30.11.1  FOIA Requests for Chief Counsel Records

30.11.1.1  (08-11-2004)
Administrative Processing of FOIA Requests for Chief Counsel Records

  1. 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.

  2. 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.

30.11.1.2  (05-01-2009)
Receipt and Processing of FOIA Request

  1. National Office. The Office of Governmental Liaison and Disclosure, (GLD), 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 Branch (DLS), P&A. Upon receipt of the request, a case will be opened on TECHMIS as FOIA/R-XXXXXX-YY, and the request will be assigned to a paralegal specialist in DLS for processing.

  2. 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).

30.11.1.2.1  (05-01-2009)
Evaluation of Request

  1. For requests received in the National Office, the DLS paralegal specialist 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.

  2. 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.

    Note:

    Any questions about the validity of the FOIA request or what should be considered responsive records should be directed to the DLS by the National Office attorney and to the local Disclosure Office by the field attorney.

  3. Upon receipt of a valid FOIA request, if the attorney or DLS paralegal specialist determines that some IRS office(s) 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 HQ Disclosure Office contact person with that information. The attorney or DLS paralegal specialist will document such notification in the case file history sheets.

30.11.1.2.2  (05-01-2009)
Search for Records

  1. National Office. Once it is confirmed that the request satisfies all procedural requirements, the DLS paralegal specialist assigned to the request will complete a search of TECHMIS in order to determine the location(s) of all responsive records.

    1. For records maintained in closed legal files stored in the P&A Docket, Records and User Fee branch (DRU), the DLS paralegal specialist will request the legal file from DRU by use of Form 9612, Request for Records.

    2. For records maintained in closed legal files that should be stored in DRU, but which cannot be found, the DLS paralegal specialist is to send a memorandum to the appropriate originating office(s), to the attention of the designated point of contact, requesting that the files be forwarded to the Chief, DLS within five working days. If records were not compiled into a legal file, the originating office should take immediate steps to preserve and gather all records to constitute a legal file and forward the file to the Chief, DLS.

    3. For records maintained in closed legal files that are stored in locations other than DRU, or for records maintained in legal files pertaining to pending matters, the DLS paralegal specialist will send a memorandum to the appropriate originating office(s), to the attention of the designated point of contact, requesting that the files be forwarded to the Chief, DLS within five working days. For records pertaining to pending matters, the DLS paralegal specialist will make copies of the records and then return the open legal file to the originating office. If the originating office wishes to review the disclosure treatment recommended by DLS before the response is provided to GLD, the office should inform the Chief, DLS, at this time.

      Note:

      Requests for public comments and public hearing information are addressed by the Publications and Regulations branch in P&A

  2. 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.

  3. Requests for Previously Processed Copies of section 6110/FOIA Material in the National Office. If there has been a prior section 6110/FOIA request for records, the DLS paralegal specialist should first determine whether additional records may have been generated since the prior request was processed. If so, the steps set forth in 30.11.1.2.2 should be followed. If however, no additional records are expected to have been created, in lieu of retrieving the closed legal file, 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 file room. DLS will then 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 they related to a pending investigation that has since been closed and release of the records would no longer interfere with the investigation, there may no longer be a basis for withholding the records.

  4. When an originating office conducts a search for responsive records, the office must complete the search questionnaire identifying the amount of time spent and the grade level of each individual who performed the search.

30.11.1.2.3  (05-01-2009)
Period to Respond

  1. The appropriate office or offices are to complete their searches 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 must contact the DLS paralegal specialist or Disclosure Officer, respectively, by the originally assigned due date with an estimated date of completion. Such contacts are to be documented in the case file.

  2. For any FOIA request for which expedited treatment has been granted by GLD, HQ Disclosure Office, the applicable time periods will be truncated by 50% or as otherwise directed by the HQ Disclosure Office.

30.11.1.3  (05-01-2009)
National Office Responsibilities

  1. Upon receiving all responsive records, the DLS paralegal specialist will review the records for their appropriate disclosure treatment and respond, on behalf of the Office of Chief Counsel, to the HQ Disclosure Office.

  2. The office or offices from which the files originated are not required to make any disclosure recommendations, but may do so if they wish.

    1. For those requests that the DLS paralegal specialist did not obtain directly from the originating office, the DLS paralegal will send an email to the office, to the attention of the designated point of contact, inquiring whether the office wishes to review the disclosure treatment recommended by DLS. The originating office is to respond within five working days. Once the office receives the DLS paralegal specialist’s proposed response to GLD and package of records, the office is expected to provide its concurrence, or if there is any disagreement, the office’s proposed changes, within ten working days of the date of DLS’s email.

    2. For those requests that the originating office or offices provided responsive records, and expressed an interest in reviewing DLS’s recommendations on the disclosure of such records, the DLS paralegal specialist will email the office, to the attention of the designated point of contact, and inform the office that the disclosure package is ready for review. The office is expected to provide its concurrence, or if there is any disagreement, the office’s proposed changes, within ten working days of the date of DLS’s email. Any disagreements are to be resolved under Counsel’s reconciliation procedures.

  3. DLS will coordinate with other offices as appropriate.

    Example 1: If a record, presently located in a National Office file originated in an Area or Associate Area Counsel office, it will be considered a part of the National Office file for purposes of processing the FOIA request, and a disclosure recommendation will be made by DLS. If the originating office has requested to review DLS’s disclosure treatment, the National Office attorney should contact the Area or Associate Area Counsel office for its views on DLS’s disclosure recommendations. Any disagreement is to be resolved under Counsel reconciliation procedures.
    Example 2: If the records were generated outside the Office of Chief Counsel, but are now of institutional interest to Counsel (e.g., examination records relevant to a disputed Tax Court case, or criminal investigation records in a criminal tax prosecution case), DLS will make a disclosure recommendation to GLD with respect to those records.
    Example 3: If a record presently located in a National Office file originated in, or is of institutional interest to, an IRS office, or pertains to a matter known to be of institutional interest to the IRS, DLS may choose to coordinate with that IRS office before finalizing its recommendation on the disclosure treatment of the responsive records to GLD. If DLS chooses not to coordinate with the IRS office(s), then if DLS is going to recommend disclosure and believes that the originating, or other IRS office, may have some independent institutional interest in the records, the DLS paralegal specialist is to advise the HQ Disclosure Office to make the necessary coordination with the affected IRS office. Whether DLS coordinated the disclosure recommendations with another IRS office will be noted in any transmittal of the responsive records, and responsibility for the assertion of any exemptions will be attributed to DLS or the IRS office, as warranted.
    Example 4: 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 7.

  4. Other Agency Records. To the extent the file contains records created by another agency (including Treasury), the DLS paralegal specialist will first determine whether Counsel has any interest in withholding the other agency records. If the paralegal specialist determines there is an institutional interest that warrants withholding the other agency records, the paralegal specialist will state the appropriate exemptions and provide an explanation for withholding the records in the response to GLD. If the paralegal specialist determines that Counsel has no institutional interest that warrants withholding the other agency records, the paralegal specialist will separate the other agency records from the Counsel records and note their origin. The paralegal specialist will inform the HQ Disclosure Office that such records should be transmitted 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).

    Note:

    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.

30.11.1.4  (05-01-2009)
Review By DLS Paralegal Specialists

  1. 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 DLS disagrees with the originating office’s recommendations, DLS will coordinate with the office to reach an agreement. If an agreement cannot be reached, the disagreement will be resolved under Counsel reconciliation procedures.

  2. If the record originated outside the Office of Chief Counsel, or in another agency, and neither DLS nor the initiating office makes a disclosure recommendation to withhold these records, DLS 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, or transfer the request, as appropriate.

30.11.1.5  (05-01-2009)
Area Counsel or Associate Area Counsel Office Responsibilities

  1. 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 one or more FOIA exemptions.

  2. 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 with pink highlighter.

  3. The attorney shall also provide a written articulation as to why each of the proposed redactions should be made.

  4. The attorney shall complete the search questionnaire identifying the amount of time spent and the grade level of the individual performing the search.

  5. The attorney may choose to coordinate with the IRS office. In that event, the coordination with the IRS 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 IRS 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 IRS offices, the attorney will notify the HQ 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.

  6. 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 HQ 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).

30.11.1.6  (04-08-2005)
Discretionary Disclosure

  1. 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 IRS’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.

  2. The analysis by an agency to waive an exemption or a privilege is a two-step process.

    1. 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, Permissive Deletions of Privileged Material, CCDM 35.4.6.3.3, Privileges, and IRM 11.3.13.7.2 , Exemptions.

    2. 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.

  3. 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.

  4. 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).

  5. 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).

    1. Written determinations subject to the disclosure requirements of section 6110 are Private Letter Rulings, Technical Advice Memoranda, Chief Counsel Advice, and Determination Letters.

    2. 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.

    3. Administrative staff manuals and instructions to staff within the Office of Chief Counsel include the Chief Counsel Directives Manual and Chief Counsel Notices.

    4. 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.

  6. 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 IRS 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 IRS 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.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

  7. 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 IRS client at the supervisory level.

30.11.1.7  (08-11-2004)
Novel, Sensitive or Complex FOIA Issues

  1. Questions about any novel, sensitive or complex FOIA issue should be directed to the Office of Assistant Chief Counsel (Disclosure & Privacy Law).

  2. 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.

  3. 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.

30.11.1.8  (08-11-2004)
Response to Disclosure Office

  1. 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.

  2. 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.

  3. Case Closing—Once the memorandum is sent to the Disclosure Office, the legal file will be closed.


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