Freedom of Information Act (FOIA) Guidelines

 

Updated IRS FOIA Guidelines

Before you submit a FOIA request, find details on updated fees and requirements with the IRS FOIA Guidelines. The updates are for changes made to Internal Revenue Manual 11.3.5, Fees on October 18, 2021, and include:

  • Increased IRS FOIA fees for search, review and duplication efforts
  • Updated search fees for certain types of FOIA requester categories
  • Updated ways to submit requests

If the information you want isn’t publicly available in the IRS FOIA Library, you can submit a FOIA request. Use this information to find out how to submit your request and what to expect.

How to Submit a FOIA Request

It’s important to submit your request in the right way to avoid delays.

Personal taxpayer information is protected under the Privacy Act of 1974, 5 U.S. Code Section 552a. Find details in the IRS Privacy Policy.

Get Faster Service Online and by Fax

Submit FOIA request to the IRS at the FOIA Public Access Portal, FOIA.gov or by fax. Don’t submit the same request more than once.

  • The IRS FOIA Public Access Portal is a secure portal that allows requesters to electronically submit a FOIA request(s), check the status of submitted request(s), and securely send and receive messages to and from the agency.
  • Personal or business taxpayer records: Fax to 877-891-6035
  • IRS policies and procedures not in the FOIA Library: Fax to 877-807-9215

Records Available Through Routine Agency Procedures

You should submit requests for copies of the following records with these forms instead of submitting a FOIA request:

Mail Your Request

If you can’t submit a request with FOIA.gov or via fax, mail your request to us. If you’ve already submitted a request with FOIA.gov or via fax, don’t mail the same request.

Personal and business taxpayer records:

Internal Revenue Service
GLDS Support Services
Stop 93A
Post Office Box 621506
Atlanta, GA 30362

All requests for other IRS records not publicly available in the FOIA Library:

Internal Revenue Service
GLDS Support Services
Stop 211
PO Box 621506
Atlanta, GA 30362-3006

The Freedom of Information Act, 5 U.S.C. 552, provides any person the right to request access to federal agency records. The FOIA applies to records either created or obtained by an agency and under agency control at the time of the FOIA request. Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies are subject to the FOIA. State governments, municipal corporations, the courts, Congress and private citizens are not subject to the FOIA.

The FOIA does not require the IRS to release all documents that are subject to FOIA requests. The IRS may withhold information pursuant to nine exemptions and two of three exclusions contained in the FOIA.

While the Freedom of Information Act is an option in some cases, records that should be processed routinely in accordance with procedures identified in 26 CFR 601.702(d) should be requested using the methods described at the top of the page. 


Background

The FOIA requires that federal agencies automatically disclose certain categories of information.

Section (a)(1) of the FOIA requires disclosure through publication in the Federal Register of information such as:

  • Descriptions of IRS organization and the addresses where the public may obtain information, make requests or obtain decisions.
  • Statements of the general course and method of IRS operations, including the nature and requirements of all formal and informal procedures.
  • Rules of procedure and descriptions of forms.
  • Substantive rules of general applicability adopted as authorized by law and general policy statements adopted by the agency.
  • Each amendment, revision or repeal of the above.

Section (a)(2) of the FOIA requires that the IRS make the following materials available for public inspection in an electronic format:

  • Final opinions and orders made in the adjudication of cases.
  • Statements of policy and interpretations adopted by the IRS but not published in the Federal Register.
  • Administrative staff manuals and instructions to staff that affect the public.
  • Copies of records released in response to FOIA requests that the IRS determines have been or will likely be the subject of additional requests or that have been requested three or more times.
  • A general index of these categories of records.

Documents listed under section (a)(2) of the FOIA created on or after Nov. 1, 1996, must be made available electronically. The IRS maintains a FOIA Library in compliance with section (a)(2).

Section (a)(3) of the FOIA requires any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall be made promptly available to a requester.

For example, a request for all tax records pertaining to the requester does not clearly define the records needed. As a result, the request will be returned without processing or the requester will be contacted to rescope the request. It is better to narrow the request to ask for specific documents. For example: “my examination file for tax year 2019.”

The FOIA only applies to existing records and does not require the IRS to collect information not available, or to research or analyze data in response to a request. The IRS is not obligated to create a new record to comply with a FOIA request.

The form in which IRS maintains a record does not affect its availability. A requester may seek a printed or typed document, map, photograph, computer printout, computer disk or a similar item. The IRS must provide the requested record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format and make reasonable efforts to maintain its records in forms or formats that are reproducible for such purposes.

See the Department of Justice Office of Information Policy (OIP) website for additional information on the FOIA.

The request must be sent to GLDS Support Services (GSS) using one of the three methods listed at the top of the page to be considered “received” by the IRS for purposes of FOIA processing. In accordance with the complete regulatory requirements for FOIA requests filed with the IRS, which are available Treasury Regulation 601.702, a proper FOIA request submitted to the IRS must contain the following items:

  • State that the request is being made under the Freedom of Information Act or, for records of an individual nature which are retrievable by an identifier such as a Social Security number (e.g. an employee seeking a personnel file), state that the request is being made under the Privacy Act.
     
  • If the records being sought pertain to the requester and are protected by a specific statute (e.g. personnel records protected under the Privacy Act or tax records protected under Internal Revenue Code (IRC) section 6103), the request must contain a hand-written signature of the requesting individual.

    Note: If the request involves the tax records of an individual or business, the requester must also include a copy of the requester’s driver’s license or a sworn or notarized statement swearing to or affirming their identity. In this case, the authority of the requester to receive such records must be established or the records pertaining to the taxpayer may be withheld in full.

    Note: If the request is for the Centralized Authorization File (CAF), you must attach a valid photo identification that includes your signature as proof of identity. Failure to include a valid photo ID may result in a denial of all requested CAF records
     
  • Identify or describe the records that are being sought as specifically as possible to allow an IRS employee to conduct a proper search for the requested records (e.g. “2019 examination administrative file”). Do not request something like “All records under my name and social security number” or “All IRS emails concerning xxxx”. These requests may be rejected as too broad and/or not specific enough to allow a proper search.
     
  • The name and address of the requester, to enable the IRS to notify the requester of any determination to release or withhold requested records.

    Note: Records and communications related to records protected by IRC 6103 will not be sent via email.
     
  • Make a firm commitment to pay all duplication, search and/or review fees that may apply.
    • In accordance with 26 CFR 601.702(c)(4)(ii), requesters may put an upper limit on the amount of fees they are willing to pay and/or request a reduction or waiver of fees that would be due. If the estimated fees will be higher than the limit and/or the reduction or waiver of fees is denied, the requester will be contacted to secure an appropriate agreement to pay fees or to have the request withdrawn or revised.
       
  • Identify whether the requester is a commercial user, member of the news media, seeking records for appropriate educational or scientific institution use or is an “other” requester.
    • If there is a question as to the use of the requested records, the requester may be required to provide additional information to verify what the records will be used for. If a requester’s stated category is changed, the requester has the right to administratively appeal the determination.

Optional FOIA Items

Several optional items may be included in a FOIA request:

  1. The requester’s telephone number, which allows the IRS employee processing a request to speak with the requester if necessary.
     
  2. A request for a waiver or a reduction of fees will be considered if disclosure of the information is in the public interest because the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Fee waiver decisions are separate and distinct from decisions about the amount of fees that a requester can be charged. The request for a fee waiver must state the reasons why the requester believes disclosure meets the standards set forth in 26 CFR 601.702(f)(2)(ii).
     
  3. Requesters should clearly specify the format in which they want to receive requested records, if necessary.  For example, information maintained by the IRS in an electronic form can be provided in that same or a similar format, such as on a CD-ROM, DVD or USB. The FOIA requires agencies to help requesters by providing information in the form requested, including requests for electronic records, if the agency can readily reproduce it in that form. For more information see subsection (a)(3)(B) of the FOIA.
     
  4. The IRS will grant a request for expedited processing when a requester demonstrates “compelling need.”  A “compelling need’’ warranting expedited FOIA processing exists in three categories of circumstances as detailed in 26 CFR 601.702(c)(6).
     
    • Failure to obtain the records within an expedited deadline could reasonably be expected to pose an imminent threat to an individual's life or physical safety.
    • A request by someone "primarily engaged in disseminating information'' and "a matter of current exigency to the American public’’. The standard for “primarily engaged'' requires that information dissemination be the main activity of the requester, although it need not be his or her sole occupation.
    • Failure to obtain the records within an expedited deadline could reasonably be expected to cause a loss of substantial due process rights.
    • IRS may determine other circumstances, as prescribed by regulation, which would qualify a FOIA request for expedited processing, although the specified categories for compelling need are intended to be narrowly applied.

The requester must certify that the statements of compelling need for expedited requests are true and correct to the best of their knowledge and belief.

Failure to include specific details related to the compelling need and/or failure to certify the statements as true and correct may result in a denial of the request for expedited processing.

You must show proof of identity and demonstrate your right to access information to receive copies of documents protected under the Privacy Act or Internal Revenue Code section 6103.  Failure to do so may result in a full denial of access to any records protected by these statutes. You can establish your identity by submitting a request with at least one of the following items:

  • Sign your FOIA request by hand (stamped or digital signatures are unacceptable for establishing identity), include your address in the request and attach a copy of one form of identification bearing your signature (such as a valid driver’s license, passport or other government issued picture ID)

    Note: FOIA requests seeking a Centralized Authorization File (CAF) Client Listing must attach valid photo identification, including a signature. IRS will not accept other methods of establishing identity for these requests.
     
  • Present a notarized statement swearing to or affirming your identity. An example of an appropriate statement is:

    “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.”
     
  • Present a sworn statement as to your identity, under penalty of perjury.  The sworn statement must meet the requirements of 28 USC section 1746. 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). (Signature)"

    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). (Signature)"
     
  • Provide an official document showing proof of entitlement as the sole proprietor, member of partnership, corporate officer, shareholder, etc., if requesting the records of a business.
     
  • For records of a deceased individual, you must provide a document showing proof of your status as administrator, executor or trustee of the estate.

    If you are an heir at law, next of kin or beneficiary under the will, you must provide proof of your status (e.g., a copy of birth certificate or will) and proof of a material interest that will be affected by information contained in the requested documents.

FOIA requesters may be required to pay fees to cover some, or all, of the costs of processing their requests.

Please do not submit an advance payment with your request. If a fee is estimated to be more than the maximum fees you are willing to pay, you will be notified and may withdraw or modify your request.

IRS sets charges for duplication, search, and review based on its own costs and sets its own threshold for minimum charges. FOIA establishes three types of fees that may be charged:

  1. Duplication: Fees to recover the cost of duplicating documents to provide a copy in the requested format. IRS has a fixed price for making copies using copying machines if records are requested in paper format. A requester is usually charged the direct cost of duplicating electronic data, photographs, and other nonstandard records.

    IRS also has a fixed price for scanning hardcopy records, if necessary, to duplicate the records to provide them in a requested electronic format. If records must be scanned to facilitate review but are requested to be provided in a paper format, requesters will be charged the standard fee for providing hardcopy records ($.20 per page).
     
  2. Search: Fees to recover the costs of searching for documents which includes, but is not limited to, time spent looking for material responsive to a request. FOIA defines "search'' as a "review, manually or by automated means,'' of IRS systems “to locate those records which are responsive to a request.'' This can include box-by-box, folder-by-folder, page-by-page, or line-by-line searches, if necessary. IRS will not create documents where the requested agency record does not already exist, but the IRS must make reasonable efforts to search for records that may exist.
     
  3. Review: Fees to recover the costs of reviewing documents. Review fees only apply to commercial requesters. Review is the process of examining documents to determine whether any portion is exempt from disclosure. This includes all time necessary to review the records for possible exemptions as well as all time necessary to prepare the records for release such as applying appropriate exemptions to the records. Review charges only include costs incurred during the initial examination of a document. IRS may not charge for any costs incurred in resolving issues of law or policy that may arise while processing a request.

See the IRS FOIA fee schedule for information on what fees apply to each type of FOIA requester: News Media, Education or Noncommercial Scientific Institutions, Commercial Users, and Other requesters.

The FOIA prevents agencies from charging fees if the cost of collecting the fee would exceed the amount collected. This limitation applies to all requests, including those seeking documents for commercial use. Thus, if the allowable charges for any FOIA request are less than $25.00, no fees are imposed.

Do not submit an advance payment with your request. If a fee is estimated to be more than the maximum fees you are willing to pay or if the expected fees exceed $250, you will be notified and you may withdraw or modify your request.

Minimum charge: No fee charged if total charges are $25 or less.

Type of Requester Type of Charge and Price
Commercial requesters
  • Duplication charges:
    • For records provided in paper format:
      • $.20 per page
    • For records provided in electronic media format:
      • $30 per hour for scanning hardcopy records, at a rate of 1,000 hardcopy pages per hour, provided to a requester.
      • There is no duplication charge for records already available in electronic format (i.e., copies of e-mail records) which are provided to a requester on electronic media. These records may still be subject to search and review fees, as appropriate.
         
  • Search charges: $50 per hour
     
  • Review charges: $50 per hour
Media requesters, Educational or Non-commercial Scientific Institution requesters
  • Duplication charges:
    • For records provided in paper format:
      • $.20 per page
      • The first 100 pages are provided free of charge
    • For records provided in electronic media format:
      • $30 per hour for scanning hardcopy records, at a rate of 1,000 hardcopy pages per hour, provided to a requester.
      • The first 1,000 pages scanned are provided free of charge.
      • There is no duplication charge for records already available in electronic format (i.e., copies of e-mail records) which are provided to a requester on electronic media.
Other requesters
(i.e., Individuals seeking records for their own use and no commercial purposes)
  • Duplication charges:
    • For records provided in paper format:
      • $.20 per page
      • The first 100 pages are provided free of charge
    • For records provided in electronic media format:
      • $30 per hour for scanning hardcopy records, at a rate of 1,000 hardcopy pages per hour, provided to a requester.
      • The first 1,000 pages scanned are provided free of charge.
      • There is no duplication charge for records already available in electronic format (i.e., copies of e-mail records) which are provided to a requester on electronic media. These records may still be subject to search fees, as appropriate.
  • Search charges: $50 per hour.
    • Individuals seeking their own records which are not exempt from access under 5 USC 552a (the Privacy Act), or a request from an authorized representative seeking Privacy Act records on the individual’s behalf, will not be charged search fees (i.e., individuals seeking copies of their own personnel records).
    • All other requesters, including those seeking copies of their own records which are exempt from access under 5 USC 552a (i.e., copies of Examination or Collection tax administration files), are charged search fees and receive the first two hours of search time free of charge.
Other charges
  • Fees may be assessed at actual cost for any request that requires special services or materials.
  • These services are provided at the discretion of the IRS and, if applicable, may include:
    • shipping costs,
    • employee transportation,
    • contractor duplication costs, and
    • costs of video tapes or computer disks

The FOIA requires that IRS waive or reduce fees if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

The request for fee waiver must specifically describe how disclosure would contribute significantly to public understanding of the operations or activities of the IRS. Failure to do so may result in a denial of the fee waiver if fees are found to be applicable to the processing of the request.

Any requester may ask for a fee waiver. Some will find it easier to qualify than others. For example, a news reporter who is only charged duplication costs may still ask that the charges be waived because of the public benefits that will result from disclosure. A representative of the news media, a scholar, or a public interest group is more likely to qualify for a waiver of fees, whereas a commercial user may find it difficult to qualify for a waiver because the request cannot be primarily in the commercial interest of the requester.

Key elements in qualifying for a fee waiver is the relationship of the information to public understanding of the operations or activities of IRS and the ability of the requester to convey that information to other interested members of the public.

Because the focus of FOIA is based on the benefit derived by the public, and not any personal benefit to the requester or their financial situation, a requester is not eligible for a fee waiver solely because of indigence or inability to pay.

Fee category determinations are separate and distinct from fee waiver determinations. For example, a requester determined to be a news reporter will only be charged duplication fees. However, the requester is not automatically entitled to a waiver of those fees upon request. A reporter who seeks a fee waiver must demonstrate that the request also meets the standards for waivers. The issue of a fee waiver typically arises only after a requester’s fee category has been determined. Any requester who seeks a fee waiver should ask for a waiver in the original request letter. However, a request for a waiver can be m

Your name or your company's name
Your address or your company's address
Your phone number (optional)

Date

Dear Disclosure Manager:

This is a request under the Freedom of Information Act/Privacy Act.

I request that a copy of the following documents (identify the documents or information as specifically as possible) be provided to me. I do not wish to inspect the documents first. In order to determine my status for the applicability of fees, you should know that I am (insert a suitable description of the requester and the purpose of the request).

[Sample requester descriptions (please choose only one if applicable):

A media requester: a representative of the news media affiliated with the XXXX newspaper (magazine, television station, etc.), and this request is made as part of newsgathering and not for a commercial use.

An educational institution requester or a non-commercial scientific institution requester affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use.

A commercial-use requester, seeking records for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is being made.

An “other” requester seeking information for personal or non-commercial use.

As proof of identity I am including a photocopy of my driver’s license, notarized declaration, sworn statement, etc. (See Establishing proof of identity and right to access)

I am willing to pay fees for this request up to a maximum of $XX. If you estimate that the fees will exceed this limit, please inform me first.

Thank you for your consideration of this request.

Sincerely,

[your signature]

Practitioner or company name
Practitioner or company address
Phone number (optional)

Date

Dear Disclosure Manager:

This is a request under the Freedom of Information Act. I request that a copy of the CAF Representative/Client Listing be provided to me. I do not wish to inspect the documents first.

In order to determine my status for the applicability of fees, you should know that I am an “Other” requester seeking information for non-commercial or personal use. I am a tax professional and my CAF number is XXXXXXX. (This is not your Enrolled Agent Number)

I am including a valid photo identification which includes my signature as proof of identity.

Send listing as a paper document.  I am willing to pay copying fees for this request up to a maximum of $XX (fill in amount). If you estimate that the fees will exceed this limit, please contact me prior to completing my request.  (There is no charge for the first 100 pages and $.20 per page thereafter).

Send listing on CD as a text file using Windows NotePad.

Thank you for your consideration of this request.

Sincerely,

[your signature]

The IRS is required to determine within 20 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of a request whether to comply with the request under the FOIA. The IRS must provide the requester reasons if the request is denied in whole or in part. IRS must provide information about the right to appeal any adverse determination to the head of the IRS or his or her designee under section (a)(6)(A)(i) of the FOIA.

The FOIA permits the IRS to extend the 20-day statutory time limit by 10 additional days in unusual circumstances as set forth in the FOIA and Treasury Regulation 601.702(c)(11)(i)(A)(1)-(4). These circumstances include the need to collect records from field locations, review large numbers of records, and consult with other agencies. The IRS must notify requesters of any statutory extensions.

IRS may also make a showing of exceptional circumstances based on the amount of material withheld, on the resources devoted to review, or on the number of requests for records by courts or administrative tribunals. Courts may also consider a requester's unwillingness to reasonably limit the scope of his or her request or to agree upon a processing timeframe prior to seeking judicial review.

A delay that results from a predictable IRS workload of requests is not an “unusual circumstance” unless the IRS demonstrates reasonable progress in reducing its backlog of pending requests. Any statutory extension of time for unusual circumstances may not exceed 10 days (excluding Saturdays, Sundays and legal public holidays). If additional time is needed to process the request, the IRS will notify the requester and provide the requester an opportunity to limit the scope of the request or arrange for an alternative time frame for processing the request.

If the IRS fails to comply with the time limitations set forth in Treasury Regulation 601.702 (c)(9), (10) or (11)(i), any person making a request for records having satisfied the requirements of Treasury Regulation 601.702 (c)(4)(i)(A) through (I) of this section shall be deemed to have exhausted administrative remedies with respect to such request. A person may initiate suit in Federal District Court when the IRS has failed to comply with these time limits.

FOIA exemptions

The exemptions protect against the disclosure of information that would harm: national security, the privacy of individuals, the proprietary interests of business, the functioning of the government, and other important recognized interests.

An entire record is not necessarily exempt when a record contains some information that qualifies as exempt. Instead, the FOIA specifically provides that any reasonably segregable portions of a record must be provided to a requester after exempt portions are deleted. FOIA requires the IRS to identify the location of deletions in the released portion of the record and, where technologically feasible, to show the deletion at the place on the record where the deletion was made, unless including that indication would harm an interest protected by an exemption.

Exemption 1. Classified Documents Pertaining to National Defense and Foreign Policy

The first FOIA exemption permits the withholding of matters specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified under such executive order. IRS does not generally deal with these types of matters; thus, this exemption is rarely used.

Exemption 2. Internal Personnel Rules and Practices

The second exemption covers matters related solely to IRS’s internal personnel rules and practices.

Exemption 3. Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that restrict the availability of information. A statute must require that matters be withheld from the public in such a manner as to leave no discretion on the issue to qualify under this exemption. Information may also be exempt if the other law establishes criteria for withholding or refers to particular types of matters to be withheld. Internal Revenue Code (IRC) Section 6103, which governs the disclosure of tax returns and return information, provides an example of a qualifying statute. By law, tax records may not be disclosed to any individual unless authorized by IRC Section 6103.

Exemption 4. Trade Secrets and Confidential Commercial or Financial Information

The fourth exemption protects from public disclosure two types of information: Trade secrets and confidential commercial or financial information. A trade secret has been narrowly defined by the courts under the FOIA as a commercially valuable plan, formula, process, or device that is used for making, preparing, compounding or processing trade commodities and that can be said to be the end product of either innovation or substantial effort. Protected data is also commercial or financial information obtained from a person that is privileged or confidential.

Exemption 5. Inter-Agency or Intra-Agency Memorandums or Letters

The fifth exemption applies to inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. An example may be a letter from one IRS office to another about a decision that has not yet been adopted by the agency. One purpose of this exemption is to safeguard the deliberative policymaking process of government (the deliberative process privilege). The exemption encourages frank discussion of policy matters between IRS officials by allowing certain pre-decisional, deliberative documents to be withheld from public disclosure. The exemption also protects against premature disclosure of deliberations before final adoption of an agency policy or position. While the policy behind the deliberative process privilege is well accepted, the application of the exemption is complicated. For example, the exemption protects the policymaking process, but does not generally protect purely factual information related to the policy process, which is protected under the deliberative process privilege. The deliberative process privilege distinguishes between documents that are pre-decisional and post-decisional. The public has a greater interest in knowing the basis for the decision once a policy is adopted. Therefore, the deliberative process privilege does not ordinarily apply to post-decisional documents. The exemption also incorporates other privileges that apply in litigation involving the government, including the attorney client and work product privileges. For example, certain documents prepared by IRS's lawyers may be withheld in the same way that documents prepared by private lawyers for clients are not available through discovery in civil litigation.

Exemption 6. Personal Privacy

The sixth exemption applies to personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects the privacy interests of individuals by allowing IRS to withhold personal data kept in its files where there is an expectation of privacy. Only individuals have privacy interests. Corporations and business associations have no privacy rights under exemption six, except for closely held corporations or similar business entities. Once it has been determined that a personal privacy interest is threatened by a requested disclosure, the exemption requires agencies to strike a balance between an individual's privacy interest and the public's interest in disclosure. The Privacy Act of 1974 also regulates the disclosure of personal information about an individual. The IRS will automatically consider a request for personal information under both the FOIA and the Privacy Act and will rely on the statute that provides the greater access.

Exemption 7. Law Enforcement

The seventh exemption allows agencies to withhold records or information compiled for law enforcement purposes, but only to the extent that the production of such records would cause one of the following harms described below:

  • allows the withholding of a law enforcement record that could reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure.
  • allows the withholding of law enforcement information that would deprive a person of a right to a fair trial or an impartial adjudication.
  • recognizes that individuals have a privacy interest in information maintained in law enforcement files. If the disclosure of information could reasonably be expected to constitute an unwarranted invasion of personal privacy, the information may be exempt from disclosure.
  • protects the identity of confidential sources. Information that could reasonably be expected to reveal the identity of a confidential source is exempt. A confidential source can include a state, local, or foreign agency or authority, or a private institution that furnished information on a confidential basis. In addition, the exemption protects information furnished by a confidential source if the data was compiled by a criminal law enforcement authority during a criminal investigation.
  • protects from disclosure information that would reveal techniques and procedures for law enforcement investigations or prosecutions or that would disclose guidelines for law enforcement investigations or prosecutions if disclosure of the information could reasonably be expected to risk circumvention of the law.
  • protects law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.

Exemption 8. Financial Institutions

The eighth exemption protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions (such as FDIC, the Federal Reserve, or similar agencies).

Exemption 9. Geological Information

The ninth exemption protects geological and geophysical information, data, and maps, concerning wells.


FOIA Exclusions

The FOIA also contains three special protection provisions that expressly authorize federal law enforcement

Agencies under certain specified circumstances, to treat especially sensitive records as not subject to the FOIA. IRS may not be required to confirm the existence of these categories of records. If these records are requested, IRS may respond that there are no records responsive to the request. However, these exclusions do not broaden the authority of the IRS to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.

Exclusion 1

The first exclusion may be used when a request seeks information described in the FOIA, subsection (b)(7)(A), and meets the following requirements:

  • The investigation in question must involve a possible violation of criminal law.
  • There must be reason to believe that the subject of the investigation is not already aware that the investigation is underway.
  • Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.
  • IRS may respond to an FOIA request for investigatory records as if the records are not subject to the requirements of the FOIA when all of these conditions exist. In other words, the IRS response does not have to reveal that it is conducting an investigation.

Exclusion 2

Informant records maintained by IRS criminal law enforcement filed under the informant's name or personal identifier are covered by Exclusion 2. IRS is not required to confirm the existence of these records unless the informant's status has been officially confirmed. This exclusion helps agencies to protect the identity of confidential informants.

Exclusion 3

The third exclusion only applies to records maintained by the Federal Bureau of Investigation, which pertain to foreign intelligence, counterintelligence, or international terrorism. When the existence of these types of records is classified, the FBI may treat the records as not subject to the requirements of FOIA.

Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review by filing suit in Federal District Court.

The IRS must inform the requester of their right to appeal the following determinations to the head of the agency:

  1. There are no records responsive to the requested documents.
  2. Records requested were denied, in whole or in part,
  3. The type or amount of fees charged for processing the request,
  4. The requester’s stated fee category is changed to a different fee category (i.e., Other requester is changed to Commercial User), or
  5. Denial of a request for fee waiver or expedited processing

A requester may also appeal because they believe the IRS failed to conduct an adequate search for the documents requested. However, a requester may not file an administrative appeal for the lack of a timely response.

A person may administratively appeal any portion of a record denied when their request is granted in part and denied in part.  An administrative appeal does not affect any records the IRS has released.

There is no charge for filing an administrative appeal. More information about the procedural requirements for filing an appeal are found at Treasury Regulation 601.702(c)(10). An appeal may be filed by sending a letter to:

IRS Independent Office of Appeals
Attn: FOIA Appeals
3211 S. Northpointe Drive
M/S 55205
Fresno, CA 93725

To ensure proper receipt and processing of a FOIA appeal, requesters should ensure the following:

  • The envelope containing the letter of appeal should be marked in the lower left-hand corner with the words "Freedom of Information Act Appeal."
  • The letter must identify:
    • the FOIA request that is being appealed,
    • the FOIA request number assigned by the IRS and
  • the name and address of the requester. Inclusion of a telephone number and a copy of the IRS’s denial letter is recommended, but not required for the appeal. An appeal should include the requester's arguments supporting disclosure of the documents. A requester may include any facts or any arguments supporting the case for reversing the denial, although an appeal letter does not have to contain any arguments at all. It is enough to state that the IRS’s denial is being appealed.

The FOIA regulations require that an appeal be postmarked within 90 days after the date of the letter denying access to the information as described in Treasury Regulation 601.702 (c)(10).

Exception: An administrative appeal for denial of a request for expedited processing must be made by letter postmarked within 10 days after the date of the response letter denying expedited processing.

IRS is required to decide on an appeal within 20 days (excluding Saturdays, Sundays, and legal holidays) after the date of receipt of the appeal unless extended pursuant to Treasury Regulation 601.702(c)(11)(i). It is possible for IRS to extend the time limits by an additional 10 days under unusual circumstances (see Treasury Regulation 601-702(c)(11)(i).

The FOIA requester shall be deemed to have exhausted administrative remedies and may proceed with a judicial appeal in a Federal District Court if the IRS fails to comply with the time limitations to respond to a FOIA request.

The essential feature of both FOIA and the Privacy Act is that they make government agencies, including the IRS, accountable for information disclosure policies and practices. While neither law grants an absolute right to examine government documents, both laws establish the right to request records and to receive a response to the request. The requester is entitled to the reason for the denial if a record is not released. The requester has a right to administratively appeal the denial of access under the FOIA and, if necessary, to challenge it in court.

Treasury Regulation 601.702(c)(13) sets forth the circumstances under which a FOIA requester may proceed with a judicial appeal. For example, a requester has the right to challenge the denial of an administrative appeal in court. The burden of justifying the withholding of documents falls to IRS when a requester goes to court. Anyone considering filing a FOIA lawsuit should begin by reading the provisions of Treasury Regulation 601.702(c)(13).