- 30.11.1.1 Administrative Processing of FOIA Requests for Chief Counsel Records
- 30.11.1.2 Receipt and Processing of FOIA Request
- 30.11.1.3 National Office Responsibilities
- 30.11.1.4 Review By DLS Paralegal Specialists
- 30.11.1.5 Area Counsel or Associate Area Counsel Office Responsibilities
- 30.11.1.6 Discretionary Disclosure
- 30.11.1.7 Novel, Sensitive or Complex FOIA Issues
- 30.11.1.8 Response to Disclosure Office
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This section covers the processing of Freedom of Information Act (FOIA) requests for records maintained in the National Office, which includes all Associate Chief Counsel and Division Counsel Headquarters offices, and for records maintained in the Area or Associate Area Counsel Offices.
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Pursuant to CCDM 30.3.2.3.8 the Office of the Associate Chief Counsel (Procedure & Administration) is responsible for coordinating the processing of all FOIA requests for records maintained in the National Office. Each Area or Associate Area Counsel Office is responsible for processing the FOIA requests submitted to it by the local Disclosure Office for Counsel records in its respective office.
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National Office. The Office of Governmental Liaison and Disclosure, Area 2, HQ Disclosure Office will forward a copy of any FOIA request for access to National Office counsel records to the Chief, Disclosure and Litigation Support (DLS) branch, P&A Upon receipt of the request, a case will be opened on CASE as FOIA/R-XXXXXX-YY, and the request will be assigned to a paralegal specialist in the DLS branch for processing.
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Area Counsel and Associate Area Counsel Offices. Upon receipt of the request from the local Disclosure Office, a case will be opened in Techmis as FOIA/R, and the request will be assigned to an attorney or paralegal specialist.
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For requests received in the National Office, the DLS branch will first evaluate whether the request satisfies the procedural requirements of the FOIA and applicable regulations, with particular attention to whether it reasonably describes the records for which access is being sought and whether the request seeks access to National Office records. If the answer to either is negative, a memorandum will be prepared within three working days of the date of assignment containing an appropriate explanation and the request will be returned to the HQ Disclosure Office. The file will then be closed.
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For requests received in Area or Associate Area Counsel offices, the Disclosure Office which services the Area or Associate Area Counsel office will determine prior to forwarding the request to the Counsel office whether the request satisfies all procedural requirements.
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Any questions about the validity of the FOIA request or what should be considered responsive records should be directed to the DLS branch by the National Office attorney and the local Disclosure Office by the field attorney.
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Upon receipt of a valid FOIA request, if the attorney or DLS paralegal specialist determines that some Service office other than the Counsel Office may have responsive records and therefore needs to be provided with a search memorandum, the attorney or DLS paralegal specialist will call the Disclosure Office contact person with that information. The attorney or DLS paralegal specialist will document such notification in the case file history sheets.
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For the National Office, if the request satisfies all procedural requirements, it is assigned to the Counsel office or offices within National Office having jurisdiction over the requested records. The assignment will be made by a memorandum to the appropriate office(s) stating that a FOIA request has been made for their records and requesting them to expeditiously execute a search for any records which are responsive to the request. A Work Load Item (WLI) will be opened by DLS for those offices having jurisdiction over the requested records.
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For records maintained in the P&A Docket, Records and User Fee branch, the DLS branch will request the legal file from DRU by use of Form 9612, Request for Records.
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For offices whose records are maintained in the DRU, the records determined to be responsive will be forwarded to the office that originated the records within three working days of case assignment.
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Requests for public comments and public hearing information are addressed by the Publications and Regulations branch in P&A
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For Area Counsel or Associate Area Counsel Offices, upon receipt of a valid FOIA request from the local Disclosure Office, the attorney will determine which records are responsive to the request.
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Requests for Previously Processed Copies of section 6110/FOIA Material in National Office. If there has been a prior section 6110/FOIA requestor, the DLS paralegal specialist will obtain a copy of the records, as previously disclosed, and a copy of any written articulation covering redactions in those records from the DLS file room will be forwarded to the responsible offices within the National Office with a cover memo explaining which records have been previously disclosed and noting any differences between the previously disclosed records and those records currently in the case file. That office will review the records, bearing in mind any changes which may be brought about by the passage of time, or other changes in circumstances. For example, if the records had previously been withheld because the case was under investigation at the time of the prior disclosure, and the investigation is now closed and release of the records would no longer interfere with the investigation, the office should recommend disclosure. If there have been no changes in circumstances, in lieu of providing a new set of the records to be disclosed, the office may adopt the redactions of the previous disclosure.
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The appropriate office or offices are to complete their searches and provide their disclosure recommendations within ten working days of the date of the search memorandum. If they are unable to do so, the National Office attorney or Area or Associate Area attorney is to contact the DLS paralegal specialist or Disclosure Officer, respectively, by the due date with an estimated date of completion. Such contacts are to be documented in the case file.
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For any FOIA request for which expedited treatment has been granted by the Disclosure Office, the applicable time periods will be truncated by 50% or as otherwise directed by the Disclosure Office.
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Offices within National Office will forward to the Chief, DLS, one complete clean set of the responsive records and one set of responsive records with disclosure recommendations clearly marked. Proposed redactions will be marked by using a pink highlighter. For a full discussion of the available FOIA exemptions and standards for usage, see IRM 11.3.13.7.2.
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The office shall also provide a written articulation as to why each of the proposed redactions should be made.
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The office shall complete the search questionnaire identifying the amount of time spent and the grade level of the individual performing the search.
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The office will coordinate with other offices.
Example 1: If a record is presently located in a National Office file originated in a Division Counsel office, it will be considered a part of the National Office file, and a disclosure recommendation will be made by the appropriate office within the National Office. Nonetheless, the National Office attorney will contact the Area or Associate Area Counsel office for its views on disclosure recommendations. Any disagreement is to be resolved under Counsel reconciliation procedures. Example 2: The office may choose to coordinate with its client. In that event, the coordination with the client will be noted in any transmittal of the responsive records, and responsibility for the assertion of any exemptions will be attributed to the National Office or client, as warranted. Example 3: If the office is going to recommend disclosure and believes that the originating, or other IRS office, may have some independent institutional interest in the records, the office will advise the DLS paralegal specialist to advise HQ Disclosure to make the necessary coordination with the affected IRS office. -
For those FOIA requests involving records that contain information received from, or that may otherwise be of interest to, treaty partners, the office is to consult with the Office of Associate Chief Counsel (International), Attn: Chief, Branch 1.
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If the records were generated outside the Office of Chief Counsel, but are now of interest to Counsel (e.g., examination records relevant to a disputed Tax Court case, or criminal investigation records in a criminal tax prosecution case), the office will make a disclosure recommendation to the Chief, DLS branch with respect to those records.
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Other Agency Records. To the extent the file contains records created by another agency (including Treasury), the attorney will first determine whether Counsel has any interest in withholding the other agency records. If the attorney determines there is an institutional interest that warrants withholding the other agency records, the attorney will state the appropriate exemptions and provide an explanation for withholding the records. If the attorney determines that Counsel has no institutional interest that warrants withholding the other agency records, the attorney will separate the other agency records from the Counsel records and note their origin. The attorney will inform the DLS paralegal specialist of the need to inform HQ Disclosure to transmit these records to the appropriate agency for such agency to make its disclosure determination and respond directly to the requester. See 31 C.F.R. part 1, § 1.5(c)(2).
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Whenever published guidance records are the subject of a FOIA request, the office should contact Treasury Office of Tax Policy to coordinate the disclosure recommendations with respect to the records.
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Upon receipt of all records and recommendations, the DLS branch will review both the records and recommendations and make an independent determination of what records should be recommended for release to the requester. If the DLS branch disagrees with the office’s recommendations, the DLS branch will coordinate with the office to reach an agreement. If an agreement cannot be reached, the disagreement will be resolved under Counsel reconciliation procedures.
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If the record originated outside the Office of Chief Counsel, or in another agency, and the responding office does not make a disclosure recommendation to withhold these records, the DLS branch will advise HQ Disclosure Office that it should coordinate the disclosure of that particular record with the originator of the record or other affected office or agency.
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Records in any legal file, including a pending litigation case file, are not per se withheld from release. Rather, the attorney must determine whether each record is subject to a FOIA exemption.
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The attorney assigned to respond to the FOIA request will forward to the Disclosure Office one complete clean set of the responsive records and one set of responsive records with disclosure recommendations clearly marked. Proposed redactions will be marked by using a pink highlighter.
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The attorney shall also provide a written articulation as to why each of the proposed redactions should be made.
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The attorney shall complete the search questionnaire identifying the amount of time spent and the grade level of the individual performing the search.
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The attorney may choose to coordinate with the client office. In that event, the coordination with the client office will be noted in any transmittal of the responsive records, and responsibility for the assertion of any exemptions will be attributed to the Counsel attorney or client office, as warranted. For example, the attorney may want to contact the Appeals Officer, if an Appeals Case Memorandum is among the responsive records, in order to determine whether the Appeals Case memorandum, or any portion, should be released or withheld. If it is necessary for the Area or Associate Area Counsel attorney to coordinate with Service offices, the attorney will notify the Disclosure Office of the need to coordinate. This will alert the Disclosure Office to ask for additional time, if necessary, to respond to the request.
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Other Agency Records. To the extent the file contains records created by another agency (including Treasury), the attorney will first determine whether Counsel has any institutional interest that warrants withholding the other agency records. If the attorney determines there is an institutional interest which warrants withholding the other agency records, the attorney will indicate the appropriate exemptions and provide an explanation for withholding the records. If the attorney determines that Counsel has no institutional interest that warrants withholding the other agency records, the attorney will separate the other agency records from the Counsel records and note their origin. The attorney will inform the Disclosure Office of the need to transmit these records to the appropriate agency for such agency to make its disclosure determination and respond directly to the requester. See 31 C.F.R. part 1, § 1.5(c)(2).
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This subsection provides procedures for discretionary disclosure. Discretionary disclosure involves the agency’s determination that a privilege or FOIA exemption that could be asserted to protect certain information will be waived as a matter of agency discretion. Common examples of discretionary exemptions can be found in FOIA exemption 5, which incorporates various common law or governmental privileges recognized in discovery, including the deliberative process privilege (sometimes referred to as " governmental or executive privilege" ), the work product doctrine, and the attorney-client privilege. The Service’s decision to assert these privileges in response to FOIA requests will be consistent with the application of these same privileges in the context of discovery.
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The analysis by an agency to waive an exemption or a privilege is a two-step process.
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First, the information must fall factually and legally within a FOIA exemption or a privilege. For example, when determining whether to assert the deliberative process privilege, one must determine whether the information preceded the adoption of the agency policy and whether the information played a direct part in the deliberative process. Generally, if the information contains purely factual matters, as opposed to recommendations or opinions, or merely reflects a final decision adopted by the agency, it does not fall within the deliberative process privilege. For a more detailed explanation of specific FOIA exemptions and discovery privileges, see CCDM 33.1.3.2.2, CCDM 35.4.6.3.3, and IRM 11.3.13.7.2.
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Second, the agency must decide whether it should exercise its discretion to waive the applicable exemption or privilege. Any decision to disclose information during discovery, at trial, or in response to FOIA requests, will be made only after a full and deliberate consideration of the institutional (i.e., public accountability, safeguarding national security, law enforcement effectiveness, and candid and complete deliberations), commercial, and personal privacy interests that could be implicated by disclosing this information. See Policy Statement 11-13 (4/23/2004) available at http://www.irs.gov/foia/index.html.
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Discretionary privileges and FOIA exemptions will be asserted in accordance with the procedures described in paragraphs 4 through 7, except in extraordinary circumstances after receiving an appropriate level of review.
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Documents pertaining to published guidance—Discretionary discovery privileges or FOIA exemptions will be asserted for documents pertaining to published guidance. Published guidance includes regulations, revenue rulings, revenue procedures, notices, and announcements, and is disclosed to the public by publication in the Federal Register or the Internal Revenue Bulletin. See 5 U.S.C. § 552(a)(1) and (2).
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Documents pertaining to statements of agency policy and interpretations adopted by the agency, administrative staff manuals, and instructions to staff within the meaning of FOIA, 5 U.S.C. § 552(a)(2)(B) and (C), including written determinations under section 6110—The discretionary exemptions or privileges will be asserted for documents that are generated during the preparation of any statements of agency policy (including written determinations subject to section 6110), and interpretations adopted by the agency, administrative staff manuals, and instructions to staff within the meaning of FOIA, 5 U.S.C. § 552(a)(2)(B) and (C).
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Written determinations subject to the disclosure requirements of section 6110 are Private Letter Rulings, Technical Advice Memoranda, Chief Counsel Advice, and Determination Letters.
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Other statements of agency policy and interpretations within the Office of Chief Counsel include Actions on Decisions, General Counsel Memoranda, and field-authored advice reviewed in the National Office.
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Administrative staff manuals and instructions to staff within the Office of Chief Counsel include the Chief Counsel Directives Manual and Chief Counsel Notices.
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Examples of privileged documents may include memoranda weighing reasons for and against the proposed policy, drafts, or meeting notes that reflect the exchange of opinions between agency personnel on the matter being considered.
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Documents pertaining to litigation—The decision to release information contained in this group of documents will be made after full consideration of the appropriate factors. The decision to waive the exemption or privilege will be documented in writing and approved by the designated level of authority, as set forth below. Documents pertaining to litigation include documents prepared by Counsel attorneys as well as documents maintained in the administrative files of the Service to which the litigation pertains. The procedural requirements to elevate and coordinate are triggered only in those cases when waiver of the discretionary privileges or FOIA exemptions is recommended. Because the FOIA can be used as a discovery tool, Counsel employees will coordinate their responses in discovery with Service personnel processing FOIA requests seeking the same documents or information. Counsel employees should consider the impact of the assertion or waiver of discretionary privileges on their own pending cases, on other pending cases, or future cases.
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Cases governed by Significant Case Procedures or Cases included in the Treasury Significant Litigation Report—The decision to waive any applicable discretionary privileges or FOIA exemptions for documents pertaining to these cases may be waived only by the Division Counsel Headquarters Office, in consultation with the affected Associate Chief Counsel office.
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Cases in litigation that involve an issue for which the Office of Chief Counsel requires coordination with the National Office—Discretionary discovery privileges or FOIA exemptions for documents pertaining to these cases may be waived only by the Associate Area Counsel in coordination with the affected Associate Chief Counsel office.
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Cases in litigation handled by the Associate Chief Counsel —Discretionary discovery privileges or FOIA exemptions for documents pertaining to these cases may be waived only by the Assistant Chief Counsel, in consultation with the Associate Chief Counsel or, in offices without Assistant Chief Counsel, the Associate Chief Counsel.
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All other cases in litigation—Discretionary discovery privileges or FOIA exemptions for documents pertaining to these cases may be waived only by the Associate Area Counsel.
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Documents pertaining to nondocketed legal advice—Discretionary discovery privileges or 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.
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Questions about any novel, sensitive or complex FOIA issue should be directed to the Office of Assistant Chief Counsel (Disclosure & Privacy Law).
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National Office—In any case where there is a disagreement between an office and the Chief, DLS and/or between the HQ Disclosure Office and the DLS regarding any aspect of a FOIA request, the Chief, DLS and HQ Disclosure Office will make all reasonable efforts to resolve the disagreement.
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Area Counsel or Associate Area Counsel Offices—In any case where there is a disagreement between an Area Counsel or Associate Area Counsel Office and the local Disclosure Office, regarding any aspect of a FOIA request, the Area or Associate Area Counsel Office will make all reasonable efforts to resolve the disagreement.
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National Office—After reviewing the requested records, the Chief, DLS, will transmit to the HQ Disclosure Office one clean set and one redacted set of the requested records and set forth in a separate memorandum the recommendations of the Office of Chief Counsel concerning disclosure of those records. The Chief, DLS will also forward the search questionnaire completed by the Counsel office or offices to HQ Disclosure.
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Area Counsel or Associate Area Counsel Office—After reviewing the records, the attorney will transmit one clean set and one redacted set of the requested records and set forth the recommendations of the Area or Associate Area Counsel Office concerning disclosure of those records. The attorney will also forward the search questionnaire completed by the Counsel office to the Disclosure Office.
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Case Closing—Once the memorandum is sent to the Disclosure Office, the legal file will be closed.