11.3.13  Freedom of Information Act

Manual Transmittal

August 14, 2013

Purpose

(1) This transmits revised text for IRM 11.3.13, Communications and Liaison, Disclosure of Official Information, Freedom of Information Act (FOIA).

Material Changes

(1) Editorial changes are made throughout to update IRM/statute/organizational references, web sites, mailing addresses, and to clarify guidance.

(2) Changed references pertaining to transfers of headquarters requests to the Baltimore Disclosure Office. The Office of Disclosure FOIA & Program Operations now processes all requests for headquarters records. References are changed to the Jacksonville Disclosure Office when International issues are involved.

(3) Removed references to potential Treasury changes from OUO to SBU for designations because guidelines have been issued. Referenced OUO or SBU instead of OUO throughout IRM 11.3.13.

(4) Added new text referencing the OPEN Government Act of 2007 in IRM 11.3.13.1 and throughout the IRM.

(5) Updated various sections of IRM 11.3.13 to reflect the Attorney General's FOIA policy directive dated March 19, 2009.

(6) Included Accurint along with ChoicePoint as one of the information services typically used by compliance employees for case research in various sections throughout the IRM.

(7) Revised IRM 11.3.13.2(7) to require a sensitive case report and coordination with the Office of Communications and Liaison for news media requests.

(8) Revised IRM 11.3.13.3(2) and (3) by adding a note to clarify case assignment practices involving compliance, Appeals or Counsel records. Cases are no longer routinely assigned based on geographical or local jurisdiction, but coordination with local offices where the records reside may be required.

(9) Revised IRM 11.3.13.3.1(1) to better define the responsibilities of the Disclosure Manager in implementing and overseeing the FOIA program, including their role managing case inquiries and disputes as the FOIA Public Liaison. Removed all references in IRM 11.3.13.1 and throughout the IRM to the use of Functional Coordinators or other staff to work cases and clarified their role as functional contacts to assist in record searches, the creation of indexes, and record interpretation. Deleted references to delegation authority for remotely located employees to withhold records. Electronic inventory removes the need for delegated authority.

(10) Revised IRM 11.3.13.3.2 to remove references to Functional Coordinators because there are no formal FOIA Functional Coordinator support positions in the Service. Also changed the title of the subsection to reflect this change.

(11) Clarified IRM 11.3.13.3.3 to indicate there may be other sections of this IRM that identify FOIA requests requiring transfer to or control by the Office of Disclosure FOIA & Program Operations. IRM 11.3.13.3 has also been renamed from Unique FOIA Aspects to FOIA Requests Requiring Deputy Associate Director, Disclosure Involvement.

(12) Revised IRM 11.3.13.4.1 to clarify the processing steps for receipt and control of new FOIA requests and to emphasize the importance of correcting any misclassified FOIA requests.

(13) Revised IRM 11.3.13.5, Initial Analysis of FOIA Request, to establish the validity of digital signatures for FOIA requests for records other than tax or personnel records. Noted that the current electronic inventory system will make the need for case transfers rare and that all transfers will require managerial approval. Also indicated that under the OPEN Government Act agencies have 10 business days to transfer a request to the correct FOIA office after which the statutory response time for the request begins. Added a caution to caseworkers to analyze consent documentation carefully to ensure authorizations cover requested records. Addressed Chief Counsel Notice 2010–8 extending the waiver or consent receipt requirement from 60 days to 120 days from the taxpayer signature date. Also revised to indicate that a print from the Centralized Authorization File (CAF) showing a Form 2848 on file for the years covered by the request is an acceptable alternative to having the actual form in hand.

(14) Added a new section IRM 11.3.13.5.1, Substitution of Representative, and renumbered the sections following.

(15) Added clarifying language to IRM 11.3.13.5.2 to indicate prior requests are researchable in electronic form on our electronic case management system to help in situations where identity information may not be present in a request.

(16) Expanded IRM 11.3.13.5.3 to add information about transferring records to a government contractor for records management purposes.

(17) Clarified IRM 11.3.13.5.4(5) to indicate requests for access to records involving the Joint Committee on Taxation will be transferred to the Office of Disclosure FOIA and Program Operations for control and response to the FOIA request.

(18) Revised references to procedures used with the former case processing system and all references to the pattern letters workbook in IRM 11.3.13.5.5.

(19) Revised IRM 11.3.13.5.6 to remove references to case assignments to offices with jurisdiction over the records and to remove the requirement for letters addressed to requesters submitting duplicate requests to inform the requester of the address of the office which will be responsible for handling future requests. With the movement to the centralized case assignment process, these requirements have changed.

(20) Added a note to IRM 11.3.13.5.7(1) that addresses changes the OPEN Government Act made to calculate due dates when FOIA cases are transferred to other Treasury components, provides time frames for processing such requests, and states that it is the Disclosure Manager's responsibility to ensure the transfer is timely.

(21) Revised IRM 11.3.13.5.10 to clarify processing requirements under the new electronic inventory system.

(22) Revised IRM 11.3.13.5.11(11) to reflect an updated address for the Ogden Campus Frivolous Return Program.

(23) Revised IRM 11.3.13.5.13 to add clarity to the transfer procedures and to incorporate changes to this process as a result of the movement to centralized case control. Deleted references to letters requiring notification to requesters to send future requests to the office that would normally service that person’s geographical location due to these new procedures. Added guidance on the treatment of requester rebuttals to prior responses.

(24) Revised IRM 11.3.13.5.14(1) to delete the reference to the use of closing code “R” for Routine Agency Procedures. With the movement to the new inventory system, that option no longer exists.

(25) Inserted a new paragraph in IRM 11.3.13.6.2(9) to incorporate guidance about duplicate documents found when reviewing files in response to FOIA requests and renumbered the sections following.

(26) Revised IRM 11.3.13.6.3 to delete references to Functional Coordinators, which are no longer used, and clarified to include the use of functional contacts, that may assist in the search for responsive records. Deleted references to the Pattern Letter Book, which is no longer in use with the conversion to the new case processing system. Added additional guidance about information to include in a search memo. Indicated that because the inventory system contains imaged copies of the records retrieved as documentation for the search effort and the responsive records for possible appeal or adjudication, it's not always necessary to retain a separate paper file.

(27) Added guidance in IRM 11.3.13.7.2.2 to address changes in the application of exemption (b)(2) as a result of a Supreme Court case Milner v. Dep't of the Navy, 131 S. Ct. 1259 (U.S. Mar. 7, 2011) (Kagan, J.) There is no longer a “high (b)(2)” and exemption (b)(2) is applied exclusively to agency personnel rules and practices. Revised the discussion about withholding conference call information.

(28) Expanded guidance in IRM 11.3.13.7.2.3 to document in the case notes the use of a statute other than 26 United States Code (USC) § 6103 to support the (b)(3) exemption.

(29) Revised IRM 11.3.13.7.2.7.1(3) to clarify situations where an attestation can be prepared in lieu of providing records when an ongoing investigation may be harmed.

(30) Renamed IRM sections 11.3.13.7.3.1, 11.3.13.7.3.2 and 11.3.13.7.3.3 Exclusion (c)(1), Exclusion (c)(2) and Exclusion (c)(3), respectively. Previously, they were misnamed Exemption.

(31) Revised IRM 11.3.13.7.4 to reflect the use of the new electronic inventory system and the automatic notation of FOIA exemptions at the locations of any redacted data.

(32) Expanded IRM 11.3.13.7.5 regarding requests for Criminal Investigation Management Information System (CIMIS) records and regarding conference call-in numbers and access codes found in case files.

(33) Revised coordination requirements with the LB&I Exchange of Information function in IRM 11.3.13.7.8.

(34) Updated IRM 11.3.13.7.9 to reflect the process for ensuring legible copies using the new electronic inventory system.

(35) Clarified the guidance in IRM 11.3.13.8 to remove the requirement to maintain paper file copies of responsive documents except in cases where files are not scanned into the inventory system because they are too voluminous and must be either maintained or be retrievable from the function in the event of an appeal. Deleted references to the delegation authority allowing remotely located employees to approve release of edited documents. That authority was rescinded with the movement to a centralized, electronic inventory system.

(36) Update IRM 11.3.13.8.2 to remove references to the prior inventory system user guide, obsolete after migration to the current case management system.

(37) Revised IRM 11.3.13.8.4 to require an explanatory statement in the response letter about why expedited processing was not considered.

(38) Revised IRM 11.3.13.8.5 to indicate Appeals now has access to the FOIA case processing system and no longer needs to request files for appealed cases. Added text discussing the role the Office of Government Information Services (OGIS) plays in mediating FOIA disputes.

(39) Revised IRM 11.3.13.9.1 to provide clarification of instructions for processing FOIA requests for documents in background files for determinations made under IRC § 6110. Added guidance clarifying that requests for files using the underlying taxpayer’s name or identifying number cannot be processed.

(40) Deleted IRM 11.3.13.9.3 Electronic Filing Program Request and renumbered the sections following.

(41) Revised newly renumbered IRM 11.3.13.9.3 to incorporate new guidance about processing requests for assessment records and to add a new paragraph providing guidance for responding to requests seeking assessment records that don’t cite the FOIA.

(42) Revised IRM 11.3.13.9.4.1 to remove the reference to the use of exemption (b)(2) to protect CID information as a result of the Milner v. Dep't of the Navy, 131 S. Ct. 1259 (U.S. Mar. 7, 2011) (Kagan, J.) Supreme Court case that narrowed the application of exemption (b)(2).

(43) Revised IRM 11.3.13.9.4.5(5) to remove the references to outdated closing codes.

(44) Added IRM 11.3.13.9.4.6, Requests for IDRS Records that have been Removed to Retention.

(45) Revised IRM 11.3.13.9.6 to refer requests for records pertaining to 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).

(46) Revised IRM 11.3.13.9.9(3) to change the reference Form 61, Appointment Affidavit, to Standard Form 61.

(47) Added a note below IRM 11.3.13.9.9(5) to clarify that SEIDs in combination with other information may reveal identity of employees and should be reviewed carefully, as well as to understand some functions in the IRS use different naming conventions with their SEIDs that may, by themselves, reveal the identity of the employee.

(48) Revised IRM 11.3.13.9.10 to incorporate new guidance about responding to FOIA requests for audit trails using the Security Audit and Analysis System.

(49) Updated IRM 11.3.13.9.11 to require written requests for OPF documents, change the location of executive OPFs to Kansas City, and update the routing of requests for time and attendance records.

(50) Added GS series 1171, Property Appraisal and Liquidation Specialist, to the list of IRS sensitive job series in IRM 11.3.13.9.11.1.

(51) Clarified guidance in IRM 11.3.13.9.13 about using pattern correspondence to respond to FOIA requests for TFRP files. First or third party return information cannot be disclosed under IRC § 6103(h) in response to a FOIA request and only IRC § 6103(e) will apply to releases of information in a FOIA context. Revised instructions to refer requests or portions of requests for (e)(9) information to Collection Advisory for processing under a routine agency procedure.

(52) Changed title and text of IRM 11.3.13.9.16 to include Accurint as one of the information services frequently used by IRS compliance employees for case research.

(53) Updated IRM 11.3.13.9.20 with information about accessing an online database of electronic return preparer data. Also updated procedures for requesting pre-determined extract runs from the Third Party Data Store for certain information about electronic return originators and for responding to requests for customized extracts of information from the same database.

(54) Removed all references in IRM 11.3.13.29 to the ESTAB command code which has been replaced by alternate procedures for requesting files associated with specific DLNs.

(55) Revised IRM 11.3.13.9.30(4) to remove the reference to the use of closing code “I” to designate an imperfect closure. That code is no longer used in the new electronic inventory system.

(56) Revised IRM 11.3.13.9.32(4) to remove the reference to the use of FOIA exemption (b)(2) to prevent release of safeguard reports that may compromise state agency systems or security due to the recent Supreme Court case (Milner vs. Dept. of Navy) that narrowed the application of exemption (b)(2), and replaced it with a reference to exemption (b)(7)(E).

(57) Added a note to IRM 11.3.13.9.33(4)(c) to clarify that return information provided to state agencies is still subject to IRC § 6103.

(58) Revised IRM 11.3.13.9.37, Preparer Tax Identification Numbers (PTINs), indicating that certain information relating to PTIN holders is available on request through the FOIA Electronic Reading Room.

(59) Updated IRM 11.3.13.9.38(8) to delete the reference to the Atlanta Disclosure Office and added the requirement that Disclosure personnel contact the appropriate Business Application Administrator to locate the responsive record.

(60) Added IRM 11.3.13.9.39 to provide guidance for processing requests for Whistleblower Office records.

(61) Revised IRM 11.3.13.10.2(7) to reference new reporting requirements caused by the enactment of the OPEN Government Act.

(62) Clarified IRM 11.3.13.11(2) by deleting reference to the category “Other”, as an option for use in selecting supporting statutes when exemption (b)(3) is cited. With the movement to a new electronic inventory system, the only options available are those listed in the drop-down menu, and “Other” is no longer an option.

(63) Removed Exhibits 11.3.13-2 Search Memo, 11.3.13-3 Response to Search Memo; 11.3.13-5 Sample Letter 1522, 10-day Extension Letter, 11.3.13-6, Sample Letter 1522-B (Voluntary Extension Letter), 11.3.13-7, Sample Letter 1522-A (Subsequent Extension Letter). Employees have been directed to other sources where pattern correspondence can be found.

(64) Renumbered the existing Exhibit 11.3.13-4 FOIA and Title 26 Cases with CTRs or Data Extracted from CTRs to Exhibit 11.3-13-2.

(65) Revised the existing Exhibit 11.3.13-8 Procedures for Processing Requests for 23C, renamed the Exhibit Procedures for Processing Requests for 23C/RACS 006 and renumbered it 11.3.13-3.

(66) Removed Exhibit 11.3.13-9 Response to Requests for 23C.

(67) Renumbered Exhibit 11.3.13-10 Public Information Listing to Exhibit 11.3.13-4.

Effect on Other Documents

This material supersedes IRM 11.3.13, Disclosure of Official Information, Freedom of Information Act (FOIA) dated October 1, 2007. Interim Guidance Memorandum SBSE-11-1207-064, on Disclosure Special Search Guidance and Policy has also been incorporated into this IRM.

Audience

All Operating Divisions and Functions

Effective Date

(08-14-2013)

Related Resources

The Governmental Liaison and Disclosure intranet home page can be found at the following web address: http://discl.web.irs.gov/default.asp.


 
 
Bernice Fischer
Director, Governmental Liaison and Disclosure

11.3.13.1  (08-14-2013)
Background

  1. The Freedom of Information Act (FOIA) 5 USC § 552, as amended, provides for public access to records and information maintained by Federal agencies. The FOIA has been amended a number of times, most recently by the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN).

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

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

  4. On December 31, 2007, the President signed into law the OPEN Government Act of 2007. This amendment to the FOIA codified many procedures and guidelines that were already being practiced by the IRS. It also established additional requirements to track and report statistical data to Congress. Some of the provisions were effective upon enactment while others were not effective until December 31, 2008. This IRM incorporates guidance regarding all new provisions.

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

    Note:

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

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

  7. On March 19, 2009, Attorney General, Eric Holder issued a FOIA policy directive and a call for "Openness in Government." By this action, the Attorney General rescinded the October 12, 2001 Attorney General Memorandum on the FOIA and established a new standard for defending agency decisions to withhold information. When a FOIA request is denied, agencies will now be defended "only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law." The entire directive is found at the following web page: http://www.justice.gov/ag/foia-memo-march2009.pdf.

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

    Note:

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

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

    • 31 CFR Part 1, and Appendix B; and

    • 26 CFR § 601.702.

11.3.13.2  (08-14-2013)
Authority

  1. The Director, Governmental Liaison and Disclosure, and his/her delegate, have authority to make FOIA determinations concerning the release of most IRS agency records.

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

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

    Note:

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

    Reminder:

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

  4. Coordinate requests for records written by the Office of Chief Counsel or known to involve matters in litigation where the IRS is a party, or that would otherwise interest Counsel, with the affected Counsel office. If Disclosure personnel are uncertain about the Counsel point of contact, contact Branch 6 or 7 of the Office of the Associate Chief Counsel, Procedure and Administration for assistance.

    Note:

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

  5. Forward requests for records originating in other Federal agencies that require coordination to the following address:

         IRS FOIA Request
         Disclosure FOIA & Program Operations
         Stop 211
         2980 Brandywine Road
         Chamblee, GA 30341

  6. See IRM 11.3.13.5.7 for further guidance related to records originating in another agency.

  7. Field Disclosure staff receiving news media requests from local news outlets or requests believed to be of interest to the news media require the initiation of a sensitive case report and coordination with the local Public Affairs Specialist, who will coordinate with the staff of HQ Office of Communications and Liaison as needed. News media requests from national news outlets are to be worked by Disclosure FOIA & Program Operations. Disclosure FOIA & Program Operations staff will generate a sensitive case report for these and coordinate with the HQ Office of Communications and Liaison designated point of contact.

    Note:

    See IRM 11.3.13.9.25 for a definition of news media requester.

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

    1. FOIA requests for access to TIGTA records, (other than those publicly available as discussed below) created after January 18, 1999, are processed by TIGTA's Disclosure Office. Refer these requests to:
           Office of Chief Counsel Disclosure Branch
           Treasury Inspector General for Tax Administration
           City Center Building 
           1401 H Street, NW, Suite 469
           Washington, DC 20005

      Note:

      TIGTA will review the documents, make the release determination, and respond directly to the FOIA requester. However, before referring the documents, contact the TIGTA Disclosure Officer regarding the potential referral. The Disclosure Manager or assigned caseworker receiving the request will inform the requester of the referral. See 26 CFR § 601.702(c)(3)(i). TIGTA will also be provided a copy of the letter and the original request information along with the referred documents.

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

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

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

      Note:

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

    4. If a TIGTA Report of Investigation is part of an agency grievance file, it may be provided to the grievant in response to a FOIA request unless it is flagged. For more information see IRM 11.3.20.12.2, Disclosure of Official Information, Personnel Records.

11.3.13.3  (08-14-2013)
Responsibility

  1. Consider FOIA requests to be requests for records under the jurisdiction of the receiving office unless:

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

    2. Research suggests that transfer to another office would provide better service to the requester. See IRM 11.3.13.5.13 below.

  2. Generally, process requests for Counsel records in the office with jurisdiction where the underlying tax case originated. Otherwise, the office assigned the case may coordinate with the office having jurisdiction. Process requests for Appeals records in the same fashion.

  3. Requests for investigation records may or may not be processed by the office where the records originated. Resolve disputes concerning the release of records using the procedures in IRM 11.3.13.2(3).

    Note:

    With centralized case control and assignment, cases are no longer assigned based on geographical jurisdiction. There may be times when a transfer makes sense, but that should not apply to cases where the records reside in any of the Federal Records Centers (FRCs). Open compliance cases or cases where records are controlled by Appeals or Counsel may require coordination or a transfer, but only if that is in the best interest of the requester and the offices involved agree.

  4. Requests may involve records pertaining to more than one office. In such a case, determine processing responsibility based on major interest (i.e., in terms of volume of records, requester's address, or location of any current activity). Hence, the response may be split among several offices or consolidated in one office. Disclosure Managers will discuss such situations prior to making transfers. See IRM 11.3.13.5.13 for further discussion of transfers.

  5. Complex situations may require the assistance of the appropriate Disclosure East West or HQ office. See IRM 11.3.13.5.6 regarding requests addressed or sent to multiple offices.

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

    Note:

    Do not transfer requests for transcripts when the recipient office can obtain the transcripts.

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

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

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

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

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

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

      Note:

      See IRM 11.3.13.5.5 regarding imperfect requests.

11.3.13.3.1  (08-14-2013)
Disclosure Managers

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

    1. Ensuring uniform and consistent responses to FOIA requests. This can be accomplished by encouraging Disclosure staff to use standardized language or paragraphs in communications with requesters.

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

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

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

    5. Coordinating requests with the functions providing responsive data.

    6. Providing direction to IRS employees in other business units conducting searches for responsive records.

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

    8. Determining if records marked "official use only" or "sensitive but unclassified" (OUO or SBU) should be declassified and released to a FOIA requester.

      Note:

      See IRMs 10.2.13 and 11.3.12. regarding designating records OUO or SBU.

  2. Disclosure Managers have delegated authority to make agency determinations. This authority includes making determinations about the release of records and signing the response letter to the requester when denying records in part or in full, or in cases where we locate no responsive records. Other Disclosure personnel may sign correspondence and release records in response to FOIA requests when making full grants, responding to imperfect requests, or transferring requests.

  3. The Executive Order issued in December 2005 and the OPEN Government Act require the IRS to designate FOIA Public Liaisons to serve as supervisory officials to whom a FOIA requester can raise issues about the service the FOIA requester received.

  4. To comply with the executive order, the IRS designated the Disclosure Managers as the FOIA Public Liaisons for their respective offices.

  5. In their role as FOIA Public Liaison, Disclosure Managers are responsible for reducing delays in processing, knowing the status of requests in their offices, and assisting in the resolution of disputes raised by FOIA requesters for cases completed by their staffs. Disclosure staff must notify the Disclosure Manager promptly of any inquiries or disputes raised by requesters.

11.3.13.3.2  (08-14-2013)
The Roles of Other IRS Employees in Processing FOIA Requests

  1. The Disclosure Office relies heavily on the support and cooperation of all IRS employees in order to meet the FOIA processing requirements. Many of the records requested under the FOIA are under the control of front-line employees in the various functional areas. While the specific roles of other IRS employees in processing FOIA requests will depend upon local circumstances, it is important that these employees cooperate with the Disclosure Office in the FOIA process.

  2. The Office of Disclosure FOIA & Program Operations has a cadre of IRS employees within each function that assist in FOIA processing as requested. Other Disclosure staff may also use local IRS employees in other business units as contact points for record searches or to explain functional procedures. Other IRS employees assisting Disclosure staff may, for example:

    • Advise which records fall within the scope of the request

    • Conduct record searches

    • Analyze records

    • Segregate records

    • Prepare a functional recommendation for releasing or withholding records

    • Prepare indexes

    • Serve as a witness in litigation regarding the scope of the search or the reasons certain exemptions were claimed

  3. IRS employees assisting Disclosure staff and conducting searches for records under that office’s jurisdiction will provide the following information with each response:

    1. The offices contacted and why,

    2. A list of contacts in each office who participated in the search for records,

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

    4. Search terms used,

    5. Volume and location of records found, and

    6. Total time spent in locating, reviewing, editing, and copying records.

    Note:

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

11.3.13.3.3  (08-14-2013)
FOIA Requests Requiring Deputy Associate Director, Disclosure Involvement

  1. Requests involving unique FOIA issues, those requiring multi–office coordination or those having national implications will be brought to the attention of Deputy Associate Director, Disclosure through appropriate channels.

  2. Deputy Associate Director, Disclosure may determine that certain cases require special handling and direct that cases be transferred accordingly. Transfer requests involving the following to the Office of Disclosure FOIA & Program Operations:

    1. Requests involving national contracts;

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

    3. Requests for written determinations and background file documents.

      Note:

      See IRM 11.3.13.9.1 for procedures related to written determinations.

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

    Note:

    This list is not exhaustive. This IRM may reference other circumstances where transfer to the Office of Disclosure FOIA & Program Operations is appropriate.

11.3.13.4  (08-14-2013)
Overview and Processing

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

    1. Receipt and control - classification, assignment and controlling requests in inventory.

    2. Analysis - determine validity, identify expedited processing or fee waiver requests, and other special features.

    3. Search - search IRS systems or offices for responsive records.

    4. Review - review records located in the search and apply appropriate exemptions or exclusions.

    5. Response and closing - draft response to requester and close the case.

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

    Note:

    Caseworkers will take substantial action that moves a case forward toward completion (e.g. ordering Integrated Data Retrieval System (IDRS) research or sending a search memo) within 10 calendar days of assignment of a request. Document all activities, including reasons for any delays, in the inventory management system by notating the case history.

11.3.13.4.1  (08-14-2013)
Receipt and Control of FOIA Requests

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

    1. Date stamping the request to show receipt date

    2. Determining the type of request using definitions found in the FOIA

    3. Inputting the request into the inventory management system (including all required information)

    4. Assignment to a caseworker

  2. Date stamp the request when received in the Disclosure office or by the Disclosure Scanning Unit in Atlanta. This establishes the receipt date for the request and allows an accurate computation of the statutory 20-day period for a response or a request for extension.

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

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

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

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

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

    Example:

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

  8. The assigned Disclosure employee must review the request to determine if it has been properly classified. If not, corrective actions are necessary.

11.3.13.5  (08-14-2013)
Initial Analysis of FOIA Request

  1. The assigned caseworker must analyze each request to determine if a response is appropriate under the FOIA. Analysis of the correspondence may reveal the following:

    1. The request may be imperfect under the FOIA (see IRM 11.3.13.5.5).

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

    3. Sometimes requesters direct their requests to multiple offices, requiring a review of the request in the electronic inventory system to determine if it is a duplicate. For more information (see IRM 11.3.13.5.6).

    4. The request may be unclear as to the statute under which access is sought. For more information, see IRM 11.3.13.5.12.

    5. Information requested may be available outside of the FOIA under other provisions of the law or under routine established agency procedures. For more information, see IRM 11.3.13.5.14)

  2. The initial review of any request must include an analysis of the content of the request to determine if it complies with FOIA regulations or, if not, whether the information could be provided under another provision of law or under established agency procedures, as appropriate. See the IRM sections in 11.3.13.5 following, for other information pertinent to the initial analysis of a FOIA request.

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

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

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

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

    4. Reasonably describe the records sought,

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

      Note:

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

      Note:

      IRS generally does not accept digital signatures for FOIA requests for access to tax records, but will accept an e-mail that contains a scanned version of the original request bearing the signature of the requester or authorized representative. IRS will accept a digital signature, such as that sent with an e-mail, for most FOIA requests involving records other than those subject to IRC § 6103 or the Privacy Act.

    6. Provide an address for making a response,

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

    8. State the requester's agreement to pay for search, review, and reproduction charges as applicable. However, see IRM 11.3.13.5.5(3), and

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

  4. Upon receipt, the caseworker must analyze a FOIA request to determine what office or Federal Records Center has jurisdiction over the requested records.

  5. If a transfer is appropriate, Disclosure Managers must ensure the request is transferred to the correct office within 10 business days. The OPEN Government Act provides that agencies have 10 business days to route a request to the correct FOIA office, after which the statutory response time begins.

    Note:

    26 CFR § 601.702(c)(4)(i)(C) states that a FOIA request should generally be directed to the office serving the requester's geographic area of residence. Therefore, the calculation of the statutory response date begins on the date a valid FOIA request is received in such office. Transferring a request for internal jurisdictional or inventory management considerations does not change the received date or the statutory response date. If it is necessary to transfer the case, the receiving office must log it onto the inventory management system with the date it was received in the initial office. Where a request is sent to an office outside of the requester’s geographic area, the statutory response time does not begin to run until the request is received in the correct office. However, the received date can never be more than ten workdays after the request was received by personnel in any Disclosure office.

    Note:

    Several recent changes to Disclosure's organizational structure are not reflected in this regulation. Requests transferred because of these changes will be shown as received as of the date received in the original office. With the implementation of our new electronic system, case transfers should be rare. Follow the guidelines in IRM 11.3.13.5.13 only in unique circumstances where both managers agree it makes good business sense.

  6. A FOIA request incorrectly addressed to a local Disclosure office is not imperfect. Disclosure personnel must respond to the request or forward it to the Disclosure Scanning Operation. See IRM 11.3.13.5.7 when a request asks for records held by another agency or Treasury component.

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

    1. By a properly completed Form 8821, Tax Information Authorization, or equivalent enclosed with the request or sent previously to the IRS. In either case, the IRS must have received the authorization within 120 days of the date the taxpayer signed and dated the document and the document must comply with all of the other requirements of 26 CFR § 301.6103(c)-1. Caseworkers must analyze the form carefully to ensure that the authorization covers the requested material.

      Note:

      To compute the 120-day limitation, day 1 is the day after the taxpayer signed the authorization. The IRS must receive the authorization on or before the 120th day after the taxpayer signed the authorization.

    2. By a properly completed Form 2848, Power of Attorney and Declaration of Representative, or equivalent enclosed with the request or sent previously to the IRS. The 120-day rule for Form 8821 authorizations does not apply to Form 2848 authorizations. Caseworkers must analyze the form carefully to ensure that the authorization covers the requested material.

      Note:

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

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

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

        Note:

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

        Note:

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

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

    3. By documentation demonstrating that the relationship between the taxpayer and the requester meets the applicable provision of IRC § 6103(e) if the taxpayer is an entity. See IRM 11.3.13.5.2(9) and IRM 11.3.2, Disclosure to Persons with a Material Interest.

      Note:

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

  8. Upon receipt of a request that has an imperfect disclosure authorization because of the 120-day rule, Disclosure personnel will promptly contact the requester for a timely authorization. For customer service considerations, if the request is otherwise valid, and the requester states that a valid authorization will be submitted promptly, then search efforts may be initiated. However, records must not be provided until a valid disclosure authorization is received.

  9. If the request does not meet other regulatory provisions, treat the request as imperfect and advise the requester.

11.3.13.5.1  (08-14-2013)
Substitution of Representative

  1. Occasionally, you may receive a request to substitute a representative with respect to a FOIA request seeking returns or return information. The taxpayer may submit a written statement authorizing another person to receive the FOIA response on his behalf if the written statement:

    1. Specifically states the taxpayer’s request to have the FOIA response sent directly to the new person and

    2. Meets all of the requirements of IRC § 6103(c) or (e).

  2. If a person submitting a valid Form 2848 made the request on behalf of the taxpayer, the request must be processed unless that person no longer has the authority to receive the taxpayer’s information. Among the ways the representative may no longer be authorized to receive the information are:

    1. The underlying taxpayer rescinds the authority,

    2. The representative informs the IRS that he or she no longer represents the taxpayer, or

    3. The underlying taxpayer notifies you that he or she no longer wants the information.

  3. If the underlying taxpayer notifies you that the representative is no longer authorized to receive return information, take one of the following actions, as appropriate:

    1. If the notification is verbal, ask if the requester wishes to withdraw the request. If so, send a letter to the taxpayer to confirm your conversation and close the case as withdrawn.

    2. If the notification is written and includes a withdrawal of the request, close the case as withdrawn. No further action is necessary.

    3. If you receive written notification that does not indicate whether the request is withdrawn, send a letter to the taxpayer stating you will consider the request withdrawn unless you receive written notification to the contrary within 10 days. After 10 days close the case, however maintain any responsive records for at least 30 days in case the taxpayer asks to receive them or substitutes a new representative.

    4. If the taxpayer asks you to process the FOIA request, send the response directly to the taxpayer or a properly substituted representative.

  4. If the representative notifies you that he or she is no longer authorized to receive return information, take one of the following actions, as appropriate:

    1. If the notification is verbal, ask if the representative wishes to withdraw the request. If the representative withdraws the request, send a letter to the taxpayer confirming your conversation with the representative and close the case as withdrawn.

    2. If the notification is written and includes a withdrawal of the request, close the case as withdrawn. No further action is necessary.

    3. If you receive written notification that does not include a withdrawal of the request, send a letter to the taxpayer confirming your understanding that the representative no longer represents the taxpayer and state that you will consider the request withdrawn unless you receive written notification to the contrary within 10 days. After 10 days close the case, however maintain any responsive records for at least 30 days in case the taxpayer asks to receive them or substitutes a new representative.

  5. If the taxpayer indicates the records are still needed after the case is closed, open a new request and reference the previous case in the inventory management system.

  6. The FOIA does not require a response to multiple individuals. If a requester asks a caseworker to send a duplicate response to another individual, inform the requester that one response will be provided and the requester may copy the records to provide them to other individuals.

11.3.13.5.2  (08-14-2013)
Identity of Requester

  1. Establishing the identity of the requester is an important part of determining the overall validity of the FOIA request. This is necessary prior to releasing any records which would be available to the requester only, such as tax or personnel records. It is not required when providing records that are available to the general public.

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

    Note:

    Do not accept expired identification documents.

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

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

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

      Note:

      For factors to consider when determining whether to accept the notarized statement, see IRM 11.3.13.5.2(7).

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

      Note:

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

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

      Example:

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

    4. After consideration of all the factors, Disclosure personnel must exercise sound judgment in determining whether the requester has proven his or her identity. The notarized statement must be sufficient to reasonably assure an employee that the requester is the taxpayer whose records are sought. Notarizations meeting that standard suffice to establish the requester’s identity and the validity of the FOIA request. If reasonable doubt persists, deem the request imperfect and seek additional verification.

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

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

    Note:

    When requesting additional proof of identity, provide full documentation in the case history to explain why the verification submitted was not sufficient.

  7. Caseworkers must consider the consistency of names, addresses, Social Security Numbers (SSNs), and other identifying information in the request with similar items in the records requested. Copies of notices, correspondence, and other records which the requester received from the IRS can help to establish identity, especially when the records requested are closely related to the subject matter of the record presented. See IRM 11.3.13.5.9(4).

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

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

  10. If there are multiple requests, separate documentation of identity for each request is unnecessary. Once a caseworker establishes the identity of the requester the identification will suffice for a continuing series of requests, as long as the key elements of the requests such as the address and the signature of the requester remain constant.

    Example:

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

    Example:

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

    Note:

    Disclosure office personnel need not maintain a system for keeping a taxpayer's identifying information for later reference in the event of a FOIA request. The electronic inventory system allows caseworkers to research the electronic versions of prior requests. However, because a Form 8821, Form 2848, or equivalent can be revoked by the taxpayer, Disclosure caseworkers are expected to make reasonable efforts to confirm their continued validity.

    Note:

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

11.3.13.5.3  (08-14-2013)
Definition of Agency Record

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

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

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

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

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

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

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

  4. If the IRS transfers records to a government contractor for records management purposes, those records remain agency records subject to the FOIA, even though they are no longer in the physical custody of the agency. By contrast, records created by the contractor as part of the contractor's own business (such as the contractor's personnel files) are not agency records and are not subject to the FOIA.

11.3.13.5.4  (08-14-2013)
Joint Committee on Taxation

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

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

    Note:

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

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

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

  5. Transfer FOIA requests received in the field that seek access to records involving the Joint Committee to the Office of Disclosure FOIA & Program Operations. Disclosure personnel from the Office of Disclosure FOIA & Program Operations will consult with the Joint Committee, as well as any affected IRS function(s) and Chief Counsel, before determining whether to release or withhold any agency records that are the subject of a Joint Committee oversight inquiry.

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

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

      Note:

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

    2. If the FOIA request seeks a file, such as an Examination file, which happens to contain records generated in the normal course of its operations that were subsequently furnished to the Joint Committee as part of its general oversight responsibilities, the records in the requested file are agency records subject to the FOIA. Because neither the FOIA request acknowledgement nor the release of the records reveals the existence or the subject of a Joint Committee oversight inquiry, they remain agency records. In the absence of any applicable FOIA exemption, the records in the file will be provided to the requester. For treatment of Joint Committee records in IRC § 6405 refund or credit cases, see IRM 11.3.4.6 and IRM 4.36.3.

      Note:

      Any records revealing the existence or subject matter of a Joint Committee general oversight inquiry, such as a memo seeking or transmitting responsive records, must not be identified as part of the agency’s records in the FOIA response letter. Any notation or indication in the agency records that were the subject of Joint Committee inquiry must be withheld as "not responsive" to the FOIA request.

  7. In addition to its general oversight authority under IRC § 8023, the Joint Committee may also conduct a review under IRC § 6405 of the IRS’s proposed issuance of refunds or credits that meet the jurisdictional threshold. § 6405 directs the IRS to delay the issuance of large refunds or credits for a thirty-day period to afford the Joint Committee an opportunity to review the proposed action. Correspondence or other documentation reflecting the Joint Committee’s review of these proposed credits or refunds will be maintained separately within the administrative file of the taxpayer to whom it pertains. Joint Committee correspondence in this context does not contain a legend, and any documents or information received from the Joint Committee or prepared by the IRS in response thereto will constitute agency records subject to the FOIA. See IRM 4.36.3 and IRM 11.3.4.6 for more information.

  8. After consulting with the Joint Committee as to whether correspondence from the Joint Committee pertaining to its § 6405 review will be withheld from the taxpayer-requester, the assigned caseworker may assert a number of FOIA exemptions to withhold the information. For example, correspondence or other information provided by the Joint Committee to the IRS for the latter’s consideration before issuing the refund or credit may be withheld based on FOIA exemption 5, which encompasses the deliberative process privilege. In addition, the FOIA exemption 7 law enforcement exemptions, as well as exemption 3 in conjunction with IRC § 6103(e)(7), may be available if the case is pending at the time of the request.

    Note:

    If the requester is a third party seeking such records without the consent of the taxpayer, such records are protected by FOIA exemption 3 in conjunction with IRC § 6103(a) and will be withheld in full. Coordination with the Joint Committee in such a case is not required.

11.3.13.5.5  (08-14-2013)
Imperfect Requests

  1. The FOIA requires requesters to reasonably describe the records sought. While compliance with the procedural regulations is also required, Disclosure personnel must take care not to read a request so strictly that the requester is denied information the agency knows exists. However, if the request is not specific enough to process or it is too broad in scope, including language such as "I request all records concerning me," or otherwise lacks specificity, it is imperfect and should be closed accordingly. See IRM 11.3.13.5.9.

  2. Caseworkers must use suggested pattern letter language to notify the requester that the request does not meet certain requirements of the FOIA and that more information is needed before the request can be processed. The letter must point out the specific deficient item(s) to the requester and must advise the requester that he/she has 35 calendar days to perfect the request. Close requests that do not comply with FOIA regulations as imperfect. Create a new case upon receipt of the perfected request. Close requests deemed to be imperfect as soon as possible.

    Note:

    Do not include Notice 393, Information on an IRS Determination to Withhold Records Exempt From The Freedom of Information Act – 5 U.S.C. 552, with responses to imperfect requests because no appeal rights are available to such requests. Include a statement that the 20-day statutory response time does not begin until a perfected request is received.

  3. Requests are not imperfect because they lack an agreement to pay fees if, based upon the information requested, it appears no fee would be charged.

    Note:

    However, if the requester has an outstanding unpaid bill for any request(s) previously processed by the IRS, close any current request prior to initial determination even if it appears no fees will be charged. Notify the requester that IRS will process no further requests until the balance due is paid in full. See IRM 11.3.5.5.2, Disclosure of Official Information, Fees.

  4. Notwithstanding any imperfection under FOIA, if records can be provided to requesters that they would otherwise receive under the provisions of IRC § 6103(e), and no FOIA fees are applicable, provide the records. An exception to this is when the records are available under an existing Agency procedure. See IRM 11.3.13.5.14.

    Example:

    You may still provide the requested records even when the request fails to meet FOIA authentication standards if the request is for a transcript of account or other tax information that can be provided using IRC § 6103(e) authentication standards. See IRM 11.3.2 and IRM 21.1.3, Accounts Management and Compliance Services Operations - Operational Guidelines Overview, for the authentication standards under IRC § 6103(e). If you provide records, be sure to indicate in your response letter that the request was invalid under the FOIA, but that records were provided under another statute. State the governing statute that allowed release. Appeal rights are not available for imperfect FOIA requests.

    Note:

    Control these requests on the inventory management system as FOIA requests.

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

    Note:

    In cases where the IRS has established a strong legal precedent for withholding information (e.g., a DIF score on an AMDISA print or return information of a spouse filing a separate return on a transcript), redact the information and provide the redacted document under IRC § 6103(e). Explain the redaction in the response letter even though you are offering no appeal rights. Systemic IRC § 6103(e)(7) redactions require no additional approval by an official with IRC § 6103(e)(7) withholding authority under DO 11-2 (Rev. 1).

  6. You may clarify the request verbally and ask for missing information necessary to process the request. Document all verbal communications in the case history notes.

  7. Assist the requester in perfecting the request, by advising:

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

    2. Access to tax records or records covered by the Privacy Act (e.g., personnel records) require proof of identity,

    3. Requests expected to generate fees require a firm commitment to pay or,

    4. That other items missing from the request are needed in order to continue processing.

  8. In some instances, it may be necessary to inform a requester that the FOIA does not require agencies to answer questions, enter into doctrinal discussions, create records, or perform research. See IRM 11.3.13.5.11 for more information about responding to interrogatories.

    Note:

    Transferring data into or out of electronic format, including printing information retrieved from IDRS through input of a command code, does not constitute creating a new record.

  9. Inform requesters when appropriate about the types of records maintained by the IRS, e.g. records concerning Examinations of returns, Collection actions, and Criminal Investigations. Inform the requester that perfected requests for tax records must include a specific reference to the types of records and tax years requested.

  10. When a requester submits information necessary to perfect a request or makes a payment eliminating an unpaid balance, process the request promptly. (For related actions concerning fees, see IRM 11.3.5.) Open a new case file rather than reopen the imperfect case. Refer to both the newly supplied information and the previously imperfect request to ensure that you account for all elements of the request.

    Caution:

    Avoid making further demands on the requester if reference to previous correspondence provides enough information to process the request.

11.3.13.5.6  (08-14-2013)
Requests Addressed to More Than One Disclosure Office

  1. Disclosure employees may receive requests, other than imperfect requests (see IRM 11.3.13.5.5), which appear to be duplicates of other requests. For example, requests having a primary address other than that of the receiving office, those addressed to multiple offices, photocopies, and those that have no original signature may be duplicates. Always research the inventory management system for potential duplicate requests during initial case analysis and in other circumstances as necessary, such as when an office receives multiple requests or when the caseworker becomes aware of similar requests during case processing.

  2. If the request is a true duplicate (that is, the request is identical in every aspect), close the case following inventory management system procedures. If the request is not a true duplicate, but seeks the same information as another request, contact the caseworker(s) controlling the other case(s) to determine whether to consolidate the request(s) to eliminate repetitive work and to decide which office will process the request. Offices other than the office that will process the case will close their cases as duplicates.

11.3.13.5.7  (08-14-2013)
Requests for Records of Other Treasury Components or Other Agencies

  1. 26 CFR § 601.702(c)(3) identifies the procedures for handling requests for records in the possession of the IRS but created by another Federal agency. Review the FOIA request to determine if the records requested are under the jurisdiction of the IRS. When a request explicitly seeks the records of another Treasury component, forward the request to the Office of Disclosure FOIA & Program Operations for transfer to the appropriate component. See IRM 11.3.13.2. That office staff will send a letter to inform the requester that their request has been forwarded to another agency for processing (see the note after (6) below).

    Note:

    Under a new provision of the OPEN Government Act, the 20 working-days for processing a FOIA request begin on the date the request is first received by the appropriate component of the agency, but in no circumstance later than ten working days after the request is first received by any component of the agency that is designated in the agency's regulations to receive requests. To ensure adequate time for response, IRS Disclosure Managers or caseworkers receiving such a request must ensure it is forwarded within five days. The Manager, Office of Disclosure FOIA & Program Operations must ensure the request is forwarded in time to ensure its receipt by the proper Treasury component no later than ten days after initial receipt.

  2. Sometimes a search for records responsive to a request identifies records that originated in another Treasury component or in a non-Treasury agency. If the IRS has no objection to the release of records created by other Federal agencies or Treasury components, refer the records to the other agency or component for review, coordination, and concurrence. Do not release the records without consulting the other agency or component.

    Note:

    This also applies to records created by the IRS that include information that originated in another agency or Treasury component.

  3. However, if IRS determines that information is exempt from disclosure in full or in part, Disclosure personnel will process the records normally, assert appropriate exemptions, and inform the Office of Disclosure FOIA & Program Operations of the withholding. The Office of Disclosure FOIA & Program Operations will inform the relevant Treasury component or non-Treasury agency of the request and withholding. Forward any records that the IRS would disclose to the Office of Disclosure FOIA & Program Operations along with a copy of the request. The Office of Disclosure FOIA & Program Operations will transfer the request and the records to the other agency for direct response to the requester per 31 CFR § 1.5 and 26 CFR § 601.702(c)(3).

  4. IRS field offices will forward FOIA requests for records originating in other Federal agencies, including other Treasury components to the Office of Disclosure FOIA & Program Operations.

    Caution:

    IRS field offices may not seek disclosure recommendations directly from local offices of other Federal agencies.

  5. The Disclosure field office caseworker may close its file on this request after informing the requester of the referral and responding with respect to all IRS records.

  6. The referral of a record to another Federal agency does not constitute a denial of access to such record. No appeal rights will be afforded the requester solely because a record has been referred to another agency.

    Note:

    Do not notify the requester of the referral when the responsible official has reason to believe that doing so may cause a harm to the ability of the originating agency or Treasury component to withhold the records under 5 USC § 552. Make any such determination in consultation with the originating agency or Treasury component. The caseworker will deny access to the requested records as directed by the originating agency or Treasury component (see 26 CFR § 601.702(c)(3)(ii)).

11.3.13.5.8  (08-14-2013)
IRS Records Located in Other Agencies or Other Treasury Components

  1. IRS information is sometimes included in the files of other Federal agencies. When a FOIA request seeking access to those records is received by another Federal agency or Treasury component, the agency or component will refer the records to the Office of Disclosure FOIA & Program Operations for consideration. The Office of Disclosure FOIA & Program Operations personnel will process these referrals.

  2. Other federal agencies may request IRS involvement in FOIA requests they have received for two reasons - referrals or consultations.

    1. A referral occurs when another agency identifies IRS documents in records responsive to the request. Employees of that agency will forward the records to the IRS and ask the IRS to respond directly to the requester. Disclosure personnel will control a referral on the inventory management system as a FOIA request. All the statutory and procedural requirements of FOIA apply (20-day response time, extension letters, backlog counts, etc.).

    2. A consultation occurs when another agency has responsive records that originated in that agency, but which contain items of information that were furnished by (or perhaps are of special interest to) the IRS. Disclosure personnel will control a consultation on the inventory management system as an assisting office case. Consultations must be handled expeditiously because they affect the statutory processing of another federal agency.

    3. If a request from another agency involves both a referral and a consultation, it should be controlled and processed as a FOIA request.

  3. The Office of Disclosure FOIA & Program Operations personnel will refer the records to the office having jurisdiction over the underlying activity to make a determination about whether the records can be released. This referral shall be made expeditiously.

    Note:

    Occasionally records are erroneously referred that did not originate in the IRS. When this occurs, the records shall be referred back to the originating agency through the Office of Disclosure FOIA & Program Operations. If the requester was notified of the transfer to the IRS, a letter shall be prepared informing the requester that an error was made and that the records are being returned for the consideration of the original agency.

11.3.13.5.9  (08-14-2013)
Requests for All Records Concerning Me

  1. Usually, requests for "all records concerning me" or "all records containing my name" are not specific enough to process and will be rejected as imperfect. However, see IRM 11.3.13.5.5(6) (concerning clarifying the request), IRM 11.3.13.5.9(5) (concerning requests that do not specify tax years) and IRM 11.3.13.5.9(6) (concerning requests where there is no open case or ongoing activity).

  2. Review these requests thoroughly as they may contain minor references to records or enforcement actions that help to identify specific records.

  3. Process any request containing enough information to permit a reasonable identification of records sought.

    1. Example:

      The information could include the function where the records may be found, the tax year or years involved, the type of tax, or the type and/or location of any investigation conducted by the IRS.

  4. Requesters may attach copies of IRS notices, correspondence or other records to their requests.

    1. Carefully examine attachments as they may be helpful in processing the request.

    2. In the absence of any indication to the contrary, assume that the requester seeks access to underlying files related to the attachment.

    3. Requesters need not provide their tax identification numbers, or specify the type of tax, tax year, or location of the records if such information can be determined from the attachments.

  5. If the request is not otherwise imperfect and does not specify tax years, then Disclosure personnel will consider the last three tax years when responding. If the request is otherwise imperfect, see IRM 11.3.13.5.5.

    Note:

    Where a response to a request is based on an analysis of the requester’s letter, any documents attached to the request, or it is based on assumptions authorized under this section, the response letter will include an explanation of how the scope of the request was determined. For example, "Your request did not clearly indicate the type of tax or tax year for which you are seeking information. Based on the notices you submitted with your request, we are providing information regarding xxx for the years yyyy through zzzz."

  6. If research reveals there is no open case or ongoing activity, the response shall state that a search of IRS records indicates that there is no open Examination, Collection, or Criminal Investigation case concerning the requester and consequently no records responsive to his/her request exist.

  7. If research reveals that an open case or ongoing activity exists, the response will generally state that no record maintained by the IRS appears to be specifically responsive to the descriptions in the request, but that an open case concerning the requester has been identified.

    Note:

    If IDRS research identifies either open or closed compliance activity, follow the procedures in IRM 11.3.13.5.5(7) through (9). If there is open Criminal Investigation activity, contact the special agent prior to notifying the requester to determine whether disclosing the fact of investigation could harm ongoing activity.

    Note:

    Depending upon the type of request, prior experience with requests from the requester, and other circumstances, the response will either provide or withhold, as appropriate, the records identified. If not, the requester will be advised of the existence of files and how they may be requested if that is the requester's intent. Whether the availability of the case files is considered immediately or delayed until receipt of a further request will depend upon an analysis of the requester's intent, the adequacy of the request to extend to existing case files, and whether the anticipated costs would significantly exceed the requester's commitment to pay fees.

  8. When a request is received for records that do not exist because the record requested is one that is generated pursuant to a regulation or procedure that is not applicable to the requester, a general response will be provided to explain why no responsive records exist.

    Note:

    In the situations described in paragraphs (6), (7), and (8) above, Notice 393 will be enclosed. See IRM 11.3.13.8.2(2).

11.3.13.5.10  (08-14-2013)
Multiple or Repeat FOIA Requesters

  1. Disclosure office personnel commonly receive multiple requests for information from the same individual(s) over a short period of time or a large number of requests for information from the same requester at the same time.

  2. These types of requests typically have one or more of the following characteristics:

    1. They begin with requests for transcript information, followed by multiple requests for tax information specific to most or all of the Document Locator Numbers (DLNs) found on those transcripts.

    2. They seek various forms (each request seeking a different form) found in Examination, Collection, or Criminal Investigation administrative files.

    3. They request multiple items (and are followed by other requests seeking specific information already requested previously, only worded differently).

  3. This type of request can have an adverse impact on IRS resources and poses unique challenges researching and securing requested records. As a result, Disclosure personnel must plan appropriate strategies to respond to multiple and duplicative requests. Strategies should include the following:

    1. Assign all requests to the same caseworker, if possible. This will allow the caseworker to review each request for duplications, to plan a strategy to address all requests as expeditiously as possible, and to build a history with the requester in the event of future requests.

      Note:

      With centralized case processing this may not always be possible, but research for duplicate requests is mandatory.

    2. Complete adequate IDRS research to determine that the records requested exist and can be retrieved. For example, a prompt determination that a requester who submitted multiple requests for Examination administrative files and forms associated with those files is not under examination for the years requested may allow a no records response at a considerable savings of time and resources

      Note:

      However, if future requests seek the same or similar information, conduct fresh research to ensure that no Examination activity has taken place in the interim.

    3. If the requester has made prior requests and those files are available, review them to determine if a response has already been given for the records being requested.

      Example:

      You receive a new request for information related to a DLN associated with a transaction code 300, which is an Examination administrative file. In reviewing prior paper files or electronic records you note that the file for the requested year was provided in response to a previous request for "all Examination administrative files." If that DLN predates the previous request, you can close your case by providing a copy of the prior response. No additional search is required. Check all requests for possible duplications. Combine requests that seek the same records using different terminology to minimize search activities. Example: You receive a request for "assessment records" and one for "23C or RAC006 records." These requests are for the same information and require only one response.

      Note:

      Control both requests on the inventory management system. Prepare a single response letter with reference to both requests.

  4. As with any FOIA request, respond as fully and completely as possible by conducting adequate research to determine if records exist, performing a complete search for responsive records, and fully explaining all determinations.

  5. You may respond to multiple FOIA requests in the same determination letter. There is no requirement to send a separate letter for each request, but every FOIA request must be addressed. For example, you receive 5 FOIA requests for different DLNs but located no records. You may draft one response letter to address all 5 requests rather than separate letters for each request.

  6. Locate and consider all documents associated with a DLN, including the Form 5147, when processing requests for "all forms associated with" a particular DLN, unless research clearly indicates that there would be no document, even the Form 5147. If not requesting the DLN, document the case history with a thorough explanation of the determination that no documents would exist. See IRM 11.3.13.9.29.

  7. When consolidating several responses in one letter, include a copy of the signed letter in each electronic or paper FOIA case file and document the case histories.

11.3.13.5.11  (08-14-2013)
Pseudo Requests

  1. Some requests, while otherwise valid, merely cite the FOIA while not conforming to its intended purpose. Analyze such requests to determine whether they can be processed by locating, analyzing, and releasing records.

  2. Some characteristics which may assist in recognizing pseudo-requests:

    1. Requesters tend to ask questions rather than seek specific records.

    2. Questions are frequently phrased in an accusatory or misleading manner, so that they appear to be intended to serve as harassment rather than to seek access to existing agency records.

    3. The correspondence consists of, or may imitate, form letters and may be part of a coordinated campaign involving similar requests from different requesters.

    4. The letters may include references to constitutional rights, challenges to the authority of Title 26, constitutional arguments that income taxes are not valid based on the 5th, 13th or 16th amendments, IRC § 861 challenges disputing the taxability of wages, arguments that a requester is not a person subject to tax within the meaning of the IRC, that taxes are voluntary, or that a requester should be "untaxed" by withdrawing his/her Social Security Number and claiming sovereign immunity.

      Note:

      Pseudo requests are often extensive and wordy, poorly described, incorrectly addressed, or otherwise written to make it difficult to respond. The objective may be to force a denial rather than to actually obtain access to records.

  3. Requesters may sometimes ask for all records concerning or serving as background materials for certain "Decisions" or "Determinations" concerning themselves. Some of the descriptions frequently encountered are:

    1. "…that I am a person required to file a tax return."

    2. "…that I didn't file a tax return"

    3. "…that I am a person as defined by the Internal Revenue Code."

    4. "…that my commercial activity or employment is taxable."

    5. "…that classifies my job description as a taxable activity for revenue purposes."

    6. "…that I am an employee or an employer or an individual engaged in a trade or business as a sole proprietor."

    7. "…that I received diversification of corporate profits."

    8. "…that I am required to possess a Social Security Number absent any income derived from any source."

    9. "…that discloses that I am a fiduciary of a trust or estate."

    10. "…that a "substitute for return" has been or will be prepared for me."

  4. When responding to pseudo-requests, distinguish clearly between the portions of the correspondence which constitute a valid FOIA request and those portions which consist of doctrinal claims or questions.

  5. The FOIA does not require agencies to respond to questions, create records not already in existence in some format, or engage in doctrinal discussions with requesters.

    Note:

    Printing an electronic record to paper or scanning a paper record to PDF does not constitute creating a record not already in existence. For example, process a request for a paper copy of an electronic audit trail, but consider a request to create a list of employees who worked on an Examination file a request for records not already in existence.

  6. Do not allow pseudo-requests to drain Disclosure resources needed to administer the FOIA and other programs. Respond in a fashion consistent with statutory requirements and in a tone appropriately reflecting a spirit of openness in government.

  7. Review all potential pseudo-requests to determine whether they seek information under the FOIA or other governing statute. Reference to the FOIA may be buried many pages into the document. A reference that "the FOIA requires a response within 20 days," or inclusion of "FOIA" on the envelope, may be sufficient to consider the letter a request under the FOIA. See IRM 11.3.13.5.12(2) regarding unclear requests.

    Note:

    An imperfect request under the FOIA may still qualify for response under IRC § 6103(c) or (e) in situations where the request meets those standards of entitlement or identification. See IRM 11.3.13.5.11(8)(c).

  8. For correspondence that contains indications of any anti-tax argument, yet contains sufficient information to be considered a request for records under the FOIA or other statutory provision, take the following steps:

    1. If the request is imperfect, work the case in accordance with procedures in IRM 11.3.13.5.5.

    2. If it is a valid FOIA request, secure the records requested, process them according to FOIA procedures, and include in your response the information discussed in (9) below to address the frivolous arguments included in the correspondence.

    3. If it is not a valid FOIA request, yet information could be provided under IRC § 6103(e) or IRC § 6103(c), secure the information that can be released and include the information listed in (9) below to address the frivolous arguments included in the correspondence. See, however, IRM 11.3.13.5.14 for records available under routine agency procedures.

  9. To address frivolous arguments contained in a request for records, insert the following language in your response letters: "Your letter also contains questions or indications that you are challenging the income tax system. Federal courts have consistently ruled against a number of arguments challenging the constitutionality of income taxes or the authority of the IRS to enforce the tax laws or collect taxes. To address these concerns and for your information, please find enclosed a copy of Publication 2105, Why Do I Have to Pay Taxes? In addition, there is information on the IRS website which answers various anti-tax arguments entitled: The Truth About Frivolous Tax Arguments, at: http://www.irs.gov/pub/irs-utl/friv_tax.pdf. We will not respond to future correspondence concerning these issues." If the taxpayer is a frequent FOIA requester, and includes the same or similar questions in subsequent requests for records, there is no need to provide another copy of Publication 2105.

  10. If you have done IDRS research and found evidence of open Examination, Collection, or Criminal Investigation activity, you must provide a copy of the request letter and the response to the compliance function(s). Requests may have been submitted because the requester intends to introduce the request or the response in some litigation. They may also be helpful to government counsel in establishing or illustrating the taxpayer's intent and attitudes.

  11. Forward correspondence that does not request records in accordance with the FOIA, any other statutory provision, 26 CFR § 601.702(c), or IRM 11.3.13.5, and only seeks responses to questions to the following address:

    Internal Revenue Service
    Ogden Compliance Services
    Attn: FRP
    M/S 4450
    1973 N Rulon White Blvd
    Ogden, UT 84404

    Note:

    The Frivolous Return unit will respond to the requester in accordance with its procedures.

    Caution:

    Do not use this procedure as a means for managing inventory; send only those letters that are clearly not seeking records under FOIA or other statutory provisions to the Frivolous Return unit.

  12. Coordinate with the affected compliance functions when scheduling inspections of records in response to a request for open investigatory files. The presence of the requester in an IRS office may provide a convenient opportunity to make contact for tax administration purposes. Enforcement personnel may be present for such inspection, bearing in mind the rules and restrictions governing communications with taxpayers who have representatives before the IRS. See IRC § 6304.

11.3.13.5.12  (08-14-2013)
Unclear Requests

  1. After analysis, it may be unclear which statute the requester is using to seek access. The following variations may be encountered.

    1. The request cites neither the FOIA nor the Privacy Act.

    2. The request cites both the FOIA and the Privacy Act.

    3. The request cites one Act, but the content of the request appears more appropriate to the other.

  2. Resolve any lack of clarity about the applicable statute as closely as possible with the requester's stated intent and consistent with the law.

  3. When the request cites neither the FOIA nor the Privacy Act:

    1. Review the request for any other reference to the statute or accompanying regulations which may provide additional information regarding the requester's intent.

      Example:

      A request may cite the statute such as 552 for the FOIA or 552a for the Privacy Act, or may state the request is being made under 26 CFR § 601.702(c) or 31 USC Part 1, Subpart A or C, which are the FOIA and Privacy Act regulations issued by the IRS and Treasury, or there may be the letters "FOIA" on the envelope.

    2. Determine if records can be provided under a routine established agency procedure as set forth in 26 CFR § 601.702(d), or under some other statute. The request should be classified as that type of request and records provided under those provisions (See IRM 11.3.13.5.14).

    3. Requests for tax returns and return information may be directed to a Service employee involved in open compliance activity. If the request does not cite the FOIA or Privacy Act, it may be handled by that IRS employee, consistent with DO 11-2 (Rev. 1).

  4. When a request cites both the FOIA and the Privacy Act, and it is from the following:

    1. A first party individual seeking access to his or her own records, the request will be classified under the statute that allows the greatest access. The FOIA generally provides the greatest access.

      Example:

      Requests for records contained in an Examination administrative file, which is in a system of records that is exempt from access provisions of the Privacy Act, shall be classified and processed under the FOIA.

    2. A third party or from an individual seeking records that are not maintained in a system of records, classify as a FOIA request.

      Example:

      Requests for a delegation order, IRM, or Forms 23C, which are not maintained in a system of records. These records statutorily fall outside of the Privacy Act, but access must be granted to the extent possible under the FOIA.

  5. In situations where the requester cites the Privacy Act, would get greater access under the FOIA, but insists upon processing pursuant to the Privacy Act:

    1. Control the case as a Privacy Act request, but provide the records that would be available under the FOIA as well as any records that are available under the Privacy Act. The response letter must cite Privacy Act Section (t)(2) and request any applicable search and duplication fees in accordance with FOIA fee provisions. For a discussion about charging fees to first party requesters, see 11.3.5.4.3(2).

      Note:

      A first party requester is an individual seeking access to his or her own records that are maintained in a Privacy Act system of records. A party seeking access on behalf of an individual (e.g., as authorized by Form 2848 or Form 8821) meets the definition of first party requester.

    2. If denying records, cite the applicable FOIA exemptions and the Privacy Act exemption for the system of records in the response letter.

      Note:

      In applying the above provision, do not deny access to records under the Privacy Act unless there is a corresponding exemption under the FOIA that would prevent release of the requested record(s).

  6. Because the Privacy Act only applies to individuals, close any request from a non-individual (e.g., a corporate officer requesting information related to Form 1120) citing only the Privacy Act as imperfect.

    Note:

    Remember that a sole proprietorship is considered an individual under the Privacy Act.

  7. These instructions are not intended to require matters that can be processed under established agency procedures set forth in 26 CFR § 601.702(d) be treated as FOIA requests. (See IRM 11.3.13.5.14).

  8. In some cases, a single letter may contain some requests made pursuant to the FOIA and meet the procedural requirements of that Act, and other requests made pursuant to the Privacy Act and meet the procedural requirements of that Act. Treat these requests as if both Acts were cited. Classify them as FOIA requests for control purposes.

    1. Consider such requests split requests to afford each portion proper treatment, appeal rights, and the correct application of fees.

    2. Distinguish the portions processed pursuant to each Act and the reasons for such treatment in any response to such requests. For any records withheld, cite both the FOIA and Privacy Act system of records exemptions that support the denial of records in the response letter.

      Note:

      The instructions above are not intended to require Disclosure personnel to distinguish between FOIA and Privacy Act requests in situations where there is little or no significance to the distinction, such as when all requested records may be readily available and releasable and the differences in costs are minimal.

  9. Regardless of which Act is cited, the request must satisfy the procedural requirements of the applicable Act and the commitment to pay fees must encompass the services being requested.

    Note:

    A request requiring FOIA search fees because it seeks records that are not maintained in systems of records that contains an agreement only to pay Privacy Act (duplication) fees is imperfect if the anticipated fees exceed the commitment to pay (i.e., more than 2 hours of search will be involved).

    Exception:

    FOIA search fees do not apply to first party requests for records about themselves maintained in systems of records. Only Privacy Act (duplication) fees apply (26 CFR § 601.702(f)(3)(E)(iv)(C)). For further information about fees, see IRM 11.3.5.

11.3.13.5.13  (08-14-2013)
Transferring Requests

  1. Once it is controlled on the inventory management system, analyze the FOIA request for indications that the requester is seeking access to records that may require another office work the case. With centralization of request receipt, case transfers should be rare. Conduct research to determine whether responsive records are located in another office. (See Exhibit 11.3.13-1 for IDRS research guidelines.) If this is the case, Disclosure personnel must:

    1. Respond to requests for (a)(2) materials that are available on the internet by referring the requester to the EFOIA Reading Room at: http://www.irs.gov/uac/IRS-Freedom-of-Information

    2. Respond to requests for (a)(2) materials that are not available on the IRS.gov website but are locally available, such as local delegation orders.

    3. Transfer only those requests (or portions thereof) seeking access to (a)(2) materials that are not available locally or on the internet and (a)(3) materials, such as tax information of the requester, unless the information is available locally, such as a transcript of account.

      Note:

      Forward misdirected requests that cannot be processed locally to the Disclosure Scanning Unit in Atlanta for control and assignment except for requests for headquarters records. Forward those requests to the Office of Disclosure FOIA & Program Operations.

  2. Do not transfer imperfect requests. The receiving office will respond, providing the requester information necessary to perfect the request. See IRM 11.3.13.5.5.

  3. If the request seeks access to the requester's own tax information, the receiving office will perform the necessary research to determine the existence of open or closed case files likely to be responsive to the request.

  4. Limit research to IDRS or other readily available tools. It is not necessary to undertake time consuming inquiries to master files or retention files.

  5. If research locates no open or closed cases or the request seeks records not pertaining to the requester's tax situation, the initial recipient shall make a final response on that basis.

  6. If the request seeks access to records whose disclosure is prohibited or which are known not to exist, the receiving office will make the final response, citing the proper exemption(s) or closing the case with a "no records" determination.

  7. If the request involves access to open or closed compliance files or other complex or technical matters outside the initial receiving office's jurisdiction, transfer to the office with control over the records shall be considered.

    Note:

    Generally, the office with control over the records will be the office in which the administrative action (an Examination, Collection action, Criminal Investigation, the assertion of a penalty, etc.) occurred, regardless of the requester's current address.

  8. Even if it is determined that the case could be transferred, the initial receiving caseworker must respond if the information requested is readily available to any Disclosure employee by use of appropriate research and search techniques and does not involve an open or closed compliance or other complex file. This will help to avoid unnecessary transfers and to provide prompt service to requesters. However, see the note in IRM 11.3.13.5.13 (1) regarding misdirected correspondence.

    Example:

    In response to a request for records associated with a document locator number (DLN) assigned to the original return, provide a copy of Form 4506, Request for Copy of Tax Return, with directions to file the form with the appropriate IRS Campus to obtain a copy of the return.

    Example:

    The DLN represents an automated transaction for which no paper or electronic record exists, other than the transcript previously provided to the requester. The response shall inform the requester of this and advise there are no responsive records.

    Note:

    If a Form 5147 exists, it is a paper document associated with the DLN and must be retrieved in response to a request. See IRM 11.3.13.9.29. The DLN relates to a non-complex item or processing record. The receiving caseworker will secure the record(s) and respond accordingly.

  9. The Office of Disclosure FOIA & Program Operations will transfer misdirected requests to the Disclosure Scanning Unit for control and assignment or to the office of proper jurisdiction if that is more appropriate, based upon that office personnel's knowledge of the types of records requested and the geographical boundaries of the various Disclosure offices.

  10. Prior to transferring any request, the receiving caseworker must telephone the office to which transfer is proposed to make certain the transfer is appropriate, and will document the case file accordingly.

  11. Whenever transferring a request, the receiving caseworker will advise the requester of the transfer, and both the response to the requester and the transmittal memo to the transferee office must clearly identify the portions of the request which have been resolved and the portions which remain unresolved.

    Note:

    If the receiving employee expects to release or has released records in sufficient number to incur a processing fee, the receiving caseworker or Disclosure Manager will advise the office accepting the transfer in the transmittal memo to ensure proper billing.

  12. If a transfer is determined to be imperfect after transfer, the transferee office caseworker will respond to the requester and coordinate the response with the receiving caseworker, as appropriate.

  13. When a requester properly sends a FOIA request to the office having geographical jurisdiction, and the request is subsequently transferred to the Scanning Unit in Atlanta or to another Disclosure office, the received date is the date initially received in the office having geographical jurisdiction per 26 CFR § 601.702. When the request is input by employees of the receiving office or by the Disclosure Scanning Unit, the inventory management system received date must match the date of initial receipt, and all statutory time frames begin as of that date. Process inventory transfers expeditiously, so that the transferee office personnel will have time to complete all administrative processing within the statutory time frames. When the transfer is delayed, the receiving office caseworker will send statutorily required extension letters prior to transfer. However, see note at IRM 11.3.13.5(5).

  14. Requests that appear to rebut or challenge a prior response will not be transferred. The receiving office will notify the manager of the closed FOIA case. If the managers agree, the new FOIA case will be reclassified as Miscellaneous and closed. The prior FOIA case will be reinserted into the workflow and assigned to the initial office. If the managers disagree the issue will be elevated to the appropriate Deputy Associate Director, Disclosure, either East, West or HQ for a determination.

11.3.13.5.14  (08-14-2013)
Routine Established Agency Procedures

  1. Requests for records that can be processed routinely in accordance with the established procedures identified in 26 CFR § 601.702(d) are specifically excluded from the processing requirements of the FOIA. Analyze requests to determine if they should be handled according to these procedures. These types of requests will not be diverted to the FOIA or Privacy Act simply because the requester cites these Acts. Disclosure personnel will explain to the requester that the request is not diverted to the FOIA simply by mentioning that Act and will be processed under routine agency procedures. Generally, you may provide the requester with instructions to resubmit the request under the routine procedures.

  2. Routine established agency procedures apply to requests for:

    1. Tax returns and attachments or transcripts. Use Form 4506, or Form 4506-T, Request for Transcript of Tax Return.

      Note:

      Refer FOIA and/or Privacy Act requests for open investigation files received by an IRS employee in the course of an open investigation promptly to Disclosure for processing. Process tax returns and attachments contained in the open investigation files pursuant to the FOIA. Requests for access to open case files directed to compliance personnel may be processed outside of FOIA, even if they cite the FOIA, if doing so is in the best interests of customer service and the function with jurisdiction agrees. Because only Disclosure employees have delegated authority to respond to FOIA requests, the requester must withdraw the FOIA request and agree to obtain the records directly from compliance personnel. Disclosure personnel will provide assistance as necessary if the function plans to withhold information under IRC § 6103(e)(7) due to an impairment determination. IRS functional employees should not insist a requester go through the FOIA process if the information is available informally, consistent with DO 11-2 (Rev. 1). Process requests for access to closed case files under the FOIA.

      Note:

      A request for a Substitute for Return (SFR) does not fall under the routine established agency procedures discussed in this section. An SFR is not considered a return, but return information under IRC § 6103(b).

    2. Records of seizure and sale of real estate, found on Record 21, Part 2, are open to public inspection. These may be made available in the Technical Services (Advisory) Unit that maintains the record based on the location of the property. The locations of the Technical Services (Advisory) Units are contained in Publication 4235, Technical Services (Advisory) Group Addresses, which is available at http://core.publish.no.irs.gov/pubs/pdf/37262f10.pdf. Process requests for copies of Record 21, Part 2, under the FOIA. See IRM 11.3.11.9.1(4).

    3. Information returns, notices, and reports of certain tax exempt organizations and trusts, political organizations, applications by organizations granted tax exempt status, applications for certain deferred compensation plans and accounts, and their annual returns. IRC § 6104 grants access and requesters may seek this information by filing Form 4506-A, Request for Public Inspection or Copy of Exempt or Political Organization IRS Form. See IRM 11.3.9, Exempt Organizations and IRM 11.3.10, Employee Plans Information.

    4. Statistics of Income publications. IRC § 6108(a) and 26 CFR § 301.6108-1 grants access. Requesters may access these products through the "Tax Stats" link at the following website: http://www.irs.gov/uac/Tax-Stats-2, or request in writing that IRS conduct customized statistical studies or make statistical compilations under IRC § 6108(b). Address your request to:

      Chief, Communications and Data Dissemination
      Room 4112
      77 K Street NE
      1111 Constitution Ave NW
      Washington, DC 20224
      See the applicable revenue procedure for further instructions. Copies of statistical studies or compilations previously made under § 6108(b) may be available upon written request to the above address.

    5. Public comments in rule making. See IRM 11.3.11.7, Comments on Proposed Rules and Regulations.

    6. Accepted offers-in-compromise (OIC) less than one year old (from date of execution).

      Caution:

      Process requests for copies of accepted OICs more than one year old or where no inspection is involved under the FOIA. Routine procedures allow for inspection and copying only, not for copies independent of the inspection process.

      Note:

      Redact the SSN from Form 7249 and any other forms provided in response to a FOIA request.

      Note:

      See IRM 11.3.11.8, Public Inspection of Accepted Offers-in-Compromise, for OICs less than one year old.

    7. Written determinations and background file documents under IRC § 6110.

      Note:

      See IRM 11.3.8, Disclosure of Written Determinations, and IRM 11.3.13.9.1, for discussions regarding requests for written determinations.

    8. The Public Information Listing. OPM has designated certain personnel information routinely available to the public. See IRM 11.3.13.9.11.1 (1).

  3. If Disclosure personnel elect to process the request and no fees are involved, the response to the requester shall acknowledge that the records, while requested under the FOIA or Privacy Act, are routinely available under established procedures and are provided under those procedures. The appropriate citation, 26 CFR § 601.702(d), along with any procedures and the access statute under which the records have been disclosed, must be provided.

  4. Letter forwarding requests are also processed under routine established agency procedures (Policy Statement P-1-187) and are excluded from FOIA processing. See IRM 11.3.11.11, Letters for Humane Reasons.

11.3.13.6  (08-14-2013)
Search Process

  1. After determining that a request is valid, Disclosure personnel determine the request’s scope and the manner in which to conduct a search for responsive records. Disclosure staff must use available procedures to retrieve records and provide the most expeditious response possible to the requester. These procedures may include such negotiated procedures as initial special searches and direct contact with federal records centers.

11.3.13.6.1  (08-14-2013)
Documentation of Search Efforts

  1. When searches return no responsive records, requesters may appeal the scope and adequacy of the search for responsive records. Document clearly the logic behind search efforts in the case file by either history notes, check sheets, or another readily understood method.

  2. In the majority of cases, the incoming request, transcripts, search memos, and the written response sufficiently document the search effort.

    Note:

    For a description of other data that may be necessary to properly document the file, see IRM 11.3.13.6.3.

11.3.13.6.2  (08-14-2013)
Search Efforts

  1. Disclosure personnel will do as much as they reasonably can to ensure that they locate the documents the requester seeks.

  2. The FOIA requires requesters to describe "reasonably" the records sought. Disclosure personnel must be careful not to read a request so narrowly that the requester is denied information that the agency knows exists. Some requesters may have little or no knowledge of the types of records maintained by the Service while others have greater knowledge of IRS files. See IRM 11.3.13.6.3(12), which addresses the interpretation of "intent" in terms of what requesters seek.

  3. The amendments under the Electronic Freedom of Information Act (EFOIA) amend the definition of the term "record" specifically to include information in an electronic format. Therefore, the Service is required to make reasonable efforts to conduct searches for records in electronic formats and to provide records in any format requested if readily reproducible in that format. The Service charges the requester direct costs for conversion to another medium, including the costs of exporting files and the time required to create the file on the electronic medium that will be mailed to the requester. See IRM 11.3.5, Fees.

  4. With respect to electronic format, records that are readily reproducible generally are those that can be printed, downloaded, or transferred intact to a floppy disk, compact disk (CD), magnetic tape, or other electronic media using equipment currently in use by the office(s) processing the request.

  5. Disclosure personnel need to understand the types of records that may exist in the various functions in order to ensure adequate searches. Disclosure personnel may rely on their organizational knowledge, computer research, search memoranda, and any other resource available to determine how best to locate records responsive to the request.

  6. Disclosure personnel must ensure that requests for records identified by DLN relate to the requester before attempting to locate them. Because DLNs are especially vulnerable to typographical and transposition errors, requests must also identify the tax form and tax period for the DLNs requested and the caseworker must confirm that the documents retrieved belong to the requester prior to release. The requester does not need to provide the IDRS transaction code associated with the DLN.

  7. If it can be readily ascertained (without additional research) that the requested record is a computer-generated record for which no paper or electronic copy is maintained, the requester shall be so advised. See IRM 11.3.13.9.29.

  8. Some requests seek records from a certain time period to the "present." Interpret the "present" to mean the date the request is received by the responsible office. For a discussion of the cut-off date for records searches, see IRM 11.3.13.6.3. Records created after the date of the search are generally considered outside the scope of the request. See 26 CFR § 601.702(c)(8).

    Note:

    For a discussion of when Disclosure personnel may elect to include data outside the scope of the request. See IRM 11.3.13.6.3(13).

  9. When a functional or disclosure employee reviews a file in response to a FOIA request, he or she may determine that two or more documents in the file are duplicates of each other. If the documents are "true" duplicates, a disclosure determination needs to be made with respect to only one copy, which will be the only copy considered responsive to the request. A "true" duplicate is one that is, in all respects, exactly the same as the initial document. The following are examples of duplicates that are not "true" duplicates:

    • Two copies of the same memo, but one has handwritten notes on it

    • Two copies of the same memo, but one has the signature/clearance block filled in

    • Two copies of the same document, but one copy is attached to another document that was sent to a different recipient

    • An e-mail string that is the same as another until it branches off to a different recipient

    This list is not all-inclusive. There are many situations where two copies of the same document are not “true” duplicates. The key to deciding whether a document is a "true" duplicate that does not need to be addressed separately is whether it reflects different or additional information, in terms of not only its content, but also its universe of recipients, the context in which it is used, etc. As part of your search memos to functions, you should inform the function that it does not have to treat "true" duplicates as responsive documents nor make disclosure recommendations about them when responding to your search memo. The pattern search memo has been revised to include this guidance.

  10. Disclosure Managers and staff will attempt to meet both the letter and spirit of the statutes governing the FOIA process by applying a liberal interpretation to the intent of the requester and the scope of the request. It may be necessary to communicate with the requester to clarify the request as well as with those employees conducting the search. It is inappropriate to hold frequent requesters or professionals to a higher standard of exactitude because "they should have known better" or "they know the law, so we shouldn't read anything into the request" while giving the"benefit of the doubt" to first time or infrequent requesters. The aim of the FOIA process is to provide consistent, top quality service to all requesters.

11.3.13.6.3  (08-14-2013)
Adequacy of Search

  1. The Disclosure Manager is responsible for ensuring the adequacy of search efforts. IRM 11.3.13.3.1 and IRM 11.3.13.3.2 outline the roles of the Disclosure Manager and any functional employees assisting in completing the search.

  2. Document the following information in the case history notes if it is not already apparent in the case file:

    • Which offices were contacted and why

    • Person contacted in each office and who conducted the search

    • Files searched

    • Search terms used

    • Volume and location of records found and

    • Time spent in the search, copy, and review process

  3. In addition to the foregoing explanation of how the search was conducted, the Disclosure Manager should know, or have access to, how records are indexed within all operating divisions or functions.

  4. The request itself often is the best source for ideas concerning where responsive records may exist. Disclosure personnel must carefully review the request and, if necessary, involve other contacts in the various functions to determine the best course of action.

  5. In many instances, the request identifies the functional area or the employee that may have the responsive records. When the request involves tax records, it generally lists the tax periods covered. See IRM 11.3.13.5.9(5) for procedures to follow when the tax periods are not provided.

  6. IDRS is the first step in the search for tax records, but may not be sufficient since certain types of investigations in the compliance divisions are not reflected on the IDRS printout.

    Example:

    Records relating to money laundering would not be identified from an IDRS search. Criminal Investigation employees conducting searches need to search the Criminal Investigation Management Inventory System (CIMIS) in addition to IDRS for records under its jurisdiction.

    Note:

    Use of a search memorandum is recommended unless the request is very specific and the IDRS search reflects exactly what is requested. An example of such a specific request would be a request for a transcript for a specific tax return account.

  7. In the case of requests for other than tax records where the records requested indicate ongoing compliance activity, Disclosure personnel must consider doing an initial IDRS search to determine whether any open compliance case is in process. Occasionally, the requester’s purpose is to obtain a statement in a FOIA response letter that may aid the requester in litigation or enforcement activities. While the reason the requester seeks the documents is irrelevant for FOIA processing purposes, see IRM 11.3.13.5.11(10) about notifying the affected functions about the request.

  8. Exhibit 11.3.13-1 establishes guidelines for adequate research on IDRS. It should be used as a tool to establish the minimum required research on cases involving tax records. The exhibit is not all-inclusive, however, and searchers must tailor the search on a case-by-case basis.

  9. Disclosure Managers and staff must take steps to maintain a general awareness of other automated systems which could assist in the location of information. Such steps may include:

    1. Arranging to be kept informed by local Information Technology (IT) management of new systems being developed.

    2. Mentioning during disclosure awareness presentations that Disclosure has an interest in knowing how the new automated tools are being used by the functions.

    3. Collecting a library of the news about the latest technological advances in the IRS so the Disclosure staff may research it when necessary.

  10. When search efforts require going beyond the initial IDRS research, Disclosure personnel will make a written request for a records search, including guidance for conducting the search, to the appropriate offices. Use the standard search request memo pattern language. The use of a standard search memo is a good tool to properly document the search effort. Caseworkers may use the same memo for requests to different offices. Each memo will include:

    1. A copy of the request that has been highlighted or otherwise marked to direct attention to the portion of the request that pertains to that function

    2. A request for suggestions about other areas that may have responsive records

    3. A reminder that the search must include electronic records

    4. A reminder that there is a requirement to provide electronic data in the format requested

    5. A response questionnaire assisting the function to document its actions and time spent on search, copy, and review (this also assists Disclosure staff in computing applicable fees and inputting necessary data to the inventory management system)

    6. A request for a recommendation as to the release of located records

    7. A response due date

    8. A point of contact to request clarification or more time to respond

    9. Guidance to the searching function regarding the geographical location and function(s) to be searched (for example, the request may encompass records generated in another office; or may include local Counsel documents, but not headquarters Counsel)

    10. Any additional information that would assist the function in interpreting what is sought.

  11. Search memos are a useful tool for control purposes and to ensure timeliness of responses. Search efforts will be documented on the electronic inventory system, which also tracks search memo responses from the functions. Documented routine follow-ups on overdue responses to search memos will prevent long periods of inactivity on FOIA cases.

  12. When determining the scope of records that may be responsive to a request, it may be necessary to evaluate a requester’s knowledge of IRS practices. Evaluating this level of knowledge will not be an exact science, and will generally be left to local procedures. A professional tax preparer who deals with the IRS on a continuing basis may request a specific record or a specific file by the proper terminology. In such a request, it is not necessary to increase the responsive data by including related data in the spirit of good customer service. On the other hand, a request from a taxpayer reflecting a limited knowledge of IRS procedures may require a broader interpretation even if the taxpayer uses a specific term. Occasionally, trends in requests which have been reported to Headquarters will trigger a national directive intended to achieve a level of consistency. The purpose of any directive issued will be to provide service that is more consistent to all requesters, not to penalize a particular type/class of requester. Examples include:

    1. An individual unfamiliar with IRS procedures requests a transcript of his/her account on the "master file," but he/she lists a tax period which has gone to retention. In such an instance, the microfilm data shall be considered responsive to the request, even though the records can be found on the retention register, instead of the "master file" .

    2. A CPA who is a frequent requester and is familiar with IRS procedures requests a complete transcript from system 24.030 CADE (Individual Master File) on behalf of his client. If the research shows that there is also retention data, then the response need not include the data from the Individual Microfilm Retention Register (22.032). If that same CPA, however, requests the IMF transcripts for a span of years that includes a year that has gone to retention, then he, too, must be given the microfilm data for the year removed to retention.

    3. A taxpayer representative familiar with IRS practices who requests a Form X does not necessarily need to be provided the related Form Y or Z. See IRM 11.3.13.6.3(15) for discussion of the caution necessary in responding "no records" to certain requests which may be engineered for seeking just that kind of response.

  13. Records created after the receipt date of the FOIA request are outside the scope of the request and functions should be made aware of this fact. See 26 CFR § 601.702(c)(1)(ii). In rare circumstances, a lengthy delay (e.g. 90 days) may be unavoidable before search efforts begin. If this occurs, document the case history to explain the delay and extend the search period to the date of search. Also, when appropriate in terms of good customer service or in the spirit of openness in government, Disclosure personnel may include records created after the receipt date of the request. Make this determination on a case-by-case basis.

  14. Typically, reading files need not be searched as they contain duplicates of agency records located in case or subject matter files. However, where official records are known to exist but cannot be located, search reading files or a substitute for the missing official agency record.

    Note:

    This instruction is not intended to require search of reading files if the official record should have been destroyed under routine retention schedules. Destruction schedules may be verified with the local Area Records Manager (ARM). A directory of the local ARMs is listed on the REFM - Records Management Website located at the following website:   http://awss.web.irs.gov/REFM/LogisticsManagement/RecordsManagement/RecordsLifecycleSupport.aspx#Contacts.

  15. When agency knowledge indicates that records responsive to the request would not exist, there is no need to perform futile searches. However, problems may arise when requesters are advised that no records exist in response to their requests. Examples include:

    1. Advising the requester that there are no records responsive to a request for "notice and demand" letters affords the requester the opportunity to challenge the validity of a lien or levy in the requester's substantive tax affairs. The requester must be advised that the Campus (or other office) does not routinely maintain hard copies of these notices, but an enclosed highlighted transcript of account reflects the issuance of these notices to the requester. Where these records are available (i.e., located in a Collection file), they will be made available to the requester, if within the scope of the request.

    2. Another area in which "no record exists" responses are being used by requesters in their substantive tax affairs deals with requests for the delegation order to a specifically named IRS employee that "authorizes him or her to file tax liens." Although it may be true that no delegation order to a designated employee by name exists, the more appropriate response would be: "delegation orders are usually not issued to employees by name, but rather are issued to employees by position title. The attached copy of Delegation Order _______ is the authority for _______ to file tax liens."

  16. Pursuant to 26 CFR § 601.702(c)(14), Disclosure office personnel are required to maintain copies of all internal and external correspondence, including a copy of all signed and dated response letters, as well as the records identified as responsive to the request, or which may be deemed by a court to be responsive, in the FOIA processing case file. This case file must be preserved, notwithstanding otherwise applicable record disposition schedules, if the case is the subject of a pending FOIA request, administrative appeal, or lawsuit. This is achieved through the use of imaged documents maintained in the Disclosure inventory system. No paper files are required to be maintained to the extent all records have been imaged. If records pertaining to the request and response have not been imaged due to the volume, then they must be maintained or otherwise be retrievable for 60 days to ensure their existence and speedy accessibility in the event of a timely administrative appeal.

    Note:

    Disclosure staff will reference this regulation and instruct functional employees assisting in searches that correspondence between their offices and Disclosure office personnel, as well as the records deemed responsive to the FOIA request, must be preserved during the pendency of a FOIA request, administrative appeal, or lawsuit, notwithstanding record disposition schedules. IRS employees assisting in searches should also be invited to discuss with Disclosure personnel any questions that arise concerning whether certain records are responsive, or may be deemed by a court to be responsive, to a particular FOIA request before record disposition schedules are followed. Whenever there are questions concerning the responsiveness of records, such records must be preserved, either by the function with jurisdiction over the records or employees of the Disclosure office, for cases that are the subject of pending FOIA requests, administrative appeals, or lawsuits. The function with jurisdiction over the records and staff of the Disclosure office will determine where such records will be maintained.

11.3.13.7  (08-14-2013)
Review and Redacting

  1. Once the responsive records have been gathered, Disclosure personnel will review the material and determine what should be released or withheld in full or in part.

    Note:

    Disclosure personnel are responsible for determining the documents that are responsive to each request. Disclosure personnel will review documents provided by the functions to ensure the presence of all responsive documents and to separate and remove any non-responsive documents.

  2. The determination to grant or deny access to a specific record is made for each request on a case-by-case basis. It requires an understanding of:

    1. The purpose the record serves.

    2. The relationship the record has to the objective of tax administration.

    3. The effect disclosure of the record may have on tax administration.

    4. The impact the disclosure of the information would have on the personal privacy of any individual weighed against the public interest in accessing the information.

  3. The determination also requires an understanding of the nine (9) FOIA exemptions, three (3) special law enforcement exclusions, applicable statutes, relevant court cases, precedents, and IRS-wide guidelines issued by Headquarters Governmental Liaison and Disclosure.

  4. The role of Disclosure personnel in this process is two-fold:

    1. To ensure the requester’s needs are addressed to the extent possible and

    2. To ensure confidential information or information that may harm tax administration, commercial or other institutional interests, or personal privacy is not released.

  5. Generally, the advice of the function maintaining or originating the record requested weighs heavily in the determination regarding release of the information by Disclosure personnel. There are times, however, when the Disclosure Manager or staff interpretation of the facts of the case and the disclosure statutes may be different from the initial advice provided by the function. The ultimate responsibility for the disclosure resides with the Disclosure Manager pursuant to the disclosure authority outlined in 26 CFR § 601.702 and, as appropriate, DO 11-2 (Rev. 1).

    Note:

    For procedures involving disagreements with the affected function over the release of records, see IRM 11.3.13.2(3).

  6. Disclosure Managers and staff must make an independent judgment on the disclosure or withholding of records after considering the views of the affected functions and their understanding of the law. Disclosure personnel are responsible for balancing the two roles described in (4) above. They are also responsible for explaining the reasoning behind the final determination to withhold or release information. Some determinations are discretionary and some are clearly nondiscretionary by statute.

    Note:

    For a discussion of discretionary vs. nondiscretionary disclosures, see IRM 11.3.13.7.1.

11.3.13.7.1  (08-14-2013)
Approach to Exemptions

  1. The FOIA requires agencies to make the maximum possible information available to the public. In his March 19, 2009, FOIA policy memorandum, Attorney General Eric Holder stated his support of the notion that the FOIA reflects a fundamental national commitment to open government and his intent to ensure that commitment is realized in practice. He also stated that the presumption of openness declared in President Barack Obama's January 21, 2009, FOIA memorandum carries with it two implications:

    1. Agencies should make discretionary disclosures of information where possible and not withhold merely because they can demonstrate that the records fall within the scope of a FOIA exemption.

    2. When agencies determine that a full disclosure is not possible, they should take all reasonable steps to disclose what they can.

  2. The DOJ policy directive also expressed a commitment to protecting other fundamental values including protecting national security, personal privacy, privileged records, and law enforcement interests.

  3. Under the FOIA, once a record is determined to be responsive, only such portion as falls within one of the nine (9) specific exemption categories or three (3) special law enforcement exclusions may be withheld. Disclosure personnel shall clearly document any decision to edit or withhold records. The decision must be made based on the application of one of the exemptions or exclusions contained in the FOIA statute. Each of the exemptions and exclusions is listed and discussed in IRM 11.3.13.7.2.

  4. Some exemptions are mandatory in nature. Exemptions (b)(1), (b)(3) and (b)(4) of the FOIA are exemptions for which discretionary disclosures are not appropriate since there are civil and/or criminal penalties for unauthorized disclosure of statutorily protected information.

  5. Consideration of whether discretionary exemptions should be asserted will usually be made on a case-by-case basis. See Policy Statement 11-13, Freedom of Information Act Requests, available at the following website: http://www.irs.gov/pub/irs-utl/policystatement11-13.pdf.

  6. Decisions to withhold information protected under the FOIA's discretionary exemptions will be made only when:

    1. The Agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions or

    2. Disclosure is prohibited by law.

  7. When considering discretionary disclosures related to personal privacy, Disclosure personnel will weigh the public's right to the information against the privacy interests of the individual(s) affected. Case history notes will fully document the reasons for the application of an exemption and include any discussions with the functions supporting that application.

  8. Records will not be withheld from the public simply because they may be subject to misinterpretation, because there is no apparent public benefit to their release, to avoid embarrassment, or to hide instances of errors or wrongdoing by IRS officials or employees.

  9. The designation of a record as "OUO" or "SBU" does not preclude the release of the record pursuant to FOIA. See IRM 11.3.12.4, Guidelines for Classification, and IRM 10.2.13, Information Protection, for additional information on "OUO" or "SBU" determinations.

11.3.13.7.2  (08-14-2013)
Exemptions

  1. There are nine specific exemptions. They are listed in 5 USC § 552(b) and form the legal basis for the IRS to withhold records or portions of records from the public. Careful consideration of the exemptions is required when reviewing responsive records.

11.3.13.7.2.1  (08-14-2013)
Exemption (b)(1)

  1. This exemption applies to classified records concerning national defense and foreign policy. This exemption refers to information which has been or may be properly classified as confidential, secret, or top secret under the terms and procedures of the Executive Order establishing the classification system. It is seldom used by the IRS.

11.3.13.7.2.2  (08-14-2013)
Exemption (b)(2)

  1. This exemption covers matters that relate solely to the internal personnel rules and practices of an agency.

  2. Courts have previously interpreted the exemption to encompass two distinct categories:

    1. Predominantly internal matters of no genuine public interest (sometimes referred to as "low 2" information) and;

    2. More substantial internal matters, the disclosure of which would risk circumvention of a law (sometimes referred to as "high 2" information).

  3. With the ruling in the Supreme Court case Milner v Dep't of the Navy, 131 S. Ct. 1259 (2011) (Kagan, J.), the Court overturned decades of established judicial interpretation and significantly narrowed the scope of the exemption. The exemption is no longer divided into "high 2" and "low 2." Instead, the Court held that (b)(2), consistent with the plain meaning of the term “personnel rules and practices,” encompasses only records relating to issues of employee relations and human resources.

    Note:

    Material cannot be withheld under (b)(2) if there is a genuine and significant public interest in its disclosure, since it would not satisfy the requirements that it relate "solely" to the "internal" personnel rules and practices of the agency.

    Example:

    The Court included several examples of covered personnel rules and practices, such as rules dealing with employee relations or human resources which concern the conditions of employment at federal agencies – such matters as hiring and firing, working rules and discipline, compensation and benefits. The Court also described personnel-related rules and practices as including the selection, placement, and training of employees and the formulation of policies, procedures, and relations with, or involving, employees or their representatives.

  4. Disclosure personnel should consider whether it is appropriate to withhold records previously withheld under (b)(2) under other exemptions. In particular, exemption (b)(7)(F) may apply to building plans and other security information. These determinations should be made on a case-by-case basis.

  5. Disclosure personnel may find conference call-in information in files responsive to FOIA requests in the form of printed e-mails, calendar invitations, case notes, or other documents. An employee who uses an assigned call-in number and access code on a recurring basis often organizes these calls. Information about conference call-in information no longer meets the (b)(2) standard because the information is not directly related to agency personnel rules and practices. However, because disseminating conference call-in information could lead to its misuse and impede the effectiveness of IRS law enforcement activities, consider redacting conference call in numbers and access codes found in documents responsive to FOIA requests using the (b)(7)(E) exemption (and not the (b)(2) exemption). Additionally, telephone numbers and pass codes assigned to participants of a conference call might be withheld under the (b)(6) exemption because the release of this information could constitute an unwarranted invasion of personal privacy. Disclosure personnel should make determinations about these requests and responsive documents on a case-by-case basis.

11.3.13.7.2.3  (08-14-2013)
Exemption (b)(3)

  1. This exemption protects information specifically exempted from disclosure by statute, provided that such statute:

    1. Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or

    2. Establishes particular criteria for withholding or refers to particular types of matters to be withheld.

  2. Some examples are:

    1. IRC § 6103 (most commonly used).

      Note:

      The use of IRC § 6103 as a supporting statute requires a determination that the information being denied is a return or return information, as defined in IRC § 6103(b)(2). When citing this exemption to deny the requester access to another taxpayer’s return information, a determination must be made that the information is the other taxpayer’s return information as defined in IRC § 6103(b)(2). For example, information gathered in connection with the examination of Taxpayer A’s return includes DMV records of an individual with a similar name. Since the information was gathered in connection with the examination of Taxpayer A’s return, it is the return information of Taxpayer A. Since it was not obtained by the IRS with respect to determining the liability under Title 26 of the other individual named in the DMV records, it is not that individual’s return information, and thus cannot be withheld from Taxpayer A on the basis that it is the return information of another individual. FOIA exemptions (b)(3) in conjunction with IRC 6103(e)(7), (b)(6), and (b)(7)(C) shall be cited in this situation in order to protect the privacy of the third person. As another example, the taxpayer’s Examination file contains records of the taxpayer’s expenditures for rent and office supplies. The identities and addresses of the property owner and the supplier(s), and the dates and amounts of payments to them that were obtained to determine the taxpayer’s correct expenses are return information of the taxpayer. This information merely reflects a business relationship between the taxpayer and the property owner and supplier(s), and is not return information of the property owner or the supplier(s). Information about the business relationship cannot be withheld from the taxpayer as third party return information (although other exemptions may apply). Any notation in the file that explicitly refers to the tax matters of the property owner or supplier(s) must be withheld from the taxpayer as third party return information if the information is from IRS sources (including the caseworker). See IRM 11.3.13.7.5(3). For a discussion of how the wording of the request may change the response, see IRM 11.3.13.9.16(2). Also, a third party’s SSN provided by the taxpayer under examination would not be withheld, although if the same SSN were retrieved from IRS sources it would be withheld. If the third party SSN provided by the taxpayer has been checked against IRS records, any notation of the result must be withheld as third party return information.

    2. Rule 6(e) of the Federal Rules of Criminal Procedure exempts grand jury information.

    3. 31 USC § 5319 exempts currency transaction and certain other reports (see IRM 11.3.13.7.6).

    4. 41 USC § 253(b) exempts certain contract proposals (see IRM 11.3.13.9.2).

    5. 5 USC § 7114 (b)(4)(C) exempts labor management guidance (see the example in IRM 11.3.20.7.3).

    6. IRC § 6105 exempts tax convention information (treaties with other countries).

    7. 18 USC 701 prohibits copying Federal agency identification media (see IRM 11.3.13.9.18).

  3. Generally, procedural rules are inappropriate as a basis for the (b)(3) exemption, except for those rules prescribed by law and having the effect of law such as Rules 6(e) and 16 of the Federal Rules of Criminal Procedure.

    Caution:

    Do not cite IRC § 7213, IRC § 7213A, IRC § 7431, or the Privacy Act of 1974, as supporting statutes to the (b)(3) exemption.

  4. When a statute other than 26 USC § 6103 is used to support the (b)(3) exemption, include a brief explanation of how the statute applies in the case history notes.

11.3.13.7.2.4  (08-14-2013)
Exemption (b)(4)

  1. This exemption protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential.

  2. The exemption is intended to protect the interests of both the government and submitters of information. Its existence encourages submitters to voluntarily furnish useful commercial and financial information to the government and correspondingly provides the government with an assurance that such information will be reliable and complete.

  3. The exemption also protects submitters who are required to furnish commercial and financial information to the government by safeguarding them from the competitive disadvantages that could result from disclosure.

  4. Requests for competitive bids for government contracts may fall in this category. These requests are seen more often in the Office of Disclosure FOIA & Program Operations but, to a limited degree, field personnel may receive similar requests.

  5. This exemption relates to information submitted by individuals, corporations or partnerships. It does not apply to records generated by the government.

  6. 26 CFR § 601.702(g) establishes certain notification and processing procedures for requests to which exemption (b)(4) might apply. Reference this citation as needed. For further information, see IRM 11.3.13.9.2.

11.3.13.7.2.5  (08-14-2013)
Exemption (b)(5)

  1. This exemption applies to inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the IRS. Courts have interpreted this language to exempt those documents, and only those documents, that are normally privileged in the civil discovery context.

  2. There are three primary privileges incorporated into exemption (b)(5):

    • Deliberative process privilege

    • Attorney work product privilege

    • Attorney-client privilege

  3. The Service’s assertion of these privileges in response to FOIA requests and any related discretionary determinations must be consistent with the application of these same privileges in the context of discovery.

  4. Deliberative process is the most commonly invoked privilege under exemption (b)(5). There are two fundamental requirements, both of which must be met, in order for the deliberative process privilege to apply.

    1. The communication must be pre-decisional; that is, it precedes the adoption of an agency policy or other final decision and

    2. The communication must be deliberative; that is, play a direct part in the process of making recommendations or expressing opinions on legal or policy matters.

    Note:

    Communications which precede a determination not to issue a decision, policy statement, or published guidance, or with respect to which no final decision, policy statement, or published guidance has been issued, may be withheld under the deliberative process privilege if they meet these two requirements.

    Note:

    Documents which post-date a decision, but which merely recite deliberations that pre-date the decision, may be withheld if they otherwise meet the requirements of exemption (b)(5).

  5. The burden is on the agency to show the records meet both requirements. Records that reflect existing agency policy or reflect an interpretation of law already adopted by the agency should be disclosed because they are not pre-decisional, but discuss established policies and decisions.

  6. Generally, factual portions of internal agency records which may fall within the deliberative process privilege are not exempt from disclosure. However, if the facts are inextricably intertwined with deliberative matter, or selectively culled as part of the author's deliberations on the facts, they may be exempt.

    Example:

    Revenue Agent Form 4665 or “T-letters” transmitting information to Appeals are generally not exempt in their entirety, but must be reviewed to consider whether all, or part, of the record may be exempt.

  7. Disclosure personnel will withhold documents pertaining to published guidance (e.g. regulations, revenue rulings, revenue procedures, notices, and announcements), and those generated during the preparation of any statements of agency policy, or the preparation of interpretations adopted by the agency (e.g., Appeals Settlement Guidelines, Coordinated Issue Papers, IRM, etc.), when such documents are exempt from disclosure pursuant to discretionary discovery privileges or FOIA exemptions. The basis for this determination is twofold:

    1. To protect against public confusion that might result from the disclosure of various internal positions that do not reflect the grounds for the adoption of the guidance or policy that was published (or the decision not to publish at all).

    2. To protect against exposing the decision-making processes of the Internal Revenue Service in a way that would discourage candid discussion and undermine the Service’s ability to perform its critical tax administration functions.

  8. Work product privilege protects records prepared by an attorney or other Service employee during litigation or in reasonable contemplation of litigation. Generally, it does not cover records written by attorneys in the ordinary course of business (e.g., routine review of statutory notices of deficiency or summonses); it only covers those records which, under the particular facts and circumstances, were created primarily because of ongoing, or reasonably expected, litigation. A discussion with the Counsel attorney is required prior to release of any work product. Generally, discretionary FOIA exemptions for documents pertaining to these matters may be waived only by the Associate Area Counsel in consultation with the affected Service client at the supervisory level. For detailed instructions regarding who is authorized to make these determinations, see Chief Counsel Notice 2005-005 and the Chief Counsel Directives Manual (CCDM) 30.11.1.6, available at the following website: http://www.irs.gov/irm/part30/irm_30-011-001.html#d0e246.

    Note:

    This privilege applies regardless of the court in which the litigation has been (or would be) filed.

  9. Documents pertaining to litigation include not only documents prepared by Counsel attorneys, but also documents maintained in the administrative files of the Service to which the litigation pertains. Litigants have sometimes used the FOIA as a discovery tool. Therefore, coordinate FOIA responses carefully with the Counsel employee responsible for the litigation. Good coordination will help to ensure that material which is privileged in discovery is also appropriately withheld pursuant to FOIA exemption (b)(5), and that other material which could impair the government’s case is reviewed for withholding pursuant to applicable FOIA exemptions. Counsel employees will provide disclosure and withholding recommendations in accordance with CCDM 30.11.1.

  10. Attorney-client privilege protects confidential communications between an attorney and a client relating to a legal matter for which the client has sought professional advice. This includes communication from the client to the attorney and from the attorney to the client based on confidential information conveyed to the attorney by the client. The attorney-client privilege is not limited to communications pertaining to litigation or possible litigation. A discussion with the Counsel attorney is required prior to releasing any attorney-client communication. Discretionary FOIA exemptions for documents pertaining to these matters may be waived only by the Associate Area Counsel in consultation with the affected Service client at the supervisory level. See CCDM 30.11.1.

    Note:

    This privilege also applies to communication among Counsel attorneys regarding the legal advice sought or provided.

    Note:

    This privilege also applies when IRS Counsel seeks legal advice from the Department of Justice (including the Offices of the United States Attorneys).

  11. Once it is determined that there is a sound factual and legal basis for asserting the exemption, a decision must be made about whether the IRS should exercise its discretion not to claim the exemption. Make the decision to disclose information in response to a FOIA request only after a full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosing.

  12. Sometimes, Chief Counsel Advice or other written determinations are located in field compliance files. Since these documents are exclusively governed by IRC § 6110, process copies of these documents in accordance with that statutory schema and not the FOIA. IRC § 6110 requires the IRS to publish Chief Counsel Advice in addition to other written determinations (e.g., letter rulings, technical advice, and determination letters). If a FOIA request seeks an exam file, and a § 6110 written determination is included in the file, see IRM 11.3.13.9.1(8). Additional information for handling requests for § 6110 written determinations can also be found at IRC § 6110, IRM 11.3.8, Disclosure of Written Determinations, and at CCDM 33.1.3, Releasing Legal Advice to the Public, at http://www.irs.gov/irm/part33/irm_33-001-003.html and IRM 37.1.1, Written Determinations Under Section 6110, at http://www.irs.gov/irm/part37/irm_37-001-001.html.

11.3.13.7.2.6  (08-14-2013)
Exemption (b)(6)

  1. This exemption pertains to the protection of personal privacy and requires a balancing of two interests. The first is whether there is a protectable privacy interest threatened by disclosure of the records. When there is a privacy interest, this exemption requires a balancing between the individual’s right of privacy against the public’s right to be informed. The public interest in this balance is whether the information will shed light on government operations (the core purpose of FOIA).

  2. The exemption protects personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The phrase "similar files" as used in the (b)(6) exemption has been given a broad interpretation. The Supreme Court stated that Congress intended exemption (b)(6) to cover detailed information on an individual which can be identified as applying to that individual, regardless of the type of file in which the information is maintained, rather than just a narrow class of files. This may include reports of reviews made of an office if the narrative portion of the review focuses on a named official or uniquely titled official whose operation is being evaluated.

  3. To accomplish the balancing of public interest and privacy interest, use the following formula:

    1. If no privacy interest exists - release the information

    2. If any protectable privacy interest exists - check for public interest

    3. If there is no public interest (or public interest is not the kind of interest that sheds light on how the government operates) - withhold the information

    4. If there is both privacy and qualifying public interest - balance the two interests with a leaning toward releasing the information

  4. Examples of items that are protected by this exemption are the real names of employees using pseudonyms, disciplinary action files, EEO complaint files, and employees' ratings of record.

  5. Exemption (b)(6) does not preclude the release of:

    • Purely statistical information

    • Staffing patterns

    • Graphs of units closed or

    • Overtime expenditures

  6. The DOJ Guide to the FOIA at http://www.justice.gov/oip/foia-guide.html and Privacy Act Overview at http://www.justice.gov/opcl/1974privacyact-overview.htm contain an in-depth discussion about how to apply this exemption.

11.3.13.7.2.7  (08-14-2013)
Exemption (b)(7)

  1. Exemption (b)(7) exempts from disclosure records or information compiled for law enforcement purposes, but only to the extent that the production of such records:

    1. could reasonably be expected to interfere with enforcement proceedings,

    2. would deprive a person of a right to a fair trial or an impartial adjudication,

    3. could reasonably be expected to constitute an unwarranted invasion of personal privacy,

    4. could reasonably be expected to disclose the identity of a confidential source, including state, local, or foreign agency or authority, or any private institution, which furnished information on a confidential basis. In the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, any information furnished by the confidential source is also exempt,

    5. would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law or

    6. could reasonably be expected to endanger the life or physical safety of any individual.

  2. This exemption allows, but does not require, the withholding of records or information compiled for law enforcement purposes. It does not permit a blanket denial of records. Records may be edited or withheld only if the production of such records would cause one of the six specifically enumerated harms described above. The exemptions under (b)(7) apply to records generated out of civil and criminal judicial and administrative enforcement proceedings, and also apply to information that discusses investigations, such as instructions to staff and other employee guidelines.

    Note:

    The first (threshold) requirement that must be met when applying any of the (b)(7) exemptions is to determine that the document or record in question was compiled for law enforcement purposes. If the record was not compiled for law enforcement purposes, the (b)(7) exemptions do not apply.

    Example:

    An agency’s general monitoring of its own employees to ensure that the procedures in effect are compliant with the agency’s statutory mandate and regulations does not satisfy the threshold requirement.

11.3.13.7.2.7.1  (08-14-2013)
Exemption (b)(7)(A)

  1. Exemption (b)(7)(A) exempts information in open or prospective law enforcement files. Information contained in records compiled for a law enforcement purpose is not exempt unless disclosure would harm a protected interest. Thus, records may be withheld if disclosure could reasonably be expected to interfere with enforcement proceedings. This will apply to any ongoing enforcements or where there is a concrete prospect of future enforcement proceedings.

  2. Records may be withheld if disclosure of information unknown to requesters might impede the investigation or harm the government's case in that particular or a related proceeding. A determination may be made to exempt a category of records in a specific case, without the necessity of completing a document-by-document review if the category of records meets the requirements for exemption described in (1) above. It is expected that withholding a category of records rather than doing a document-by-document review would be an infrequent approach based on very specific and compelling circumstances relating to individual enforcement matters. The following procedures and documentation are required to make a determination to exempt a category of records.

  3. If disclosing the records to the requester will harm an ongoing investigation, and making copies for Disclosure personnel would also impair the investigation because it would significantly interrupt the efficient conduct of the investigation, the function with control over the records (usually CI) must make a written attestation and provide it to Disclosure personnel. Disclosure personnel will include the attestation in the FOIA case file. The attestation must contain:

    1. Case agent name, title, and phone number

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

    3. Location of records

    4. Other contact name, title, telephone number

    5. Statement that disclosure of the records could reasonably be expected to interfere with enforcement proceedings and that copies of all records to be withheld from the requester are being provided at this time to the Disclosure employee or will be provided to the Disclosure employee if the requester files an administrative appeal or judicial complaint pertaining to the FOIA determination

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

    7. The signature of the Supervisory Special Agent (SSA), or Group Manager

    8. The concurrence of the Special Agent in Charge (SAC) or Territory Manager

  4. The assigned Disclosure employee will advise the requester that responsive records in an approximate volume are being withheld pursuant to FOIA exemption (b)(7)(A) and/or (b)(3) in conjunction with IRC § 6103(e)(7).

  5. The function making the determination that disclosure could harm the government's case may provide a complete copy of the records being withheld to the Disclosure employee or must state in the documentation described above that a complete copy of the withheld documents will be kept available and will be provided if the requester files an administrative appeal or judicial complaint in the FOIA matter. IRS must be able to identify any documents withheld. Therefore, if the function does not provide copies of the withheld records to the Disclosure employee, 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 received or developed subsequent to the FOIA request must be distinguishable from documents withheld.

  6. The function with control of an open and ongoing case must carefully weigh the administrative burden of providing the copies with its response to the search request against the burden of maintaining the segregation within its file between the withheld documents and newer material added as the case continues. An issue to consider is the possibility that the requester will make additional requests for the file, which will require the function to separately identify the documents responsive to each FOIA request.

  7. Grounds for the nondisclosure of records include the harm in disclosing:

    • Evidence

    • The identities of witnesses and their prospective testimony

    • The reliance placed by the government upon the evidence

    • The transactions being investigated

    • The nature, direction and strategy of the investigation

    • The identities of confidential informants

    • Information that would identify a witness or confidential informant

    • The scope and limits of the investigation

    • Methods of surveillance

    • The subjects of surveillance

  8. The Supreme Court has stated that the exemption may also apply when release of requested information would give the requester earlier and greater access to the government's case than he/she would otherwise have.

  9. This exemption is commonly applied to open Criminal Investigation, Examination, Collection, Appeals, and Counsel files. Disclosure personnel, after coordinating with appropriate functional personnel, must be able to determine the harm to the government's interest and articulate how release would interfere with enforcement proceedings. Document the file adequately to reflect the determination.

  10. Occasionally, exemption (b)(7)(A) may be applied to records in a closed case, where disclosure could reasonably be expected to interfere with other open or future expected cases.

    Example:

    The amount of money actually spent in a sting operation may be withheld to prevent public knowledge of the agency’s resource limitations. This is distinct from exemption (b)(7)(E) because this is actual funds, not guidelines, procedures or techniques.

11.3.13.7.2.7.2  (08-14-2013)
Exemption (b)(7)(B)

  1. Exemption (b)(7)(B) protects against prejudicial pretrial publicity. This exemption provides for withholding if disclosure of the records would deprive a person of a right to a fair trial or impartial adjudication. This is primarily a protection against prejudicial publicity in civil or criminal trials. This is rarely used by IRS.

11.3.13.7.2.7.3  (08-14-2013)
Exemption (b)(7)(C)

  1. Exemption (b)(7)(C) protects personal information found in law enforcement records. This exemption protects from disclosure records or information compiled for law enforcement purposes the disclosure of which could reasonably be expected to constitute an unwarranted invasion of personal privacy.

  2. This exemption differs from exemption (b)(6) in that it requires a different standard for evaluating the invasion of personal privacy. It requires only a reasonable expectation of an invasion of personal privacy rather than a clearly unwarranted invasion of personal privacy.

  3. Prior to invoking this exemption, you must identify and evaluate the personal privacy interests implicated in the requested records. The Supreme Court held that whether disclosure is warranted within the meaning of the (b)(7)(C) turns upon the nature of the requested information and its relationship to the FOIA's central purpose of exposing to public scrutiny official information that sheds light on an agency's performance of its statutory duties. Disclosure personnel must balance competing personal privacy and public interests.

  4. This exemption only protects the personal privacy of individuals. Entities have no personal privacy. If the privacy or confidential information of a non-individual entity is at issue, Disclosure personnel must consider whether another FOIA exemption will properly apply to withhold the information.

  5. This exemption is commonly used to protect the identity of lower level Compliance employees at the Federal, state, or local level, names and other identifying information of taxpayers or other targets under investigation, and any witnesses or confidential sources interviewed. See IRM 11.3.13.9.9.

11.3.13.7.2.7.4  (08-14-2013)
Exemption (b)(7)(D)

  1. Exemption (b)(7)(D) protects the identity of confidential sources and, in criminal cases, the information the confidential source provided. This exempts from disclosure the name and any material which could reasonably be expected to disclose the identity of a confidential source. In criminal investigations, any information furnished by a confidential source, whether or not it identifies the source, is exempt.

  2. The first part of this provision, concerning the identity of confidential sources, applies to any type of law enforcement record, civil or criminal. The term confidential source refers not only to paid informants but to any person who provides information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. The factual basis for confidentiality, if not clear from the face of the records, will be documented in the case file.

  3. A source can be confidential with respect to some items of information provided, even if other information is furnished on an open basis.

  4. Sources have been interpreted to include local, state, and foreign law enforcement agencies that provide information to an agency in confidence. This was codified by the 1986 amendments to the FOIA. It does not include Federal agency personnel.

  5. The second part of the provision applies to the information provided by the confidential source. Generally speaking, with respect to civil matters, such information may not be treated as exempt on the basis of exemption (b)(7)(D), except to the extent that its disclosure would reveal the identity of the confidential source. However, with respect to criminal investigations and lawful national security intelligence investigations, any information provided by a confidential source is, by that fact alone, exempt.

  6. Use of this exemption by itself provides an indication that a confidential source exists. Use this exemption only where Disclosure personnel have confirmed, through consultation with the affected function(s), that the requester knows a confidential source exists and asserting the exemption is not likely to indirectly reveal the identity of the source. Where assertion of the exemption is believed to be inappropriate, (b)(3) in conjunction with IRC § 6103(e)(7), (b)(7)(A), and (b)(7)(C) may be asserted.

11.3.13.7.2.7.5  (08-14-2013)
Exemption (b)(7)(E)

  1. Exemption (b)(7)(E) exempts from disclosure certain enforcement procedures. This exemption applies to records that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, if such disclosure could reasonably be expected to risk circumvention of law.

  2. This exemption has been applied to protect Discriminant Information Function (DIF) scores, tolerances, and investigative criteria, which are also protected by FOIA exemption (b)(3) in conjunction with IRC § 6103(b)(2). Settlement criteria can also be withheld pursuant to FOIA exemption (b)(7)(E).

  3. This exemption may only be used to protect investigative techniques or guidelines not generally known to the public.

    Note:

    Where a technique is generally known, but the criteria for its use or the details of its use in a specific case are not publicly known, exemption (b)(7)(E) may apply to protect the information. For example, wiretapping is a technique generally known to the public. However, the criteria for IRS use of this technique are not generally known, and can be withheld using this exemption. Further, because the mere fact of use of the technique in a specific situation may reveal the criteria for use, fact of usage may (under certain circumstances) be withheld. This should be discussed with the agent(s) handling the investigation.

  4. After the passage of time, tolerances, investigative and prosecutorial criteria, and settlement guidelines may become known to the public or revised. Consider such factors before invoking the exemption. The determination must be made in consultation with the affected function(s), and documented in the case file.

11.3.13.7.2.7.6  (08-14-2013)
Exemption (b)(7)(F)

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

    Example:

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

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

11.3.13.7.2.8  (08-14-2013)
Exemption (b)(8)

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

11.3.13.7.2.9  (08-14-2013)
Exemption (b)(9)

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

11.3.13.7.3  (08-14-2013)
Record Exclusions

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

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

  3. Disclosure personnel must thoroughly familiarize themselves with the exclusion guidelines found in the DOJ Guide to the Freedom of Information Act at http://www.justice.gov/oip/foia-guide.html.

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

11.3.13.7.3.1  (08-14-2013)
Exclusion (c)(1)

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

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

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

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

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

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

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

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

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

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

11.3.13.7.3.2  (08-14-2013)
Exclusion (c)(2)

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

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

11.3.13.7.3.3  (08-14-2013)
Exclusion (c)(3)

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

11.3.13.7.4  (08-14-2013)
Redacting Records

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

  2. As discussed in IRM 11.3.13.7.1(4) through (7)), some exemptions are discretionary by statute and some are clearly non-discretionary. While citing the non-discretionary exemption is sufficient, clear case file documentation of the reasoning behind the application of the discretionary exemptions is crucial because the requester may appeal the final determination. The use of an index to document these determinations is encouraged.

    Note:

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

  3. Any reasonably segregable portion of a record must be released after redaction of the portions that are exempt. The redaction must be obvious to the requester and, if feasible, the applicable exemption cited at the point of redaction. In most instances, the electronic inventory system will make this routine as it automatically places the exemption at the place of redaction. The FOIA also requires an explanation in the response letter for any items withheld. See IRM 11.3.13.8.

    Note:

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

  4. When editing portions of a record being released, reasonable effort must be made to clearly indicate to the requester the extent of the editing. Editing and its extent must also be apparent in electronic records.

  5. The volume of information deleted on the released record must be indicated at the place in the record where the deletion was made. The electronic inventory system will clearly indicate the position and extent of any editing if properly used by Disclosure staff.

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

    Note:

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

11.3.13.7.5  (08-14-2013)
Open Investigatory Files

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

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

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

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

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

    Note:

    See DO 11-2 (Rev. 1) for who is authorized to withhold information pursuant to IRC § 6103(e)(7), and who is authorized to determine that disclosure would not seriously impair Federal tax administration.

  6. Generally, do not assert FOIA exemptions to deny records that would otherwise be available to the taxpayer during the course of an administrative proceeding (e.g., audit). However, see (3) above.

  7. Do not make a blanket denial asserting the (b)(3) and/or (b)(7)(A) exemptions when processing a FOIA request for records relating to an open civil or criminal investigation.

    Note:

    Process requests for records that are the subject of litigation and that potentially fall under the (b)(5) exemption in accordance with IRM 11.3.13.7.2.5.

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

    Note:

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

    Example:

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

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

    1. Carefully examine the memorandum to determine whether its disclosure, or any portion of it, could reasonably be expected to interfere with enforcement proceedings.

    2. Document in case history notes or redaction indexes specific line-by-line identification of contemplated interference, accompanied by the justification for such interference.

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

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

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

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

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

      Note:

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

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

    • The taxpayer's tax returns without IRS employee marginal notations

      Example:

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

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

    • Transcripts of accounts of the taxpayer

    • News clippings relating to the taxpayer except in limited circumstances where a selection of articles reveals areas of interest or may identify a related party in a separate investigation

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

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

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

    • Any other items, the release of which is not prohibited by statute and may be released without adverse affect in the opinion of the IRS employee in charge of the case in coordination with Counsel

  11. Records in System of Records 46.002, Criminal Investigation Management Information System (CIMIS) and case files may be available in response to a FOIA request. Although CIMIS is exempt from the access provisions of the Privacy Act, Disclosure personnel must consider releasing records in response to a FOIA request.

    1. Release of CIMIS records will only be considered in consultation with the assigned special agent. Criminal Investigation guidelines state that the special agent in charge or the assistant special agent in charge is responsible for reviewing the CIMIS record before it is forwarded to disclosure for release.

    2. If the requester is not aware of the investigation, disclosure personnel will consider using FOIA exclusion (c)(1). See IRM 11.3.13.7.3.1.

    3. If the requester is aware of the investigation, disclosure personnel will request and consider the special agent's recommendation regarding release of CIMIS information.

    4. Disclosure managers must be involved in any decision to reverse the special agent's recommendation.

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

    Note:

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

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

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

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

    2. Involvement of organized crime or narcotics figures

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

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

  15. When conference call-in numbers and access codes are found in case files, delete them citing the (b)(7)(E) exemption.

11.3.13.7.6  (08-14-2013)
Title 31 Reports - CTRs, CMIRs, FBARs, and SARs

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

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

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

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

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

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

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

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

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

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

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

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

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

  2. Cite FOIA exemption (b)(3) in conjunction with 31 USC § 5319 to deny access to these Title 31 reports and/or information extracted from them when processing a FOIA request seeking access, unless the information has been used in a tax administration case (see IRM 11.3.13.7.6(5)).

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

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

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

    1. If disclosure of the Title 31 reports or information extracted the reports will interfere with ongoing tax enforcement proceedings, assert exemptions (b)(7)(A) and (b)(3), in conjunction with IRC § 6103(e)(7). Do not assert 31 USC § 5319. Treat the reports and information extracted from these reports in the same manner as other return information contained in the tax investigatory file.

    2. If disclosure of the Title 31 reports or information extracted from these reports will not adversely affect ongoing tax enforcement proceedings, assert exemption (b)(3) in conjunction with 31 USC § 5319 except as noted in (c) below.

    3. If history notes, underreporter documents, revenue agent reports, or other documents used to sustain an assessment include information from the reports, release the information unless an appropriate official determines that disclosure will impair tax administration under IRC § 6103(e)(7). If the appropriate official makes an impairment call, assert FOIA exemption (b)(3) in conjunction with IRC § 6103(e)(7).

      Note:

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

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

    Note:

    See IRM Exhibit 11.3.13-2 for assistance in deciding whether to release Title 31 information and the appropriate FOIA (b)(3) statute to cite when withholding.

11.3.13.7.7  (08-14-2013)
Microfilm Requests

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

    1. Withhold extraneous information contained in the file because it is third party return information that the law prohibits disclosing.

    2. When withholding such extraneous portions of records, cite no exemptions if the material is not within the scope of the request. If such information is the only material not disclosed, this is considered a grant-in-full for reporting purposes. When the request seeks only information about the requester, the extraneous information is not within the scope of the request.

    3. When the request seeks "everything in the requester's file" or similar wording, consider the third party return information to be within the scope of the request and withhold pursuant to exemption (b)(3) in conjunction with IRC § 6103(a), (if retrieved from IRS records), (b)(3) in conjunction with IRC § 6103(e)(7), and/or (b)(7)(C).

11.3.13.7.8  (08-14-2013)
Foreign Government Files

  1. Foreign government files, sometimes known as international tax information, include information obtained from a foreign government under a treaty with the US or a Tax Information Exchange Agreement (TIEA).

  2. When searching for responsive documents, international information can be identified in various ways. There may be a stamp on the information that reads "Treaty," or the Revenue Agent (RA) assigned to the case may indicate that the information is treaty information. The FOIA request may also ask for "information received from (country name)."

  3. Responses to these requests require coordination between Disclosure personnel, the RA who conducted the examination and the Large Business and International (LB&I) Division’s Exchange of Information (EOI) function.

    Caution:

    Under no circumstances can any treaty information be released without LB&I EOI coordination, review, and approval.

  4. Disclosure Specialists will alert their Disclosure Manager when they receive these types of FOIA requests and document the case file appropriately.

  5. The Disclosure Specialist will obtain the examination file from the RA handling the case. They should also go through their Disclosure Manager to contact EOI for the treaty information.

  6. The RA will provide a copy of the exam file and make the initial determination on the release of treaty information. This is in addition to any recommendations from the RA on other (non-treaty) information in the file.

  7. If the RA determines that some of the treaty information is releasable, the Disclosure Specialist will contact EOI directly to share the RA’s recommendations and obtain EOI review and written concurrence.

  8. If the RA determines that all of the treaty information should be withheld, the RA will provide a written recommendation. The Disclosure Specialist will work with the RA to determine the applicable FOIA exemptions, e.g., (b)(3) in conjunction with IRC § 6105. No further contact with EOI is necessary for a full denial.

  9. Requests concerning international tax issues that are not for a specific taxpayer will be worked by the Office of Disclosure FOIA and Program Operations.

11.3.13.7.9  (08-14-2013)
Legibility of Copies

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

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

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

    Note:

    Do not withhold illegible documents on that basis alone. However, review illegible or barely legible documents for FOIA exemptions. Assert applicable exemptions for illegible material and withhold in the same manner as for legible documents. This is equally true whether the illegibility is caused by indecipherable handwriting or by poor quality of the original or electronically scanned document. Disclosure personnel will work with the function providing the documents or the Scanning Unit in Atlanta to determine the contents of the illegible documents or to have the illegible copy rescanned to try to improve legibility.

11.3.13.8  (08-14-2013)
Response and Closing

  1. The response to the requester closing the case is the final action to complete a FOIA request.

  2. The response letter must contain specific items of information such as the request receipt date and explain any exemptions applied for records denied in full or in part.

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

    Note:

    For further discussion of editing requirements, see IRM 11.3.13.7.4.

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

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

    1. identify the relevant requests by date, subject matter, certified mail number, and/or attach a copy of each request when making a single response to all requests or,

    2. when making a response to only one, or some, of the requests, clearly identify the relevant request(s) by date, subject matter, certified mail number, and/or attach a copy of the request(s).

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

    1. total pages responsive,

    2. number of pages denied in full (if applicable),

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

    4. number of pages granted in full.

      Caution:

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

      Note:

      The total of pages denied in full, denied in part, and granted in full must equal the total pages responsive to the request. After review, Disclosure personnel may determine records to be non-responsive (e.g., outside the scope of the request) and would not count such records in the page totals.

      Note:

      If denying a large number of pages in full as a category of records, you may estimate the number of pages. For example, "withheld in full four boxes of grand jury documents (copier paper size)" or "withheld in full third party return information documents filling three linear feet of storage shelving."

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

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

    Note:

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

  9. A senior specialist or a manager must review all cases releasing redacted records. Case files must document when a case is forwarded to the approving official for review and signature.

11.3.13.8.1  (08-14-2013)
Indexing

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

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

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

    Example:

    Consider preparing an index when more than one type of file is responsive, numerous pages are withheld in full or in part and/or many exemptions apply.

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

    Note:

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

  5. You must first number the pages when preparing an index. Generally, an index will:

    1. identify the records by type, date, recipient (by title), and originator (by title),

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

    3. identify the FOIA exemptions asserted,

    4. provide justification for the assertion and specify the anticipated harm from release of the record, unless assertion of the exemption is mandatory and

    5. indicate those items withheld because the exemption is mandatory and cite any applicable disclosure statutes.

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

  7. An index is not a required element in the response to the requester and is not generally provided.

    Note:

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

    Exception:

    In some cases, the Disclosure Manager may decide that providing all or part of the index as an attachment may simplify the response or avoid an unnecessary appeal.

    Caution:

    Ensure that details included in an index provided to the requester do not compromise the records or the information denied.

  8. With the advice and assistance of the Disclosure Manager or member of his/her staff, employees of the function conducting the search and making recommendations about release of the records may prepare an index.

11.3.13.8.2  (08-14-2013)
File Documentation

  1. History notes must document and explain any actions taken or considered that are not evident in other records in the file.

  2. Enclose Notice 393 for no record, denial, or partial denial closures. Indicate in the response letter that Notice 393 is enclosed.

    Example:

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

  3. Make entries in the inventory management system to document:

    1. total time spent by Disclosure personnel on the request,

    2. total time spent by other IRS employees, as reflected in search memoranda documentation,

    3. number of pages reviewed and released,

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

    5. exemption(s) applied and

    6. the supporting statute, if applying the (b)(3) exemption.


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