforBusinessUnitAnalystsandIRMAuthors.xlsx.

11.3.7.2.2  (03-11-2015)
E-FOIA Criteria

  1. IMDs meet FOIA guidelines requiring proactive electronic disclosure and IRS must post them to the Electronic Reading Room (ERR) on IRS.gov when:

    1. the guidance is procedural and communicates direction, guidelines, or standards to employees for the performance of their assigned duties,

    2. the guidance affects how a member of the public files, pays, complies with their tax requirements, or interacts with the Service, and

    3. the guidance is not exempt from disclosure under 5 USC 552(b). See IRM 11.3.7.2.3, Disclosure Exemptions for Instructions to Staff.

  2. If the document restates procedures already available in full on the ERR on IRS.gov, then it is not necessary to post the document on the ERR.

11.3.7.2.3  (03-11-2015)
Disclosure Exemptions for Instructions to Staff

  1. When instructions to staff meet the proactive electronic disclosure requirements under the FOIA, 5 USC 552 (a)(2)(C), IRS may still withhold in full or in part when two conditions apply. First, one of the nine FOIA exemptions established in subsection (b)(3) must apply, and further, having met one of the exemptions, there must be full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated by disclosure of the information.

  2. Instructions to staff should rarely, if ever, contain content that affects personal privacy interests and of the nine exemptions, generally only 5 USC 552(b)(7)(E) applies to instructions to staff. For content to meet exemption (b)(7)(E), there must be a reasonable expectation of harm to IRS business interests resulting from the content's disclosure. This exemption applies to law enforcement materials where disclosure could reasonably be expected to allow circumvention of the law. IRS designates such content OUO and the record is not published if the entire record meets the exemption. If only a portion of the record is OUO, that segment is removed prior to publication.

  3. If internal management documents contain OUO information and non-OUO information, the OUO information is redacted (removed) and the remaining non-OUO content is accessible to the public, unless the remaining content is meaningless. See IRM 11.3.12.3.2, Official Use Only.

    Note:

    OUO content must be properly marked by the author, reviewed by the Office of Disclosure and approved by an official under Delegation Order 11-1, Administrative Control of Documents found in IRM 1.2.49.2.

11.3.7.3  (08-08-2008)
Written Determinations

  1. IRC §6110 provides for public inspection of written determinations, including private letter rulings, technical advice memoranda, determination letters, and Chief Counsel advice. See IRM 11.3.8, Disclosure of Written Determinations, for procedures for the indexing, filing, and public inspection of written determinations in the Freedom of Information Reading Room.

  2. These written determinations are indexed by release number and Uniform Issue List (UIL) Code. The Uniform Issue List is an index of issues based on Internal Revenue Code sections. Written determinations issued after October 1998 (for Chief Counsel advice) and January 1999 (for letter rulings and technical advice) are posted on the IRS website at:
    http://www.irs.gov/foia/lists/0,,id=97705,00.html (To search by Release Number)
    http://www.irs.gov/foia/lists/0,,id=97715,00.html (To search by UIL Code Section)

  3. Each written determination is coded with a nine digit identification number (seven digits for written determinations issued before 1999). Requesters seeking copies of the written determinations are encouraged to make their requests by referencing the identification number.

11.3.7.4  (08-08-2008)
Fees

  1. Fees may be charged for photocopying or printing reading room material, as established in the Internal Revenue regulations appearing at 26 CFR 601.702(f)(5). Except for commercial use requesters, the first 100 pages are provided free of charge. The fee for photocopying or printing reading room material is $.20 per page. See IRM 11.3.5 , Fees.

11.3.7.5  (08-08-2008)
Public Inspection of Exempt Organization Material

  1. IRC §6104 provides the statutory authority for making approved Applications for Recognition of Exemption and supporting documents, certain letters issued by the IRS, information returns, notices, and reports filed by certain tax exempt organizations available for public inspection.

  2. Internal Revenue regulations, at 26 CFR 301.6104(a)-1 and 601.702(d)(3) and (d)(4) also provide guidance for public inspection and copying of exempt organization material. See IRM 11.3.9 , Exempt Organizations.

11.3.7.5.1  (03-11-2015)
Form 990 - Return of Organization Exempt From Income Tax

  1. The Freedom of Information Reading Room processes requests for public inspection of Form 990, but does not handle requests for copies.The Reading Room does, however, process Congressional requests for copies.

  2. TE/GE Customer Service processes requests for copies of Forms 990 submitted using Form 4506-A, Request for Public Inspection or Copy of Exempt Organization Tax Form. Requesters send the completed forms to the address listed in the form's instructions.

11.3.7.5.2  (03-11-2015)
Forms 1023 and 1024 - Application for Recognition of Exemption

  1. If the IRS determines that an organization described in IRC §501(c) or (d) is exempt from taxation for any taxable year, the application for exemption upon which the determination is based and any supporting documents are subject to public inspection under IRC §6104 and its implementing regulation, 301.6104(a)-1. See IRM 11.3.9.

  2. The Freedom of Information Reading Room processes requests for public inspection of these applications, but does not handle requests for copies.The Reading Room does, however, process Congressional requests for copies.

  3. When the tax exempt status of an organization has been revoked or terminated, the application for exemption and related documents upon which the original ruling was granted, remain open for public inspection purposes with regard to any period for which exemption is still recognized.

11.3.7.5.3  (03-11-2015)
Notices and Reports - Forms 8871 and 8872

  1. Political organizations may be required to file Form 8871, Political Organization Notice of Section 527 Status and Form 8872, Political Organization Report of Contributions and Expenditures. These forms are subject to public inspection.

  2. The Freedom of Information Reading Room processes requests for public inspection of these forms, but does not handle requests for copies.The Reading Room does, however, process Congressional requests for copies.

  3. Technical questions relating to Forms 8871 and 8872 should be referred to the TEGE CSC toll-free number, 877-829-5500. See IRM 21.7.7.4.6, Form 8871, Political Organization Notice of Section 527 Status and IRM 21.7.7.4.7, Form 8872, Political Organization Report of Contributions and Expenditures for additional information on these forms and requirements.

11.3.7.5.4  (03-11-2015)
Requesting Exempt Organization Documents

  1. Requests for copies or inspection of the following forms must be made in writing. Form 4506-A is designed for such requests and should be used. The costs associated with processing these requests and the location to which the request should be mailed is provided on Form 4506-A.

    • Approved Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code

    • Approved Form 1024, Application for Recognition of Exemption Under Section 501(a) or for Determination Under Section 120, with supporting documents

    • Form 990 series, Return of Organization Exempt From Income Tax

    • Form 1041-A, U.S. Information Return Trust Accumulation of Charitable Amounts

    • Form 8871, Political Organization Notice of Section 527 Status

    • Form 8872, Political Organization Report of Contributions and Expenditures

    Note:

    These forms are stored in TE/GE offices and must be ordered using Form 4506-A. Requests for inspection submitted to the Reading Room are forwarded to the appropriate TE/GE office and will not result in a speedier response.

  2. Requestors may be advised that Forms 8871 and 8872 are generally available on the internet for viewing and printing at: http://www.irs.gov/Charities-&-Non-Profits/Political-Organizations/Political-Organization-Filing-and-Disclosure

  3. Requestors may be advised that Form 990 for entities organized under IRC §501(c)(3) may be available at: http://www.guidestar.org

  4. See IRM 11.3.9 for further information concerning exempt organization documents.

11.3.7.6  (03-11-2015)
Public Inspection of Employee Plan Material

  1. IRC §6104, as amended, provides the statutory authority for making certain Employee Plan material available to the public. These materials include applications and supporting documents, and any IRS letter issued with regard to the qualification of a pension, profit sharing, or stock bonus plan, individual retirement account, or individual retirement annuity, or with respect to the exemption from tax of such plan or account.

  2. Internal Revenue regulations at 26 CFR 301.6104(a)-2 and (a)-3 and 26 CFR 601.702(d)(5) also provide guidance for public inspection of pension plan material.

  3. See IRM 21.5.11.1 for information concerning requests for Form 5500 series returns.

11.3.7.7  (03-11-2015)
Requests for Inspection or for Copies of Comments Received in Response to Notices of Proposed Rulemaking and Other Solicitations for Public Comments

  1. Upon written request, comments solicited from the public by the IRS may be inspected in the:

          FOIA Reading Room
          1111 Constitution Avenue, NW
          Room 1621
          Washington, DC 20224

  2. Persons wishing to inspect comments must sign the request and either email a scanned copy to notice.comments@irscounsel.treas.gov or mail it to:

          Commissioner of Internal Revenue
          PO Box 7604
          Ben Franklin Station
          Washington, DC 20044

  3. The requester will be contacted by FOIA Reading Room personnel when the documents are available for inspection. The documents will be available for inspection during normal business hours (9:00 AM to 4:00 PM, Monday through Friday, excluding Federal holidays).

  4. Members of the public may obtain copies of comments by emailing a copy of a signed request to notice.comments@irscounsel.treas.gov or by mailing the signed request to:

          Commissioner of Internal Revenue
          PO Box 7604
          Ben Franklin Station
          Washington, DC 20044

  5. Copies of comments may be made in the Reading Room during inspection. Fees for duplication may be charged at $.20 per page, with the first 100 pages free to all but commercial-use requesters.


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