11.3.13  Freedom of Information Act (Cont. 1)

11.3.13.8 
Response and Closing

11.3.13.8.3  (08-14-2013)
Extension Letters

  1. Make all efforts to meet the statutory 20-business day time limit for response. Send all required extension letters, including those needed for deadlines occurring during absences from the office or because of unforeseen delays during response letter review. Identify and close imperfect requests as early as possible.

    Note:

    Send extension letters as close to, but no later than, the expiration of the 20 business day period. Retain a copy of every extension letter, signed and dated, in the electronic case file.

  2. The FOIA (at 5 USC § 552(a)(6)(B)(i)) provides for an additional 10 business days to respond if Disclosure personnel notify the requester in writing that IRS needs 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 unable to locate and review the records within 20 business days, but the caseworker deems that a response is likely within 10 additional business days and the reason for the additional time meets the criteria in (2) above, send AFOIA pattern letter 1522, 10-day Extension Letter to the requester:

    1. Enter the extension letter mail date into the electronic inventory system in the "Extension Letter Date" field. This date matches the issue date of an initial extension letter and will not change when mailing additional extension letters.

    2. When entering the "Extension Letter Date," 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 (AFOIA pattern letter 1522-B without the text pertaining to the 10-day extension) will be sent.

  4. Send letter 1522-B, Voluntary Extension Letter, if unable to respond until more than 30 business days after receipt of the request. Do not extend the expected response date more than 90 calendar days beyond the extension date. Enter the expected response date provided to the requester in the "Revised Due Date" field in the electronic inventory system. If using letter 1522-B as the initial notification to the requester for an extension, enter letter 1522-B issue date into the electronic inventory system "Extension Letter Date" field.

  5. In the request for voluntary extension of time to respond (letter 1522-B), you must provide the requester an opportunity to:

    1. limit the scope of the request and

    2. arrange an alternative time frame for processing the request.

  6. The letter 1522-B requesting the initial voluntary extension of time is required even if the requester agreed to allow additional time to respond during personal or telephone contact. 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, notify the requester that the court may find that the agency's failure to comply with the statutory response date is justified if the requester refuses to consider limiting the scope or to accept a reasonable alternate time frame for response.

  7. Use AFOIA pattern letter 1522-A for additional time beyond the due date of the statutory extension letter (letter 1522) or first voluntary extension letter (letter 1522-B). Update the "Revised Due Date" field in the electronic inventory system with the new response date provided to the requester.

    1. It is not necessary to send a subsequent voluntary letter when notifying the requester in person or by telephone, but you must document 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 details of any scope-limiting agreement and the new voluntary extension date

      Note:

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

    2. Send the letter 1522-A if the request provides no phone number and you cannot get one from internal or external sources.

    3. Update the electronic inventory system "Revised Due Date" field with the new extension date.

  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 appropriate actions to close the case. Record these reviews and any follow-up activity, in the history notes. For example, record contacts with the function regarding case status.

  9. There is no right to an administrative appeal for failure to meet the statutory 20 business day or additional 10 business day time limits for response.

    Note:

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

11.3.13.8.4  (08-14-2013)
Expedited Response

  1. The Freedom of Information Act provides for expedited processing if the requester asks 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 quickly 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 requester must certify that the statement of compelling need is true and correct to the best of his or her knowledge and belief. A requester may ask for expedited processing 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. The letter must be signed by the Disclosure Manager or another individual with authority to sign FOIA denials under DO 11-2 (Rev. 1). If the request for expedited processing is denied, provide a Notice 393 with notification of the denial.

  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 IRM 11.3.13.5.5 instructions, inform the requester by letter that the expedited processing request cannot be considered because it lacks the required explanation. Invite the requester to provide an explanation.

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

    3. If the underlying FOIA request is not imperfect, and can be processed within the statutory 20 days, state in the response letter that the expedited processing request was not considered because it lacked the required explanation.

  6. The pattern letters have language for responding to requests for expedited processing.

  7. Document all actions and determinations in the inventory management system.

11.3.13.8.5  (08-14-2013)
Administrative Appeals

  1. In accordance with Treasury Regulation 26 CFR § 601.702(c)(10)(i), a requester may appeal administratively any initial determination under the FOIA that notifies the requester:

    1. of request denial 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 or

    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. A requester may appeal a denial of a request for expedited processing. The appeal must be postmarked within 10 days of the date of the notification letter.

  3. The Office of Appeals is responsible for processing administrative appeals under the FOIA.

  4. Appeals personnel will no longer process or monitor FOIA appeals resulting from constructive denials of records (i.e., lack of timely response). If the Appeals Office receives such an appeal, it will advise the requester that there are no administrative appeal rights and the only recourse is to seek judicial review in court or wait for the initial determination.

    Note:

    When the Appeals Office requests it, Disclosure personnel will provide either a written or verbal anticipated response date.

  5. A requester may administratively appeal the adequacy of the FOIA search. Requesters who believe that there may be more responsive records than those addressed in the FOIA response may communicate their concern regarding the search to the FOIA caseworker. If the concern is not promptly resolved by the caseworker and local Disclosure Manager, then the requester may exercise administrative appeal rights.

    Note:

    Requesters need not contact the caseworker before filing an administrative appeal of the adequacy of a FOIA search.

  6. Appeals has access to the electronic inventory system and should not need records, response letters, or other information that have been imaged and are in the system. If a paper file exists for a request not imaged into the new system, Disclosure personnel will provide the paper file, as needed.

  7. If informal or partial indexes are part of the file, Appeals processing personnel may request that Disclosure personnel develop improved indexes in order to facilitate resolution of an appeal. When requested, Disclosure personnel will cooperate fully with Appeals personnel.

  8. The OPEN Government Act of 2007 amended the FOIA to create the Office of Government Information Services (OGIS) within the National Archives and Records Administration. OGIS was created to mediate FOIA disputes, among other things. Their mediation role in FOIA disputes is intended to begin after administrative appeals have been completed, in the hope to avoid litigation. Typically, requesters submit their dispute to OGIS and OGIS contacts the FOIA Senior Tax Law Specialist. However, they do not get involved in exemption (b)(3) issues or Privacy Act disputes.

11.3.13.8.6  (08-14-2013)
Declarations

  1. If the requester files litigation pursuant to the FOIA, attorneys from the Office of the Associate Chief Counsel (Procedure and Administration) who defend the agency in FOIA lawsuits use declarations prepared for the signature of Disclosure personnel and employees in other functions who assisted in conducting searches for responsive records or who recommended withholding information to establish case processing and the scope of the search.

  2. Counsel also prepares declarations for the signature of the Revenue Agent, Revenue Officer, or Special Agent who is most familiar with the underlying investigation, or the supervisor of those individuals to establish the factual basis for any law enforcement claims.

    Note:

    Generally, Counsel will also prepare a declaration for the signature of the appropriate official under DO 11-2 (Rev. 1), if the request response asserted FOIA subsection (b)(3) in conjunction with IRC § 6103(e)(7).

  3. Base declarations on the specific facts and circumstances of the particular case that led logically to the conclusions that relied on those facts.

  4. Attorneys in Branch 6 or 7 of the Office of the Associate Chief Counsel (Procedure and Administration) may require an index of documents withheld in full and in part in order to facilitate resolution of the case. Disclosure personnel will prepare, or assist in preparing, such an index, as requested.

  5. Disclosure personnel will assist the Counsel attorneys assigned to the litigation to:

    1. Gather necessary facts for the declarations,

    2. Provide documentation as exhibits to the declarations, as appropriate and

    3. Coordinate the execution of the declarations by agency personnel.

11.3.13.9  (08-14-2013)
Special Issues

  1. This subsection provides guidance related to some of the more complex or unusual issues encountered when processing FOIA requests.

11.3.13.9.1  (08-14-2013)
Written Determinations (Including Private Letter Rulings, Technical Advice & Chief Counsel Advice)

  1. The public may access "written determinations" and "background file documents" pursuant to IRC § 6110. These documents are not subject to FOIA. These terms are defined in IRC § 6110(b)(1) and (b)(2) respectively. Regarding processing requests pursuant to IRC § 6110, see IRM 11.3.8, Disclosure of Written Determinations.

  2. The background file may also contain records that are not available under IRC § 6110 (e.g., internal memoranda, inter-agency memoranda, routing slips, e-mails, and case control sheets) but are subject to request under the FOIA. The Office of Disclosure FOIA & Program Operations processes FOIA requests for these background file records. Transfer perfected FOIA requests for these records following the procedures in IRM 11.3.13.5.13.

    Note:

    Disclosure personnel cannot process a third party FOIA request for background file records if the request identifies the records by a taxpayer name or identifying number. Such a request is imperfect because the requester has not established a right to access records of the underlying taxpayer. A third party seeking access to written determinations or background files, whether under IRC § 6110 or the FOIA, must identify the requested records as described in 26 CFR § 301.6110-1(c)(4) (e.g., by providing the identification, file, or similar number, category, or code section).

  3. This section of the IRM provides guidance related to the processing of FOIA requests for records in the underlying file which are not covered by IRC § 6110.

  4. Written determination files are generally stored in the National Office of the Office of Chief Counsel. Written determinations include:

    • Private Letter Rulings (PLR)

    • Technical Advice Memoranda (TAM)

    • Determination Letters

    • Chief Counsel Advice (CCA)

  5. CCA is written advice or instruction by the National Office of the Office of Chief Counsel to field offices relating to interpretations of revenue provisions whether taxpayer specific or generic. Examples are:

    • Litigation Guideline Memoranda (LGM)

    • Bulletins

    • Legal Advice

  6. CCA issued on or after January 1, 1986, are available for public inspection through the Freedom of Information Reading Room and caseworkers may direct requesters seeking CCA to the Reading Room.

    Note:

    If the requester seeks a copy of a written determination from 1997 or later, and he/she can provide the identification number or Uniform Issue List number, field Disclosure personnel may advise the requester how to access the record on the internet website and/or download it themselves and provide it. For further discussion of the determinations involved in data electronically available to the requester, see IRM 11.3.13.6.2(3) and (4). If, however, the request seeks an underlying file, transfer that portion of the request to the Office of Disclosure FOIA & Program Operations.

  7. If the requester's own written determination is located within a file processed in response to a FOIA request (e.g., in the Examination file), Disclosure personnel must coordinate release of that record with the Office of Disclosure FOIA & Program Operations to ensure that any copy released to the requester is identical to the copy released to the public through the IRC § 6110 process. To ensure that only the publicly available version of a written determination is released within a responsive file, Disclosure personnel will follow the same substitution process described in IRM 11.3.13.9.1(8).

  8. When a taxpayer makes a request for an investigative file pursuant to the FOIA, and a third party written determination (example: CCA, PLR or TAM) is located within the file, field Disclosure personnel must coordinate the release of the written determination with the Office of Disclosure FOIA & Program Operations. Do not attempt to sanitize a written determination. See IRM 11.3.8.11. The objective is to ensure release of the publicly available version of the written determination in question. Therefore, substitute a copy of the publicly available version for any copy of the written determination contained in the responsive file. If you retrieve the written determination from a commercial publishing service and it contains any information subject to copyright (e.g., head notes or other proprietary additions), delete all such copyrighted material (by whiting out) from what you release. You need claim no exemptions for these deletions. Notify the requester of the substitution and the reason for it by using language similar to: "This record is the version of the actual record contained in the file responsive to your request that is available to the public. The copy provided meets the disclosure requirements of IRC § 6110."

    Note:

    If the requester specifically requests a copy of the requester’s own written determination in the version that is available only to the taxpayer who is the subject of the written determination, inform the requester that such version is available only by request under IRC § 6110 and addressed to the Chief, Disclosure Unit, Office of the Associate Chief Counsel (Procedure and Administration).

  9. If a FOIA requester asks IRS to issue a ruling or determination letter (as an adjunct to the FOIA request itself), use the following response: "The FOIA does not require Federal agencies to create new records, such as new rulings or determination letters. Additional information is available in 26 CFR § 601.201. You may request a ruling or determination letter by following the instructions in Revenue Procedure 2013-1, or Revenue Procedures 2013-4 and 2013-8 for rulings related to issues under the jurisdiction of the Tax Exempt and Government Entities division of the IRS (the IRS issues new Revenue Procedures at the beginning of each year to reflect any changes since the previous issuance). The Revenue Procedures also explain the user fee schedules for letter rulings and determination letters. The current Revenue Procedures are generally published under the "Administrative" heading in the first Internal Revenue Bulletin (IRB) of the calendar year."

    Example:

    Revenue Procedure 2013-1 is published in IRB number 2013-1. IRBs are published at the following site: http://apps.irs.gov/app/picklist/list/internalRevenueBulletins.html. Contact the persons named in the Revenue Procedure if you have any questions.

11.3.13.9.2  (08-14-2013)
Contracts/Commercial Information

  1. Requesters sometimes seek access to information which, although physically in IRS possession is:

    1. not an agency record subject to the FOIA or

    2. exempt from access pursuant to 5 USC § 552(b)(4) as trade secrets and commercial or financial information obtained from a person and is therefore privileged or confidential.

    Caution:

    Take care not to release information described in (1)(b) without considering the commercial or proprietary interests of the originator.

  2. Examples of information that may involve commercial or proprietary considerations include:

    • Studies provided by non-governmental sources

    • Training materials prepared under contract

    • Operating manuals for purchased or leased equipment

    • Transcripts prepared by court stenographers

    • Contracts and related records concerning the purchase of goods or services

    • Computer software (off the shelf or not governmentally produced)

    Note:

    The IRS Restructuring and Reform Act of 1998 (RRA 98) provides very specific circumstances under which a summons may be issued for the production and/or analysis of tax-related computer source code and related materials. Once in the possession of the IRS, the material becomes IRC § 6103 information. As such, it warrants the protections afforded by IRC § 6103 plus any additional safeguards as found in IRC § 7612. Willful unauthorized disclosures of this information will subject the IRS and the employee to criminal penalties under IRC §§ 7213 and 7213A, and/or civil damages under IRC § 7431.

  3. Studies, operating manuals, and computer software (when prepared by non-governmental sources) may not be agency records subject to the FOIA and may be the property of the originator.

  4. Base any determinations on the provisions of the agreement under which the IRS obtained the materials, the presence or absence of copyright or other restrictive markings, and whether the IRS obtained exclusive use of the materials.

    1. If the IRS has exclusive and unlimited use of the materials, they are agency records.

    2. If the IRS has only temporary or limited use of the materials, or if the originator exercises continuing control over the materials, they generally are not considered agency records.

  5. A single record may contain both materials that the IRS prepared and those obtained from other sources. Whether it is possible to segregate the materials will depend on practical considerations and physical constraints.

  6. Sometimes IRS employees acting on their own initiative and on their own time prepare materials for their own use. Such materials may remain the property of the employee and would not be considered agency records. Base any determination on the terms of the use permitted by the employee. See (4) above.

  7. The status of transcripts prepared by court stenographers will depend on applicable law and the agreement under which the stenographer serves the court. Generally, court transcripts are agency records in those situations in which the stenographer's rights to exclusive distribution have terminated.

  8. Contracts and associated records relating to the purchase of goods and services, including evaluative records, are agency records, but they may contain trade secrets and commercial or financial information that is privileged or confidential. Vendors frequently provide the government with more information concerning their products or services than they would make available in ordinary trade.

  9. Disclose business information provided to the IRS by a business submitter only as allowed by regulation. Carefully follow the provisions of 26 CFR § 601.702(g). Generally, they require prompt written notification to submitters of business information that IRS has received a FOIA request for that information and the details of any proposed response. Further, the IRS must give business information submitters the opportunity to provide a detailed statement of any objections to disclosure within 10 business days. Attempt to contact the submitter to ensure their receipt of the inquiry if you receive no response within the allotted time.

    Note:

    On September 30, 1997, Part 15 of the Federal Acquisition Regulation (FAR) was revised to stipulate that unit prices of each award be disclosed to unsuccessful bidders during the post award notice and debriefing process. Additionally, you may release unit prices on request under the FOIA. Furthermore, the FAR specifically provides that the items, quantity, and any stated unit prices of each award are also publicly available. These FAR provisions are mandatory for contracts solicited after January 1, 1998.

  10. Certain business information provided to the IRS by a business submitter is subject to statutory prohibition against disclosure, and must be withheld under FOIA exemption (b)(3) citing 41 USC § 253b(m) as the supporting statute. See 26 CFR § 601.702(g)(9).

    1. This statute applies only to contractor proposals (technical, business, management, and cost proposals) submitted in response to a solicitation for competitive bid (Request for Proposal or RFP).

    2. The statute also provides protection for a proposal submitted by the successful bidder, provided the language in the proposal is not actually incorporated in, nor referred to in, the contract. Base the determination to assert the (b)(3) exemption on whether the language in the proposal is incorporated into the contract.

  11. Give considerable weight to a business submitter's objections to disclosure unless they clearly conflict with legal precedent or obviously lack merit.

  12. If you make a determination to release some or all of the business information over the objections of a business submitter, notify the business submitter in writing of the:

    1. reasons for not sustaining the objections to disclosure,

    2. a description of the business information to be disclosed, and

    3. the anticipated disclosure date (not less than 10 business days after the mail date of the letter notifying the business submitter). Provide a copy of the notification letter to the FOIA requester at the same time, unless prohibited by law.

    Note:

    If providing a copy of the notification letter under (c) above, do not include information for which the business submitter requests confidential treatment. Therefore, do not describe in any detail the information that Disclosure personnel plan to make public contrary to the vendor’s preference. If this is not possible, the detail provided to the vendor must be redacted from the copy sent to the requester. Do not indicate FOIA exemptions with respect to these redactions.

  13. Notify business submitters whenever a requester brings suit seeking to compel disclosure of business information covered by 26 CFR § 601.702(g)(4).

11.3.13.9.3  (08-14-2013)
Requests for 23C Assessment Records

  1. A taxpayer or authorized representative may seek access to campus assessment records. These requests may contain language with one or more of the following phrases:

    • All my information in system of records 24.030

    • My 23C document

    • My summary record of assessment

    • Copies of the Form 4340, Certificate of Assessments and Payments, prepared about me

    • My section 6203 information

    • The Summary Record of Assessment and all supporting documentation

    • My summary of account

      Note:

      Provide assessment information, to the extent it exists, regardless of the wording of the request. Provide the Form 23C/RACS006 unless the requester specifically states not to provide RACS006.

  2. Occasionally, requesters submit FOIA requests for assessment materials to use the prospective responses in the context of IRS enforcement activities. A response that merely advises the requester that “there is no Form 23C with your name on it” opens the door for the requester to assert that the IRS has not made a valid assessment when challenging a statutory notice of deficiency. Use approved pattern correspondence to ensure correct and standard responses.

  3. Work FOIA requests for assessment information and provide responsive records following the procedures listed in IRM Exhibit 11.3.13-3 and using approved pattern language/letters in all responses to ensure that:

    1. The response clearly explains that the combined RACS006 information and the information in the transcript meet the legal requirement of IRC § 6203 and are the equivalent of what was requested.

    2. The response explains that because 23C and Revenue Accounting Control System (RACS) documents are not retrieved by taxpayer name or identifying number, they are not subject to the Privacy Act and IRS will process all requests for these documents under the FOIA and bill using the fee provisions of that statute.

  4. If it appears the requester does not understand IRS procedures on assessments, including that the Form 23C is obsolete, Disclosure personnel will include approved pattern language in the response letter.

  5. Research IDRS for any and all assessments for the tax years requested. Use the Document Locator Number (DLN) for the Transaction Code (TC) associated with the assessment, including but not limited to TC 150, 290, 300, 196, 360, etc.

    Note:

    TCs with .00 do not apply.

    1. Search both the Master File and the Non-Master File (NMF) for records responsive to the request. NMF records are available through the Automated Non-Master File (ANMF) system. Research the ANMF database at the Cincinnati Campus for each request to ensure a complete search for all assessments.

    2. Prepare Form 13906, Disclosure Search Request for Accounting Records, and fax it to the appropriate campus(es) to request assessment documents. The request form is available at http://core.publish.no.irs.gov/forms/internal/pdf/50545h07.pdf and the contact list is available on the Disclosure SharePoint site.

  6. If the requester asks for Form 23C/RACS 006/Summary Record of Assessments and the supporting documents, provide the Form 23C/RACS 006 with a TDS Transcript as the supporting document under IRC § 6203.

  7. If the requester asks for the documents that support an assessment made on his account, the Administrative file (Exam, AUR, SFR, Collection, etc.) is the correct supporting documentation to provide.

  8. Since there may be more than one assessment involved, or more than one tax year involved, you may have to send Form 13906 to more than one campus.

  9. In all instances, word your response to the requester carefully, whether by telephone or in writing. Even though Form 23C is rarely used, and there is generally no identifying information on either the signed RACS Automated Summary or the paper Form 23C, avoid making statements like "there are no records responsive to your request." Form 23C is available at http://publish.no.irs.gov/getpdf.cgi?catnum=16237.

  10. Request the preparation of Form 4340, Certificate of Assessments and Payments, by completing Form 4338, Information or Certified Transcript Request, or Form 4338-A, IMF Information or Certified Transcript Request. Submit to the Compliance and Accounting function in the appropriate Campus. See IRM 21.2.3.4.2.1. Do not certify Forms 4340 in response to FOIA requests. See IRM 11.3.13.9.27.

  11. If you receive a letter seeking record of assessment transcripts under IRC § 6203 that does not cite FOIA, do not process it using FOIA procedures. In Revenue Ruling 2007-21, at http://www.irs.gov/irb/2007-14_IRB/ar15.html, the IRS issued formal guidance stating that the Service is not required to provide information in any particular form when responding to a taxpayer request for proof of assessment. The revenue ruling goes on to state that both Form 4340, MFTRA-X or similar documents contain the information required by Treasury Regulation § 301.6203–1. When responding to a request seeking a record of assessment that does not cite the FOIA, use the approved pattern language to refer the requester to the routine agency procedure for requesting transcripts and provide a Form 4506-T. See IRM 21.2.3 for additional information for processing these requests.

11.3.13.9.4  (08-14-2013)
Requests for Transcripts

  1. IRS frequently uses IDRS transcripts to respond to requests from taxpayers. Questions arise relating to what portions, if any, of responsive transcripts may be released and what information to redact.

    Note:

    A requester does not need to file a Privacy Act or FOIA request to obtain most IDRS prints. Most IDRS prints are available to the taxpayer under IRC § 6103.

  2. This section relates to where protected data appears on certain transcripts, the actions necessary to release the data, the appropriate citations to use to support non-release of certain information and remarks explaining the logic behind the instructions. It includes instructions for:

    1. Criminal Investigation Indicators. See IRM 11.3.13.9.4.1.

    2. Discriminant Function (DIF) Score, Selection of Exempt Organization Returns for Examination (SERFE) Indicator, and the Underreported Income DIF Score (UIDIF). See IRM 11.3.13.9.4.2.

    3. Resource Workload and Management System (RWMS). See IRM 11.3.13.9.4.3.

  3. Do not routinely redact Potentially Dangerous Taxpayer (PDT) indicators from IDRS transcripts any longer. Make determinations to redact the PDT indicator on a case-by-case basis.

  4. Review carefully the type(s) of tax and the tax periods specified on POAs or other disclosure authorizations in cases involving a taxpayer's designee or business relationships such as partnerships to ensure that any information released is authorized.

  5. In cases involving married taxpayers, be alert to changes in marital status and to different spousal combinations for recently-married, divorced, or separated taxpayers. Taxpayer entity information on the primary SSN automatically updates for subsequent year filings. This information can include filing status, filing history, SSNs of previous and/or subsequent spouses, etc. Carefully review information requests for a previously filed joint return from a separated or divorced spouse to protect the confidentiality of the other taxpayer's current information.

11.3.13.9.4.1  (08-14-2013)
CID Indicators

  1. The "Z" or "-T" freeze and transaction codes in the 900 series may need redaction, if present. These indicators and codes are found in the body of TXMODA, MFTRA, ACTRA, ENMOD, IMFOLT, and BMFOL prints.

  2. If the taxpayer is aware of the investigation, there is no need to redact. When the codes are present, obtain clearance from Criminal Investigation or contact the Special Agent assigned to determine if the taxpayer has been notified he or she is under investigation. This applies even if the case is closed. CI may also be aware of potential harms to other cases related to the transcript in some fashion.

    Example:

    In the course of a refund scheme investigation, some taxpayers targeted initially may no longer be considered a part of the scheme. While their particular case may have closed, related cases may still be in process. Withholding the CI indicators on the closed case may be appropriate if CI articulates the potential that disclosure of the refund investigation to that previously targeted taxpayer would prematurely alert others in the targeted group about the investigation.

  3. If the Special Agent recommends redaction, Disclosure personnel will cite exemption (b)(7)(E).

  4. If the taxpayer is not aware of the investigation and the Special Agent indicates that redacting the code and citing exemptions would harm the investigation, you may consider excluding the information pursuant to the provisions of 5 USC § 552(c)(1). See IRM 11.3.13.7.3. Coordinate any use of the record exclusion through the FOIA Senior Tax Law Specialist in Headquarters.

11.3.13.9.4.2  (08-14-2013)
DIF and UIDIF Score, SERFE Indicator

  1. Do not disclose the Discriminant Function (DIF) and Underreported Income DIF (UIDIF) scores found in IDRS prints, (e.g., AMDIS, AMDISA, and MACS). Currently, the UIDIF score only appears on MACS prints. Also, do not disclose information containing return selection guidelines. The score of “000” is a potentially legitimate score and must also not be disclosed. In addition to the numeric value, where the term DIF in various forms may appear, such as DIF Category, DIF Formula, DIF Score, DIF Inc Srt, the space following the term, even if blank, must be redacted. Disclosure personnel will cite exemptions (b)(3) in conjunction with IRC § 6103(b)(2) and (e)(7), and (b)(7)(E) as authority to protect the DIF and UIDIF scores.

    Note:

    Pursuant to the IRS RRA 98, the IRS must now provide notice to taxpayers explaining, in general terms, how it selects taxpayers for examination, but nothing containing information that would be detrimental to law enforcement, if disclosed. The DIF formulas and scores are examples. Encourage employees to provide a copy of Publication 1 in response to the question "why was I selected for audit." Publication 1 gives a general list of reasons for examination selection without revealing anything about the factors that may have led to a particular examination.

  2. Do not disclose the Selection of Exempt Returns for Examination (SERFE) indicator found in TEGE transcripts. Cite exemption (b)(3) in conjunction with 6103(b)(2) and (e)(7), and exemption (b)(7)(E) as authority to protect the SERFE score.

11.3.13.9.4.3  (08-14-2013)
RWMS Score

  1. The Resource Workload and Management System or RWMS score found in IDRS prints, (e.g., TDINQ) is the scoring system used by the Collection function to assign cases. Several factors, including the grade level of difficulty for Revenue Officer assignment affect the score. Because the numerical score assigned is not a dollar amount tolerance and it’s not governed by national criteria, you may release it.

11.3.13.9.4.4  (08-14-2013)
RTVUE and BRTVU Prints

  1. Release RTVUE and BRTVU prints even when the "per computer" column contains a different amount from that reported by the taxpayer or is all zeros.

  2. The RTFTP print provides essentially the same information as RTVUE. Provide this transcript except when the FOIA request specifically asks for a RTVUE transcript or the RTVUE is included in documents responsive to a broader request (e.g., for a case file).

11.3.13.9.4.5  (08-14-2013)
Penalty and Interest Notice and Explanation (PINEX)

  1. PINEX is an IDRS command code used to compute calculations of penalties and interest using both posted and pending transactions. When interest is computed by the Master File, PINEX may be used to explain the debit or credit interest calculations when a taxpayer questions those calculations. See IRM 20.2.3.1.1.

  2. Unlike other IDRS command codes which merely request account information, the PINEX command code initiates activity on the taxpayer's account.

    1. PINEX generates Notice 569 which provides the taxpayer with balance due information up to a specified date. The IRS does not retain a copy of this notice.

    2. Before sending the notices generated through PINEX, IRS employees must manually review the balances and analyze the accounts to resolve discrepancies. See IRM 20.2.3.5.

    3. When a PINEX request is generated, IDRS systemically updates the notice history section of the tax module and automatically delays the next IDRS notice on balance due modules.

  3. Do not generate a PINEX computation for release in response to a FOIA request as it does not provide a copy of an existing record, rather, it causes the creation of new records.

    Note:

    A PINEX transcript already in an administrative file when a FOIA request arrives is an existing document within the file, and must be reviewed for release or withholding under the same criteria as the rest of the file.

  4. Use the following language in response to a FOIA request seeking PINEX information: "Your FOIA request appears to ask for documents that concern your personal liability to pay federal income tax. PINEX is a computer command code used to generate a Notice 569, Penalty and Interest Explanation, in response to a taxpayer’s questions about penalty or interest calculations in a Collection proceeding. The IRS does not retain a copy of the Notice. Thus your request does not identify existing records, but is a request for the creation of personalized and specific statements concerning your tax liability. The FOIA gives individuals the right to have access to existing agency records. It does not require agencies to create records in response to a request. There are no documents responsive to your request. If you have questions about a balance due on your tax account you may contact the IRS toll free number at 1-800-829-1040 to discuss your specific tax situation. Included is a Form 4506-T which you may use to order transcripts of your account."

  5. Close the request as imperfect if the only item requested was a PINEX. Like all imperfect requests, do not include a Notice 393.

11.3.13.9.4.6  (08-14-2013)
Requests for IDRS Records That Have Been Removed to Retention

  1. If a request asks for IDRS records by naming a specific command code, provide the specific IDRS record requested, if possible. A reasonable search will include moving a tax period back to the Master File through the appropriate IDRS command code. Neither the research required to move the account to the Master File to generate the transcript nor the number of days required to accomplish that movement results in an unreasonable search effort. The act of recovering the record is merely a way to retrieve information that is not at hand and does not create new records. However, see IRM 11.3.13.9.4.5 above regarding requests for PINEX transcripts.

11.3.13.9.5  (08-14-2013)
SS-8 (Determination of Worker Status) Requests

  1. FOIA requests may be received from unrelated third parties for Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, or for written determinations concerning Form SS-8. Such requesters will be advised that Form SS-8 does not fall within the auspices of the FOIA, but rather IRC § 6110. If they wish to pursue their request for Form SS-8, they must make an IRC § 6110 request.

    Note:

    See IRM 11.3.8.8 for additional information.

11.3.13.9.6  (08-14-2013)
Petroleum Industry Records

  1. Promptly refer FOIA requests for records pertaining to the methodology, formula, or general data used in the determination of pricing information relating to the Petroleum Industry Program (PIP) to the Senior FOIA Tax Law Specialist to coordinate with the Pre-Filing and Technical Guidance group (LB&I).

11.3.13.9.7  (08-14-2013)
Risk Analysis Reports

  1. Risk analysis reports and related records and background papers are assessments of the security afforded to information and assets in the custody of the IRS and include recommendations for maintaining appropriate levels of protection. Unauthorized disclosure of the content of such records could itself contribute to the threat of loss or destruction being guarded against.

  2. Because of the sensitive nature of risk analysis reports and related records, refer any FOIA request for these reports and the records pertaining to it to the Deputy Associate Director, Disclosure, in the Headquarters Office prior to releasing any portion. The Deputy Associate Director, Disclosure, either will advise on the proper disposition of the request or will make a direct response to the requester.

  3. Do not refer to the Deputy Associate Director, Disclosure, if denying the records in their entirety on the basis of applicable exemptions.

11.3.13.9.8  (08-14-2013)
Executive Performance Agreement

  1. Executive Performance Agreement, Forms 2450, are available to the public when edited pursuant to exemption (b)(6) to prevent any unwarranted invasion of personal privacy.

    Note:

    Coordinate all requests for such records with the Office of Disclosure FOIA & Program Operations.

11.3.13.9.9  (08-14-2013)
Employee Privacy Matters

  1. Delete the names, signatures, initials, and other identifying details (but not name of office) of lower level IRS employees when necessary to avoid unwarranted invasion of personal privacy, including the threat of harassment or abuse of the employees and their families.

    Example:

    This protection applies to campus employees and to clerical employees in the field who are chiefly performing ministerial acts and whose identities are not normally shared publicly, for example, as a contact point or caseworker.

    1. Delete the identities of lower level employees from law enforcement records, even when their identities are known to the particular requester.

    2. Support these deletions by citing exemption (b)(6) and, when applicable, exemptions (b)(7)(C) and/or (b)(7)(F).

  2. Generally, do not withhold the identities of senior level officials (i.e., those management officials who are heads of office) pursuant to these privacy-based exemptions. However, these employees, if they are the subject of alleged wrongdoing, may have privacy interests that must be balanced against the public's interest. See IRM 11.3.13.7.2.6 for more on balancing private and public interests. The result of that balancing will depend on the facts and circumstances of a particular employee case. Direct any questions about the senior level official status of a particular employee to the FOIA Senior Tax Law Specialist.

  3. Ordinarily, do not use the privacy-based exemptions to withhold typed identity information and the signatures of IRS employees and witnesses shown on Standard Form 61, Appointment Affidavit.

    1. Generally, the public interest in ensuring proper agency actions by duly sworn employees, as evidenced by the appointment affidavits, outweighs any privacy interest relating to these typed identities and signatures. Release these records in full, with the following exceptions:

    • When the requester seeks the appointment affidavit of an employee who uses a registered pseudonym, furnish the appointment affidavit after redacting the real identity (typed identity and signature) of the employee, citing exemption (b)(6).

    • When an employee has changed his/her name, subsequent to signing the appointment affidavit, the public interest in the release of the employee's former name may be less than the employee's privacy interest. If release of the former name could cause an unwarranted invasion of personal privacy or a threat of harassment to the employee's family members, withhold the last name only, citing exemption (b)(6).

  4. Release only the name, position, post of duty, grade, and appointment affidavit/oath of office of an employee in a position designated as sensitive by OPM. See IRM 11.3.13.9.11.1(4). Ensure the requested information is not for the legal name of an employee with a pseudonym.

    1. Coordinate the release of any personnel data, including the appointment affidavit, of an employee in the GS-1811 series (Criminal Investigator) with the Supervisory Special Agent (SSA) of the named SA. This ensures that release of information confirming the SA’s identity will not harm an ongoing investigation or endanger the SA. This includes requests for identifying information, appointment affidavits, credentials, or similar records, the release of which would serve to confirm the identity and position of a named employee.

    2. If the SSA determines the release will harm an ongoing investigation or endanger the SA, deny the request. If the request does not identify the employee as a Special Agent, deny citing FOIA exemption (b)(6) or (b)(3) in conjunction with IRC § 6103(e)(7), as applicable. If the request does identify the employee as a special agent, use the following language in the response: "To the extent (insert name) is a Special Agent, GS-1811, such agent’s identity and appointment affidavit are exempt from disclosure pursuant to FOIA exemption (b)(6)."

    Note:

    Deny the entire appointment affidavit of an employee in the GS-1811 series, not just the signature. Whether the employee is currently a GS-1811 or was serving in a GS-1811 position when the affidavit was executed is irrelevant.

  5. Do not redact Standard Employee Identification Numbers (SEIDs) and IDRS numbers from transcripts. The release of an SEID or IDRS number does not constitute an unwarranted invasion of an employee’s privacy nor would it compromise the security of any IRS computer system.

    Note:

    Review proposed releases of SEIDs in combination with other identifying information to avoid release of information that would otherwise be protected. Some functions in the IRS, such as CID and Chief Counsel, may use different naming conventions on SEIDs that may require a review and determination as to whether that information may, by itself, reveal the identity of the employee.

  6. Requests may seek information about an employee by reference to the employee's unique identifying number (for example, the IDRS Number or SEID) without providing the employee's name. Advise the requester that the name of an IRS employee associated with a specific identification number is protected under FOIA exemption (b)(6). Do not conduct research to determine which IRS employee has been assigned to any specific IDRS identification number even if the number is assigned to a manager or other IRS employee whose identity would be made known to the requester through normal channels.

11.3.13.9.10  (08-14-2013)
Requests for Audit Trails

  1. FOIA requests for "who has accessed my account" or for the "Audit trail of my SSN" can be researched through the Security Audit and Analysis System (SAAS). SAAS collects, stores, and reports audit trail data for the investigation of instances of Unauthorized Access (UNAX) violations against Internal Revenue Service (IRS) computer systems, including IDRS.

  2. The system can retrieve audit trail extracts using taxpayer TINS as well as employee SSNs or SEIDs. Retrieving an IDRS audit trail is a quick process and should take no more than a couple of days, even if requesting many years. Searches generally will not incur search fees based on the assumption that the requester falls into the "other" category. Contact Cybersecurity Operations for the actual personnel time and effort required to satisfy the FOIA request.

  3. To retrieve the SAAS audit trail extract, Disclosure personnel prepare Form 9936, Request for Audit Trail Extract. The form must list all calendar time periods/years and all campuses to be searched in response to the FOIA request. Forward the form to Cybersecurity Operations for processing.

  4. The SAAS will not produce an audit trail listing accesses pertaining to specific tax periods, but will search on the taxpayer's social security number and capture accesses to the taxpayer's account over a period of time. For example, a request pertaining to accesses between January 1, 2009 and December 31, 2011, will return a listing of all tax periods accessed between the two dates, in chronological order.

  5. If the FOIA request is for accesses pertaining to a specific tax year/period, request an audit trail for accesses starting January 1st of that year through the FOIA received date.

  6. Since the IRS can't generate an audit trail pertaining to a specific tax year/period, a power of attorney or a disclosure authorization based on specific tax years/periods will not be sufficient to authorize disclosure of the audit trail to a third party. Only release an audit trail to a third party requester if the taxpayer authorizes the disclosure of the audit trail pertaining to the specific calendar time period covered.

  7. If the authorization is not sufficient to allow a third party requester access to the audit trail, contact the requester and ask for a valid authorization or ask for permission to respond directly to the taxpayer. If at all possible, make this contact by phone. Advise the requester that an acceptable consent must authorize the disclosure of "a record of accesses to my tax accounts during the period starting [indicate a specific initial calendar date] and ending [indicate a specific calendar date]."

  8. If you do not receive a proper authorization or an instruction to send the information directly to the taxpayer, close the request as imperfect.

  9. Audit trails are available for 6 years after the end of the processing year. If you receive a request pertaining to older periods, advise the requester that there are no documents responsive to the request and close the file.

  10. The audit trail extract consists of a series of alphabetic and numeric characters that include the inputting employee's IDRS number, the command code used, the time and date of access, what data was accessed, and the inputting employee's social security number. Other items that may appear on the output as variable data include the tax period and name control. An audit trail key that provides information about the contents of the audit trail is available with the pattern letters language.

  11. Upon receipt of the extract, Disclosure personnel must analyze it as follows:

    1. Locate and redact the identifiers of the employee (SSN, SEID, IDRS number, etc.). Redact any other data exempt from disclosure. Cite FOIA exemptions (b)(3) with IRC 6103(a) and 6103(e)(7), (b)(6), (b)(7)(A), and (b)(7)(C) for all redactions.

    2. Research IDRS to determine if there are any open investigations requiring coordination with the function performing the investigation. Use the additional information on IDRS to apply the normal considerations for deletion or release of the information that would identify the function performing the investigation or the research conducted, i.e. the Employee IDRS number or the command code contained on the extract. Do not consider any of this IDRS information as a responsive document unless it is otherwise requested in the letter.

    3. If there is any indication of TIGTA activity (i.e., Office Identifier 96), coordinate with the Disclosure Officer for TIGTA. There is no need to transfer the request - just obtain input regarding release of the information on the extract.

    4. Apply the (b)(3)/6103(e)(7) and (b)(7) exemptions, as the situation dictates. When necessary, contact the FOIA Senior Tax Law Specialist for assistance.

  12. Clearly advise the taxpayer that this trail of accesses covers only electronic IDRS accesses. Access to other computer systems and to paper records may not have a trailing system in place. Use the approved pattern language in the closing letter, and include a copy of the audit trail mentioned in (10) above.

    Note:

    Audit trails are Privacy Act records maintained in SOR 34.037, Audit Trail and Security Records. This system of records is exempt from access under the Privacy Act; therefore, first person requests for records maintained in this system cannot be processed under the Privacy Act and will be diverted to FOIA. FOIA search and copy fees apply.

    Note:

    Audit trails consist of return information, therefore the access restrictions of IRC § 6103 apply with respect to any third party requester.

    Note:

    FOIA requests from Service employees for an audit trail pertaining to their accesses can be researched through the SAAS. Upon receipt of the extract, Disclosure personnel will locate and redact all information pertaining to the taxpayer including but not limited to command code, SSN, tax period, etc., citing FOIA exemption (b)(3) with IRC § 6103(a). Employees involved in a personnel action or proceeding may request disclosure of relevant and material return information under IRC § 6103(l)(4)(A).

    Reminder:

    If the FOIA request letter also contains allegations regarding a possible unauthorized access to account information, follow the normal UNAX referral procedures in addition to addressing the FOIA issues. Address both the referral of the UNAX issue and FOIA request in the response letter to the requestor.

11.3.13.9.11  (08-14-2013)
Personnel Records

  1. The Office of Personnel Management (OPM), as the custodian of the Official Personnel Folder (OPF) and Employee Performance Folder (EPF) and the authority through which other Federal agencies may appoint employees, has issued rules and regulations governing the disclosure of OPF and EPF records. These rules and regulations are found in Part 294 of the Federal Personnel Manual (FPM) (5 CFR § 294).

  2. The OPM also has FOIA responsibilities for personnel records maintained by agencies. These responsibilities are detailed in each of the sections describing the various records. Responses to FOIA requests seeking OPF or EPF information will be consistent with OPM regulations at 5 CFR §§ 293 and 297. See IRM 11.3.20, Personnel Records, for additional information regarding OPFs/EPFs and their contents.

  3. Disclosure personnel will follow the Agency-Wide Shared Services (AWSS) standard operating procedures. Procedure Number 293-1 at http://hco.web.irs.gov/pdf/sop-293-1.pdf offers guidance for obtaining the OPF for purposes of responding to a FOIA request.

  4. Contact information for retrieving the OPF information is available in "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site.

  5. OPFs for current employees (other than Chief Counsel attorneys and Chief Counsel employees located in Headquarters except for support staff) have been centralized in one location under the jurisdiction of the Kansas City Transactional Processing Center (TPC).

    1. Submit search requests in writing through e-mail, fax, or regular mail. Include the name and SSN of the employee and specify what is needed and provide a complete mailing street address along with a contact phone number.

    2. Address mailed search requests to:
      IRS TPC
      440 Space Center Drive
      Lee's Summit, MO 64064

  6. OPF information pertaining to Chief Counsel attorneys or Chief Counsel employees located in Headquarters, except support staff, whose information is located in Kansas City, is maintained in Washington, DC. Direct search requests to Chief, Payroll and Processing Section, at:
    Chief, Payroll and Processing Section
    CC:FM:LER
    Room 4022
    1111 Constitution Avenue NW
    Washington, DC 20224

  7. If you need the entire OPF, provide your complete name and street mailing address (OPFs cannot be sent to a Post Office Box), along with your phone number for contact.

  8. Generally, direct requests for information on former employees to the following address:
    National Personnel Records Center
    Civilian Personnel Records
    111 Winnebago Street
    St. Louis, MO 63118

    1. The Benefits Specialist who handled the employee retirement paperwork retains the OPFs of recently retired employees for twelve to fourteen months, or until completion of the retirement process. In this situation, coordinate requests for OPFs with the Benefits Specialist.

    2. If the request involves a former IRS employee who is now working for another Federal agency, refer the requester to the other agency and not to OPM. Notify the requester that the IRS has no responsive records and provide contact information for the new agency. Close the case as a no records response.

  9. Send requests for time and attendance records via secure e-mail to Employee Support Services, Payroll Personnel Section. Include the employee's name and SEID or SSN. Disclosure staff must include their title and the basis for the request. See "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site for contact information.

  10. If a request seeks a deceased employee's records, a surviving heir cannot invoke common law privacy rights. Decedent's records are generally available under the FOIA, unless it can be shown that release could cause harm to a survivor's privacy by causing "a disruption of his/her piece of mind."

    Example:

    Particularly sensitive, often graphic, personal details about the circumstances surrounding an individual's death may be withheld when necessary to protect the privacy interests of the surviving family members.

    Note:

    Frequently, requesters seeking decedent OPF/EPF files are interested in the Designation of Beneficiary form(s) or documents that show the decedent's most recent rate of pay. You may clarify this with the requester and then limit the disclosure.

11.3.13.9.11.1  (08-14-2013)
Public Information Listing

  1. OPM designated six items of information as public or official information that are generally available from the OPF, EPF, their automated equivalent records, and from other personnel records that constitute an agency record within the meaning of the FOIA.

  2. The Public Information Listing (PIL) consists of the following information as specified in 5 CFR § 293.311:

    1. Name,

    2. Present and past position titles and occupational series,

    3. Present and past grades,

    4. Present and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials). These may be separately stated, if so requested,

    5. Present and past duty stations (the official duty station does not include any flexiplace address or even the existence of a flexiplace work option); and,

    6. Position descriptions, identification of job elements, and those performance standards (but not actual performance appraisals) which, if released, would not interfere with law enforcement programs or severely inhibit agency effectiveness.

    Note:

    These provisions do not preclude the release of phone numbers and e-mail addresses of IRS employees. IRS employees’ work phone numbers and e-mail addresses are generally available in response to a FOIA request. If withholding an employee’s name pursuant to the procedures in IRM 11.3.13.9.9(1), withhold the corresponding phone number and email address also. Release phone numbers and email addresses in response to requests seeking access to a listing of all (or some subset of) employees’ names, phone numbers, and/or email addresses (e.g., a functional phone directory). However, withhold information regarding employees in the series that OPM designated as sensitive (see IRM 11.3.13.9.11.1(4)) and those with pseudonyms. Cite FOIA exemption (b)(6) when withholding employee names, phone numbers, and/or e-mail addresses.

  3. Do not disclose the specific amounts of performance awards if doing so makes it possible to determine the employee's specific or critical job element average or rating of record. However, the fact of an award may not be withheld even though it may imply an above fully successful performance rating.

    Note:

    Beginning with awards issued for fiscal year 2002, the IRS implemented the National Awards Agreement for bargaining unit employees. The basis for the computation of the award is widely distributed. Given this information, it is possible to compute the rating of record based on the amount of the award. Therefore, do not provide the specific amount of a performance award for a bargaining unit employee in response to a FOIA request for fiscal year 2002 and subsequent.

  4. OPM has authorized the withholding of the public information items of employees in sensitive positions. Consequently, you must ensure that other records such as office telephone directories do not include information on employees in these positions when released to the public. Criminal Investigation Division provides statistical data to the public on staffing numbers, locations of posts of duty, and salary ranges on an area basis. OPM has designated the following positions as sensitive:

    GS Series Title
    0083 Police Officer
    0512 Revenue Agent
    0930 Appeals Officer
    1169 Revenue Officer
    1171 Property Appraisal and Liquidation Specialist
    1801 General Inspection, Investigation and Compliance
    1802 Compliance Inspection and Support
    1810 General Investigating
    1811 Special Agent (SA)
  5. Coordinate requests for the PIL or any subset of PIL information, whether or not they cite the FOIA, with the appropriate Disclosure Manager. Disclosure Managers may access the PIL via the IRS intranet. See Exhibit 11.3.13-4 for instructions for accessing the Intranet.

  6. Access to the PIL website is limited to Disclosure personnel. The names and locations of employees in sensitive positions and those employees who have been issued a pseudonym have been deleted from the listing available on the PIL website. The remaining information (items b, c, d, and f of paragraph (2) above) is still available on the PIL and can be retrieved by requesting a national PIL through the FOIA Senior Tax Law Specialist.

    Note:

    Since the list does not include any identifying information about specific employees in designated sensitive positions, it will not be accessed in response to a FOIA request for one of these employees.

    1. Since the names of employees in sensitive positions and employees with pseudonyms are not listed on the site, a request may seek information about a current IRS employee who has made contact with the requester and who is not listed on the PIL. If a request pertains to a named employee who is not on the website, conduct additional research to determine if the employee has an approved pseudonym or is in one of the sensitive series to avoid informing the requester erroneously that the individual is not an IRS employee. Conduct IDRS research to determine if there is existing compliance activity, which may help to locate the employee named in the request. In addition, you may contact other employees or management in a post of duty near the taxpayer’s address to locate the employee. If unable to locate an employee through these methods, contact the FOIA Senior Tax Law Specialist.

    2. If the employee whose information has been requested uses a pseudonym, withhold the employee’s real name citing exemption (b)(6).

  7. When a FOIA request seeks information about a specific employee, you may notify the employee that his/her PIL information has been requested, how the request will be processed, and if requested, the name of the FOIA requester. The employee may provide information about privacy interests that you may consider, but Disclosure personnel make the final determination about the application of exemptions. It is not necessary to contact employees when a request seeks the PIL of all IRS employees or large subsets thereof (e.g., all employees located in a large office or a given state).

    Note:

    See IRM 11.3.13.9.9 for instructions on how to process specific requests (such as oath of office and/or appointment affidavits) for employees in sensitive series.

11.3.13.9.11.2  (08-14-2013)
Commercial Solicitation

  1. The OPM regulations at 5 CFR § 294.103 provide guidance on how commercial solicitation firms can obtain access to public information items on employees.

  2. When a commercial solicitation firm files a FOIA request for information on employees, provide the requested public information items in response.

11.3.13.9.12  (08-14-2013)
Requests for E-mail Records

  1. 44 USC § 3301 defines records as "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the U.S. Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the information value of data in them."

  2. Electronic records include records maintained on floppy disks, hard drives, compact disks, tape reels, or other magnetic media, including electronic mail (e-mail) and are governed by the same guidelines as paper records.

  3. See the guidelines for managing electronic records in IRM 1.15.6, Managing Electronic Records, including the basic requirements for creation, maintenance, and disposition of electronic records. Employee adherence to the IRM helps ensure that electronic agency records are not maintained inappropriately. Agency records that still exist, even though they shouldn’t, are subject to the FOIA. See Document 12073, Managing Electronic Mail, at http://core.publish.no.irs.gov/docs/pdf/36978b04.pdf.

  4. The FOIA requires the agency to respond to requests for records maintained by the agency. E-mail messages may be saved by employees on their own workstations or by IRS on backup tapes. To the extent that e-mail messages are saved on backup tapes and/or archived by IRS employees electronically or on paper, Disclosure personnel may retrieve them in response to FOIA requests, determine whether the records can be released, and apply any applicable FOIA exemptions.

11.3.13.9.13  (08-14-2013)
Trust Fund Recovery Penalties

  1. FOIA requests may come in at any point in the Trust Fund Recovery Penalty (TFRP) process. Consider each request based on the current status of the case.

  2. If a FOIA requester mentions other persons liable for the penalty or IRC § 6103(e)(9) in the request, segregate the (e)(9) portion and send it to Collection Advisory for response. Use the approved pattern letter language to notify the requester that the information is available through a routine agency procedure under IRC § 6103(e)(9), and that you referred that portion of the request to Collection Advisory. Disclosure personnel must process the remainder of the FOIA request.

    Note:

    Contact information for Advisory is located in "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site. Link to "Collection Files" and look for the "Collection Advisory Contacts formerly Technical Services" link. Call the number for the state where the requester resides, explain that you will be forwarding an (e)(9) request, and obtain a contact name to provide the requester.

  3. If the FOIA request is solely for (e)(9) information, refer the request to Advisory for processing through routine agency procedures and close the case as imperfect. Advise the requester in your response letter that you referred the matter to Advisory for a direct response.

  4. To locate a TFRP file consult the TFRP contact list in "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site. TFRP files frequently contain information concerning multiple taxpayers (e.g. employer/corporation, corporate officers, and other potentially responsible persons). When responding to a FOIA request for information relating to the TFRP, the return information of each taxpayer may be released only to that taxpayer.

  5. First or third party return information cannot be disclosed under IRC § 6103(h)(4) in response to a FOIA request. IRC 6103(h)(4) is not an "access" provision and only IRC 6103(e) can be the basis for release of information in the FOIA context.

    Note:

    Compliance employees can use IRC 6103(h)(4) in situations involving an open TFRP case to the extent disclosure of the information is directly related to the resolution of an issue in their case.

  6. For further guidance about processing TFRP files, see IRM 11.3.40, Trust Fund Recovery Penalty Files.

11.3.13.9.14  (08-14-2013)
Credit Bureaus

  1. Copies of credit bureau reports obtained in the course of compliance activities may be provided to the taxpayer to whom they pertain unless there is harm to tax administration. The Fair Credit Reporting Act (FCRA), 15 USC § 1681, places no restrictions on government release of credit reports. There is nothing in the FCRA that prohibits disclosure to the taxpayer. Consumer reporting agencies are required to provide the consumer with data. The only statutory prohibition against disclosure appears in section 1681(r). That section prohibits an officer or employee of a consumer reporting agency from revealing information to a person who is not authorized to receive it.

11.3.13.9.15  (08-14-2013)
Non-specific Requests Citing "A Citizen's Guide to FOIA"

  1. A non-specific FOIA request may cite "A Citizen's Guide on Using FOIA and the Privacy Act of 1974 to Request Government Records" to justify the non-specificity of the request.

  2. Normally, this would be considered an imperfect request. However, if the non-specificity is based on the quote "…no individual is required to name a system of records…" from the Citizen's Guide to FOIA, include the following language in the response: Your reliance on "A Citizen's Guide on Using FOIA and the Privacy Act of 1974 to Request Government Records" is misplaced. Its authors intended the Guide to serve only as a general introduction to familiarize members of the public with the two Acts. The authors acknowledged that there is a considerable body of case law under both Acts that contribute to a complete understanding of the principles underlying the FOIA and the Privacy Act. In that regard, courts have upheld strict compliance with agency regulations. Therefore, since the Department of Treasury Regulations on the Privacy Act explicitly provide that a request must "give the name of the system or subsystem or categories of records to which access is sought…" (31 CFR § 1.26(d)(iii)), and the IRS Statement of Procedural Rules for FOIA (26 CFR § 601.702(c)(1)) requires that a FOIA request be for reasonably described records, your request cannot be processed.

  3. Also list in the response letter any other missing material needed to perfect the request.

11.3.13.9.16  (08-14-2013)
Requests for Third Party Information From ChoicePoint or Accurint

  1. ChoicePoint/Accurint is an information service used primarily by Revenue Officers and Revenue Agents that includes information about a taxpayer's neighbors, including their addresses and Social Security Numbers (SSNs).

  2. When a taxpayer requests a copy of his or her records (such as in Examination or Collection files) and ChoicePoint/Accurint data and/or reports are found within those records, apply the following guidelines to process the request:

    1. If the request seeks "everything in my file" or seeks a specific file (such as Examination or Collection) in which ChoicePoint/Accurint data exists, then redact any third party information and provide the record in sanitized form. Cite exemption (b)(7)(C) in this situation. Because the third party information is not return information of the third party, exemption (b)(3) in conjunction with IRC § 6103(a) does not apply.

    2. If the request seeks all information "about me," consider the third party information "not responsive" and withhold on that basis. Do not cite exemptions.

    Note:

    This procedure parallels the processing procedures for other documents containing the information of multiple persons on a single page, such as some state Department of Motor Vehicles records and some real estate records. See IRM 11.3.13.7.2.3(2)(a).

11.3.13.9.17  (08-14-2013)
Automated Lien System

  1. If a request seeks information contained in the Automated Lien System (ALS) database for all liens in any given county or state, inform the requester that only BMF liens are subject to disclosure from the ALS and information pertaining to individuals is not available. If the request does not seek BMF data, inform the requester that the requested information is exempt from disclosure pursuant to FOIA exemptions (b)(6) and (b)(7)(C).

    Note:

    This subsection does not apply where a requester seeks his/her own information in the ALS data base. In response to a request for a taxpayer’s own records, conduct a search and process any records located.

  2. If the request seeks BMF data, transfer it to the Office of Disclosure FOIA & Program Operations following the procedures in IRM 11.3.13.5.13. That office will complete request processing using the following procedures.

  3. Send a formal request for an estimate of the cost for the ALS extract for the particular state(s) or other geographical area and any other parameters of the search to the attention of the Program Analyst for ALS.

  4. The ALS Program Analyst will provide to the Disclosure office within 1-2 weeks after receipt of the formal written request the extract and a summary of the costs if the FOIA request includes a commitment to pay sufficient to meet the estimated cost of the extract.

  5. If there is no commitment to pay, or the commitment is not sufficient to cover the estimated cost, the ALS Program Analyst will provide the cost estimate only, and not the extract itself. The ALS Program Analyst will create and provide the extract within two weeks of receipt of a formal commitment to pay the estimated cost.

    Note:

    Follow IRM 11.3.5 for guidance on fees pre-payment and cost estimate notification prior to releasing records.

11.3.13.9.18  (08-14-2013)
Requests for Pocket Commissions

  1. When processing requests for a copy of the memorandum submitted by managers for issuance of pocket commissions for specific employees, follow these guidelines:

    1. Provide the requester a copy of the memorandum submitted by managers for issuance of a pocket commission, or other records containing similar information. Do not provide records pertaining to employees in the sensitive positions identified by OPM (see IRM 11.3.13.9.11.1(4)) or in instances where the employee uses a pseudonym and the real name is identifiable.

      Note:

      In some instances there will be no records responsive to the request, since Security offices may not maintain the pocket commission request memorandums submitted by managers.

    2. Deny requests for copies of the actual pocket commission citing (b)(3) in conjunction with 18 USC § 701.

    3. Deny requests for the serial number shown on the pocket commissions citing (b)(2) and (b)(7)(E), since there is a potential to compromise the numbering system.

    4. Deny requests for the photo that would have accompanied the memorandum and the employee's real name, if using a pseudonym, under (b)(6).

    5. Deny requests for information pertaining to the pocket commissions of employees in the sensitive positions identified by OPM under (b)(6).

  2. For requests submitted in the form of a series of questions pertaining to the pocket commissions for specific employees, advise the requester that the response will deal with only those portions of the request that conform to the FOIA. Also advise that the FOIA does not require agencies to respond to questions. See IRM 10.2.6, Pocket Commissions, for more information relating to pocket commissions.

  3. Limit any information provided to the type of information available in the Public Information Listing. Therefore, generally, you may provide the name and title of the employee. See IRM 11.3.13.9.11.1(4).

11.3.13.9.19  (08-14-2013)
Undeliverable Refund Lists

  1. Undeliverable Refund Lists are available to the public under FOIA after being released by the IRS to the media under IRC § 6103(m)(1). The list need not have been published by the media.

  2. Direct requests for Undeliverable Refund Lists for the entire country to the Office of Disclosure FOIA & Program Operations for response.

  3. The Office of Disclosure FOIA & Program Operations will coordinate the release of the Undeliverable Refund List with Media Relations, which maintains the information on CD-ROM.

  4. Requests directed to local Disclosure offices for information pertaining to a specific geographical area, such as for a particular state, will be processed by field Disclosure offices.

11.3.13.9.20  (08-14-2013)
Electronic Return Originator Lists (EROs)

  1. A database listing businesses that participate in the IRS electronic filing program is available on IRS.gov at http://www.irs.gov/uac/Authorized-IRS-e-file-Provider-Locator-Service-For-Tax-Professionals. The listing includes the name, address, and telephone number of the business, the point of contact, and the type of service provided. Requesters can locate this information for providers of electronic services through:

    1. An interactive search engine that identifies and lists basic information for Electronic Return Originators (EROs), Transmitters, Software Developers, and Service Bureaus or by

    2. Downloading comma delimited text files by state for creating mailing lists.

  2. Carefully review FOIA requests seeking information relating to electronic filers to determine if these publicly available resources contain information responsive to the request. If the information on the site is responsive, provide the link to the requester and close the case as a "Routine Procedure" closure.

  3. If the request seeks electronic filer information that is not included on the website, such as the number and types of returns filed, that information may be available through the FOIA Reading Room. Refer to the Frequently Requested Documents section of the Electronic Reading Room at http://www.irs.gov/uac/Third-Party-Data-Store-TPDS-CD for instructions for requesting a CD copy of semi-annual extractions from the Third Party Data Store (TPDS) database, which contains more detailed information on electronic filers. The instructions will list the dates and prices of each extract.

  4. If you receive a request that seeks information about electronic filers that is not available through the site mentioned in (1) above, review the request to determine that it is a perfected FOIA request. If it is valid, transfer the request to the Office of Disclosure FOIA & Program Operations, following all procedures in IRM 11.3.13.5.13.

  5. If the request is not valid, refer the requester to the website mentioned in (3) above. Contact the Headquarters FOIA Reading Room Analyst if you need assistance with any request for electronic filer data received in a field office. The Reading Room Analyst can assist with determining the validity of the request and the category of requester.

  6. No FOIA exemption applies to a list of EROs who have been suspended within the past five years. The public's right to know outweighs any privacy interests of the ERO. However, do not release the specific reason for suspension.

11.3.13.9.21  (08-14-2013)
Possible Refund Scheme Requests

  1. In some situations, a taxpayer may file a FOIA/Privacy Act request for transcript information and use the transcript along with a Statement of Lifetime Earnings obtained from Social Security to file a false claim. Disclosure offices will provide the CI function with a list of FOIA requesters who make the following or a closely similar request: "a statement of all taxes paid, all penalties, all fines, all interest and all credits for any seizures and all deposits that have been credited in the files of your system of records for [name] SSN [x12-01-2003] since the first date of filing with the IRS on or about the year 1953 to the present date of this Privacy Act Request."

  2. When you receive this type of request, fax a copy to: Investigative Analyst, Ogden Fraud Detection Center. Find the fax number in "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site. Link to "Refund Schemes."

    Note:

    Referral to the Ogden Fraud Detection Center for possible refund scheme scrutiny must not affect the normal processing of the FOIA request. Provide the requester's tax information, as appropriate, regardless of the possible purpose behind the request.

11.3.13.9.22  (08-14-2013)
IRC § 6001 Requests

  1. Requests may seek a copy of the "notice from the District Director that I was required to keep books, records, and file return(s) as required by 26 USC § 6001 and 26 CFR §§ 1.6001-1(d) and § 31.6001-6," or similar wording.

  2. IRC § 6001 does not require issuance of such a notice, but the Secretary may serve notice requiring a person to make returns and keep records. A revenue agent may issue "Notices of Inadequate Books and Records," (L978 and L979), during a field audit after determining in a review of actual books and records that the records were insufficient to correctly record income and expenses.

  3. Notices to file returns do not exist, per se. There are computer-generated letters sent by campuses, but are not retrievable in most cases. These letters, which have a notice number, request that the taxpayer file a return. If the campus sends the case to the field (for Examination or Collection involvement), a copy of the notice may or may not be in the file.

  4. Field employees may also issue letters to a non-filer, e.g., L964(DO), copies of which should be in the case file.

  5. Do not close requests discussed in (1) above as imperfect simply because the IRS no longer has District Directors or because they do not clearly articulate the programs/procedures relating to IRC § 6001.

  6. Because some IRS offices kept files of Letter 978 and Letter 979 (Inadequate Records Notice), search files and IDRS for indications of a field examination for the years covered by the request. Files of notices issued may be found in the local Technical Support Unit (Examination and Return Selection PSP). If there is no evidence of a field audit, you may assume that there are no responsive records.

  7. If the search returns no responsive records, include the following language in the response letter:
    "IRC § 6001 does not require issuance of a notice by the District Director or any other IRS employee. IRC § 6001 merely states that the Secretary (or his delegate) may serve notice to require a person to make returns or keep records. If you received a notice that asks you to file a return or provide information about a tax year for which no return has been received, the notice was computer-generated. The IRS does not routinely maintain copies of such notices. At this time, we are unable to identify a document that meets the description in your letter. IRS employees sometimes issue letters that address issues related to IRC § 6001. If you have not filed tax returns for certain years, you may have received such a letter of inquiry. Or, if returns you filed were audited and actual books and records reviewed, the examiner may have issued a letter that states that your records are inadequate. If you received such a letter and you wish to obtain a duplicate of the file copy, please write again specifically requesting this information."

11.3.13.9.23  (08-14-2013)
Requests for the IRS EIN

  1. The Chief Financial Officer has given Governmental Liaison and Disclosure authority to release the IRS Employee Identification Number in response to a valid FOIA request.

  2. Secure the EIN used by the IRS on Form 1099 and Form W-2 where IRS is the payer from "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site. Link to "IRS EIN in Response to FOIA Request."

11.3.13.9.24  (08-14-2013)
Federal Witness Security Program Information

  1. Title 28 of the Code of Federal Regulations, § 0.111B, implements non-disclosure provisions of the Witness Security Program statute.

  2. Although records related to this area are rare, if a request specifically requests Federal Witness Security Program information or a search for records identifies Program information as responsive, you must contact the FOIA Senior Tax Law Specialist for further information and guidance. Resolution may require coordination with appropriate Department of Justice personnel.

11.3.13.9.25  (08-14-2013)
News Media Requests

  1. Disclosure personnel may receive requests from individuals stating they are affiliated with news media and seeking a fee waiver or reduction on that basis. The requester must establish his/her standing as a member of the media prior to a decision to grant a waiver or reduce fees.

  2. Historically, representatives of the news media include persons on the staff of established news media outlets, such as, but not limited to, radio or television stations, wire services, or periodicals of general circulation. The OPEN Government Act of 2007, amending section (a)(4)(A)(ii) of the FOIA, defines representatives of the media to include "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." The term "news" as defined by the Act means "information that is about current events or that would be of current interest to the public." The Act also addresses the evolution of news delivery methods and allows for consideration of alternative media as news media entities.

  3. The Courts have addressed this area and have defined "news media" as follows:

    1. A representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

    2. Information is commonly gathered by means of FOIA requests, papers declassified by the Government, interviews with, and private records of, present and former government officials, official statements, publications, and press releases, testimony before Congress, newspaper and periodical accounts of recent events, and reports by congressional committees and the Government Accountability Office.

    3. From documents gathered, the requester or entity exercises a significant degree of editorial discretion in deciding what records to use and how to organize them, creates a record, report, or publication, and distributes the resulting work to the public.

  4. Freelance journalists may be regarded as working for the news media, even though not actually employed by the media, if they can demonstrate a solid basis for expecting publication, such as a publication contract or by demonstrating a record of past publication.

  5. Representatives of narrowly focused publications such as house journals, trade journals, or organizational newsletters, which are not designed for ordinary circulation to the general public, are generally not considered news media for this purpose.

    Note:

    A request from NTEU will not usually qualify as a media request. NTEU's focus and constituency are the IRS bargaining unit employees, not the general public.

  6. Information vendors, data brokers, and other second-hand disseminators of documents, such as private libraries, private repositories, or those who act as information vendors or as agents of others who want access to government documents, do not qualify as news media for fee waiver purposes.

  7. Generally, all fees may be waived or reduced when disclosing information is likely to contribute significantly to public understanding of the operations or activities of the government and when it is not primarily in the commercial interests of the requester. See IRM 11.3.5.6.2.

    Note:

    A requester seeking a fee waiver based on being a representative of the news media must generally explain in the waiver request both an intention and a reasonably expected ability to disseminate the information to the public.

11.3.13.9.26  (08-14-2013)
Grand Jury Information

  1. A response to a FOIA search memorandum may include a statement from the function in control of the responsive records (usually CI) that all, or a portion, of the responsive records are grand jury information.

  2. Not all records relating to a grand jury investigation are considered grand jury information subject to secrecy under Rule 6(e) of the Federal Rules of Criminal Procedure (FRCrP).

  3. The following are generally considered grand jury information:

    • Exhibits to the Grand Jury, clearly labeled as Grand Jury information

    • Transcripts of Grand Jury testimony, or information revealing the substance of such transcripts

    • Information identifying Grand Jury witnesses

    • Information identifying Grand Jury jurors

    • Information revealing the direction, scope, or strategy of the Grand Jury investigation

    • Grand Jury subpoenas or search warrants, or information revealing the substance thereof

    • Information revealing the deliberations or questions of Grand Jury jurors

  4. The following are generally not considered grand jury information:

    • records obtained without use of the grand jury process and without mention of the existence of a grand jury

    • records obtained prior to the existence of the grand jury (e.g., tax returns, other return information developed by CI, Exam, or Collection prior to referral for a grand jury investigation)

    • records which exist independent of the grand jury (e.g., bank account records) the release of which would not reveal the inner workings of the grand jury

  5. If the function makes a determination that providing grand jury records to Disclosure will harm the investigation, the function with control over the records (usually CI) must prepare and provide to Disclosure staff, written attestation that the records are grand jury information. Include the attestation in the FOIA case file. The attestation must contain:

    1. Case agent name, title, telephone number

    2. Approximate volume of records (number of file cabinet drawers, boxes, etc.)

    3. Location of records

    4. Other contact person name, title, telephone number

    5. Assurance that the FOIA search request has been noted in the investigative file

    6. The signature of the Special Agent or Supervisory Special Agent (SSA)

    7. Concurrence from the Special Agent in Charge (SAC)

    Note:

    See IRM 9.3.1, Disclosure, and IRM 9.5.2, Grand Jury Investigations, for further information.

  6. Disclosure personnel will advise the requester that responsive records in an approximate volume have been determined to be grand jury information and as such are withheld under FOIA exemption (b)(3) in conjunction with grand jury secrecy provisions of FRCrP 6(e). Also cite exemptions such as (b)(7)(A) and (b)(3) in conjunction with IRC § 6103(e)(7), where appropriate.

    Note:

    In the rare circumstance where the Special Agent Report was generated during a grand jury investigation at the direction of the Assistant United States Attorney, consider FOIA exemption (b)(5) as well.

  7. The office (usually CI) making the determination that records are grand jury information is responsible for flagging the case file so that Appeals Officers and attorneys in the Office of the Associate Chief Counsel (Procedure and Administration) can analyze it in the event of an administrative appeal or litigation associated with the FOIA response. The office must retain the grand jury information in a way consistent with FOIA record retention requirements. The documentation described above must state that a complete copy of the withheld documents will be kept available and that the function will re-evaluate the records if the requester files an administrative appeal or judicial complaint in the FOIA matter. IRS must be able to identify any documents withheld. Therefore, it is imperative that the function clearly identify within its file which documents were withheld in response to the FOIA request, and that this identification be maintained for the life of the file. None of the withheld documents may be destroyed sooner than called for in the Records Control Schedule controlling FOIA records and case documents developed or received subsequent to the FOIA request must be distinguishable from documents withheld.

11.3.13.9.27  (08-14-2013)
Requests for Certified Copies of Records

  1. Many FOIA requests include language asking that Disclosure personnel provide certified copies of records found responsive or asking for a certification of lack of record for those items where we have a no records determination.

  2. The FOIA contains no provision requiring IRS to provide certified copies of documents. In response to a request for certification of any IRS records sought under the FOIA, advise the requester that the FOIA does not require certification of documents in response to a FOIA request. Advise that IRC § 6103(p)(2) only requires the provision of a certified copy of a return to a person authorized access to the return and that by completing a Form 4506, checking the box on line 6, enclosing the required fees, and submitting the Form to the appropriate address as shown in the instructions, IRS will provide a certified copy. Provide a blank Form 4506 with the response.

  3. Under no circumstances provide Document 3050, Certification of Lack of Record, when no responsive records are found. It is sufficient to state that no records were located, without providing a certification to that effect. If the requester seeks certification that a return was not filed, notify the requester that verification of non-filing may be obtained by submitting a Form 4506-T to the appropriate address as shown in the instructions. Provide a blank Form 4506-T with the response.

11.3.13.9.28  (08-14-2013)
Trusts

  1. You may receive FOIA requests for trust information (whether legitimate or abusive) from a person claiming to be a trustee or other qualified IRC § 6103(e) requester, but lacking documentation necessary to establish trustee relationship, such as copies of the trust instrument. See IRM 11.3.2.4.8. A requester's attestation of trusteeship or other status is not sufficient. Assuming that the incoming request is not imperfect for other reasons, you may conduct internal research to establish identity and right to access.

  2. Ordinarily, use IDRS to perform preliminary research for these types of requests.

    1. If there is open compliance activity, contact the compliance function. If the compliance function has established the requester's right of access (e.g., through the process of initiating and conducting Examination activity), then Disclosure personnel can rely on that determination.

    2. If there is open compliance activity, but compliance has made no determination or has specifically determined the requester has no right to access, then deem the FOIA request imperfect on identity grounds and advise the requester how to establish identity and right to access.

    3. If there is closed compliance activity, consult that function concerning identity and right to access.

    4. If there is no indication of compliance activity, but IDRS specifically lists the FOIA requester as an IRC § 6103(e) person (e.g., the trust entity module has the requester as trustee and the requester's address is the same as the trust's), you may make disclosures of the trust tax information consistent with regular FOIA processing requirements and exemptions.

  3. Ensure that you don’t take a different position from the compliance function in allowing IRC § 6103(e) access.

11.3.13.9.29  (08-14-2013)
Requests for Documents Associated with a Document Locator Number (DLN)

  1. Disclosure personnel frequently receive FOIA requests seeking access to documents associated with specific DLNs. Generally, these requests come in a series of letters, each asking for one or more DLNs listed on a transcript provided in response to a previous request.

    Note:

    Read and analyze each request carefully. If the request seeks documents "associated with" or "identified by" the DLN, or similar language, it is sufficient to retrieve the DLN from campus files or the Federal Records Center. However, if the wording of the request seeks “the documents that caused the DLN to be input” or uses similar language, you must analyze the transaction and possible underlying actions further to locate responsive documents.

  2. Consider any document associated with the requested DLN responsive to the request, including the Form 5147, IDRS Transaction Record. The Form 5147 is created when the underlying transaction is input, not when requesting a DLN.

  3. The underlying Forms 2848 and 8821 associated with TC 960 (Centralized Authorization File) are filed separately from tax returns. Always retrieve the actual form in response to a request seeking access to either the form by name or the documents associated with the TC 960 DLN. Depending on the wording of the request, you may also need to retrieve Form 5147. To retrieve Form 2848 or Form 8821, obtain a Source Document Locator Number (SDLN) and prepare and fax a Form 2275 to the Kansas City Consolidated Files Site (C-Site). Locate the fax number in "Record Retrieval Resources" under "Case Processing" on the Disclosure SharePoint site.

    Note:

    You may fax requests for fewer than 15 documents.

    1. Locate the SDLN by accessing the CFINK command code on IDRS under the requester’s SSN. The CFINK contains the SDLN.

    2. If the request seeks access to the documents associated with the DLN, retrieve Form 5147 from campus files or the Federal Records Center. Also request the underlying Form 2848 or Form 8821.

  4. The following DLNs have no paper or source documents. Do not retrieve any DLN that meets either description.

    1. Any DLN with a Julian Date (digits six, seven, and eight) of 367 through 400 or 767 and above, or;

    2. Any DLN with a series of repetitive numbers in digits six through thirteen (e.g., 29210-000-00000-X, or 49210-999-99999-X).

  5. It is extremely difficult to identify those transactions that, when input, do not generate a paper document. Therefore, retrieve every DLN that does not meet the description in (4) above.

  6. When you receive requested documents, review, edit, and release or withhold in accordance with IRM 11.3.13.7.

    Note:

    Always retrieve the Form 5147, even if denying access. Retain a copy in the case file for possible appeals and litigation.

  7. The following changes apply to TCs input on or after February 23, 2005.

    1. Forms 5147 generated as a result of a change to the account causing a new refile DLN or associated with source documents will continue printing, and Files will continue to pull the documents.

    2. Forms 5147 without source documents (NSD), including but not limited to document codes 17, 18, 24, 34, 48, 58, 63, 77, 87, will no longer print. Since there are no documents associated with these forms, Files will no longer process these requests. View these forms through the Control-D WebAccess. Print them, as they are considered responsive to the request.

11.3.13.9.30  (08-14-2013)
Requests for Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN)

  1. An ITIN is a nine-digit number issued by the IRS to individuals who need a taxpayer identification number for tax purposes, but who do not have, and are not eligible to obtain, an SSN. The FOIA requests generally include an ITIN and seek a copy of the Form W-7.

    Note:

    ITINs are return information and information pertaining to them can only be disclosed if the requirements of IRC § 6103(e) or (c) are met.

  2. Offices receiving a FOIA request for a Form W-7 or related information will research the ITIN database using the following command codes to determine the status of an application and/or obtain a DLN.

    • ITDLN - to access the database using the applicant’s name and date of birth (DOB)

    • ISIGNT - to access the database using the ITIN number

    • ITNSF - to access the database using the DLN

    Note:

    Contact the Unit Security Representative to add these command codes to an IDRS profile.

  3. Once you locate a DLN, you can retrieve the W-7 from campus files or the Federal Records Center using Form 2275. The DLN for a W-7 is identified by a File Location Code of 98 with a tax class document code of 296 (English) or 298 (Spanish).

  4. If the requester did not provide a DOB or an ITIN, use command code INOLE with a definer of S or X to research the DOB. If internal research does not locate a DOB, contact the requester by telephone to solicit the needed information. Make telephone contact only if a number was provided with the request or one is available on ENMOD. It is not necessary to do further research to locate a phone number. If you do not locate the DOB and no phone number is available, inform the requester that we cannot process the request without a complete name and DOB or an ITIN. Close the request as imperfect. You may use the following language: "We have received your request for Form W-7, Application for an Individual Taxpayer Identification Number. Please be advised that a W-7 is for use by individuals who are required to have a taxpayer identification number but who do not have, and are not eligible to obtain, an SSN. If the Social Security Administration assigned you an SSN, you are not eligible for an ITIN, and it is unlikely that there are records responsive to your request. However, we are unable to confirm this fact unless we receive either your date of birth or the ITIN number if one was issued. We will reconsider your request upon receipt of this information."

    Note:

    Requests may include such language as, "Send requester an explanation of just how an "Account" with the IRS was established in the first place as is referenced by IRS correspondence as to being in existence…" Address this portion of the request by notifying the requester that the FOIA does not require agencies to conduct research or respond to interrogatories.

11.3.13.9.31  (08-14-2013)
Requests for Third Party Contact Information

  1. IRC § 7602(c) requires IRS employees to document certain third party contacts. Employees use Form 12175, Third Party Contact Report Form, to document these contacts.

  2. In response to FOIA requests for Form 12175, neither confirm nor deny the existence of the form (Glomar response) in situations where:

    1. There has been a reprisal determination made with respect to the third party named in the form.

    2. There is no responsive record.

    3. It has been determined that disclosure would jeopardize the collection of any tax (but only so long as the jeopardy situation continues).

  3. Assert FOIA exemptions (b)(3) in conjunction with IRC § 6103 (e)(7), (b)(7)(A) (where applicable), and (b)(7)(C) as the exemptions underlying the Glomar response.

  4. You may provide the Form 12175 in situations where none of the above criteria apply.

    Note:

    Forms 12175 are maintained in two different Privacy Act systems of records: non-reprisal (00.333) and reprisal (00.334). System of records 00.334 is exempt from the access provisions of the Privacy Act.

    Note:

    There is a separate process for taxpayers to obtain a list of third parties contacted with respect to them. Requesters seeking the list should be directed to this process.

11.3.13.9.32  (08-14-2013)
FedState Agreements

  1. Copies of FedState agreements are generally available to the public under the FOIA. However, withhold from disclosure those portions of implementing agreements or Memorandums of Understanding (MOUs) which contain tolerance and criteria information using FOIA exemption (b)(7)(E), as described in IRM Exhibit 10.2.15-2, Protectable Items.

  2. U.S. Possession Agreements (e.g., Tax Information Agreements, Tax Coordination Agreements, and MOUs) are considered Tax Conventions within the meaning of IRC § 6105 and can only be disclosed consistent with that statute. Usually these agreements will be exempt under FOIA exemption (b)(3) cited in conjunction with IRC § 6105. Other FOIA exemptions, such as (b)(7)(E) may also apply. Coordinate any FOIA request seeking copies of these Possession agreements with the Jacksonville Disclosure Office.

  3. Coordinate with state agencies any responses to FOIA requests for copies of reports prepared by state agencies (including Safeguard Activity and Procedures Reports), by IRS following a review of a state agency (under IRC § 6103(p)(4)), or by IRS (under IRC § 6103(p)(5)). These reports often focus on sensitive processes and systems and may expose vulnerabilities. As such, the information may be protected at the request of state officials pursuant to FOIA exemption (b)(7)(E).

11.3.13.9.33  (08-14-2013)
Requests for Copies of Information Provided to State Tax Agencies

  1. FOIA requests for access to documents provided by the IRS to state tax agencies may seek records provided through:

    • a specific request from a state employee

    • an implementing agreement

    • the tape extract program

  2. The requests may also seek other records associated with the exchange of information with state agencies, for example accountings for disclosure (including requests for Form 5466-B, Multiple Record of Disclosure) and any request for IRS records made by the state agency. Many of the requests go on to ask, "if said information was disclosed on computer tape, please print said information on hard copy."

  3. Prior to the release of any information to the requester, or confirmation that information was released, contact the agency liaison to determine whether release of any information not part of the Governmental Liaison Data Exchange Program (GLDEP) would impair any ongoing compliance activity. If the state representative indicates the release would harm state tax administration and can articulate that harm, withhold the information citing FOIA exemptions (b)(7)(A) and (b)(3) in conjunction with IRC § 6103(e)(7).

  4. Consider releasing the following information, after evaluating the state agency's response:

    1. Information provided to the state pursuant to a specific request. Include Disclosure inventory management system records in the search.

    2. Documents routinely provided to the state under an implementing agreement (e.g., revenue agent reports (RARs)). Download and consider responsive Examination Operational Automation Database (EOAD) data if maintained by Disclosure staff, rather than retrieving RARs from files.

    3. Records such as Form 5466-B or the letter from the state requesting information.

    Note:

    The Privacy Act specifically excludes records released to state agencies pursuant to IRC § 6103(d) from the requirement to make accountings available upon request of the individual named in the record. However, give consideration to the release of accounting records pursuant to a request under the FOIA.

    Note:

    Return information provided to state tax agencies is covered by IRC § 6103. A FOIA requester can receive only his or her own return information unless a proper disclosure consent is in effect.

  5. In response to requests for information disclosed "on computer tape" that can be read as seeking access to information exchanged through tape extract programs, provide the requester with transcripts, including MFTRA, IRP documents, PATRA transcripts, and any other computerized records that include the data that would have been included on extracts covered by the request. Provide these documents using the following language: "A request for all records released to [name of state] through the tape extract program is overly broad. The IRS routinely participates in the exchange of information with [name of state]. The data routinely exchanged via these extracts is voluminous and the IRS does not maintain specific taxpayer records of the information. Enclosed are IRS Agency records that contain the information that would generally be responsive to your request. These documents substantially reflect the information that would have been provided to the state through the tape extract program based on the information you provided."

    Note:

    The IRS is in the process of moving from tapes to secure electronic transmission of this data. Read any FOIA request for "computer tapes" to include electronic transmission.

  6. Be aware that the IRC § 6103(d) extract tapes themselves (both inquiry tapes from other agencies and response tapes generated by IRS) are not IRS agency records and are therefore not subject to the FOIA. If a requester explicitly seeks the "data from the extract" (distinct from "data provided," ) advise that the record requested "is not an agency record and is not subject to disclosure pursuant to the FOIA." Similarly, in any electronic data request program, the electronic requests are not IRS agency records. This is true regardless of IRS retention for brief time periods for purposes of disaster recovery or tape recreation. The electronic response is an agency record only if a copy is retained for disclosure accounting purposes under IRC § 6103(p)(3).

11.3.13.9.34  (08-14-2013)
Requests for Lottery Information

  1. If you receive a FOIA request for information regarding lottery winners, use the following language: "You asked for copies of any and all documents related to court and administrative judgments for lottery winners who have brought suit against the IRS, and any and all documents concerning the appeal of a previous judgment pertaining to the taxation of their winnings. You also asked for copies of any and all court orders regarding judgments from lottery winners or their heirs for the period 1986 to the present. One of the FOIA’s requirements is that requesters reasonably describe the records they are seeking. The content of your request is so broadly based that we are unable to specifically identify any releasable records that can be made available to you. To the extent that your request would require us to conduct legal research on your behalf, please be advised that the FOIA does not require agencies to conduct such research. Based on the description of the records you seek, you might locate information in publicly available case decisions. Generally, you may research these at public libraries or law libraries. There are also a number of commercial research services that allow users to search case law or decisions associated with specific topics. You may wish to make use of these resources. If any of the requested records exist in Internal Revenue Service taxpayer files, they are the return information of the taxpayer(s) to whom they pertain. These records are protected by the confidentiality provisions of Internal Revenue Code § 6103 and may be disclosed to you only with the authorization of the taxpayer(s) whose information is to be disclosed. Because you have not provided the required authorizations, we cannot disclose any responsive records that may exist, and we are closing our case file."

  2. Close these cases as imperfect because the requester did not reasonably describe the records.

11.3.13.9.35  (08-14-2013)
Requests for Offshore Credit Card Project (OCCP) Files

  1. You may receive requests for access to the data contained in OCCP databases for either general inspection, to study the data, or to determine if the name of the requester or a client of the requester appears in the data. The information in the OCCP databases pertains to live credit cards.

  2. Transfer requests for information from the OCCP database to the Office of Disclosure FOIA & Program Operations for processing.

  3. The Deputy Director, Compliance Policy, has determined that disclosure of data contained in the OCCP database would seriously impair tax administration within the meaning of IRC § 6103(e)(7) and would interfere with enforcement proceedings within the meaning of FOIA exemption (b)(7)(A).

  4. Based on this determination, deny the following requests, citing FOIA exemption (b)(3) in conjunction with IRC § 6103(a) and/or (e)(7) and FOIA exemption (b)(7)(A) and/or (b)(7)(C):

    • a request for data that does not pertain to the requester or the requester’s client

    • a request asking whether the subject taxpayer’s name appears in the data

    • a request seeking copies of any transactional credit card records pertaining to the subject taxpayer

  5. The individual examiners in coordination with the local Disclosure Managers will consider requests from specific taxpayers for credit card data that has been placed in their individual case files on a case-by-case basis. Work closely with the case agent and manager to ensure that any information released will not impair tax administration or violate personal privacy.

  6. An OCCP case file may have unique considerations when processing a FOIA request.

    1. The file may contain ChoicePoint/Accurint (or similar) information pertaining to more than one individual with the same name as that on the credit card. Agents doing the research often leave all such information in the file so that the case agent can see the process used to identify the taxpayer. Deny any ChoicePoint/Accurint (or similar) information not directly pertaining to the taxpayer in accordance with the guidelines in IRM 11.3.13.9.16.

    2. You may disclose ChoicePoint/Accurint (or similar) information on the taxpayer involved in the case to that taxpayer at any time, unless the case agent has a justifiable reason for temporarily withholding it. Work closely with the case agent and manager, although it is rare that disclosure of this information would harm the case.

11.3.13.9.36  (08-14-2013)
Requests for Centralized Authorization File (CAF) Extracts

  1. Transfer requests from individuals representing taxpayers before the IRS seeking access to all information regarding themselves from the CAF to the Office of Disclosure FOIA & Program Operations for response. A sample request is available in the FOIA Guide on the FOIA page at http://www.irs.gov/uac/IRS-Freedom-of-Information clicking on the "CAF Client Listing Request link."

11.3.13.9.37  (08-14-2013)
Preparer Tax Identification Numbers (PTINs)

  1. A PTIN is not return information as defined in IRC § 6103(b), nor is Form W-12, IRS Paid Preparer Tax Identification Number (PTIN) Application, a return within the meaning of IRC § 6103.

  2. A listing including the following PTIN information is available through the FOIA Reading Room by request:

    • PTIN holder name

    • Business name

    • Business mailing address

    • Business phone number

    • Business Website address

    • Email address

    • Professional credentials

    Refer to the Frequently Requested Documents section of the Electronic Reading Room at http://www.irs.gov/uac/Return-Preparer-PTIN-Listing. Transfer requests for this listing to the Reading Room following the guidelines in IRM 11.3.13.5.13.

  3. The Office of Disclosure FOIA & Program Operations processes PTIN requests seeking information beyond what is available on the Reading Room listing.

11.3.13.9.38  (08-14-2013)
Requests for Taxpayer Recordings Made in the Contact Recording Process

  1. The IRS has implemented Contact Recording (CR) in all toll-free sites. CR is an automated system that records interactions between the customer and telephone assistors.

  2. The taxpayer does not have Privacy Act access to any CR recordings because any voice or data capture made under CR is not retained by taxpayer identifier. Rather, it is kept under the recorded employee's unique identifier for as long as it is needed, prior to transcription and use in the evaluation and feedback process.

  3. However, if the taxpayer makes a timely and processible FOIA request, the IRS will attempt to locate and provide the recording. The responsive document(s) will generally include the entire recording pertaining to the taxpayer’s contact with the employee. If the recording includes an interchange between the assistor and his/her manager or some other IRS employee, Disclosure personnel must review those portions of the recording and assert applicable FOIA exemptions as appropriate.

    Caution:

    CRs are Privacy Act records of the employee. When processing a FOIA request from an employee seeking a copy of a CR, Disclosure employees must consider FOIA exemptions (b)(6) and (b)(7)(C).

  4. Depending on the language of the request, the responsive documents might also include printouts of any captured computer data that correspond to the resolution of the recorded contact. Review all responsive documents to consider withholding portions under applicable FOIA exemptions.

  5. A FOIA request may seek "any recordings that might have been made on me during my contacts with Customer Service" (or some similar wording). Because customer call center inquiries route nationwide, the FOIA request must include specific information to facilitate a search. The request must provide the information listed below. Without it, a search will be unsuccessful, and the FOIA request will be rejected as imperfect.

    1. The date of the call.

    2. The approximate time of day of the call.

    3. Specific identifying information that was provided during the call that will allow IRS to find and associate the call with the requester (name, address, TIN, etc.).

    4. The identity of the assisting IRS employee (name, identification number or both).

  6. The retention period for CR recordings may be as little as 7 days and as long as 45 days. Offices retain a small number of recordings longer for various purposes, such as to resolve a dispute between the manager and employee, for example. Therefore, there are no time frame limitations on the filing of such requests.

  7. The receiving Disclosure office will validate the request and determine whether all needed information is present.

  8. The assigned employee will submit Form 13817, Request for Downloaded Contact, to the Business Application Administrator (BAA) assigned to the employee’s call site. Disclosure personnel will locate the correct call site through research on Discovery Directory and Outlook. See Record Retrieval Resources in Case Processing on the Disclosure SharePoint site for the names and contact information of the BAA’s. IRM 1.4.21.1.2.5 has additional information on FOIA requests for contact recordings. The responsive document for a contact recording is an audio CD. Prior to release, the assigned Disclosure employee will determine what, if anything, to withhold in accordance with applicable FOIA exemptions. If withholding anything, see the job aid entitled Import Audio Files on the AFOIA SharePoint site for instructions to produce a redacted version of the CD.

  9. Because the retention period can be as little as 7 days, follow FOIA case processing time frames strictly. Work cases as quickly as possible to minimize the chance of data destruction.

  10. Bill for fees under the fee provisions of the FOIA. It is unlikely that costs incurred for search and providing a tape recording will rise above the tolerance level for fees. See IRM 11.3.5, Fees.

    Caution:

    Because CR recordings are Privacy Act records of the employee, you must process any request from an IRS employee seeking that employee’s CR records under both the Privacy Act and the FOIA. Withhold return information of any taxpayer included in the recording in accordance with IRC § 6103(a) as third party return information.

11.3.13.9.39  (08-14-2013)
Whistleblower Office Records

  1. Whistleblower Office records, such as Form 211, Form 11369, and related records, are records compiled for law enforcement purposes and consist, in whole or in part, of return information of the subject taxpayer. To the extent these records were not obtained or created by the IRS with respect to a return of the whistleblower or the determination of the whistleblower’s liability under Title 26, these records are not the return information of the whistleblower.

  2. The Office of Disclosure FOIA & Program Operations will process all requests for Whistleblower records. Upon receipt of the request, contact the Whistleblower Office to confirm the identity of the whistleblower and to obtain a complete copy of all responsive records.

  3. If the FOIA requester is the whistleblower:

    1. provide copies of the original documents the whistleblower provided to the Service as well as any documents obtained or created by the IRS with respect to a return of the whistleblower or the determination of the whistleblower’s liability under Title 26 as a result of his whistleblower claim (e.g., any withholding computations performed with respect to the whistleblower’s award), and

    2. refuse to confirm or deny the existence of any other responsive documents. State that any other responsive documents that may exist are exempt from release under FOIA exemption (b)(3) in conjunction with IRC § 6103(a), and exemptions (b)(5), (b)(6), (b)(7)(A), and (b)(7)(C) (if applicable).

  4. If the request comes from anyone other than the whistleblower (including the subject taxpayer), refuse to confirm or deny the existence of any responsive documents. State that any responsive documents that may exist are exempt from release under FOIA exemption (b)(3) in conjunction with IRC § 6103(a), and exemptions (b)(5), (b)(6), (b)(7)(A), and (b)(7)(C) (if applicable).

11.3.13.10  (08-14-2013)
Annual FOIA Report

  1. The FOIA requires all federal agencies to file a report each year on or before February 1 with the Department of Justice detailing the agency’s administration of the FOIA for the prior fiscal year.

  2. The report is required by 5 USC § 552(e)(1), and must be made electronically available to the public on the internet. The IRS annual report is available beginning with fiscal year 1998 on the IRS Electronic Reading Room at http://www.irs.gov/uac/Electronic-Reading-Room. Reports for the years 1981 through 1997 are available from the Reading Room.

11.3.13.10.1  (08-14-2013)
Report Submission

  1. The report captures statistical data concerning FOIA and Privacy Act requests, administrative appeals, and litigation processed by the IRS and follows the Department of Justice Guidelines.

  2. The report is prepared by the Director, Governmental Liaison and Disclosure, using data from the inventory management system as of September 30. It reflects the cumulative activity for the fiscal year using national totals for cases logged. Upon completion, the report is transmitted to Department of Treasury.

11.3.13.10.2  (08-14-2013)
Data Capture

  1. The FOIA inventory management system provides the statistical information required for the report.

  2. Case data entered on the inventory management system is the basis for the report. Data is captured as cases are received and closed. Ensure that you provide complete and accurate information when processing and closing cases.

  3. Log all incoming requests in a timely manner and document all required case actions to ensure accurate data for the report.

  4. All FOIA (and PA) requests require an entry capturing how the case was closed (e.g. grant, full or partial denial, imperfect, etc.). If withholding records, cite the statutory FOIA exemptions and note the supporting statute(s) when asserting the (b)(3) exemption.

  5. Input fees billed and payments received as they are processed to ensure timely and accurate reporting.

  6. Capture all case time applied by IRS functions. Enter time applied by employees in other functions assisting in searching for and reviewing records and Disclosure personnel case time as the case is worked. This information is used to calculate the agency's total cost for FOIA processing.

  7. The OPEN Government Act of 2007 made significant changes to the data captured for the annual report. It is critical that all data reported to Congress annually be captured in the inventory management system. The report includes but is not limited to:

    • the number of initial request cases received, processed, and outstanding at the end of the year

    • all exemptions cited, and all statutes relied upon

    • statistical data concerning the time it takes to process requests for access and appeals

    • a list of the ten oldest requests that are pending at the end of the fiscal year

11.3.13.10.3  (08-14-2013)
Cost Data

  1. To comply with statutory reporting requirements, Disclosure Managers will ensure that all time devoted to FOIA requests by both Disclosure and non-Disclosure personnel is captured and reported by function on each case worked. All offices shall prescribe appropriate reporting procedures to capture FOIA case related time for functional and Disclosure personnel.

  2. Do not attempt to capture clerical employee time on FOIA cases. For the purposes of this report, time applied for any activities completed by clerical personnel would not be captured, but all time completed by a technical employee would be captured.

  3. FOIA costs are computed from the hours applied by Disclosure and by employees in other functions. The total hours applied are used to compute the number of staff years. Costs are then calculated using the IRS standard cost factor per staff year, which includes salary, benefits, equipment, rent, supplies, and other costs.

11.3.13.11  (08-14-2013)
Citing Supporting Statutes

  1. The annual report requires a description of every statute relied upon to withhold records and whether courts have upheld the use of the statute. The electronic inventory system provides a list of the commonly used statutes.

    Note:

    See IRM 11.3.13.7.2.3(2) for a list of the most common supporting statutes.

  2. The electronic inventory system limits caseworkers to a list of supporting statutes used previously in IRS FOIA processing that the system provides in a drop-down menu. Contact the FOIA Senior Tax Law Specialist if you propose invoking a statute not on the list. Never use the Privacy Act as a supporting statute for the (b)(3) exemption.

11.3.13.12  (08-14-2013)
Annual TIGTA Review

  1. RRA 98 established a requirement for TIGTA to conduct periodic audits of a statistically valid sample of the total number of denials (full and partial) of requests pursuant to the FOIA and IRC § 6103.

  2. The data used for the sample will be accumulated from the inventory management system database for all offices. To ensure timely and accurate reporting to TIGTA, offices must maintain the information concurrently with the processing of the cases.

  3. Management must emphasize the importance of maintaining accurate data.

Exhibit 11.3.13-1 
IDRS Research Guidelines

For a FOIA request NOT involving tax files: IDRS Research is optional but IMFOLI gives a quick overview.

IDRS RESEARCH TO DOCUMENT ADEQUATE SEARCH
For each FOIA request involving tax files
Minimum Required
Recommended
INOLE & INOLEX
SUMRY + N - for Non Master File (NMF)
Minimum Required
Recommended
IMFOLI
IMFOLB - to restore retention modules to the master file
Minimum Required
Recommended
IMFOLT for any year covered in the request
AMDIS OR AMDISA for Exam Files
Minimum Required
Recommended
SUMRY
UNLCER for Trust Fund Recovery files
Minimum Required
Recommended
ENMOD
TDINQ for Collection files

If there is an "R" to the left of years noted in IMFOLI, the account has gone to retention. The account can be retrieved by using IMFOLT to request that period. This will eliminate the delay of waiting for the receipt of microfilm on years recently moved to retention.

If the outcome of the above indicates a need for further research, the following IDRS Command Codes may be used to locate records and documents:

Collection Files

Use TDINQ or review transcripts for Collection Status Codes or transaction codes.

Example: Status 53 or TC 530 indicates a "Currently Not Collectible" file exists in the office corresponding to the Document Locator Number (DLN) of the TC 530; TC 140 indicates a TDI file.

See Document 6209, Chapter 8, for Collection Status Codes.

Trust Fund Recovery Penalty Files can be located by identifying MFT 55 on IMFOLI, then reading the IMFOLT specific transcript to check for a closing code of 618 pertaining to the TC 240. The DLN of the TC 240 will indicate where the penalty was assessed. Another method is to pull up UNLCER for either the EIN of the company or the SSN of the Officer.

Examination Files

Command Code AMDIS or AMDISA will show if a particular tax year is under examination. AIMS status code 12 indicates an open audit. TC 420 series indicates exam activity. TC 922 indicates IRP activity. The closing code will identify those with exams. TC's 976 and 977 indicate duplicate returns. To determine whether there has been any other exam activity, reference Document 6209, Chapter 12 for additional exam codes.

Criminal Investigation Files

TC in the 900 series, AIMS Status 17, or a "Z" freeze indicates CID activity. Due to the expanded role CID is taking in various compliance activities, that division should also be searched for activity not reflected on IDRS.

See IRM 11.3.13.9.4.1 regarding the redaction procedures for TC 900 series located on transcripts.

Taxpayer Advocate Files

Control history notes on TXMODA or assignment codes on ENMOD could indicate Taxpayer Advocate activity. The 10-digit assignment code indicating Taxpayer Advocate activity begins with a 2-digit office number, followed by a 3-digit number between 980-989. The Taxpayer Advocate Service Intake Analyst can also be contacted for information on open or closed cases, including Congressional cases.

Exhibit 11.3.13-2 
FOIA AND TITLE 26 CASES WITH CTRs OR DATA EXTRACTED FROM CTRs

Type of Data Used in Tax Case? Will Release Impair? Release? /Cite
CTR (actual return/report)* No Do not have to consider impairment since not used in case No - FOIA (b)(3) with 31 USC § 5319
CTR (actual return/report)* Yes Yes No - if FOIA, use (b)(3) with 6103(e)(7) and (b)(7)(A); if not FOIA, use IRC § 6103(e)(7)
CTR (actual return/report)* Yes No No - FOIA (b)(3) with 31 USC § 5319
Data extracted from CTR** No Do not have to consider impairment since not used in case No - FOIA (b)(3) with 31 USC § 5319
Data extracted from CTR** Yes Yes No - if FOIA, use (b)(3) with 6103(e)(7) and (b)(7)(A); if not FOIA, use 6103(e)(7)
Data extracted from CTR** Yes No Release

* The term CTR includes the documents listed in IRM 11.3.13.7.6(1).

** Examples (not all inclusive) of data extracted from a CTR could be IRMF/IRP transcripts that include CTR data and/or data taken from the CTR and included in a history note or the RAR.

Note:

If TP does not invoke FOIA during ongoing tax enforcement proceedings, the case agent may disclose investigatory material, including reports under Title 31 or information extracted from these reports, unless a 6103(e)(7) impairment call is made.

Exhibit 11.3.13-3 
Procedures for Processing Requests for 23C/RACS 006

Receiving offices will process all requests for 23C/RACS006 in the same manner. This procedure addresses 23C/RACS006 requests only. The chart below shows what you must provide based on the wording in the request:

RECORD(S) REQUESTED RACS 006 from appropriate Campus TDS Account Transcript Conduct NMF Research Other Important Considerations
23C Document x x x If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS 006
Summary Record of Assessment (SRA) X X X If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS 006
23C, RACS 006, SRA, etc. with supporting document X X X If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS 006
Section 6203 Information   x X If NMF assessment is located, a user friendly transcript* must be provided Do not send 23C/RACS 006
All Supporting Documents   X x Explain details of 23C/RACS 006. If NMF assessment is located, a user friendly transcript* must be provided. Do NOT send 23C/RACS 006.
23C, RACS 006, SRA specific to me, pertaining to me or my SSN   X X Explain details of 23C/RACS 006. If NMF assessment is located, a user friendly transcript* must be provided. Do NOT send 23C/RACS 006.
Does Not Want: RACS 006, phony documents, etc.   X X If NMF assessment is located, a user friendly transcript* must be provided (do not send 23C/RACS 006)

* An NMF "user friendly transcript" is available through ANMF.

Note:

Form 23C/RACS 006 Reports need to be provided for all assessments on each tax year. This includes tax, interest, penalties, lien fees, etc., not just tax assessments. Any assessment without a money amount will not have an associated Form 23C/RACS 006 Report.

:

Exhibit 11.3.13-4 
Public Information Listing

The current "PUBLIC INFORMATION LISTING" reflects the last nature of action(s) processed for the pay period closed out and is located in the “Downloads” portion of the HRRC website https://persinfo.web.irs.gov/. Access is limited to Disclosure Specialists and requires a password. Find specific instructions for accessing the database in Record Retrieval Resources under Case Processing on the Disclosure SharePoint site. The current PIL information is in the form of an EXCEL file and separated by state for all IRS employees except employees with a pseudonym or those in a protected occupational series. The following are the data elements available:

  • Name

  • Title

  • Grade

  • Salary

  • Series

  • Pay Plan

  • Post of Duty

  • Position Description Number

The Historical PIL and Award Listing is unavailable for download from the HRRC website and must be requested via secure messaging through the HRRS, External Systems and Data Security Team.

PROCEDURE:

(1) Request local or national historical PIL & Award information by secure email to the HRRS, External Systems and Data Security Team. Your request must contain at least three of the four identifiable data elements below:

  • Social Security Number (SSN)

  • Last Name, First Name, Middle Name; if no middle name, indicate (NMN)

  • SEID

  • Duty Station/Location

(2) These are the response times for local or national historical PIL & Awards information requests for employees in non-sensitive positions and employees who do not have a pseudonym, assuming the request includes all required information:

  1. minimum response time for local or national historical PIL requests is 2– 3 workdays;

  2. maximum response time for local or national historical PIL requests is 5–7 workdays;

  3. HRRS reserves the right to increase or decrease the minimum or maximum response time.

(3) The Historical PIL includes the following information:

  • Name

  • Title

  • Grade

  • Salary

  • Series

  • Pay Plan

  • Post of Duty (POD)

  • Position Description Number

(4) FOIA/PIL requests for former employees will be processed by the HRRS External Systems and Data Security Team. HRRS will provide information directly to the requesting Disclosure Office which is responsible for determining the extent to which the information will be disclosed.


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