11.3.13. Freedom of Information Act

(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).

(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 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 By this action, the Attorney General rescinded the October 12, 2001 Attorney General Memorandum on the FOIA and established a new standard for defending agency decisions to withhold information.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."

(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.

(1) The Director, Governmental Liaison, Disclosure and Safeguards (GLDS) and their delegate, have authority to make FOIA determinations concerning the release of most IRS agency records. See IRM 1.2.2.12.6 and IRM 1.2.2.12.7, FOIA/PA Delegation Orders, for additional information.

(2) 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.

(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.

(1) Disclosure inventory management and case processing is facilitated within FOIAXpress (FX), which is monitored and maintained by the GLDS Data Services office. FX allows management to validate program compliance through generating reports and requiring inventory to be processed under IRC 6103 statutory authority.

(1) Disclosure program oversight also includes participation in operational and quality reviews. The Disclosure Office uses the Embedded Quality Review System (EQRS) to perform quality review on Disclosure specific casework.

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

(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

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

(3) 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.

(4) 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.

(5) 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.

(6) 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.

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

(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

Note: Caseworkers MUST provide written notification that the request is being tolled in order to advise the requester what clarifying information is needed to continue processing a request, what date the information is needed to avoid closing the request with no further actions, and to advise the requester that their request is being tolled and the statutory time frame to respond is being suspended. Caseworkers should use the date of the written notification when determining the date to stop the clock.

(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.

(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.

(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.

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

(2) Requesters may establish identity with a combination of signature and address on the request and one other official document identifier (such as a photocopy of a driver's license) bearing the requester's signature.

(3) An individual may also establish identity by presenting a notarized statement swearing to or affirming their 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 11.3.13.3.2(7).

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

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

   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: John Maple, known to me to be the person who executed the foregoing instrument and having acknowledged to me that they executed the same as their free act and deed.

4. After consideration of all the factors, Disclosure personnel must exercise sound judgment in determining whether the requester has proven their 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.

(4) 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)."

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

(6) 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 11.3.13.3.8, Requests for All Records Concerning Me.

(7) 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.

(8) 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.

(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.

(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.

(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.

(8) 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.

(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 11.3.13.3.8, Requests for All Records Concerning Me.

(2) 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.

(3) 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 11.3.13.3.9, Pseudo Requests, for more information about responding to interrogatories.

(1) There are times when IRS files may contain records of other non-IRS Treasury components and/or non-Treasury agencies. The files may also contain records which other components and/or agencies have an interest in prior to their release. These records must either be referred to the appropriate non-IRS component and/or other agency if they are records originating outside the IRS or a consultation must be conducted to receive release recommendations if they have an interest in the records prior to the records being released.

(2) Disclosure caseworkers must discuss records involving potential referrals and/or consultations with their Disclosure Manager prior to making any releases.

(3) If the Disclosure Manager agrees with the potential referral and/or consultation request, they must discuss the referral and/or consultation with a FOIA Policy Analyst.

(4) The FOIA Policy Analyst will reach out to non-IRS Treasury component and non-Treasury agency FOIA contacts, if appropriate.

(5) Following an agreement from the non-IRS FOIA contacts to accept the consultation and/or referral, the Disclosure caseworker may take any appropriate actions needed to forward records to the appropriate contacts and continue processing the IRS FOIA request as necessary.

(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.

(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 GSS for case assignment.

(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.

(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.

(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.

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) 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 11.3.13.3.5, Imperfect 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 their 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) 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.

(5) 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.

(6) 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 11.3.13.3.10, 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 11.3.13.3.11, 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 Delegation Order 11-2 (Rev. 4), Authority to Permit Disclosure of Tax Information and to Permit Testimony or the Production of Documents, found in IRM 1.2.2.12.2.

(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 their 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 their 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.

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

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) 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 11.3.13.3.11, Routine Established Agency Procedures).

(6) 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.

(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.

   Ensure the requester has previously received a copy of the redacted fraudulently filed income tax return. 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). FOIA exemptions used to deny the document in full must be captured within the inventory management system. 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 Delegation Order 11-2 (Rev. 4), Authority to Permit Disclosure of Tax Information and to Permit Testimony or the Production of Documents, found in IRM 1.2.2.12.2. 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 37.1.1, Disclosure, Written Determinations Under Section 6110, 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.)

(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.

(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) 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.

(7) 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 11.3.13.4.2, Adequacy of Search. 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.

(8) 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.

(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) 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.

(4) 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.

(5) 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.

(6) 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 them 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."

(7) 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.

(1) Title 44 USC 3301 defines records as "all recorded information, regardless of form or characteristics, made or received by a Federal agency 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 United States Government or because of the informational value of data in them."

(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, Exemptions.

(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.

(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.

(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.

(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.

(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.

(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 refers to responsive records that have been provided or obtained that are outside the scope of the FOIA request.

(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 or receiving documents that are responsive to the request. Once records are received, information can only be withheld by citing an appropriate FOIA exemption.

(3) If records are received from record holders 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 may misrepresent 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(c)(8)(ii). 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 11.3.13.4.2, Adequacy of Search.

(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), Approach to Exemptions, 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.

(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.

(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.

(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.

(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.

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

(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.

(8) With the advice and assistance of the Disclosure Manager or member of their staff, employees of the function conducting the search and making recommendations about release of the records may prepare an index.

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) Contact information for the Office of Government Information Services (OGIS) and the FOIA Public Liaison must be included in the extension letter. See IRM 11.3.13.6.5 and IRM 11.3.13.6.6 for additional information on the FOIA Public Liaison and procedures.

(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.

(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) Contact information for the Office of Government Information Services (OGIS) and the FOIA Public Liaison must be included in the interim letter. See IRM 11.3.13.6.5, FOIA Public Liaison, and IRM 11.3.13.6.6, Office of Government Information Services (OGIS), for additional information on the FOIA Public Liaison and procedures.

(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

Note: See 26 CFR 601.702(c)(6) for details about who qualifies as an individual primarily engaged in disseminating information and what situations may meet the compelling need requirement.

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

(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 their 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) A 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 11.3.13.6.5, FOIA Public Liaison, and IRM 11.3.13.6.6, Office of Government Services(OGIS), for additional information on the FOIA Public Liaison and procedures.

(5) If a caseworker will close a case before the 10 calendar day requirement, the determination to grant or deny expedited processing is moot and no determination to grant or deny the expedited processing is required to be made. Pattern language should be used to advise requesters that the request for expedited processing was not considered..

(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.

(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.

(1) In accordance with 26 CFR 601.702(c)(10)(i), a requester may appeal administratively any initial determination under the FOIA that notifies the requester:

1. of a denial of records, 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,

4. that no responsive records exist, or

   Note: See IRM 1.2.2.12.4, Delegation Order 11-4, Responses to Administrative Appeals Filed Pursuant to the Freedom of Information Act (5 USC 552), for employees delegated to receive, and respond to, IRS FOIA appeals.

5. a denial of a request for expedited processing and the appeal must be postmarked within 10 days of the date of the notification that expedite processing was denied..

(2) 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).

(3) 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.

(4) The IRS Independent Office of Appeals is responsible for processing administrative appeals under the FOIA.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(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.

(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.

(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 37.1.1, Disclosure, Written Determinations Under Section 6110, 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.

(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

(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.

(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.

(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.

(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)

(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(g). 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.

(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(g)(1).

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.

(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.

(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 their 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.

(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, Searches.

(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.

(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.