11.3.13 Freedom of Information Act

Manual Transmittal

July 16, 2020

Purpose

(1) This transmits revised IRM 11.3.13, Disclosure of Official Information, Freedom of Information Act.

Material Changes

(1) IRM 11.3.13.1 - Revised the title to Program Scope and Objectives to properly reflect the information communicated in this subsection. Included important information to conform to the new internal and management control standards under the following titles:

  1. IRM 11.3.13.1.1, Background - Information from prior IRM 11.3.13.1, Background, was incorporated into this section. Paragraph (10) of this section was updated.

  2. IRM 11.3.13.1.2, Authority - Information from prior IRM 11.3.13.2, Authority, was incorporated into this section.

  3. IRM 11.3.13.1.3, Responsibilities - This IRM is applicable for all IRS employees to help comply with the disclosure provisions when responding to requests for agency records pursuant to FOIA. Information from prior IRM 11.3.13.3, Responsibility, IRM 11.3.13.3.1, Disclosure Managers, IRM 11.3.13.3.2, The Roles of Other Employees in Processing FOIA Requests, and IRM 11.3.13.3.3, FOIA Requests Requiring Deputy Associate Director, Disclosure Involvement, was incorporated into this section.

  4. IRM 11.3.13.1.4, Definitions/Acronyms - Compiled a list of frequently used terms and acronyms regarding disclosure of information in response to requests for agency records under FOIA.

  5. IRM 11.3.13.1.5, Related Resources - Added related resources applicable to the disclosure of information in response to requests for agency records under FOIA.

All subsequent subsections were renumbered accordingly.

(2) Throughout the IRM references to the Freedom of Information Act (FOIA) Electronic Reading Room were changed to Freedom of Information Act (FOIA) Library.

(3) Revised 11.3.13.2.1(2), Receipt and Control of FOIA Requests, to add information about requests that are received electronically by CPU being date stamped the next day if received after normal business hours.

(4) The following table describes changes made throughout IRM 11.3.13.3, Initial Analysis of FOIA Request:

11.3.13.3(1) Added new (1) to provide guidance on ensuring all data elements are correctly entered in the inventory management system
11.3.13.3(3) Removed the reference to Exhibit 11.3.13-2, FOIA and IRC §6103 If/Then table, since the Exhibit has been removed
11.3.13.3(4)(a) Added four notes to make it clear that caseworkers should contact requesters to secure signature for requests that require signatures, to accept FOIA Portal requests if they do not require signatures, IRS does not accept stamped signatures and will accept scanned requests containing original signatures.
11.3.13.3(c) Added a reference to the online FOIA Portal being an allowable way to submit a FOIA
11.3.13.3(e) Removed (e) since requesters do not need to prove their right to receive records
11.3.13.3(g) Removed (g) since IRS will provide records electronically and do not require inspection statements
11.3.13.3(5) Removed (5) to put analysis for record location after "Initial Analysis"
11.3.13.3(6) Removed the note for instructions of case re-assignment criteria
11.3.13.3(8) Added a new (8) to provide guidance on a request for inspection of records

(5) Added IRM 11.3.13.3.1, Tolling, to provide information on the statutory concept of tolling.

(6) The following table describes changes to IRM 11.3.13.3.3, Identity of Requester:

11.3.13.3.3(4)(d) Revised (4)(d) to change requests without identification or authorization documents from being imperfect to be denials of records
11.3.13.3.3(8) Removed (8) to no longer allow other IRS employees to verify a requester’s identity

(7) The following table describes changes to IRM 11.3.13.3.6, Imperfect Requests:

11.3.13.3.6(1), 11.3.13.3.6(3) & 11.3.13.3.6(5) Clarified that caseworkers must make reasonable attempts to perfect a request before closing on the inventory management system
11.3.13.3.6 Removed information allowing caseworkers to revert FOIA requests to IRC §6103(c)/(e) requests when the FOIA request is imperfect

(8) Updated IRM 11.3.13.3.9, IRS Records Located in Other Agencies or Other Treasury Components, (2)(b) and (2)(c) to remove references to a specific “miscellaneous” case type that may be applicable to specific inventory management systems and made the language more general for any future inventory management systems.

(9) Clarified IRM 11.3.13.3.10(1), Requests for All Records Concerning Me, to include statutory language that requests must “reasonably describe records in sufficient detail” and to address email requests which are not specific or include items which are very broad in the scope of the subject matter.

(10) Added IRM 11.3.13.3.11(3)(d), Multiple or Repeat FOIA Requesters, to fully clarify that caseworkers must not close and aggregate FOIA requests without contacting the requester to confirm agreement to withdraw the requests.

(11) Removed pattern language from (9) of IRM 11.3.13.3.12, Pseudo Requests, since this language is provided in the approved pattern letters available to Disclosure employees. Updated the paragraph to reference the approved pattern letter.

(12) Added language to IRM 11.3.13.3.14(5), Reassigning Requests, to clarify that requests challenging prior responses will only be reassigned to a prior caseworker if there are additional records located that are responsive to the request.

(13) The following table describes changes to IRM 11.3.13.3.15, Routine Established Agency Procedures:

11.3.13.3.15(2)(a) Added four notes to advise caseworkers not to remove transcripts from administrative case files, a table was added to provide procedures on fraudulent return requests and requests for admin files can be answered outside the FOIA process. Removed two notes and the reminder.
11.3.13.3.15(2)(f) Removed the note to redact the SSN from Form 7249 since accepted OIC’s already have taxpayer information removed.
11.3.13.3.15(2)(h) Removed (h) as PIL information is duplicated in other IRM 11.3.13 sections.
11.3.13.3.15(3) Revised (3) to advise caseworkers to discuss case issues with Routine Established Agency Procedures with the FOIA Senior Policy Analyst.

(14) Added new (11) to IRM 11.3.13.4.2, Search Efforts, to provide guidance on terminating a search when records are no longer needed and removed (9) to remove the allowance of employees to remove true duplicate documents from case files

(15) The following table describes changes to IRM 11.3.13.4.3, Adequacy of Search:

11.3.13.4.3(3) Removed (3)
11.3.13.4.3(10)(f) Added (f) to clarify what functions must document when Disclosure makes written requests
11.3.13.4.3(12) Removed the previous note
11.3.13.4.3(16) Removed the requirement to keep records for 180 days if records can not be imaged

(16) Added new section IRM 11.3.13.4.4, Search Efforts Pertaining to Email Records, to provide guidance on searching for employee email records.

(17) Added (2) to IRM 11.3.13.5.2, Exemptions, to provide guidance on the use of outside the scope and voluminous records being withheld in full. Also, removed (3) and (4) of this section to move the information to new section IRM 11.3.13.5.2.1, Discretionary Release of Records

(18) Added new section IRM 11.3.13.5.2.1, Discretionary Release of Records, to advise that statutory FOIA exemptions, not including (b)(3), are not mandatory and decisions to use the redactions on records need to be made in conjunction with business units that control the records.

(19) Added information to IRM 11.3.13.5.2.8.1, Exemption (b)(7)(A), to state that impairment may apply to open or closed files and removed the note from (3)(g).

(20) Added new IRM 11.3.13.5.4, Glomar, to provide guidance on the Glomar process as it pertains to FOIA.

(21) Added new IRM 11.3.13.5.5, Outside of Scope, to address the out of scope process. Subsequent sections were renumbered accordingly.

(22) Updated the alpha list in IRM 11.3.13.5.8(13), Open Investigatory Files, to clarify the attestation process.

(23) Added new (12) to IRM 11.3.13.6, Response and Closing, to provide guidance on FOIA litigation responsibilities.

(24) Updated language in IRM 11.3.13.6.2(1), File Documentation, to reflect proper case note documentation requirements.

(25) The following table describes changes to IRM 11.3.13.6.3, Extension Letters:

11.3.13.6.3 Removed multiple references to a specific inventory management system’s extension date processes
11.3.13.6.3(1) Removed part of the paragraph incorrectly stating that “unforeseen delays during response letter review” is one of the statutory FOIA reasons for extension
11.3.13.6.3(3) Removed the alpha list and note
11.3.13.6.3(4) A new (4) was added to advise caseworkers when to send a voluntary extension letter
11.3.13.6.3(6) A new Note was added to make it clear that extending a response date more than 90 calendar days requires Disclosure Manager approval

(26) The following table describes changes to IRM 11.3.13.7.1, Written Determinations (Including Private Letter Rulings, Technical Advice & Chief Counsel Advice):

11.3.13.7.1(2) Updated the Note to remove the statement that requests are imperfect if they do not contain appropriate authentication or authorization documents since these are now denials
11.3.13.7.1(4) Removed the bullet stating Determination Letters are written determinations
11.3.13.7.1(5) Added (5) to make it clear that Private Letter Rulings and Technical Advice Memoranda are taxpayer specific documents requiring protection
11.3.13.7.1(6) Added a Note that not all Chief Counsel Advice documents are taxpayer specific
11.3.13.7.1(8) Removed
11.3.13.7.1(9) Removed most of the paragraph to make it clear that written determination documents that belong to specific taxpayers require authorization or they will be exempted

(27) Revised IRM 11.3.13.7.3(10), Requests for 23C Assessment Records, to remove Form 4338-A, turn caseworkers to the Disclosure SharePoint site for campus contacts, and to provide campus contacts instructions to not sign or certify Form 4340 documents.

(28) Added a Note to IRM 11.3.13.7.4(3), Review of Transcripts, to state that PDT or CAU indicators can be redacted with an exemption for Privacy Act requests and removed the statement to say not to routinely redact this information.

(29) Added new subsection IRM 11.3.13.7.4.4, ICE Indicators, to provide clarification that whistleblower indicators need to be removed from transcripts.

(30) Added IRM 11.3.13.7.4.6, Privacy Act Transcript Request Activity (PATRA), to provide information on the PATRA transcript. Subsequent subsections have been renumbered accordingly.

(31) Added (2) to IRM 11.3.13.7.5, SS-8 (Determination of Worker Status) Requests, to provide guidance on retrieving Form SS-8 records.

(32) Deleted the third list item in (1) and deleted items (4) and (5) in IRM 11.3.13.7.30, Requests for Copies of Information Provided to State Tax Agencies, referencing the tape extract program. IRS switched to an electronic Secure Data Transfer program in 1997 and tapes are no longer used.

(33) Moved previous IRM 11.3.13.9.8, Employee Privacy Matters, to IRM 11.3.13.7.10.2, under IRM 11.3.13.7.10, Personnel Records. Subsequent subsections were renumbered accordingly.

(34) Updated IRM 11.3.13.7.8(3), Requests for Audit Trails, to refer caseworkers to the Disclosure SharePoint site and (8) changes requests without proper authorization from imperfect closures to case denials.

(35) Removed (5)(b) from IRM 11.3.13.7.9, Personnel Records, since IRS TPC does not accept mailed requests from Disclosure.

(36) The following table describes changes to IRM 11.3.13.7.9.1, Public Information Listing:

11.3.13.7.9.1 Updated paragraphs throughout the section to capture the protection of cyber security designated employees and refers caseworkers to the Disclosure SharePoint site for processing information
11.3.13.7.9.1(2) Removed the Note to allow redaction of phone numbers and emails if appropriate
11.3.13.7.9.1(5) Updated table in (5) to match all of the OPM designated positions
11.3.13.7.9.1(10) Updated instructions in 10(a) to advise caseworkers to use established Disclosure communication protocols before contacting IRS executives

(37) Removed the previous IRM 11.3.13.9.11, Requests for Email Records, since it was combined with IRM 11.3.13.4.4, Search Efforts Pertaining to Email Records.

(38) Removed (c) through (f) of the alpha list in IRM 11.3.13.7.15(1), Requests for Pocket Commissions, since it no longer applies as requests for pocket commissions will be denied in full.

(39) Updated procedures in IRM 11.3.13.7.16, Undeliverable Refund Lists, to reference the "Where’s My Refund" link on IRS.gov. and removed (2) and (3).

(40) Updated IRM 11.3.13.7.17(2), Electronic Return Originator Lists (EROs), to make clear that most information about EROs can be handled routinely without the need for a FOIA request.

(41) Updated IRM 11.3.13.7.25(2)(b), Trusts, to state that requests without authorization or authentication are closed as denials and not imperfects.

(42) Updated IRM 11.3.13.7.27, Requests for Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN), to provide guidance on retrieving responsive records.

(43) Updated IRM 11.3.13.7.29(2), FedState Agreements, to remove the reference to Jacksonville Disclosure Office and require caseworkers to coordinate documents with the LB&I Exchange of Information office.

(44) Removed (2) and (4)(c) from IRM 11.3.13.7.30, Requests for Copies of Information Provided to State Tax Agencies, to remove the references to Form 5466-B requirements and added two Notes to (4) to give consideration to first party FOIA requesters.

(45) Added new (2) and (3) to IRM 11.3.13.7.33, Requests for Centralized Authorization File (CAF) Extracts, to include guidance on providing a valid photo identification when requesting a CAF Extract. Subsequent paragraphs were renumbered accordingly.

(46) Removed (2) and (3) of IRM 11.3.13.7.34, Preparer Tax Identification Numbers (PTINS) and Enrolled Agent (EA) Listings.

(47) Updated (8) in IRM 11.3.13.7.35, Requests for Taxpayer Recordings Made in the Contact Recording Process, to remove the reference to a job aid that may not be available on the Disclosure SharePoint and is for a specific inventory management system

(48) Added a Caution note to IRM 11.3.13.7.37(4), Requests for Congressional Correspondence.

(49) Removed the Note from (4) in IRM 11.3.13.7.39, Requests for FOIA Case Files, to allow requesters to seek copies of previously released responsive records and added additional information to (6) requiring caseworkers to contact Counsel attorneys using established communication protocols prior to applying FOIA exemption (b)(5) to documents.

(50) Removed Example from (1) in IRM 11.3.13.7.40.2, IRS Internal Use Forms.

(51) Updated the Note in IRM 11.3.13.8.1.2(4), Data Capture, to make it clear that caseworkers must accurately document case notes for all actions taken outside the inventory management system and removed (6) in regards to entering time for non-FOIA professionals in the inventory management system.

(52) Removed Exhibit 11.3.13-2, FOIA and IRC §6103 If/Then table, as it is no longer being used for FOIA requests.

(53) Removed Exhibit 11.3.13-6, Public Information Listing, as it is no longer being used for FOIA requests.

(54) Editorial changes have been made throughout to update IRM/statute/Forms/organizational references and terms. Web and citation references were added/updated throughout to make the text easier to research in electronic media.

Effect on Other Documents

This material supersedes IRM 11.3.13, Disclosure of Official Information, Freedom of Information Act (FOIA), dated April 19, 2017.

Audience

All Operating Divisions and Functions

Effective Date

(07-16-2020)

Related Resources

The Disclosure and Privacy Knowledge Base can be found at: https://portal.ds.irsnet.gov/sites/vl003/pages/home.aspx?bookshelf=disclosure


Phyllis T. Grimes
Director, Governmental Liaison, Disclosure and Safeguards

Program Scope and Objectives

  1. Purpose: These procedures provide instructions for IRS employees when responding to requests for records pursuant to the Freedom of Information Act (FOIA), 5 USC §552.

  2. Audience: These procedures apply to all IRS employees in connection with processing a request for agency records pursuant to FOIA.

  3. Policy Owner: The Director of Governmental Liaison, Disclosure and Safeguards (GLDS) is responsible for oversight of Disclosure policy.

  4. Program Owner: The Disclosure office, under GLDS, is responsible for the Disclosure program and guidance. Each IRS organization is responsible for ensuring its employees are aware of and follow Servicewide Disclosure policy.

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. FOIA has been amended a number of times, most recently by the FOIA Improvement Act of 2016. This Act addresses many procedural issues, including administrative appeals time frames, dispute resolution services, the Department of Justice foreseeable harm standards, as well as other FOIA program requirements. This IRM incorporates guidance regarding all new FOIA Improvement Act of 2016 provisions.

  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 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 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.

  5. This IRM deals primarily with processing requests pursuant to 5 USC §552(a)(3) 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).

    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 Act Library.

  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, the Department of Justice issued a FOIA Policy Directive PDF 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, the Department of Justice will now defend an agency’s determination "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."

  8. Effective April 23, 2004, the IRS issued Policy Statement 11-13, Freedom of Information Act Requests (formerly P-1-192), found in IRM 1.2.1.11.1. This Policy Statement affirms the commitment of the IRS to administer 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 11.3.13.5.2.6, Exemption (b)(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, Appendix B ; and

    • 26 CFR §601.702

  10. All FOIA activities must be reported under Single Entry Time Reporting (SETR) code 800-85330.

Authority

  1. The Director, Governmental Liaison, Disclosure and Safeguards (GLDS) and his/her delegate, have authority to make FOIA determinations concerning the release of most IRS agency records. See Exhibit 11.3.13-1 for the FOIA/PA Delegation Order.

  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. All FOIA release/withholding determinations must be supported in the case notes of the inventory management system.

  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. Documentation of the discussions must be supported in the case notes of the inventory management system. Internal discussion and recommendations regarding FOIA withholding determinations, ordinarily will be withheld as deliberative process material using FOIA exemption (b)(5).

    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. 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 a Tax Law Specialist (TLS) within field Disclosure offices. The Tax Law Specialist will generate a sensitive case report for these and coordinate with the Media Relations designated point of contact.

    Note:

    See IRM 11.3.13.7.22, News Media Requests, for a definition of news media requester.

  6. 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

    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 TIGTA Disclosure Officer. 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.

      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 10.5.6.8, Personnel Records.

Responsibilities

  1. This IRM is used by all IRS employees to help comply with the procedures pertaining to requests for agency records under the Freedom of Information Act.

  2. The IRS is committed to openness in Government and complying with FOIA. FOIA requires all federal agencies to respond timely to requests for records and information the agency maintains. This statutory obligation is a responsibility shared by all IRS employees and Disclosure is committed to meeting this obligation.

Disclosure Manager
  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 IRM 10.5.8, Physical Security Program, Information Protection, and IRM 11.3.12, Designation of Documents, 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 referring requests. See Exhibit 11.3.13-1, FOIA/PA Delegation Order, and Delegation Order 11-2, found in IRM 1.2.2.11.2.

  3. The Executive Order issued in December 2005, the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016 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 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.

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 FOIA processing requirements. Many of the records requested under 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. FOIA SETR time code (800-85330) must be used by all IRS employees to document the time spent in researching, processing and releasing documents.

  2. The Tax Law Specialist (TLS) in the field Disclosure office has a cadre of IRS employees, known as functional coordinators, within each function that assist in FOIA processing as requested. Other Disclosure staff must use the Records Retrieval Resources Points of Contact, found on the Disclosure Share Point site. IRS employees in other business units may also be used 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:

      Disclosure staff must document the total time spent by the assisting IRS office in locating, reviewing and copying records in the inventory management system, when allowed by that system.

      Note:

      If total time is reported rather than separating search time from all other activities, a requester could be overcharged. See IRM 11.3.13.4.3(10), Adequacy of Search, item "e" regarding the use of a search memo response questionnaire to ensure accurate reporting of time.

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 the Deputy Associate Director, Disclosure through appropriate channels.

  2. The Deputy Associate Director, Disclosure may determine that certain cases require special handling and direct that cases be reassigned accordingly. Reassign requests involving the following to a Tax Law Specialist in the field Disclosure office:

    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:

      This list is not all inclusive. This IRM may reference other circumstances where a case reassignment to a Tax Law Specialist in the field Disclosure office is appropriate.

  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.

Definitions/Acronyms

  1. The following is a list of the acronyms that are used in this IRM section:

    Acronym Definition
    ALS Automated Lien System
    ANMF Automated Non-Master File
    AUR Automated Under Reporter
    BAA Business Application Administrator
    BMF Business Master File
    BSA Bank Secrecy Act
    CAF Centralized Authorization File
    CCA Chief Counsel Advice
    CCDM Chief Counsel Directives Manual
    CD Compact Disk
    CFO Chief FOIA Officer
    CFR Code of Federal Regulations
    CI Criminal Investigation
    CIMIS Criminal Investigation Management Information System
    CMIR Currency or Monetary Instruments Report
    CPU Centralized Processing Unit
    CR Contact Recording
    C-Site Consolidated Files Site
    CSV Comma Separated File
    CTR Currency Transaction Report
    CTRC Currency Transaction Report Casinos
    CTRC-N Currency Transaction Report Casinos - Nevada
    DAS Discriminant Analysis System
    DIF Discriminant Index Function
    DLN Document Locator Number
    DOB Date of Birth
    DOJ Department of Justice
    DMV Department of Motor Vehicles
    DVD Digital Versatile Disc
    EA Enrolled Agent
    EEO Equal Employment Opportunity
    E-FOIA Electronic Freedom of Information Act
    EIN Employer Identification Number
    EOAD Examination Operational Automation Database
    EOI Exchange of Information
    EPF Employee Performance Folder
    ERO Electronic Return Originator
    EUP Employer User Portal
    FAR Federal Acquisition Regulation
    FBAR Foreign Bank and Financial Accounts Report
    FCRA Fair Credit Reporting Act
    FinCEN Financial Crimes Enforcement Network
    FMSS Facilities Management and Security Services
    FOIA Freedom of Information Act
    FPM Federal Personnel Manual
    FRC Federal Records Center
    FRCrP Federal Rules of Criminal Procedure
    FRP Frivolous Return Processing
    GLDEP Governmental Liaison Data Exchange Program
    GLDS Governmental Liaison, Disclosure and Safeguards
    HCO Human Capital Office
    HQ Headquarters
    HRRC Human Resources Reporting Center
    IDRS Integrated Data Retrieval System
    IPSU Identity Protection Specialized Unit
    IRB Internal Revenue Bulletin
    IRC Internal Revenue Code
    IRM Internal Revenue Manual
    IRMF Information Return Master File
    IT Information Technology
    ITIN Individual Taxpayer Identification Number
    JCT Joint Committee on Taxation
    LB&I Large Business and International
    LGM Litigation Guideline Memoranda
    MEF Modernized E-file
    MF Master File
    MOU Memorandums of Understanding
    MSB Money Services Business
    NMF Non-Master File
    NMN No Middle Name
    NDS No Source Document
    NTEU National Treasury Employees Union
    OCCP Offshore Credit Card Project
    OGIS Office of Government Information Services
    OIC Offer in Compromise
    OPF Official Personnel Folder
    OPM Office of Personnel Management
    OUO Official Use Only
    PA Privacy Act
    P&A Procedure and Administration, Counsel
    PATRA Privacy Act Transcript Request Activity
    PDT Potentially Dangerous Taxpayer
    PGLD Privacy, Governmental Liaison and Disclosure
    PIL Public Information Listing
    PINEX Penalty and Interest Notice and Explanation
    PLR Private Letter Ruling
    POA Power of Attorney
    POD Post of Duty
    PPO Policy and Program Operations, Disclosure
    PTIN Preparer Tax Identification Number
    RA Revenue Agent
    RACS Revenue Accounting Control System
    RAR Revenue Agent Report
    RFP Request for Proposal
    RIM Records and Information Management
    RRA 98 IRS Restructuring and Reform Act of 1998
    RWMS Resource Workload and Management System
    SA Special Agent
    SAAS Security Audit and Analysis System
    SAC Special Agent in Charge
    SAR Suspicious Activity Report
    SBU Sensitive but Unclassified
    SDLN Source Document Locator Number
    SEC Separating Employee Clearance
    SEID Standard Employee Identification Number
    SERFE Selection of Exempt Organization Returns for Examination
    SETR Single Entry Time Reporting
    SFR Substitute for Return
    SRA Summary Record of Assessment
    SSA Supervisory Special Agent
    SSN Social Security Number
    TAM Technical Advice Memoranda
    TC Transaction Code
    TDS Transcript Delivery System
    TEGE Tax Exempt Government Entity
    TFRP Trust Fund Recovery Penalty
    TLS Tax Law Specialist
    TIEA Tax Information Exchange Agreement
    TIGTA Treasury Inspector General for Tax Adminstration
    TIN Taxpayer Identification Number
    TP Taxpayer
    TPC Transactional Processing Center
    TRC Technology Reporting Sections
    UIDIF Underreported Income DIF
    UIL Uniform Issue List
    UNAX Unauthorized Access
    URCL Undeliverable Refund Check Listing
    USC United States Code

Related Resources

  1. The following are other sources of guidance related to disclosures of information pursuant to the Freedom of Information Act:

    • FOIA and the Privacy Act

    • What every IRS employee needs to know about the FOIA

    • Respond Directly

Overview and Processing

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

    1. Receipt and control - classifying, assigning and controlling requests in inventory. (See IRM 11.3.13.2.1.)

    2. Analysis - determining validity, identifying expedited processing or fee waiver requests, and other special features. (See IRM 11.3.13.3.)

    3. Search - searching IRS systems or offices for responsive records. (See IRM 11.3.13.4.)

    4. Review - reviewing records located in the search and applying exemptions or exclusions, if appropriate. (See IRM 11.3.13.5.)

    5. Response and closing - drafting responses to the requester and closing the case. (See IRM 11.3.13.6.)

  2. Each of the five basic steps has specific procedural and technical requirements discussed in detail in the IRM sections listed above.

    Note:

    Caseworkers will take substantial and follow-up action as soon as possible to move a case forward toward completion (i.e. ordering Integrated Data Retrieval System (IDRS) research or sending a search memo) based on inventory management and other program duties. Document all activities, including reasons for any delays, in the inventory management system by notating the case history.

Receipt and Control of FOIA Requests

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

    1. Date stamping or marking the paper request by hand with the date received.

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

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

    4. Assigning the request to a caseworker.

  2. Date stamp the paper request, mark the request by hand with the date received in the local Disclosure office or when received by the Centralized Processing Unit (CPU). Receipts received electronically will be identified by the date they are electronically provided to the CPU, or the next business day if received on a weekend, holiday or after normal business hours (6:00 A.M. to 6:00 P.M. EST, Monday through Friday). 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. The received date for requests faxed or received through an online portal is the date of the fax or online portal submission date unless it falls on a weekend, holiday or after normal business hours in which case the received date will be the next business day.

  3. Requests are classified as either 5 USC §552 (a)(1), (a)(2), or (a)(3), depending upon the nature of the information requested.

  4. Section (a)(1) pertains to requests 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) pertains to requests for agency records required to be made publicly available for inspection and copying. Requests for FOIA Library materials such as Internal Revenue Manuals (IRMs), IRS FOIA Logs, and Field Directives fall under this category.

  6. Section (a)(3) pertains to requests 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 as (a)(1), (a)(2) or (a)(3). If not, the employee must take corrective actions within the inventory management system, when allowed by that system, to properly classify the request.

  9. Agencies are required to make available for public inspection in an electronic format, records that have been requested three or more times.

    Note:

    Release of records that meet this requirement must be coordinated through the FOIA Senior Policy Analyst.

Initial Analysis of FOIA Request

  1. The assigned caseworker must ensure all data elements have been entered into the inventory management system, to the extent the system allows each data element, correctly, including but not limited to: case type, correct case receipt date, requester, taxpayer name, TIN and address.

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

    1. The request may be imperfect under FOIA (See IRM 11.3.13.3.6)

    2. The information requested may be under the jurisdiction of another agency or office (See IRM 11.3.13.3.8.)

    3. The request may be directed to multiple offices, requiring a review of the request in the inventory management system to determine if it is a duplicate. (See IRM 11.3.13.3.6)

    4. The request may be unclear as to the statute under which access is sought. (See IRM 11.3.13.3.13, Unclear Requests.)

    5. The information requested may be available outside of FOIA under other provisions of the law or under routine established agency procedures. (See IRM 11.3.13.3.15.)

  3. 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.

    Caution:

    Correspondence received seeking "confidential treatment" under FOIA (or similar language) but does not ask for any specific agency records are often referred to as a reverse FOIA. If correspondence is received that asks for confidential treatment but does not appear to ask for any records it must not be considered a FOIA request. Do not control the correspondence as a FOIA or other case type in the inventory management system. Send the reverse FOIA correspondence to the function that has jurisdiction over the records.

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

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

      Note:

      When an authentication or signature required to establish identity and process the request is missing, such as for requests for records protected by specific statutes (i.e. IRC §6103 protected tax records), please contact the requester to have them send you any needed documentation.

      Note:

      IRS will waive the signature requirement for FOIA requests if the request is seeking records that are not protected by a specific statute such as IRC §6103 and do not have privacy concerns, such as requests for contracts.

      Note:

      If a request is received from a third party, seeking records protected by specific statutes (i.e. IRC §6103 protected tax records), regardless of the method the request was received such as mail/fax or FOIA online portal, and the request contains an authorization document with:
      1) A signature of the requesting individual which meets the requirement of 26 CFR § 601.702(c)(4)(i)(A) and
      2) The handwritten signature of the appropriate individual or business that the protected records pertain to, which meets the requirement of 26 CFR § 601.702(c)(5)(iii)(C)
      Then IRS accepts the signatures applied to the authorization document as having met the IRS FOIA signature requirement. Do not close a third-party request as imperfect when it meets these requirements unless the request is also missing information required to perfect a FOIA request per 26 CFR § 601.702 and as shown below in IRM 11.3.13.3(4)(b) through (g).

      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 5 USC §552(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 email 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 email, for most FOIA requests involving records other than those subject to IRC §6103 or the Privacy Act.

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

    3. Be mailed, faxed or provided through an online portal to the Centralized Processing Unit, 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. Provide an address for making a response,

    6. State the requester's agreement to pay for search, review, and reproduction charges as applicable. (See IRM 11.3.13.3.6(3)), and

    7. Furnish an attestation under penalty of perjury as to the status of the requester, unless the requester is an "other" requester. Valid categories of requester include commercial use, media, noncommercial, scientific, educational, or other.

      Note:

      The caseworker may challenge the status of the requester, on a case by case basis, if sufficient information is not provided to determine the category of requester. This challenge is considered an adverse determination and the requester would be granted appeal rights.

  5. If a reassignment to another agency outside the IRS is appropriate, Disclosure Managers must ensure the request is reassigned 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 agency FOIA office, after which the statutory response time begins.

  6. 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. 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.

      Note:

      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, search efforts may be initiated by the caseworker. However, records must not be provided until a valid disclosure authorization is received.

    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, except that Form 2848 may be limited in duration in the context of students and law graduates. See IRM 21.3.7.8.5(4) for more information if the Form 2848 relating to the FOIA request is from a student or law graduate.

      1. 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 denied in full citing FOIA exemption (b)(3)/26 USC §6103.

        Note:

        In March 2004, the IRS 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. (See 26 CFR §601.501 through 508).

      2. The receipt of Form 2848, attached to a FOIA request, indicating only"FOIA" in the tax matters description item, is valid if the FOIA request is signed by a first party requester, but would not be valid if the FOIA request is signed by a third-party requester.

      3. Disclosure personnel should not forward Form 2848 received in connection with a FOIA request to the Centralized Authorization File (CAF) unit for input.

      4. 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 11.3.13.3.3(9) and IRM 11.3.2, Disclosure to Persons with a Material Interest.

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

  8. For requests where inspection is desired, contact the requester and advise that we will provide all responsive documents in an electronic format. Explain the fee structure as stated in IRM 11.3.5, Fees. Records involving open compliance files may be obtained by submitting a request to the IRS employee with the records under IRC §6103. If applicable, this option should be explained to the requester for obtaining requested records involving open compliance files. If the requester insists on inspecting records, contact the FOIA Senior Policy Analyst.

Tolling

  1. FOIA permits agencies to toll, or “stop the clock”, on the 20-day statutory time period to respond to perfected FOIA requests under two circumstances:

    1. Make one attempt to obtain information from the requester or

    2. Obtain information to clarify issues regarding fee assessments

  2. The standard to use for tolling is limited to situations where IRS has reasonably requested information needed from the requester. There is only one opportunity to toll the 20-day statutory time period to obtain reasonably requested information. Caseworkers must ensure to ask all their informational questions during this one-time attempt.

    Note:

    While caseworkers can only toll a request one time to receive reasonably requested information, they are not prohibited from contacting requesters as many times as needed to facilitate processing of the request.

    Example:

    A valid request seeking an examination administrative file produces a large volume of responsive records which include records provided by the taxpayer. Contact is made with the requester to re-scope the request in an attempt to remove records previously requested by the taxpayer since they already have those records. Caseworkers may contact the requester as many times as needed to obtain "reasonably requested" information but may only toll (stop the clock) the 20-day period once.

  3. Tolling also applies when necessary to clarify requester issues pertaining to fee assessments. There is no statutory limit on the number of times an agency may toll for this purpose.

    Example:

    The 20-day statutory time period was suspended to obtain a commitment to pay $100. During processing of the request, it is determined there will be additional fees incurred. Caseworkers may contact the requester to obtain a new fee commitment and suspend the 20-day statutory timeframe again.

  4. In either of the two circumstances cited above, the agency's receipt of the requester's response ends the tolling period and the response time clock resumes.

    Note:

    Requesters have 30 calendar days to respond, in writing, from the date of notification that additional information is needed (i.e. additional fee commitment letter, etc.) or the request will be closed.

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. The written statement must:

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

    2. Meet all of the requirements of IRC §6103(c) or IRC §6103(e) . See IRM 11.3.2, Disclosure to Persons with a Material Interest, or IRM 11.3.3, Disclosure to Designees and Practitioners.

  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. 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.

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.

    Example:

    A request is received seeking a copy of a Public Information Listing (PIL) for an employee and the request is not signed by the requester. Since PIL information is available to the public, a signature is not required on the request and there is no need for the requester to establish identity.

  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.

    Caution:

    Do not accept expired identification for contacts made in-person or by mail.

    Caution:

    Do not invalidate a request that contains a driver’s license marked with restrictions such as "Federal Limits Apply" , "Not for Federal Identification" or similar language. These identification markings are for the purposes of the “REAL ID Act” which is currently only for the purposes of boarding federally regulated aircraft and entry into federal buildings.

  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 11.3.13.3.3(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.

      Note:

      Do not accept an expired notary seal.

    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, deny the records citing FOIA exemption (b)(3)/26 USC §6103 and seek additional identity 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 11.3.13.3.10.

  8. 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. 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.

  9. 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:

    Caseworkers can research the electronic versions of prior requests using the inventory management system, when the feature is available in that system. 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.

Definition of Agency Record

  1. FOIA provides for the disclosure of agency records. Not every record within the possession of an agency is an agency record subject to 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 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 FOIA.

Joint Committee on Taxation

  1. The Joint Committee on Taxation (Joint Committee or JCT) is authorized under IRC §8021 to obtain and inspect information, including returns and return information pursuant to IRC §6103(f) , for the purpose of carrying out its general oversight responsibilities.

  2. The Joint Committee is authorized under IRC §8023 to secure directly from the IRS information for the purpose of making investigations, reports and studies relating to internal revenue taxation, including returns and return information, as to any action taken or proposed to be taken by the Service as a result of any audit of the return.

  3. When the Joint Committee corresponds with the IRS under its general oversight authority, it generally 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 Department of the Treasury for your use only in handling this matter. Additionally, any documents created by the Department of the Treasury 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 Freedom of Information Act. Absent explicit Joint Committee authorization, access to this document and any responsive documents shall be limited to Treasury personnel who need such access for the purposes of providing information or assistance to the Joint Committee."

  4. The incoming JCT document, as well as any documents created by the IRS in connection with a response to the JCT 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 IRS agency records for purposes of FOIA.

  5. 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.

  6. Whenever the Joint Committee’s inquiry letter includes the restrictive legend, that letter remains a congressional record and is not an agency record of the IRS. 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, are congressional records and are not IRS agency records. Such documents shall not be considered as responsive to a FOIA request directed to the IRS, and must not be released under FOIA. Moreover, the IRS file(s) associated with providing records to the Joint Committee need not be searched for responsive records because the records that the files may contain are not agency records.

  7. The legend is included as a matter of best practice. It identifies the document as a congressional record, not an IRS agency record. The legend is also an indication of the intent of the parties on how the records should be categorized. However, the absence of the legend is not legally determinative. If a JCT document fails to contain a legend, generally, IRS practice is to treat the JCT document and any IRS response thereto as a congressional record.

    Note:

    Consider consulting Chief Counsel (Procedure & Administration) on the treatment of JCT originated documents that do not contain a legend.

  8. A FOIA request received by an IRS Disclosure Office that seeks access to records involving the Joint Committee falls under the case processing criteria of a Tax law Specialist (TLS). The TLS will consult with the Joint Committee, as well as any affected IRS function(s) and Chief Counsel (Procedure & Administration), before determining whether to release or withhold any IRS agency records that are the subject of a Joint Committee oversight inquiry.

  9. 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 IRS agency records subject to the provisions of FOIA, or may be considered congressional records not subject to 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 whether or not the Joint Committee inquiry letter bears a legend restricting dissemination of the records, the records are maintained in files specifically pertaining to the Joint Committee oversight inquiry and/or are segregated from IRS agency files, and/or the records are accessible only by IRS personnel involved in responding or providing assistance to the Joint Committee.

      Note:

      When 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 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 IRS agency records subject to 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 IRS 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, Disclosure for IRC §6405 Cases, and IRM 4.36.3, Joint Committee Procedures, Examination Team Responsibilities.

      Note:

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

  10. In addition to its general oversight authority under IRC §8023 , the Joint Committee is also entitled to reports by the IRS under IRC §6405 of the IRS’s proposed issuance of refunds or credits that meet the jurisdictional threshold. Section 6405 directs the IRS to delay the issuance of large refunds or credits for a thirty-day period after the report is submitted to the Joint Committee. Correspondence or other documentation reflecting the Joint Committee’s inquiries relating to the proposed credits or refunds will be maintained separately within the administrative file of the taxpayer to whom it pertains. Based upon best practice, Joint Committee correspondence in this context may not contain a legend, and any documents or information received from the Joint Committee or prepared by the IRS in response to the Joint Committee’s inquiries regarding the proposed refund will not constitute IRS agency records subject to FOIA. IRS practice is to treat these records as congressional records. Accordingly, the Joint Committee’s response to the IRS’s letter concerning the proposed refund, and any records created by the IRS as a result of, or in response to, the Joint Committee’s response, are not IRS agency records responsive to a FOIA request and must not be released under FOIA. Moreover, the IRS file(s) associated with providing records to the Joint Committee need not be searched for responsive records because any records the files may contain are not IRS agency records.

Imperfect Requests

  1. 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 must be closed accordingly after making reasonable attempts to perfect the request. See IRM 11.3.13.3.10, Requests for All Records Concerning Me.

  2. In the interest of customer service, attempts to perfect the request should be taken. Contact with requester could include a phone call or email communication, as long as all disclosure, privacy and security procedures are followed. Employees must protect the privacy of all IRS sensitive information, including emails, and must follow the Privacy Principles found in IRM 10.5.1.6.5, Privacy and Information Protection, Privacy Policy. (Also see IRM 10.8.1.4.17.2.2 , Electronic Mail (Email) Security.) Actions taken to re-scope, revise or otherwise perfect the request must be received in writing, if applicable, and case notes must document all actions taken.

  3. After reasonable attempts have been made to perfect a request that does not meet all requirements of the FOIA, caseworkers must use suggested pattern letter language to notify the requester of the items that do not meet the requirements of 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. Close requests that do not comply with FOIA regulations as imperfect. Create a new case upon receipt of the perfected request. Subsequent correspondence pertaining to a previously closed imperfect request will be assigned to the Disclosure office that determined the initial request was imperfect. (See IRM 11.3.13.3(5).) Address 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 USC 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.

  4. 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. See IRM 11.3.5.4.1, Commitment to Pay.

    Note:

    However, if the requester has an outstanding unpaid bill for any request(s) previously processed by the IRS, close any current request and 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.

  5. 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. Obtain additional information in writing, to perfect the request, if applicable.

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

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

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

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

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

  7. In some instances, it may be necessary to inform a requester that FOIA does not require agencies to answer questions, enter into doctrinal discussions, create records, or perform research. See IRM 11.3.13.3.12 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.

  8. Inform requesters when appropriate about the types of records maintained by the IRS, i.e. 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.

  9. 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, Fees.) 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.

Requests Addressed to More Than One Disclosure Office

  1. Disclosure employees may receive requests, other than imperfect requests (see IRM 11.3.13.3.6), 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.

Requests for Records of Other Treasury Components or Other Agencies

  1. 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, (see IRM 11.3.22.8 through IRM 11.3.22.11, Disclosure to Federal Officers and Employees for Tax Administration Purposes), consult with the Treasury component to verify records requested fall under their jurisdiction. Upon approval from the Treasury component, forward the request to that component and send a letter to inform the requester that their request has been forwarded to another Treasury component for processing (see the note after (6) below).

    Note:

    Under a new provision of the OPEN Government Act of 2007, 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 10 days after initial receipt.

  2. When a request explicitly seeks the records of a non-Treasury agency, consult with the non-Treasury agency to verify records requested fall under their jurisdiction. Upon approval from the non-Treasury agency, forward the request to that agency and send a letter to inform the requester that their request has been forwarded to another non-Treasury agency for processing (see the note after (6) below).

  3. 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. Refer the request and the records to the other agency for a direct response to the requester. See Treasury and IRS regulations related to consultations and referrals for additional guidance.

    Note:

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

  4. 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 the Disclosure Manager will inform the relevant FOIA Public Liaison of the Treasury component or non-Treasury agency of the request and withholding.

  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.

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 Centralized Processing Unit (CPU) for case assignment.

    Note:

    If Disclosure personnel receive any correspondence marked "Confidential" , "Secret" , or "Top Secret" the employee must immediately contact their manager who will then contact the Disclosure HQ PPO Manager for additional guidance. The Disclosure employee(s) must not open any envelopes and/or transfer any records to their computer which are marked "Confidential" , "Secret" , or "Top Secret" .

  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 their agency 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.). If the referred request is assigned as a miscellaneous case and the caseworker determines it needs to be controlled as a FOIA case, the case type must be changed in the inventory management system, if allowed by that system.

    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 using the appropriate, designated case type allowed by the inventory management system. Consultations must be handled expeditiously because they affect the statutory processing of another federal agency. If the consultation request is assigned as a FOIA and the caseworker determines it should be controlled as a different case type, the case type must be changed in the inventory management system to the appropriate case type appropriate to that system.

    3. For a request that contains both referred and consultation documents, a FOIA and a consultation case needs to be controlled and processed separately. If you have been assigned the FOIA case and you cannot locate an associated consultation case in the inventory management system, it will need to be created and vice-versa.

  3. Disclosure personnel may need to contact the business function that has jurisdiction over the documents referred from another agency to obtain redaction recommendations. Make contact with business functions on a case by case basis as needed in order to review records for release. 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. 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.

  4. For additional information on processing referrals and consultations, use the instructions found in "FOIA - Issues and Trends" on the Disclosure Share Point site.

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 because they do not reasonably describe the records in sufficient detail to allow an IRS employee to conduct an appropriate search. Requests for “all records” will be rejected as imperfect. This also includes requests for records where the description of the records request is extremely broad. For example, "any and all email records containing the key words..." which is not specific enough to process. However, see IRM 11.3.13.3.6(7) (concerning clarifying the request), IRM 11.3.13.3.10(5) (concerning requests that do not specify tax years) and IRM 11.3.13.3.10(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 taxpayer 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 11.3.13.3.6.

    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 11.3.13.3.6(8) through (10). 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 11.3.13.6.2(3).

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 the responsive documents from those requests are available, review them to determine if a response has already been given for the records being requested, if additional records were created after the prior FOIA response date, or if some of the records previously withheld would now be eligible for release.

      Example:

      You receive a new request for information for a specific year, 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 DLN and year was provided in response to a previous FOIA request for "all examination administrative files." If that DLN predates the previous request, there are no additional records created since the previous response, and/or all of the exemptions used to withhold the prior documents are still applicable, you can close your case by using the pattern paragraph referring the requester to the prior response and, if applicable, providing a copy of the prior response letter. 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. If multiple requests are received from the same requester, or a group of requesters acting in concert, and the requests involve clearly related matters, contact the requester to obtain agreement to withdraw the separate FOIA requests. If they agree to withdraw the separate requests, combine and process all requests under one FOIA case assignment number and provide one response letter; otherwise process each request separately. Contact with the requester must take place prior to combining any requests under one case assignment number in order to obtain the requester’s agreement to withdraw the separate request(s). Case notes must indicate the agreement of the requester to withdraw the separate request(s). Case notes must also provide a clear explanation of which requests are withdrawn and provide sufficient information as to which case the combined, withdrawn request(s) are being processed under. The separate requests will be closed using closing disposition “Withdrawn”.

  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.

    Note:

    When consolidating several responses in one letter, include a copy of the signed letter in each electronic FOIA case file and document the case histories. Document the case notes for all of the related requests when consolidating more than one request.

  6. Locate and consider all documents associated with a DLN, including the Form 5147, IDRS Transaction Record, 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 11.3.13.7.26, Requests for Documents Associated with a Document Locator Number (DLN).

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 11.3.13.3.13, 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 (8)(c) below.

  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 11.3.13.3.6, Imperfect Requests.

    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 (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 11.3.13.3.15, Routine Established Agency Procedures, for records available under routine agency procedures.

  9. To address frivolous arguments contained in a request for records, use the appropriate pattern letter to respond, and provide Publication 2105. 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, or IRM 11.3.13.3, 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.

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 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, or under some other statute. The request must be classified as that type of request and records provided under those provisions (See IRM 11.3.13.3.15, Routine Established Agency Procedures).

    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), found in IRM 1.2.2.11.2, Delegation Order 11-2 (Rev. 3), Authority to Permit Disclosure of Tax Information and to Permit Testimony or the Production of Documents.

  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.

      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 (i.e., as authorized by Form 2848 or Form 8821) meets the definition of first party requester.

    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 Form 23-C, 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, and processing the request under the FOIA would provide greater access but the requester 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 IRM 11.3.5.3.3(2), All Other Requesters.

    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 (i.e., 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 be treated as FOIA requests. (See IRM 11.3.13.3.15).

  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 in the inventory management system, 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. For further information about fees, see IRM 11.3.5, Fees.

Reassigning Requests

  1. With centralization of request receipt to the Centralized Processing Unit, case reassignments should be rare.

  2. Cases may be reassigned to a field Tax Law Specialist or other Disclosure caseworker based on managerial approval.

  3. When a request is received in a local Disclosure office, and the request is subsequently forwarded to the Centralized Processing Unit, the received date is the date initially received in the local Disclosure office per 26 CFR §601.702. If applicable to the functionality of the inventory management system, the received date must match the date of initial receipt and all statutory time frames begin as of that date.

  4. Process inventory reassignments expeditiously, so that Disclosure personnel will have time to complete all administrative processing within the statutory time frames.

  5. Requests that appear to rebut or challenge a prior response will not be routinely reassigned to the caseworker that processed the prior request unless additional records are located in response to the original request. The manager of the receiving office will review the request and will notify the manager of the closed FOIA case if the subsequent request provides information that indicates the original request was processed improperly. 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, for a determination.

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 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, Request for Copy of Tax Return, Form 4506-F, Request for Copy of Fraudulent Tax Return, or Form 4506-T, Request for Transcript of Tax Return.

      Note:

      When reviewing responsive administrative files that contain copies of tax returns, attachments and/or transcripts, do NOT remove these documents from the file and tell the requester to submit Form 4506, Form 4506-T and/or Form 4506-F.

      Note:

      Use the following table for FOIA requests seeking a copy of the fraudulently filed income tax return or a request for the information that was redacted by the Identity Protection Specialized Unit (IPSU).

      FOIA request for a copy of a fraudulently filed income tax return FOIA request for the unredacted copy of a fraudulently filed income tax return or a request for the information redacted by IPSU
      Disclosure personnel will respond with the Routine Agency Procedures Letter, informing the requester to submit Form 4506-F, Request for Copy of Fraudulent Tax Return.

      IPSU will provide the taxpayer and/or their authorized representative a redacted copy of the fraudulently filed tax return. Instructions for requesting a copy of a fraudulent return are on IRS.gov.
      1. Ensure the requester has previously received a copy of the redacted fraudulently filed income tax return.

      2. Use the pattern letter titled "Unredacted Fraudulent Return" to deny the request in full using FOIA exemptions (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E).

      3. FOIA exemptions used to deny the document in full must be captured within the inventory management system.

      4. Adequately document all actions in case notes.

      Note:

      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. 3), found in IRM 1.2.2.11.2, Delegation Order 11-2 (Rev. 3), Authority to Permit Disclosure of Tax Information and to Permit Testimony or the Production of Documents. Processing requests for access to closed case files is preferred 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 considered return information but is not considered a return 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 Collection Advisory Unit that maintains the record based on the location of the property. The locations of the Collection Advisory Units are contained in Pub 4235, Collection Advisory Group Numbers and Addresses. Process requests for copies of Record 21, Part 2, under the FOIA. See IRM 11.3.11.9.1, Record of Seizure and Sale of Real Estate.

    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 to this type of information 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.

      Note:

      Requests seeking Form 990, Return of Organization Exempt from Income Tax, in machine readable format (MeF, Modernized e-File format, CSV format, etc.) may access this information through Amazon Web Services. Do not provide Form 4506-A for these types of requests.

    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, or request, in writing, that IRS conduct customized statistical studies or make statistical compilations under IRC §6108(b). Address your request to:

      Statistics of Income
      Statistical Information Services
      Internal Revenue Service
      1111 Constitution Ave NW
      K-Room 4112
      Washington, DC 20224

      See the applicable revenue procedure for further instructions. Copies of statistical studies or compilations previously made under IRC §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:

      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 11.3.13.7.1, Written Determinations (Including Private Letter Rulings, Technical Advice & Chief Counsel Advice, for discussions regarding requests for written determinations.

  3. If any issues arise from requests for documents that fall under Routine Established Agency Procedures, contact the Disclosure FOIA Senior Policy Analyst using established communication protocols.

  4. Letter forwarding requests are also processed under routine established agency procedures (see Policy Statement 11-96 (formerly P-1-187) found in IRM 1.2.1.11.11) and are excluded from FOIA processing. (See IRM 11.3.11.11, Forwarding Letters for Humane Reasons.)

Search Process

  1. After determining that a request is valid, Disclosure personnel must also determine the scope of the request 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.

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 case history notes, check sheets, or another readily understood method.

  2. Case notes must support the adequacy of the search supporting the no responsive documents response. The incoming request, transcripts, search memos, and the written response can also be used to sufficiently document the search effort.

    Note:

    For a description of other data that may be necessary to properly document the file, see IRM 11.3.13.4.3, Adequacy of Search.

Search Efforts

  1. Disclosure personnel will conduct a reasonable search to ensure 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 11.3.13.4.3(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 compact disk (CD), magnetic tape, Digital Versatile Disc (DVD), 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 a Document Locator Number (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. Case notes must be entered to document the process used to determine that the requested record is computer-generated with no associated paper copy. See IRM 11.3.13.7.26, Requests for Documents Associated with a Document Locator Number (DLN).

  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 11.3.13.4.3. Records created after the received date of the request are not generally considered responsive to the request. However, even if the record was created after the received date of the FOIA, release should be considered based upon the concept of openness and transparency or based on the time it takes to locate and retrieve responsive records.

    Note:

    For a discussion of when Disclosure personnel may elect to include data outside the scope of the request. See IRM 11.3.13.4.3(13).

  9. 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.

  10. If, while waiting for a response to a search request, notification is provided to the caseworker that the requested records no longer need to be secured by the caseworker (FOIA litigation has been filed, the requester withdraws the FOIA request, etc.) caseworkers must notify the business function the records are no longer needed and rescind the search request. Provide the reason the search is no longer needed and the date notification was provided to the business function the records are no longer needed. When notified of FOIA litigation, follow any guidance Counsel may provide to assist with the FOIA litigation case.

    Caution:

    If Counsel requests more assistance other than providing documents from the case file, the request for Counsel assistance must be elevated through the Disclosure Manager to Senior Leadership. Case notes must also document actions taken when assisting Counsel with FOIA litigation.

Adequacy of Search

  1. The Disclosure Manager is responsible for ensuring the adequacy of search efforts. IRM 11.3.13.1.3.1, Disclosure Manager, and IRM 11.3.13.1.3.2, The Roles of Other IRS Employees in Processing FOIA Requests, 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. 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 contacts in the various functions to determine the best course of action.

    Note:

    After analyzing the request, if the scope of the records is still unclear or seems too broad, the caseworker must contact the requester to ask for clarification. If the request is too broad or unclear, and contacting the requester may not assist in re-scoping, the caseworker should discuss the case with the Disclosure Manager and FOIA Senior Policy Analyst prior to closing the case. The requester must provide a written response indicating the items that were re-scoped.

  4. 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 11.3.13.3.10(5), Requests for All Records Concerning Me, for procedures to follow when the tax periods are not provided.

  5. 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 Information 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.

  6. 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 11.3.13.3.12(10), Pseudo Requests, about notifying the affected functions about the request.

  7. IRM Exhibit 11.3.13-2, IDRS Research Guidelines, 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 researchers must tailor the search on a case-by-case basis.

  8. 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.

  9. 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. The response questionnaire also requires the function to document whether a separated employee’s records were searched, if applicable.

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

    8. A response due date

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

    10. 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)

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

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

  11. 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.

  12. 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. In rare circumstances, a lengthy delay (i.e. 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.

  13. 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 by contacting a designated Records Specialist. The Records Specialists Territory map is located on the Records and Information Management (RIM) website located at:https://portal.ds.irsnet.gov/sites/vl003/lists/recordsspecialists/landingview.aspx

  14. 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 IRS does not routinely maintain copies of these notices. If the IRS sent you a Notice and Demand, it was computer generated and would be shown as MF STAT-21 on the enclosed transcript of account. 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."

  15. Pursuant to 26 CFR §601.702, 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 management system. No paper files are required to be maintained to the extent all records have been imaged.

    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.

Search Efforts Pertaining to Email Records

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

  2. Searches for IRS employee email records should be completed as follows:

    1. Current employees implicated by potentially responsive emails conduct a self-search, which otherwise would be coordinated by the respective FOIA Functional Coordinator (FFC), as applicable, by each business function

    2. Potentially responsive email records of separated employees will be made "readily available" to a current employee of the business unit that the separated employee was associated with – that is, the emails are loaded into a current employee’s Outlook (i.e., at which point it should be part of the current employee’s self-search)

      Note:

      This would also expand to implicate any/all emails or content captured during the separating employee clearance (SEC) process or otherwise associated to an accessible network storage location and follow IRM 1.15.6, Managing Electronic Records, if identified as a Federal record.

    Caution:

    Disclosure personnel are prohibited from contacting IT to conduct searches of employee email records unless the request is specifically related to an IT employee’s own emails, in which case they would conduct a self-search of their own emails.

    Caution:

    Disclosure personnel are prohibited from using the Counsel-owned Electronic Discovery (e-Discovery) procedures for email record retrieval. E-Discovery refers to discovery in legal proceedings (e.g., Tax Court litigation) that involve the retrieval, review and redaction of electronically stored information and is generally subject to rules of civil procedure (e.g., Federal Rules of Civil Procedure or Tax Court Rules of Practice and Procedure). The e-Discovery process is managed by Counsel (P&A) and is not available to IRS business units outside of Counsel, including Disclosure, at this time.

  3. Disclosure personnel shall retrieve email records in response to FOIA requests and determine, in conjunction with the business unit, whether the records can be released and apply any applicable FOIA exemptions.

Review and Redacting

  1. Once the responsive records have been gathered, Disclosure personnel will review the material and determine what should be released or what should be 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 Disclosure Policy and Program Operations.

  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 determination resides with the Disclosure Manager pursuant to the disclosure authority outlined in 26 CFR §601.702, the FOIA/PA Delegation Order in IRM Exhibit 11.3.13-1 and, as appropriate, DO 11-2 (Rev. 3), found in IRM 1.2.2.11.2 .

    Note:

    For procedures involving disagreements with the affected function over the release of records, see IRM 11.3.13.1.2(3), Authority.

  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 11.3.13.5.1, Approach to Exemptions.

Approach to Exemptions

  1. The FOIA requires agencies to make the maximum possible information available to the public. In March 19, 2009 a Department of Justice (DOJ) FOIA policy memorandum was issued to support the notion that the FOIA reflects a fundamental national commitment to open government and to ensure that commitment was realized in practice. The memorandum also declared a presumption of openness and carried 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 in their case notes 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 11.3.13.5.2.

  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 (Formerly P-1-192), Freedom of Information Act Requests, which is available at IRM 1.2.1.11.1.

  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 Removing Administrative Controls, and IRM 10.5.1, Privacy Policy, for additional information on "OUO" or "SBU" determinations.

Exemptions

  1. There are nine specific FOIA 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. Consider the following:

    • Withhold information under the FOIA, "only if the agency reasonably foresees that the disclosure would harm an interest protected by an exemption, or disclosure is prohibited by law" .

    • Whether partial disclosure of information is possible, whenever it is determined that a full disclosure of a requested record is not possible.

    • Taking reasonable steps to segregate and release nonexempt information.

  2. "Outside the scope" or "out of scope" is not a legal FOIA exemption found in section 552(b) of the Freedom of Information Act and should never be used when processing a FOIA request. See IRM 11.3.13.5.5, Outside of Scope.

Discretionary Release of Records
  1. Some FOIA exemptions allow for discretionary release of information. Agencies can redact out portions of documents or entire documents in full using these exemptions, but are not compelled to do so by the FOIA statute.

  2. Determinations to withhold information using exemptions other than (b)(3) must be made in accordance with discussions with the business function who has control of the responsive records.

    Example:

    Before applying FOIA exemption (b)(5) to "draft" counsel documents or a "draft" Revenue Agent Report (RAR), you must have a discussion with the Chief Counsel attorney or Revenue Agent who owns the documents to have the document owner articulate the harm of release before applying the redaction to determine if it should be applied. If they can not articulate a harm in release of the documents, a determination may be made to waive the application of the exemption.

    Caution:

    Business functions must articulate, and support, how release of records would harm or interfere with IRS civil and/or criminal activities prior to Disclosure withholding records under discretionary FOIA exemptions. Any FOIA exemption may apply to records being withheld under one of the nine FOIA exemptions if the business function provides an appropriate basis for withholding the records. The basis for withholding must be documented in the case either in case notes or with a formal attestation provided by the business function. Disclosure personnel must ensure the response from the business function contains enough information to support any discretionary FOIA exemptions applied to records.

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.

Exemption (b)(2)
  1. This exemption covers matters that relate solely to the internal personnel rules and practices of an agency.

  2. 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.

  3. 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.

  4. Disclosure personnel may find conference call-in information in files responsive to FOIA requests in the form of printed emails, 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.

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 11.3.13.5.7, Open Investigatory Files. For a discussion of how the wording of the request may change the response, see IRM 11.3.13.7.13(2), Requests for Third-Party Information From ChoicePoint or Accurint. 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 11.3.13.5.8, Title 31 Reports - CTRs, CMIRs, FBARs, and SARs).

    4. 41 USC §4702 exempts certain contract proposals (see IRM 11.3.13.7.2, Contracts/Commercial Information).

    5. 5 USC §7114 (b)(4)(C) exempts labor management guidance (see the example in IRM 10.5.6.8.6, Disclosure Under 5 USC § 7114).

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

    7. 18 USC §701 prohibits copying Federal agency identification media (see IRM 11.3.13.7.15, Requests for Pocket Commissions).

  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 IRC §6103 is used to support the (b)(3) exemption, include a brief explanation of how the statute applies in the case history notes.

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.

  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 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 11.3.13.7.2, Contracts/Commercial Information.

Exemption (b)(5)
  1. This exemption applies to inter-agency or intra-agency memorandums, letters or emails 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.

    Note:

    Counsel must be contacted for release determination on any emails to/from Counsel that are found in responsive records.

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

    • Deliberative process privilege

    • Attorney work product privilege

    • Attorney-client privilege

  3. Once determination has been made to apply exemption (b)(5), the case notes and the response letter must state which privilege, or privileges, the withheld information falls under. The case notes must also support the use of exemption (b)(5) and whether the information was considered for a discretionary disclosure determination.

  4. 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.

  5. 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. Internal discussion and recommendations regarding FOIA withholding determinations, ordinarily will also be withheld as deliberative process material.

    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).

    Note:

    The deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.

  6. 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.

  7. 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, Report Transmittal, 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.

  8. Disclosure personnel will withhold documents pertaining to published guidance (i.e. 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 (i.e., 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.

  9. 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 (i.e., 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 Directives Manual (CCDM) 30.11.1.6.

    Note:

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

  10. 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.

    Note:

    The FOIA and Discovery are two separate processes. FOIA requests for records that involve a Tax Court case must be processed in coordination with Counsel.

  11. 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).

  12. 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.

  13. 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 (i.e., letter rulings, technical advice, and determination letters). If a FOIA request seeks an exam file, and a section 6110 written determination is included in the file, see IRM 11.3.13.7.1(8). Additional information for handling requests for section 6110 written determinations can also be found at IRC §6110, IRM 11.3.8, Disclosure of Written Determinations, CCDM 33.1.3, Releasing Legal Advice to the Public, and CCDM 37.1.1, Written Determinations Under Section 6110.

Exemption (b)(6)
  1. This exemption pertains to the protection of personal privacy and requires a balancing of privacy and public interests. If there is a protectable privacy interest threatened by disclosure of the records, 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. This 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. When information pertains to federal government employees, but the information is essentially business in nature rather than personal, the (b)(6) exemption is not applicable.

    Example:

    A request about an IRS employee’s business travel (i.e., locations, costs) should not be withheld under exemption (b)(6).

  7. The DOJ Guide to the FOIA and Privacy Act Overview contain an in-depth discussion about how to apply this exemption.

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. When information is withheld, in full or in part under this exemption, case notes must explain the foreseeable harm releasing such records would cause. Consider whether partial disclosure of information is possible whenever a determination that a full disclosure of a requested record is not possible. 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.

    Note:

    Case notes must support the use of exemption (b)(7) and Disclosure personnel must be able to determine the harm to the government’s interest and articulate how release would or could interfere with enforcement proceedings.

Exemption (b)(7)(A)
  1. Exemption (b)(7)(A) exempts from disclosure, records or information compiled for law enforcement purposes. 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. This exemption may apply to open or closed investigatory files, along with non-investigatory files if the files were compiled for law enforcement purposes. The supporting documentation of the expected harm to interfere with enforcement proceedings must be explained in the inventory management system case notes.

  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 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. Employee name, title, and phone number

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

    3. Location of records

    4. Other contact name, title, telephone number (i.e. Supervisor or Administrative personnel who would be able to locate the records)

    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, and

    7. The signature of an IRS or Chief Counsel supervisor who has the authority to withhold return information under IRC §6103(e)(7) as found in Delegation Order 11-2 (see IRM 1.2.2.11.2).

  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.

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.

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. It also differs from exemption (b)(6) in that it requires the records or information being withheld to have been compiled for law enforcement purposes.

    Example:

    A FOIA request for only an IDRS transcript does not constitute information compiled for law enforcement purposes but simply information compiled to respond to the FOIA request. (Exemption (b)(6) should be considered in this instance to protect any personal privacy.) However, copies of IDRS transcripts within a tax administration file that were compiled by the Compliance employee as part of their administrative proceeding would be considered compiled for law enforcement purposes. (Both exemption (b)(6) and (b)(7)(C) should be considered in this instance to protect any 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 11.3.13.7.9.2, Employee Privacy Matters, for more information.

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, exemption (b)(3) in conjunction with IRC §6103(e)(7) , (b)(7)(A), and (b)(7)(C) may be asserted.

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 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 must be discussed with the agent(s) handling the investigation.

  3. This exemption has been applied to protect DIF, DAS and UIDIF scores, tolerances, and investigative criteria, which are also protected by FOIA exemption (b)(3) in conjunction with IRC §6103(b)(2). See IRM 11.3.13.7.4.2, DIF, DAS, and UIDIF Score, SERFE Indicator. Settlement criteria or records that discuss hazards of litigation can also be withheld pursuant to FOIA exemption (b)(7)(E).

  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.

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.

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.

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.

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.

  4. Disclosure personnel must coordinate the assertion of these exclusions using established communication protocols with the FOIA Senior Policy Analyst who will coordinate as necessary with Branch 6 or 7 of the Office of the Associate Chief Counsel, Procedure and Administration.

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.

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.

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.

Glomar

  1. Executive Order 12-958, as amended, incorporates the use of a "Glomar" by a federal agency in response to a request for records. The "Glomar" response provides that: "An agency may refuse to confirm or deny the existence or non-existence of requested records whenever the very fact of their existence or non-existence is itself classified under this order."

  2. A FOIA exemption must apply to information that is being considered for withholding under a Glomar response. A Glomar response can only be used if any responsive records, or evidence that records exist, fall under one of the nine FOIA exemptions. The exemption(s) and support for the use of those exemptions must be documented in the inventory management system case notes. The basis for applying a Glomar response must also be documented in the inventory management system case notes.

    Example:

    A FOIA request is received from a third party asking for copies of tax administration files for a taxpayer and the third party does not have proper authorization. These tax administration files would fall under FOIA exemption (b)(3) used in conjunction with 26 U.S.C. §6103 and IRS can neither confirm or deny the existence of any tax records to the third party.

  3. A Glomar response is not appropriate when the FOIA request is imperfect.

  4. In employing "Glomarization" , agencies must be careful to use it only to the extent that is warranted by the terms of the FOIA request at hand. For a request that involves more than just a law enforcement file, the agency should take a "bifurcated" approach to it, distinguishing between the sensitive law enforcement part of the request and any part that is not so sensitive as to require "Glomarization" .

  5. Appeal rights are provided to the requester when a Glomar response is used.

Outside of Scope

  1. Outside the scope is not a legal FOIA exemption found in section 552(b) of the Freedom of Information Act and should rarely be used when processing a FOIA request. The term outside of scope can refer to two different scenarios:

    1. Responsive records that have been provided or obtained that are outside the scope of the FOIA request, and

    2. Responsive records that are outside the scope of the requester’s authority to access.

  2. Outside the scope of the FOIA request is the term used to refer to records, or portions of records, that are not responsive to the request. This situation should rarely apply because caseworkers should only be retrieving documents that are responsive to the request. Once responsive records are received information can only be withheld by citing an appropriate FOIA exemption. (Outside the scope is not a FOIA exemption).

    Note:

    Documents such as the Form 2275-A, Records Request, Charge and Recharge (Disclosure), that the caseworker used to request files are not considered responsive and should be deleted if attached to a responsive document. Do not include them as responsive documents to the request. Non-responsive records such as Form 2275-A should be scanned and placed in the inventory management system, using appropriate procedures to import documents for that specific system, but should be maintained separately from responsive records. These types of documents should remain in the inventory management system to support actions taken on the case.

  3. If records are included that are not responsive to the request, delete them from the scanned file on a page by page or file by file basis. Failure to do so with the use of the application of "out of scope" to the record, misrepresents the total number of responsive pages reviewed and makes the number of pages withheld by a valid FOIA exemption incorrect. That opens the door for a legal challenge of the withholding and complicates any litigation as the records were withheld outside of a bona-fide FOIA exemption.

  4. A legitimate and rare outside the scope situation only applies when there are records that are "created" or came into the possession or control of the record holder after the date of the FOIA. However, out of scope does not apply to entries on transcripts or case history entries that were made after the date of the FOIA as the case history entry is not creating a record, it only reflects actions taken after the date of the FOIA. The record in its entirety is responsive because it was within the possession and control of the function prior to the date of the FOIA. See 26 CFR 601.702. Even if the record was created after the date of the FOIA, release should be considered based upon the concept of openness and transparency or based on the time it takes to locate and retrieve responsive records. See IRM 11.3.13.4.3(10), Adequacy of Search).

  5. Outside the scope of the requester’s authority to access the document or information is another situation encountered when processing FOIA requests. When information is outside the scope of a power of attorney or authorization, it means the form signed by a taxpayer authorizing another person to act on his or her behalf and/or receive confidential tax information doesn’t cover all the records requested. Examples of information that is outside the scope of the Form 2848 or Form 8821 include (but are not limited to):

    • tax years not listed on the form,

    • type of tax not covered on the form,

    • prior or subsequent year filing history information.

    You must acknowledge the existence of the information and deny the POA or authorized party access, citing FOIA exemption (b)(3) in conjunction with IRC section 6103(a).

  6. If in reading the language of the request and all records responsive to the request have been gathered, there are only two choices for handling the responsive records; release them or withhold them using an appropriate FOIA exemption. A firm basis for withholding records must be established and documented in the case notes of the inventory management system. The basis for withholding must fit one of the nine FOIA exemptions included in the FOIA statute.

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 11.3.13.5.1(4) through (7), some exemptions are discretionary by statute and some are clearly non-discretionary. Clear case file documentation of the reasoning behind the application of the discretionary and non-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 11.3.13.6.1.

  3. Any reasonably segregative 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 and if applicable to a specific inventory management system, the inventory management system will automatically place the exemption at the place of the redaction. The FOIA also requires an explanation in the response letter for any items withheld. See IRM 11.3.13.6, Response and Closing.

    Note:

    A reasonably segregative 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 inventory management 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.

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/or IRC §6103(c). The following instructions apply to those requesters who meet the criteria under IRC §6103(e) and/or IRC §6103(c). See IRM 11.3.2, Disclosure to Persons with a Material Interest, and IRM 11.3.3, Disclosure to Designees and Practitioners.

  3. A FOIA requester may not access the return information of another individual by relying on the provisions of IRC §6103(h)(4). Third-party return information, reviewed in response to a FOIA request, must be withheld under section 6103(a) regardless of any item or transactional relationship 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 11.3.13.5.3, Record Exclusions.

  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), found in IRM 1.2.2.11.2, 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 (i.e., 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 11.3.13.5.2.6, Exemption (b)(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.

  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. 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. When a requester seeks a compliance file, open or closed, that includes the records of other taxpayers, the third-party records must be redacted. Examples of these files include Trust Fund Recovery Penalty files and Preparer Penalty files. Even though documents containing the third-party return information may have been released during the compliance proceeding, Disclosure personnel do not have the authority to re-release them in response to a FOIA request. Audit reports, explanations of adjustment workpapers, etc., must be closely reviewed and any third-party return information, or data that would identify tax administration pertaining to a third party, must be redacted prior to release, citing FOIA exemption (b)(3) in conjunction with IRC §6103(a) .

    Note:

    In terms of any procedural information in the file, evaluate and make a determination about whether to assert (b)(7)(A) and (b)(3) in conjunction with IRC §6103(e)(7) on a case by case basis. Other FOIA exemptions may also apply.

    Note:

    The fact that a preparer who is being considered for or has been assessed with a preparer penalty has a Form 2848 on file to represent the third party in the third-party’s tax situation, does not allow the preparer to have access to the third-party’s tax records in the context of the preparer penalty file. The taxpayer executed the Form 2848 to authorize the preparer to represent the taxpayer in the taxpayer’s administrative proceeding, this authorization does not extend to an administrative proceeding pertaining to the preparer.

  12. References to an employee’s leave usage found in history notes or other areas of an open compliance file may generally be released. Consider the personal privacy interests of exemption (b)(6) and (b)(7)(C), if applicable.

  13. Records in System of Records Treasury/IRS 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 11.3.13.5.3.1.

    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. Any information redacted must be referenced to a specific provision and the facts of each case must provide the rationale for the redaction.

    5. Any determination not in accordance with the recommendation of the Special Agent in Charge requires Disclosure Manager involvement. The Disclosure Manager must discuss any recommended changes to the withholding recommendations of the Special Agent. The Disclosure Manager should not make any release determinations without concurrence from the Special Agent in Charge. If an agreement cannot be met, Counsel involvement is required using established communication protocols.

  14. 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 such as Accurint/Choicepoint. 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 and that there are no personal privacy interests..

  15. 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.

  16. 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

  17. When conference call-in numbers and access codes are found in case files, redact them citing the (b)(7)(E) exemption. See IRM 11.3.13.5.2.3(4), Exemption (b)(2).

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. A FOIA request seeking access to the specific FinCEN reports listed in (1) must be processed by FinCEN. Direct requesters to submit a FOIA request to:
    Freedom of Information Act Request
    Financial Crimes Enforcement Network (Disclosure Office)
    P.O. Box 39
    Vienna, VA 22183

  3. When processing a FOIA request seeking access to FinCEN information related to IRS compliance activities, (i.e. an FBAR examination) cite FOIA exemption (b)(3) in conjunction with 31 USC §5319 to deny access to these Title 31 reports. Also cite FOIA exemption (b)(3) in conjunction with 31 USC §5319 to deny access to information extracted from these reports, unless the information has been used in a tax administration case (see IRM 11.3.13.5.8(3), Title 31 Reports - CTRs, CMIRs, FBARs, and SARs).

  4. A Form 8300 filed after December 31, 2001, meets 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 section 6103 disclosure standards and therefore may be considered for release under FOIA.

  5. Form 8300 reports filed after December 31, 2001 and accessed through the FinCEN database are Title 31 information subject to Bank Secrecy Act disclosure standards and are not subject to release under FOIA.

  6. 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 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) and (b)(7)(A).

      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).

  7. 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 (i.e. (b)(7)(A)). Money laundering cases (i.e., most 18 USC §§1956 and 1957 cases) follow these same rules.

    Note:

    See IRM Exhibit 11.3.13-3, FOIA and Title 26 Cases with CTRs or Data Extracted from CTRs, for assistance in deciding whether to release Title 31 information and the appropriate FOIA (b)(3) statute to cite when withholding.

Microfilm Requests

  1. Microfilm transcripts and similar records sometimes included in Collection, Examination, and Criminal Investigation enforcement action files contain information about taxpayers other 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).

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

  5. The Disclosure caseworker will obtain the examination file from the RA handling the case. They must 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 can be released, the Disclosure caseworker 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 caseworker will work with the RA to determine the applicable FOIA exemptions, i.e., (b)(3) in conjunction with IRC §6103(e)(7) and (b)(7)(A). The Disclosure caseworker must contact EOI directly to share the RA’s recommendations and to request a written recommendation of other applicable FOIA exemptions, i.e., (b)(3) in conjunction with IRC §6105.

    Note:

    LB&I is authorized to make recommendations to withhold treaty information under IRC §6105. Case notes must support the recommendation determination from LB&I.

  9. Requests concerning international tax issues that are not for a specific taxpayer will be worked by a Tax Law Specialist.

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 must 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 Centralized Processing Unit in Atlanta to determine the contents of the illegible documents or to have the illegible copy re-scanned to try to improve legibility.

Response and Closing

  1. The final response letter issued to the requester is the final action to complete a FOIA request. Interim responses must be issued to the requester throughout case processing, as applicable. See IRM 11.3.13.6.4, Interim Response Letters, for information on interim responses. The Disclosure caseworker must ensure the correct address is used on any correspondence issued to the requester.

  2. The response letter must contain specific items of information such as the request receipt date and must 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 redaction.

    Note:

    For further discussion of editing requirements, see IRM 11.3.13.5.6, Redacting Records.

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

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

    4. total 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 and would not count such records in the page totals and would not include them in the response letter.

      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. All agency response letters with an adverse determination must include Notice 393 appeal rights notification, the FOIA Public Liaison contact information, and Office of Government Information Services (OGIS) contact information.

  8. 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. However, the history notes must be detailed enough to allow managers and other reviewers to understand all relevant activities, actions, and/or research used to make a determination.

  9. 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 inventory management system, the Disclosure caseworker must retain records retrieved from files or the Federal Records Center (FRC) for 180 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.

  10. A Disclosure Manager or their designee must review all cases releasing redacted records. Case files must document when a case is forwarded to the Disclosure Manager or their designee for review and signature.

  11. The FOIA Improvement Act of 2016, signed on June 30, 2016 states that whenever an agency sends a response to a FOIA request, the agency must make known to the person making such a request their right to seek assistance from the FOIA Public Liaison.

    Note:

    Agency responses include extension, interim and final response letters. FOIA Public Liaison contact information must be included in all of these types of response letters. See IRM 11.3.13.6.3 and IRM 11.3.13.6.4 for additional information on extension and interim response letters.

  12. If a FOIA requester seeks judicial review during the processing of a FOIA request, or files a FOIA lawsuit, close the request as soon as notification of the suit is provided by Counsel. FOIA lawsuits are handled by Counsel, Procedure and Administration (P&A) and the responsibility for processing the open FOIA request shifts from Disclosure to Counsel once the suit has been filed. Upon notification of a FOIA lawsuit from P&A Counsel, take the following steps:

    1. Do not provide any responsive documents to the requester unless directed to do so by Counsel.

    2. Notify any business unit(s) to rescind any open search effort requests, stating FOIA litigation has been filed and the FOIA request will be closed.

    3. Close the case using the appropriate closing disposition to indicate FOIA litigation has been filed.

    4. Assist the Counsel Attorney assigned to the litigation case by providing them any documents requested from the case files. If Counsel requests more assistance other than providing documents from the case file, the request for Counsel assistance must be elevated through the Disclosure Manager to Senior Leadership using established communication protocols.

    5. Charge time spent on Counsel assistance to the closed case.

    6. Document case notes with the fact that the suit was filed, the name of the Counsel attorney assigned the litigation case and any subsequent actions taken to assist Counsel.

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,

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

    6. indicate discretionary releases of information where an exemption could have applied, but a determination was made to disclose the information.

  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.

File Documentation

  1. Case notes must document and explain any and all actions taken or considered. Case notes should be:

    • Complete: Include all significant actions taken to analyze the request, search for records (including emails and search memorandums), review records, and articulate the basis for the release or the withholding of records. Document contacts with the requester to limit the scope or clarify the request or address other issues that are significant to the resolution of the case. Clearly define due dates for requests for records and expectations for the documents (readable format, preferably electronic, user ready condition and any impairment recommendations). Managerial involvement, On the Job Instructor (OJI) involvement, counsel involvement, and other external/internal stakeholder communication should be documented.

    • Coherent: Use plain language and proper grammar. Do not use acronyms or abbreviations that are not commonly understood.

    • Timely: Document all case actions contemporaneously as they take place to ensure case notes are accurately updated in a timely manner. Contemporaneous case note documentation is part of workload management and if done timely and correctly will save time on cases. Periods of inactivity should be explained.

    • Relevant: Leave out personal observations, speculations, and opinions.

    See the "Case Note Documentation Memorandum" issued by the Associate Director, Disclosure, dated September 22, 2016 found on the Disclosure Share Point site.

  2. 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 (i.e., grant, denial, partial denial, imperfect),

    5. exemption(s) applied,

    6. the supporting statute, if applying the (b)(3) exemption,

    7. the specific privilege(s) cited if applying the (b)(5) exemption, and the explanation of how the privilege(s) apply.

    8. If applicable to the case inventory management system, import a blank page into the inventory management system when FOIA exemptions are being cited to deny documents in part or in full when responsive documents are not secured or when voluminous responsive documents are reviewed and processed outside of the inventory management system. Apply any applicable exemptions to the imported blank page to capture what exemptions are being cited in your response.

    Note:

    Other case documentation could include, if applicable, discretionary disclosure considerations, foreseeable harm justifications, impairment determinations, and withholding recommendations from other functions.

  3. Enclose Notice 393, Information on an IRS Determination to Withhold Records Exempt from the Freedom of Information Act, 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 records determination. Provide Notice 393 with this response. This gives the requester the right to appeal the adequacy of the search.

Extension Letters

  1. Make all efforts to meet the statutory 20-business day time limit for response. Send all required extension letters, including those needed for deadlines occurring during absences from the office.

    Note:

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

  2. The FOIA (at 5 USC §552(a)(6)(B)(i)) provides for an additional 10 business days to respond if Disclosure personnel notify the requester in writing that IRS needs more time to:

    1. search for and collect the requested records from other locations separate from the responding office (i.e. Federal Records Center),

    2. search for, collect, and review a large volume of records which are, or may be, responsive to the request,

    3. consult with another agency or Treasury bureau which has a substantial interest in one or more of the responsive records, or

    4. consult with business submitters to determine the extent of proprietary information.

  3. If a caseworker is unable to locate and review the records within 20 business days, but deems that a response is likely within 10 additional business days and the reason for the additional time does meet the criteria in (2) above, send the appropriate extension pattern letter titled to the requester.

  4. If a 10-day extension letter was sent, and it is later determined that a response cannot be provided by the revised due date, a voluntary extension letter will be sent.

  5. If caseworker is unable to locate and review the records within 20 business days, but deems that a response is likely within 10 additional business days and the reason for the additional time does not meet the criteria in (2) above, send the appropriate extension pattern letter to the requester. Follow the guidance in (3) above to update the extension letter and revised due date fields in the inventory management system.

  6. Send the appropriate extension pattern letter if unable to respond until more than 30 business days after receipt of the request. Do not extend the expected response date more than 90 calendar days beyond the extension date.

    Note:

    The expected response date may exceed 90 calendar days beyond the extension date only in rare circumstances and with the approval of the Disclosure Manager. Case notes must document the basis for extending beyond the 90 calendar days and the extension letter must provide adequate explanation to the requester for the extended delay.

  7. In the request for voluntary extension of time to respond, you must provide the requester an opportunity to:

    1. limit the scope of the request, and

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

  8. The letter requesting the initial voluntary extension of time is required even if the requester agreed to allow additional time to respond during personal or telephone contact. It is important to notify the requester in writing that he/she has a right to file for judicial review to obtain a response. Additionally, notify the requester that the court may find that the agency's failure to comply with the statutory response date is justified if the requester refuses to consider limiting the scope or to accept a reasonable alternate time frame for response.

  9. Use the appropriate pattern extension letter to request additional time beyond the due date of the statutory extension letter or first voluntary extension letter. The subsequent extension letter, must include information as to the status of the request, i.e. reviewing voluminous records.

    1. It is not necessary to send a subsequent voluntary letter when notifying the requester in person or by telephone, but you must document case notes with the following information:
      1. Date of the verbal contact
      2. Name of the requester and title, if applicable
      3. Discussion of limiting the scope of records, if applicable
      4. The details of any scope-limiting agreement and the new voluntary extension date

      Note:

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

      Note:

      Consider providing an interim response when sending an extension letter, if applicable. See IRM 11.3.13.6.4, Interim Response Letters.

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

  10. Where unusual circumstances require more than 30 calendar days to respond, Disclosure personnel must review open cases, as often as necessary, and take any appropriate actions to close the case, to send additional extension letters, or to provide a status update to the requester, if needed. Record these reviews and any follow-up activity, in the history notes. For example, record contacts with the function regarding case status.

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

    Note:

    See 26 CFR §601.702 and IRM 11.3.13.6.8, Administrative Appeals.

  12. Contact information for the Office of Government Information Services (OGIS) and the FOIA Public Liaison must be included in the extension letter. See IRM 11.3.13.6.6 and IRM 11.3.13.6.7 for additional information on the FOIA Public Liaison and procedures.

Interim Response Letters

  1. An interim response letter should be issued to requesters when it is appropriate. The Department of Justice Office of Information Policy issued guidance on making interim responses during the processing of Freedom of Information Act requests. An interim response letter should be provided when some records are available rather than waiting until all records are located and processed.

    Note:

    Consider including extension letter language in the interim response letter, if applicable.

  2. Any exceptions to not engage in rolling or interim productions, when records are clearly available, must be reflected and supported in case documentation.

  3. Do not send Notice 393, Information on an IRS Determination to Withhold Records Exempt from the Freedom of Information Act, with the interim response letter. Notice 393 should be sent with the final response letter, if applicable.

  4. Contact information for the Office of Government Information Services (OGIS) and the FOIA Public Liaison must be included in the interim letter. See IRM 11.3.13.6.6 and IRM 11.3.13.6.7 for additional information on the FOIA Public Liaison and procedures.

Expedited Response

  1. The Freedom of Information Act provides for expedited processing if the requester asks in writing and demonstrates a compelling need for the information.

  2. A compelling need may exist when:

    1. failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual

    2. the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity; or

    3. failure to obtain the records quickly could cause a loss of substantial due process rights.

      Note:

      See 26 CFR §601.702 for details about who qualifies as an individual primarily engaged in disseminating information and what situations may meet the compelling need requirement.

  3. A request for expedited processing must include a detailed explanation of the circumstances creating the compelling need. The explanation must be sufficient to enable Disclosure personnel to determine whether the asserted need meets the statutory or regulatory requirements. The requester must certify that the statement of compelling need is true and correct to the best of his or her knowledge and belief. A requester may ask for expedited processing at the time of the initial request for records or at any later time.

  4. If the requester includes a statement explaining the compelling need, notice of the determination to grant or deny expedited processing must be provided within 10 calendar days after receipt of the request. The letter must be signed by the Disclosure Manager or designee. If the request for expedited processing is denied, provide a Notice 393 with notification of the denial. Contact information for the Office of Government Information Services (OGIS) and the FOIA Public Liaison must also be included in all responses denying a request for expedite processing. See IRM 11.3.13.6.6 and IRM 11.3.13.6.7 for additional information on the FOIA Public Liaison and procedures.

  5. If the requester fails to provide information explaining a compelling need, the request for expedited processing is invalid and there is no need to prepare a letter solely addressing the compelling need request or to provide a Notice 393.

    1. If the underlying FOIA request is imperfect and is processed in accordance with IRM 11.3.13.3.6, Imperfect Requests, instructions, inform the requester by letter that the expedited processing request cannot be considered because it lacks the required compelling need explanation. Invite the requester to provide an explanation.

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

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

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

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

FOIA Public Liaison

  1. The Executive Order issued in December 2005, the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016 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.

  2. To comply with the Executive Order, the IRS designated the Disclosure Managers as the FOIA Public Liaisons for their respective offices.

  3. 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.

  4. The FOIA Improvement Act of 2016, signed on June 30, 2016 states that whenever an agency sends a response to a FOIA request, the agency must make known to the person making such a request their right to seek assistance from the FOIA Public Liaison.

    Note:

    Agency responses include extension, interim and final response letters. FOIA Public Liaison contact information must be included in all of these types of response letters.

Office of Government Information Services (OGIS)

  1. The Office of Government Information Services (OGIS) is the Federal Freedom of Information Act (FOIA) Ombudsman. OGIS was created within the National Archives and Records Administration when the OPEN Government Act of 2007 amended the FOIA 5 USC §552. OGIS reviews agency compliance with FOIA, provides mediation services to resolve FOIA disputes, and identifies policies and procedures for improving FOIA compliance.

  2. Typically requesters submit their dispute to OGIS, and OGIS contacts the FOIA Senior Policy Analyst. Any OGIS inquiries received in the field must be referred to the FOIA Senior Policy Analyst.

  3. The FOIA Improvement Act of 2016 signed on June 30, 2016 states that whenever an agency sends an adverse determination response to a FOIA request, the agency must make known to the person making such a request the following:

    1. The right of such person to appeal to the head of an agency within a period that is no less than 90 days after the date of such adverse determination, and

    2. The right of such person to seek dispute resolution services from the FOIA Public Liaison, and

    3. The right of such person to seek dispute resolution services from the Office of Government Information Services (OGIS).

  4. All agency response letters with an adverse determination must include the Notice 393 appeal rights notification, the FOIA Public Liaison contact information, and OGIS contact information.

Administrative Appeals

  1. In accordance with 26 CFR §601.702, a requester may appeal administratively any initial determination under the FOIA that notifies the requester:

    1. of a request denial in full or in part,

    2. of an adverse determination of the requester’s fee category,

    3. of an adverse determination of the requester’s fee waiver or fee reduction request, or

    4. that no responsive records exist.

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

  3. The FOIA Improvement Act of 2016 signed on June 30, 2016 states that whenever an agency sends an adverse determination response to a FOIA request, the agency must make known to the person making such a request the following:

    1. The right of such person to appeal to the head of an agency within a period that is no less than 90 days after the date of such adverse determination, and

      Note:

      The FOIA Regulations referenced in (1) of this section state that the appeal must be postmarked within 35 days after the date of the applicable FOIA adverse determination letter. The FOIA Improvement Act of 2016 extended the right of such person to appeal within 90 days after the date of an adverse determination. Any adverse determination letters for FOIA requests received after June 30, 2016 must allow 90 days for an appeal.

    2. The right of such person to seek dispute resolution services from the FOIA Public Liaison, and

    3. The right of such person to seek dispute resolution services from the Office of Government Information Services (OGIS).

  4. All agency response letters with an adverse determination must include the Notice 393 appeal rights notification, the FOIA Public Liaison contact information, and OGIS contact information.

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

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

    Note:

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

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

    Note:

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

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

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

Declarations

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

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

    Note:

    Generally, Counsel will also prepare a declaration for the signature of the appropriate official under DO 11-2 (Rev. 1), found in IRM 1.2.2.11.2, if the request response asserted FOIA subsection (b)(3) in conjunction with IRC §6103(e)(7) .

  3. Declarations are based on the specific facts and circumstances of the particular case that led logically to the conclusions that relied on those facts.

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

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

    1. gather necessary facts for the declarations,

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

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

Special Issues

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

Written Determinations (Including Private Letter Rulings, Technical Advice & Chief Counsel Advice)

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

  2. The background file may also contain records that are not available under IRC §6110 (i.e., internal memoranda, inter-agency memoranda, routing slips, emails, and case control sheets) but are subject to request under the FOIA. The Tax Law Specialist will process FOIA requests for background file records.

    Note:

    Disclosure personnel cannot process a third-party FOIA request for background file records if the request identifies the records by a taxpayer name or identifying number. A third party seeking access to written determinations or background files, whether under IRC §6110 or the FOIA, must identify the requested records as described in 26 CFR §301.6110-1 (i.e., by providing the identification, file, or similar number, category, or code section). Proper authorization must be included with a request for third-party written determination documents.

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

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

    • Private Letter Rulings (PLR)

    • Technical Advice Memoranda (TAM)

    • Chief Counsel Advice (CCA)

  5. All PLR’s and TAM’s are taxpayer specific and are protected under IRC §6103. Proper identification/authorization must be included with the request to be valid for processing.

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

    • Litigation Guideline Memoranda (LGM)

    • Bulletins

    • Legal Advice

    Note:

    Not all CCA’s are taxpayer specific. Requests for CCA’s that are taxpayer specific must include proper identification/authorization to be valid for processing.

  7. CCA issued on or after January 1, 1986, are available for public inspection through the Freedom of Information Act (FOIA) Library and caseworkers may direct requesters seeking CCA to the FOIA Library.

    Note:

    If the requester seeks a copy of a written determination from 1997 or later, and he/she can provide the identification number or Uniform Issue List (UIL) number, field Disclosure personnel may advise the requester how to access the record on the internet website and/or download it themselves and provide it. For further discussion of the determinations involved in data electronically available to the requester, see IRM 11.3.13.4.2, Search Efforts, (3) and (4). If, however, the request seeks an underlying file, discuss with the Disclosure Manager to get assistance from a Tax Law Specialist or transfer that portion of the request to the Tax Law Specialist with Disclosure Manager approval.

  8. If the requester's own written determination is located within their administrative file, processed in response to a FOIA request (i.e., in the Examination file), Disclosure personnel must coordinate release of that record with a Tax Law Specialist, or the Chief Counsel attorney if identified in the administrative file, to ensure that any copy released to the requester is in compliance with Chief Counsel release recommendations.

    Note:

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

  9. When a taxpayer makes a request for an investigative file pursuant to the FOIA, and a third-party written determination (example: CCA, PLR or TAM) is located within the file, deny the written determination documents citing FOIA exemption (b)(3)/USC 26 §6103. The requester must have proper authorization to receive a written determination file.

  10. If a FOIA requester asks IRS to issue a ruling or determination letter (as an adjunct to the FOIA request itself), use the following response:
    "The FOIA does not require Federal agencies to create new records, such as new rulings or determination letters. Additional information is available in 26 CFR §601.201. You may request a ruling or determination letter by following the instructions in Revenue Procedure 2020-4 or Revenue Procedure 2020-01 for rulings related to issues under the jurisdiction of the Tax Exempt and Government Entities division of the IRS (the IRS issues new Revenue Procedures at the beginning of each year to reflect any changes since the previous issuance). The Revenue Procedures also explain the user fee schedules for letter rulings and determination letters. The current Revenue Procedures are generally published under the "Administrative" heading in the first Internal Revenue Bulletin (IRB) of the calendar year."

    Example:

    Revenue Procedure 2020-4 is published in I.R.B number 148. I.R.Bs are published at the following site: http://apps.irs.gov/app/picklist/list/internalRevenueBulletins.html. Contact the persons named in the Revenue Procedure if you have any questions.

Contracts/Commercial Information

  1. Contractors (Business Submitters/Vendors) provide information to the IRS that may contain trade secrets and commercial or financial information that is privileged or confidential. The IRS routinely receives FOIA requests for this information and must give the contractor the opportunity to provide a detailed statement of any objections to the release of the contract records.

    Note:

    All FOIA requests for contract information must have a valid IRS and/or Treasury contract number listed in the request. If no contract number Is listed then the request is imperfect.

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

    1. not an agency record subject to the FOIA; or

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

    Caution:

    Take care not to release information described in (2)(b) without considering the commercial or proprietary interests of the originator.

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

    • Studies provided by non-governmental sources

    • Training materials prepared under contract

    • Operating manuals for purchased or leased equipment

    • Transcripts prepared by court stenographers

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

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

    Note:

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

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

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

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

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

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

  7. Sometimes IRS employees acting on their own initiative and on their own time prepare materials for their own use. Such materials may remain the property of the employee and would not be considered agency records. Base any determination on the terms of the use permitted by the employee. See (5) above.

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

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

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

    Note:

    On September 30, 1997, Part 15 of the Federal Acquisition Regulation (FAR) was revised to stipulate that unit prices of each award be disclosed to unsuccessful bidders during the post award notice and debriefing process. Additionally, you may release unit prices on request under the FOIA, unless the business submitter provides written documentation that release of the unit prices would be a competitive disadvantage (consider the use of exemption (b)(4) in this situation). Furthermore, the FAR specifically provides that the items, quantity, and any stated unit prices of each award are also publicly available. These FAR provisions are mandatory for contracts solicited after January 1, 1998.

  11. Certain business information provided to the IRS by a business submitter is subject to statutory prohibition against disclosure, and must be withheld under FOIA exemption (b)(3) citing 41 USC §4702 as the supporting statute. See 26 CFR §601.702.

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

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

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

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

    1. reasons for not sustaining the objections to disclosure,

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

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

    Note:

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

  14. Notify business submitters whenever a requester brings suit seeking to compel disclosure of business information covered by 26 CFR §601.702.

Requests for 23C Assessment Records

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

    • All my information in system of records 24.030

    • My Form 23-C and/or RACS006 document

    • My summary record of assessment

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

    • My section 6203 information

    • The Summary Record of Assessment and all supporting documentation

    • My summary of account

      Note:

      Provide assessment information, to the extent it exists, regardless of the wording of the request. Provide the Form 23-C/RACS006 unless the requester specifically states not to provide RACS006 or unless requester is seeking Form 23-C/RACS006 specific to an individual Social Security Number and/or name.

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

  3. Work FOIA requests for assessment information and provide responsive records following the procedures listed in IRM Exhibit 11.3.13-4, Procedures for Processing Requests for 23C/RACS 006, and using approved pattern language/letters in all responses to ensure that:

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

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

  4. If it appears the requester does not understand IRS procedures on assessments, Disclosure personnel will include approved pattern language in the response letter.

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

    Note:

    TCs with no assessment amount (i.e. .00) do not apply.

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

    2. Prepare Form 13906, Disclosure Search Request for Accounting Records, and fax it to the appropriate campus(es) to request assessment documents. See IRM Exhibit 3.17.244-7, Manual Assessment Contacts, for a list of Campus Accounting Records contacts.

  6. If the requester asks for Form 23-C/RACS006/Summary Record of Assessments and the supporting documents, provide the Form 23-C/RACS006 with a Transcript Delivery System (TDS) transcript as the supporting document under IRC §6203 .

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

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

  9. In all instances, word your response to the requester carefully, whether by telephone or in writing. Even though Form 23-C is rarely used, and there is generally no identifying information on either the signed RACS Automated Summary or the paper Form 23-C, avoid making statements like "there are no records responsive to your request."

  10. Request the preparation of Form 4340, Certificate of Assessments and Payments, by completing Form 4338, Information or Certified Transcript Request. Submit to the Compliance and Accounting function in the appropriate Campus. See the Record Retrieval Resource document on the Disclosure SharePoint site for the appropriate campus contact. Do not provide a certified Form 4340 in response to a FOIA Request. Specifically state in the comments area of the Form 4338, "Do not sign and do not certify" . See IRM 11.3.13.7.24, Requests for Certified Copies of Records.

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

    Note:

    There is no routine agency procedure to obtain Form 4340. If a request for Form 4340 is received citing only IRC §6203 , provide information to the requester that a perfected FOIA request needs to be submitted to obtain Form 4340. Do not provide the Form 4506-T.

Review of Transcripts

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

    Note:

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

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

    1. Criminal Investigation Indicators. See IRM 11.3.13.7.4.1.

    2. Discriminant Function (DIF) Score, DIF Level, Discriminant Analysis System (DAS) Score, Selection of Exempt Organization Returns for Examination (SERFE) Indicator, and the Underreported Income DIF Score (UIDIF). See IRM 11.3.13.7.4.2.

    3. Resource Workload and Management System (RWMS). See IRM 11.3.13.7.4.3.

    4. Informant Claim Examination (ICE) indicator. See IRM 11.3.13.7.4.4, ICE Indicators.

  3. Make determinations to redact the Potentially Dangerous Taxpayer (PDT) or Caution Upon Contact (CAU) indicator on a case-by-case basis.

    Note:

    PDT or CAU information may be withheld from disclosure under FOIA exemptions (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(F) and/or in conjunction with IRC §6103(e)(7) as applicable.

    Exception:

    PDT information is exempt from the access provisions of the Privacy Act of 1974, 5 USC §552a by virtue of subsections (J)(2) and/or (k)(2).

  4. Do not redact transactions that are dated after the received date of the request as out of scope of the request.

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

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

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

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

    Example:

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

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

  4. If the taxpayer is not aware of the investigation and the Special Agent indicates that redacting the code and citing exemptions would harm the investigation, you may consider excluding the information pursuant to the provisions of 5 USC §552(c)(1). See IRM 11.3.13.5.3, Record Exclusions. Coordinate any use of the record exclusion through the FOIA Senior Policy Analyst in Headquarters.

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

    Note:

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

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

    Note:

    See IRM Exhibit 4.10.16-4, Reason Codes, which is available on www.irs.gov, for reason codes that are available to the public.

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

ICE Indicators
  1. Informant Claim Examination (ICE) indicators are found on AMDISA prints at Line 18, identifies an informant claim. Withhold the ICE indicator and the numbers following the ICE indicator citing exemptions (b)(3) in conjunction with IRC §6103(b)(2) and (e)(7), and (b)(7)(A).

  2. TXMODA and IMFOLT may contain an ICE indicator SPC 0153 with Transaction Code (TC) 420. Withhold the Special Processing Code (SPC) 0153 citing exemptions (b)(3) in conjunction with IRC §6103(b)(2) and (e)(7), and (b)(7)(A).

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

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

Penalty and Interest Notice and Explanation (PINEX)
  1. PINEX is an IDRS command code used to compute calculations of penalties and interest using both posted and pending transactions. When interest is computed by the Master File, PINEX may be used to explain the debit or credit interest calculations when a taxpayer questions those calculations. See IRM 20.2.1.7.3, Command Code PINEX.

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

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

    2. Before sending the notices generated through PINEX, IRS employees must manually review the balances and analyze the accounts to resolve discrepancies. See IRM 20.2.1.7.3.2, PINEX: Hardcopy Notice Verification and Mailing.

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

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

    Note:

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

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

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

Privacy Act Transcript Request Activity (PATRA)
  1. PATRA-D is an IDRS command code that is used to obtain a list of any disclosures of a taxpayer’s return or return information.

  2. PATRA-P is an IDRS command code that is used to obtain a list of any disclosures of a payer’s master file. This is rarely, if ever, requested.

  3. See IRM Exhibit 2.3.34-1, Command Code PATRA, as a resource for input guidance of the PATRA command code.

  4. Do not refer PATRA requesters to use Form 4506-T. PATRA is not available through routine agency procedures.

Requests for IDRS Records That Have Been Removed to Retention
  1. Requests for IDRS records that have been removed to retention require a reasonable search including moving a tax period back to the Master File through the appropriate IDRS command code. Neither the research required to move the account to the Master File to generate the transcript nor the number of days required to accomplish that movement results in an unreasonable search effort. The act of recovering the record is merely a way to retrieve information that is not at hand and does not create new records. However, see IRM 11.3.13.7.4.6, Penalty and Interest Notice and Explanation (PINEX), regarding requests for PINEX transcripts.

SS-8 (Determination of Worker Status) Requests

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

    Note:

    See IRM 11.3.8.7, Form SS-8 Written Determinations, for additional information.

  2. FOIA requests from first-party requesters seeking copies of Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, and attachments or a Form SS-8 case file, refer to the Records Retrieval Resources on the Disclosure Share Point site for the names and contact information of individuals that will assist in the retrieval of the Form SS-8 records.

Risk Analysis Reports

  1. Risk analysis reports and related records and background papers are assessments of the security afforded to information and assets in the custody of the IRS. They may also include recommendations for maintaining appropriate levels of protection or discuss specific system vulnerabilities. Disclosure of the content of such records could contribute to the threat of loss or destruction or compromise data contained in IRS systems.

  2. Prior to release, due to the sensitivity of the risk analysis and related records, discussions with the owner of the record to ascertain the harm in releasing is required. To the extent the records, if released, would pose a harm to the IRS’s enterprise network or other data systems, the records will be denied using exemption (b)(7)(E), as such harm would impair the effective administration of the tax laws. The caseworker must ensure a person in proper authority has determined the harm in release.

  3. Because of the sensitive nature of risk analysis reports and related records, any FOIA request for these reports and the records pertaining to it will be assigned to a field Tax Law Specialist. The field Tax Law Specialist will coordinate with the Office of the Chief Risk Officer prior to release of records, if applicable.

Executive Performance Agreement

  1. Executive Performance Agreement, Other Gov TDF 35-07, Catalog Number 51075R, are available to the public when edited pursuant to exemption (b)(6) to prevent any unwarranted invasion of personal privacy.

    Note:

    These requests must be processed by a Tax Law Specialist in the field office.

Requests for Audit Trails

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

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

  3. To retrieve the SAAS audit trail extract, Disclosure personnel will prepare Form 9936, Request for Audit Trail Extract. The form must list all calendar time periods/years and all campuses to be searched in response to the FOIA request. Forward the form to Cyber Security Operations for processing. Refer to the Records Retrieval Resources on the Disclosure SharePoint for additional information.

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

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

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

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

  8. If you do not receive a proper authorization or an instruction to send the information directly to the taxpayer, close the request as a full denial citing FOIA exemption (b)(3)/26 USC §6103.

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

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

  11. Upon receipt of the extract, Disclosure personnel must work with the business function in analyzing and redacting the extract, prior to releasing to the requester. Refer to IRM 10.8.34.6.3.2.1.3, Freedom of Information Act Audit Trail Requests.

    1. Locate and redact the Social Security Number of the employee and the violation type citing FOIA exemption (b)(6). Redact any other data exempt from disclosure, consider using FOIA exemptions (b)(3) with IRC §6103(a) and IRC §6103(e)(7), (b)(6), (b)(7)(A), or (b)(7)(C). When necessary, contact the FOIA Senior Policy Analyst for assistance.

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

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

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

    Note:

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

    Note:

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

    Note:

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

    Reminder:

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

Personnel Records

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

  2. The OPM also has FOIA responsibilities for personnel records maintained by agencies. These responsibilities are detailed in each of the sections describing the various records. Responses to FOIA requests seeking OPF or EPF information will be consistent with OPM regulations at 5 CFR §293 and 5 CFR §297. See IRM 10.5.6.8, Personnel Records, for additional information regarding OPFs/EPFs and their contents.

  3. Disclosure personnel will follow the Human Capital Office (HCO) standard operating procedures. Procedure Number 293-2 at: http://hco.web.irs.gov/PPS/SOP-UOG/TRS-SOP-2.html offers guidance for obtaining the OPF for purposes of responding to a FOIA request.

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

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

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

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

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

  8. Generally, direct requests for information on former employees to the following address:
    National Personnel Records Center, Annex
    1411 Boulder Boulevard
    Valmeyer, IL 62295

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

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

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

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

    Example:

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

    Note:

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

  11. Requests for employee badge numbers. Section 3705 of the Restructuring and Reform Act (RRA) of 1998 requires that during personal, telephone and correspondence contacts by an IRS employee working tax related issues, a unique identification number must be provided. Employee badge numbers are not required to be provided in response to a FOIA request. Consider FOIA exemption (b)(6) when making a withholding determination.

Public Information Listing
  1. The Office of Personnel Management (OPM) has designated six items of information, pertaining to federal employees, which are generally available to the public. Based on the OPM guidelines, Federal agencies must maintain a Public Information Listing (PIL) of all their employees which contains the OPM designated items. A copy of the PIL can be provided under the FOIA. Refer to the Personnel Records job aid found in the Record Retrieval Resources(RRR) on the Disclosure SharePoint site.

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

    1. Name,

    2. Present and past position titles and occupational series,

    3. Present and past grades,

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

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

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

  3. The following policies should be adhered to when processing requests for PIL or specific employee request(s):

    • The identity and duty station location information of “cyber security” designated positions will be withheld citing FOIA exemption (b)(6), similar to how “sensitive” positions are currently treated as defined within OPM’s Data Release Policy.

    • The “adjusted base salary” information for both “sensitive” and/or “cyber security” designated positions will be partially withheld, only releasing the “base salary” information and withholding the “locality pay” information citing exemption (b)(6).

    • Any personnel information for specific employee request(s) – i.e., named IRS personnel – pertaining to “sensitive” and/or “cyber security” designated positions, including appointment affidavit/oath of office, etc., will be withheld in full citing exemption (b)(6).

      Note:

      Request(s) will be processed under normal established procedures for IRS employees not falling within either a “sensitive” and/or “cyber security” designated position – i.e., releasing information consistent with what would otherwise be generally available to the public so long as no privacy concerns are implicated.

      Note:

      If the employee whose information has been requested uses a pseudonym, and any responsive documents contain the legal name of the employee, withhold the employee’s legal name citing exemption (b)(6).

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

    Note:

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

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

    GS/IR Series Title
    0007 Correctional Officer
    0082 United States Marshal
    0083 Police Officer
    0084 Nuclear Materials Courier
    0132 Intelligence
    0134 Intelligence Clerk/Aide
    0401 General National Resources and Biological Science
    0436 Plant Protection and Quarantine
    0512 Internal Revenue Agent
    0840 Nuclear Engineering
    0930 Hearing and Appeals Officer
    1169 Internal Revenue Officer
    1171 Property Appraisal and Liquidation Specialist
    1801 General Inspection, Investigation, Enforcement and Compliance
    1802 Compliance Inspection and Support
    1805 Investigative Analyst
    1810 General Investigating
    1811 Special Agent (SA) Criminal Investigation
    1812 Game Law Enforcement
    1816 Immigration Inspection
    1854 Alcohol, Tobacco, and Firearms Inspection
    1881 Customs and Border Protection Interdiction
    1884 Customs Patrol Officer
    1890 Customs Inspection
    1895 Customs and Border Protection
    1896 Border Patrol Enforcement
  6. IRS policy also authorizes the withholding of the public information items of employees in cyber security designated positions. Cybersecurity designated positions are not identified by a specific GS/IR series or position title. Refer to the Personnel Records job aid found in the Record Retrieval Resources on the Disclosure SharePoint site for additional information regarding cyber security designated positions.

  7. Disclosure personnel may access the PIL via the IRS intranet.

  8. Access to the PIL database is limited to Disclosure personnel. The names and locations of employees in sensitive positions, cybersecurity designated employees and those employees who have been issued a pseudonym have been "masked" with XXXX from the listing available on the PIL database. The remaining information (items b, c, d, and f of paragraphs (2) and (3) above) is still available on the PIL and can be retrieved by requesting a national PIL. Requests for National PIL are case criteria for assignment to the field Tax Law Specialist.

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

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

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

    Note:

    Refer to the Personnel Records job aid found in the Record Retrieval Resources on the Disclosure SharePoint site for instructions on how to process specific requests (such as oath of office and/or appointment affidavits) for employees in sensitive series or for employees in cybersecurity designated positions .

  10. The following types of documents are under the jurisdiction of Human Capital Office (HCO):

    1. Requests for Information Related to an IRS Executive: Requests for IRS Executive information, other than a Public Information Listing or an appointment affidavit/oath of office, will be assigned to a field Tax Law Specialist. When processing a request for the information of an IRS Executive, use Discovery Directory to verify the executive listed in an IRS employee in the ES or EX series. Emails or contacts with an IRS Executive should not be done by caseworkers. Follow procedures using an established FOIA functional contact or discuss with the Disclosure Manager.

      Note:

      The Commissioner is an IRS employee.

    2. Requests for the National Public Information Listing (PIL): For requests for a National PIL of all IRS employees, prepare and send a FOIA search memo requesting no more than the six items as specified in 5 CFR §293.311 to the HCO FOIA functional contact.

      Caution:

      Do not release phone numbers and/or email addresses of IRS employees upon request for fear that the requester will compromise the IRS Enterprise network system, use those emails for various schemes or solicit the purchase of insurance or other items. FOIA exemption 5 USC §552(b)(6) should be used, and the information must not be requested from HCO.

Employee Privacy Matters
  1. FOIA requests seeking records regarding specific IRS employee information need to be reviewed for employee privacy considerations. Based on the presumption of openness found in the FOIA and the Open Government Act of 2007, a strong articulation of what would constitute a clearly unwarranted invasion of personal privacy must be met when making a withholding determination. (See IRM 11.3.13.5.2.7, Exemption (b)(6)).

    Note:

    Requests for specific IRS employee information should not be processed as a Public Information Listing (PIL) request, unless PIL is specifically stated in the request.

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

    Example:

    This protection applies to campus employees and to clerical employees in the field who are chiefly performing according to legal authority, established procedures or instructions from a superior, without exercising any judgment and whose identities are not normally shared publicly, for example, as a contact point or caseworker.

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

    2. Support these redactions with proper case documentation, citing exemption (b)(6) and, when applicable, exemptions (b)(7)(C) and/or (b)(7)(F).

  3. Generally, do not withhold the identities of senior level officials (i.e., those management officials who are heads of office) pursuant to these privacy-based exemptions. However, these employees, if they are the subject of alleged wrongdoing, may have privacy interests that must be balanced against the public’s interest. See IRM 11.3.13.5.2.7, Exemption (b)(6), for more on balancing private and public interests. The result of that balancing will depend on the facts and circumstances of an employee case. Employee names in sensitive and/or cyber security designated positions included in responsive documents to non-administrative file requests should be withheld. See IRM 11.3.13.7.9.1, Public Information Listing. Direct any questions about the senior level official status of a particular employee to the FOIA Senior Policy Analyst.

  4. Refer to the Personnel Records job aid found in the Record Retrieval Resources on the Disclosure SharePoint site when processing requests for Standard Form 61, Appointment Affidavit. Ordinarily, do not use the privacy-based exemptions to withhold typed identity information and the signatures of IRS employees shown on Standard Form 61, Appointment Affidavit. Generally, the public interest in ensuring proper agency actions by duly sworn employees, as evidenced by the appointment affidavits, outweighs any privacy interest relating to these typed identities and signatures. Usually Standard Form 61, Appointment Affidavit, may be released in full for employees that are not currently in sensitive positions and are not currently in a cyber security designated position. If an employee is not in a sensitive position or cyber security designated position, release the appointment affidavit in full with the exceptions below:

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

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

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

    Note:

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

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

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

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

  3. The IRS will not release phone numbers or email addresses of IRS employees upon request for fear that the requester will compromise the IRS Enterprise network system, use those emails for various schemes or solicit the purchase of insurance or other items. FOIA exemption 5 USC §552(b)(6) should be used, and the information must not be requested from HCO.

Trust Fund Recovery Penalties

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

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

    Note:

    Contact information for Advisory is located in "Record Retrieval Resources" on the Disclosure SharePoint site. The locations of the Collection Advisory Units are contained in Pub 4235, Collection (Advisory) Group Addresses.

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

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

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

    Note:

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

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

Credit Bureaus

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

Non-specific Requests Citing "A Citizen's Guide to FOIA"

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

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

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

Requests for Third-Party Information From ChoicePoint or Accurint

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

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

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

    2. Business entity information is not covered by the Privacy Act, therefore FOIA exemptions (b)(6) and/or (b)(7)(C) would not apply.

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

    Note:

    This procedure parallels the processing procedures for other documents containing the information of multiple persons on a single page, such as some state Department of Motor Vehicles records and some real estate records. See IRM 11.3.13.5.2.4(2)(a), Exemption (b)(3).

Automated Lien System

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

    Note:

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

  2. There is a fee for producing the standard ALS database listing. The fee information is found on the FOIA Library for the Automated Lien System (ALS) Database Listing. If there is no commitment to pay, or the commitment is not sufficient to cover this cost, follow IRM 11.3.5, Fees, for guidance on fees, pre-payment and cost notification, prior to releasing records.

  3. Additional guidance on locating records pertaining to the ALS database are found in "Records Retrieval Resources" on the Disclosure SharePoint site.

Requests for Pocket Commissions

  1. When processing requests for information pertaining to a pocket commission, follow these guidelines:

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

    2. Deny requests for any other information pertaining to the pocket commission such as Form 13716-B, Non-Enforcement Pocket Commission Qualification and Request, photos, serial numbers, etc. using (b)(6) and (b)(7)(E).

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

Undeliverable Refund Lists

  1. The Undeliverable Refund Check Listing (URCL) is no longer provided to media outlets for publication. A news release is issued each year to inform the public that there are refunds that have become undeliverable and could be available to the appropriate taxpayer. The news release advises the taxpayer to access "Where’s My Refund" if they believe their refund check may have become undeliverable.

Electronic Return Originator Lists (EROs)

  1. A database listing businesses that participate in the IRS electronic filing program is available on IRS.gov. The listing includes the name, address, and telephone number of the business, the point of contact, and the type of service provided. Requesters can locate this information for providers of electronic services through:

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

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

  2. Carefully review FOIA requests seeking information relating to electronic filers to determine if these publicly available resources contain information responsive to the request. If the information on the site is responsive, provide the web address (URL) to the requester.

  3. If you receive a request that seeks information about electronic filers that is not available through the site mentioned in (1) above, follow the instructions found in "Record Retrieval Resources" on the Disclosure Share Point site.

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

Possible Refund Scheme Requests

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

  2. When you receive this type of request, fax a copy to an Investigative Analyst at the Ogden Fraud Detection Center. Find the fax number in "Record Retrieval Resources" on the Disclosure Share Point site. Link to "Refund Schemes."

    Note:

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

IRC §6001 Requests

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

  2. IRC §6001 does not require issuance of such a notice, but the Secretary may serve notice requiring a person to make returns and keep records. A revenue agent may issue "Notices of Inadequate Books and Records," (Letter 978 and/or Letter 979), during a field audit after determining in a review of actual books and records that the records were insufficient to correctly record income and expenses.

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

  4. Field employees may also issue letters to a non-filer, copies of which should be in the case file.

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

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

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

Requests for the IRS EIN

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

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

Federal Witness Security Program Information

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

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

News Media Requests

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

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

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

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

      Note:

      Requesters stating information will be posted to an online source for public interest may not qualify as a member of the media. Contact must be made to obtain clarification and additional information on how the material will be disseminated in order to categorize the requester under the news media category.

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

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

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

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

    Note:

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

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

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

    Note:

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

Grand Jury Information

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

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

  3. The following are generally considered grand jury information:

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

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

    • Information identifying Grand Jury witnesses

    • Information identifying Grand Jury jurors

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

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

    • Information revealing the deliberations or questions of Grand Jury jurors

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

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

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

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

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

    1. Case agent name, title, telephone number

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

    3. Location of records

    4. Other contact person name, title, telephone number

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

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

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

    Note:

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

    Also see IRM 11.3.13.5.2.8.1(3), Exemption (b)(7)(A), for additional information pertaining to attestations.

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

    Note:

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

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

Requests for Certified Copies of Records

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

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

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

Trusts

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

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

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

    2. If there is open compliance activity, but compliance has made no determination or has specifically determined the requester has no right to access, close the FOIA request as a full denial citing FOIA exemption (b)(3)/26 USC §6103.

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

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

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

Requests for Documents Associated with a Document Locator Number (DLN)

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

    Note:

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

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

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

    Note:

    You may fax requests for fewer than 15 documents.

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

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

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

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

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

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

  6. When you receive requested documents, review, edit, and release or withhold in accordance with IRM 11.3.13.5.

    Note:

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

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

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

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

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

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

    Note:

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

  2. Offices receiving a valid FOIA request for a Form W-7 or related information will research the RTS-ITIN application in the Employer User Portal (EUP). Refer to the W-7 Job aid located on the Records Retrieval Resources on the Disclosure SharePoint site.

  3. Once you locate a DLN, you can retrieve the W-7 from campus files or the Federal Records Center using Form 2275. The DLN for a W-7 is identified by a Tax Class 2 with a document code of 94/96 (English) or Tax Class 2 with a document code of 92/98 (Spanish).

Requests for Third Party Contact Information

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

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

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

    2. There is no responsive record.

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

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

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

    Note:

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

  5. In response to FOIA requests for a list of third parties contacted with respect to the requester, the Disclosure employee must contact the Third Party Contact Coordinator. The Third Party Contact Coordinator information is found on the "Record Retrieval Resources" on the Disclosure SharePoint site.

FedState Agreements

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

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

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

Requests for Copies of Information Provided to State Tax Agencies

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

    • a specific request from a state employee

    • an implementing agreement

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

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

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

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

      Note:

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

      Note:

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

Requests for Lottery Information

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

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

Requests for Offshore Credit Card Project (OCCP) Files

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

  2. Transfer requests for information from the OCCP database to a field Tax Law Specialist for processing. Requests transferred to a field Tax Law Specialist require Disclosure Manager approval.

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

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

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

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

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

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

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

    1. The file may contain ChoicePoint/Accurint (or similar) information pertaining to more than one individual with the same name as that on the credit card. Agents doing the research often leave all such information in the file so that the case agent can see the process used to identify the taxpayer. Deny any ChoicePoint/Accurint (or similar) information not directly pertaining to the taxpayer in accordance with the guidelines in IRM 11.3.13.7.13, Requests for Third-Party Information From ChoicePoint or Accurint.

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

Requests for Centralized Authorization File (CAF) Extracts

  1. Requests from individuals representing taxpayers before the IRS seeking access to all information regarding themselves from the Centralized Authorization File (CAF) are processed in field Disclosure offices.

  2. Requests for CAF Listings must be accompanied by a copy of a valid photo identification with a signature, such as a valid driver’s license. All other forms for proof of identity (notarized statement, presenting a sworn statement, etc.) will not be accepted.

  3. If no valid photo identification with a signature accompanies the FOIA request, contact the requester to obtain photo identification with a signature to perfect the request.

  4. Guidance on locating records pertaining to the CAF listing database is found in "Records Retrieval Resources" on the Disclosure Share Point site.

Preparer Tax Identification Numbers (PTINs) and Enrolled Agent (EA) Listings

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

  2. Additional guidance on locating records pertaining to the PTIN or EA databases are found in "Records Retrieval Resources" on the Disclosure SharePoint site.

Requests for Taxpayer Recordings Made in the Contact Recording Process

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

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

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

    Caution:

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

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

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

    1. The date of the call.

    2. The approximate time of day of the call.

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

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

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

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

  8. The assigned employee will submit Form 13817, Request for Downloaded Contact, to the Business Application Administrator (BAA) assigned to the employee’s call site. Disclosure personnel will locate the correct call site through research on Discovery Directory and Outlook. See Record Retrieval Resources on the Disclosure SharePoint site for the names and contact information of the BAA’s. IRM 1.4.21.2.1.6, Accounts Management and Compliance Guide for System Administrators/Analysts - Freedom of Information Act (FOIA), has additional information on FOIA requests for contact recordings. The responsive document for a contact recording is an audio CD. Prior to release, the assigned Disclosure employee will determine what, if anything, to withhold in accordance with applicable FOIA exemptions.

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

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

    Caution:

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

Requests for Whistleblower Office Records

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

  2. FOIA requests for whistleblower records are processed by Tax Law Specialists in field Disclosure offices. Upon receipt of the request, contact the Whistleblower Office to confirm the identity of the whistleblower and to obtain a complete copy of all responsive records.

  3. If the request comes from anyone other than the whistleblower or his/her power of attorney, refuse to confirm or deny the existence of any responsive documents. State that any responsive documents that may exist are exempt from release under FOIA exemption 5 USC §552(b)(3) in conjunction with IRC §6103(a). Also consider exemptions 5 USC §552(b)(5), (b)(6), (b)(7)(A), and (b)(7)(C), if applicable.

  4. If the FOIA requester is the whistleblower, provide copies of the original documents that the whistleblower provided to the Service as well as any documents obtained or created by the IRS with respect to a return of the whistleblower or the determination of the whistleblower’s liability under Title 26 as a result of the whistleblower claim (i.e., any withholding computations performed with respect to the whistleblower’s award).

Requests for Congressional Correspondence

  1. FOIA requests for correspondence between IRS and members of Congress are considered sensitive and may have Service wide impact. Congressional inquiries are case criteria for assignment to a field Tax Law Specialist. A Sensitive Case Report is required for these types of requests.

  2. FOIA Requests for Congressional Correspondence are under the jurisdiction of Communications & Liaison, Legislative Affairs. Documents from Legislative Affairs will generally contain an inquiry from a Congressional office to IRS and a response from the IRS to either the Congressperson or their constituent.

    Note:

    Congressional correspondence records will generally go back only ten years. Prior to 2005, they were available only in paper format. Congressional correspondence records are kept for 10 years after the end of the Congressional session (calendar year), and are then destroyed. All records for years prior to the most recent 10 years have been destroyed. To the extent the FOIA request seeks records that go beyond the most recent 10 years, your response will be the records do not exist as they have been destroyed in accordance with Document 12990, IRS Record Control Schedules.

  3. Review the inquiry (from Legislative Affairs) for any legend marking, indicating that the documents are the records of a Congressional Committee and NOT IRS. If the legend is found, remove the entire inquiry and response from the responsive documents.

  4. The legend appears on all Joint Committee on Taxation (JCT) requests and therefore applies to all requests from, and responses to the JCT, but it has occasionally appeared on incoming requests from other Members of Congress and their Committees. The Congressional inquiry will contain language identifying the request as a disclosure to the Committee under IRC §6103(f) and noting the inquiry and response is considered a Congressional record not subject to the FOIA. See IRM 11.3.13.3.5, Joint Committee on Taxation, for further detail regarding legend records.

    Caution:

    In the event a legend is mistakenly not included on Committee documents is immaterial and does not negate the fact the records are Congressional records and not subject to the FOIA.

    Note:

    Legislative Affairs will provide a Congressional Correspondence Log with the responsive documents. The log may be used as a reference to ensure that all of the responsive inquiries and responses were captured in responsive documents. The log may also be used to re-scope a request that is overly broad by sending a copy of the log to the requester and asking them to identify the specific congressional correspondence they are seeking (a pattern letter is available for this purpose). If the log is a requested FOIA item, review in accordance with the technical guidance provided above. If not a FOIA item, import the log into the inventory management system as a supporting document.

Requests for Blank IRS Forms

  1. Requests seeking copies of "blank" IRS forms consisting of IRS tax forms, publications, letters, notices or other published documents, may be processed under a routine agency procedure if the form is publicly available on www.irs.gov. If the form is not publicly available (i.e., Form 872, Consent to Extend the Time to Assess Tax, or Form 14039-B), the form may be provided under FOIA.

IRS Tax Forms
  1. The procedures to obtain "blank" tax forms from the IRS include referring the requester to:

    • access online through www.irs.gov

    • access through the toll free number, 1-800-829-3676

    • access to hardcopy forms by mail
      Internal Revenue Service
      1201 N. Mitsubishi Motorway
      Bloomington, IL 61705-6613

    Note:

    Should internet access not be available to the requester, provide the address above in your response letter.

    Note:

    This guidance pertains only to requests for IRS tax forms. If the requester seeks access under FOIA to blank internal use forms, see IRM 11.3.13.7.38.2, IRS Internal Use Forms.

IRS Internal Use Forms
  1. Requests seeking IRS Internal Use Forms must be processed under the FOIA. Research Forms/Pubs/Products Repository on the IRS intranet web site to determine the distribution properties of the requested document. The public cannot access this site and would have no way to locate forms or any accompanying instructions that are on the intranet but not on www.irs.gov.

  2. If the distribution property shows the document is available to the public, the Disclosure employee will provide a copy of the blank form with the notation "Sample" marked clearly on its face.

  3. If the distribution property shows "Official Use Only" , release determination must be made in accordance with the instruction in IRM 11.3.12, Designation of Documents.

Requests for FOIA Case Files

  1. A FOIA request that asks for information pertaining to a previously submitted FOIA request must be reviewed on a case by case basis to determine if it is valid for processing. Items to consider during the initial analysis include:

    • Is the request too broad and would require the requester to re-scope

    • Is the request for taxpayer records or for agency records

    • Is the requester authorized under law to receive the requested records

  2. Courts have held that FOIA requesters have no general expectation that their names will be kept private. In fact, in most cases the release of the name of a FOIA requester would not cause the minimal invasion of privacy required to trigger the balancing test of exemption (b)(6).

  3. On the other hand, any personal information about an individual FOIA requester, such as his or her home address, should be protected under exemption (b)(6), if applicable, and absent a compelling public interest in its disclosure.

  4. Do not release information about a requester if that information, in conjunction with the context of the request, reveals any return information of another taxpayer. All responsive records must be reviewed and references that implicate IRS compliance actions removed using exemption (b)(3) with IRC §6103(a).

  5. In making release determinations, exemption (b)(6) will be considered for withholding the identity and/or other Personally Identifiable Information of an individual(s), and (b)(3) with IRC §6103(a) will be considered for withholding information that implicates tax administration pertaining to a third party. Other FOIA exemptions may also apply.

  6. Internal discussion and recommendations regarding FOIA withholding determinations will ordinarily be withheld as deliberative process material using FOIA exemption (b)(5). Contact with Counsel must take place using established communication protocols, and the Counsel advice provided must be documented in the case notes, to support the use of FOIA exemption (b)(5).

FOIA Reporting

  1. The FOIA requires each federal agency to submit an Annual Report to the Attorney General, each fiscal year. This report contains detailed statistics on the numbers of requests received and processed by each agency, the time taken to respond, the outcome of each request, as well as many other statistics regarding the administration of the FOIA at each agency.

  2. The Department of Justice also requires each federal agency to submit a Chief FOIA Officers report, each fiscal year. This report contains a detailed description of the steps taken by the agency to improve FOIA compliance and transparency. The IRS Chief FOIA Officers report is available in the IRS FOIA Library.

Annual FOIA Report

  1. FOIA, in 5 USC §552(e)(1), requires all federal agencies to file the Annual FOIA Report each year, on or before February 1, with the Department of Justice. This report details the agency’s administration of the FOIA for the prior fiscal year.

  2. The Annual FOIA Report must be made electronically available to the public on the internet. The IRS annual report is available beginning with fiscal year 1998 in the IRS FOIA Library.

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

  2. The report is prepared by the Office of Disclosure using data from the inventory management system as of September 30. It reflects the cumulative activity for the fiscal year using national totals for cases logged. Upon completion, the IRS report is transmitted to the Department of Treasury who further submits the information to the Department of Justice.

Data Capture
  1. The Disclosure inventory management system provides the statistical information required for the report.

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

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

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

    Note:

    The caseworker must import a blank page into the inventory management system, if applicable for a system’s functionality, when FOIA exemptions are being cited to deny documents, in part or in full, when responsive documents are not secured or when voluminous responsive documents are reviewed and processed outside of the inventory management system. Case notes must also support the basis for processing responsive documents outside of the inventory management system. All responsive records must be located within the inventory management system according to the functionality of that system. Apply any applicable exemptions to the blank page to capture what exemptions are being cited.

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

  6. It is critical that all data reported to Congress annually be captured in the inventory management system. The report includes but is not limited to:

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

    • all exemptions cited, and all statutes relied upon

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

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

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

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

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

    Note:

    The FOIA SETR time code 800-85330 must be used by all IRS employees to document the time spent in researching, processing and releasing documents. See the Deputy Commissioner for Operations Support and Deputy Commissioner for Services and Enforcement memo dated March 31, 2016.

Citing Supporting Statutes
  1. The annual report requires a description of every statute relied upon to withhold records and whether courts have upheld the use of the statute. The inventory management system provides a list of the commonly used statutes, when allowed by that system.

    Note:

    See IRM 11.3.13.5.2.4(2), Exemption (b)(3) for a list of the most common supporting statutes.

  2. The inventory management system limits caseworkers to a list of supporting statutes, when allowed by that system, used previously in IRS FOIA processing. Contact the FOIA Senior Policy Analyst if you propose invoking a statute not on the list. Never use the Privacy Act as a supporting statute for the FOIA (b)(3) exemption.

Chief FOIA Officer’s (CFO) Report

  1. The Attorney General’s 2009 FOIA Guidelines require the Chief FOIA Officer for each federal agency to submit a report to the Attorney General containing a detailed description of the steps taken by the agency to improve FOIA compliance and transparency. This report contains details of FOIA administration at each agency, as well as steps taken to implement the Attorney General’s 2009 FOIA Guidelines during each reporting year.

Report Submission
  1. This report captures data concerning the agency’s compliance with the FOIA, including steps taken to:

    1. apply the presumption of openness

    2. ensure that Treasury, and IRS, has an efficient and effective system in place for responding to FOIA requests

    3. increase pro-active disclosures

    4. utilize technology

    5. improve timeliness in responding to requests and reducing backlog

    6. capture the use of FOIA law enforcement exclusions, and

    7. spotlight overall success of the FOIA program

  2. The report is prepared by the Office of Disclosure using data from the inventory management system as well as information provided from business units within the agency that support the FOIA program. Upon completion, the IRS report is transmitted to the Department of Treasury who further submits the information to the Department of Justice.

Annual TIGTA Review

  1. The IRS Restructuring and Reform Act (RRA) of 1998 established a requirement for TIGTA to conduct periodic audits of a statistically valid sample of the total number of denials (full and partial) of requests pursuant to the FOIA and IRC §6103. The overall objective of the audit is to determine whether the IRS improperly withheld information based on 5 USC §552(b)(7) or IRC §6103.

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

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

FOIA/PA Delegation Order

Delegation Order for release determinations of FOIA and Privacy Act requested records.

This Delegation Order delegates authority for initial determinations with respect to requests for records pursuant to 5 USC §552, Freedom of Information Act (FOIA), and 5 USC §552a, Privacy Act (PA), from the Director, Governmental Liaison, Disclosure and Safeguards to disclosure managers and staff as appropriate. Re-delegations require a separate written authorization

Authority Subject Matter Delegated to: Re-delegation Comments
5 USC §552 Freedom of Information Act Determinations of full grants (including determinations where records are non existent), and imperfect requests or where records are not released Disclosure Managers, Tax Law Specialists, Senior Disclosure Specialists, Disclosure Specialists May not be re-delegated below Disclosure Assistant (or equivalent) for 5 USC §552(a)(1) or (a)(2) requests Determinations involving tax returns/return information as defined in IRC §6103(b) must be approved by an officer with the proper IRC §6103 authority per Delegation Order 11-2.
  Determinations of partial or full denials Disclosure Managers, Tax Law Specialists, Senior Disclosure Specialists, Disclosure Specialists May not be re-delegated Determinations involving tax information as defined in IRC §6103(b) must be approved by an officer with the proper IRC §6103 delegated authority per Delegation Order 11-2.
5 USC §552a Privacy Act Determinations of requests for access to any IRS or Chief Counsel record or amendment of records Disclosure Managers, Tax Law Specialists, Senior Disclosure Specialists May not be re-delegated Determinations involving tax information as defined in IRC §6103(b) must be approved by an officer with the proper IRC §6103 delegated authority.
IRC §7852(e) prohibits amendment of tax records.
Determinations for amendment of a Chief Counsel record must be referred to the Assistant Chief Counsel (Procedure and Administration)
  Determinations of partial or full denials Disclosure Managers, Tax Law Specialists, Senior Disclosure Specialists May not be re-delegated Determinations involving tax information as defined in IRC §6103(b) must be approved by an officer with the proper IRC §6103 delegated authority.

IDRS Research Guidelines

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

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

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

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

Collection Files

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

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

See Document 6209, IRS Processing Codes and Information, Section 8, for Collection Status Codes.

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

Note:

A taxpayer with a proposed TFRP penalty may also be authorized to access TFRP documents, the caseworker must make sure to do adequate research on IDRS to determine if there is a TFRP file, do not reply no records exist unless you have confirmed with thorough research.

Examination Files

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

Criminal Investigation Files

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

See IRM 11.3.13.7.4.1 regarding the redaction procedures for TC 900 series located on transcripts.

Taxpayer Advocate Files

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

FOIA and Title 26 Cases with CTRs or Data Extracted from CTRs

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

* The term CTR includes the documents listed in IRM 11.3.13.5.8(1), Title 31 Reports - CTRs, CMIRs, FBARs, and SARs.

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

Note:

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

Procedures for Processing Requests for 23C/RACS006

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

Record(s) Requested RACS006 from appropriate Campus TDS Account Transcript Conduct NMF Research Other Important Considerations
23C Document X X X If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS006
Summary Record of Assessment (SRA) X X X If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS006
23C, RACS006, SRA, etc. with supporting document X X X If NMF assessment is located, a user friendly transcript* must be provided with the 23C/RACS006
Section 6203 Information   X X If NMF assessment is located, a user friendly transcript* must be provided Do not send 23C/RACS006
All Supporting Documents   X X Explain details of 23C/RACS006. If NMF assessment is located, a user friendly transcript* must be provided. Do NOT send 23C/RACS006.
23C, RACS006, SRA specific to me, pertaining to me or my SSN   X X Explain details of 23C/RACS006. If NMF assessment is located, a user friendly transcript* must be provided. Do NOT send 23C/RACS006.
Does Not Want: RACS006, phony documents, etc.   X X If NMF assessment is located, a user friendly transcript* must be provided (do not send 23C/RACS006)

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

Note:

Form 23-C/RACS006 Reports need to be provided for all assessments on each tax year. This includes tax, interest, penalties, lien fees, etc., not just tax assessments. Any assessment without a money amount (i.e. .00) will not have an associated Form 23-C/RACS006 Report.