37.2.1. Privacy Act of 1974

(1) For specific procedures on receipt of Privacy Act litigation, follow the procedures in CCDM 37.2.2.2 through CCDM 37.2.2.4, and CCDM 37.2.2.6, applying to FOIA litigation substituting the Privacy Act where applicable.

(2) Jurisdiction for defending Privacy Act claims falls to the Tax Division, Department of Justice. See CCDM 37.2.2.4.

(1) Manner of Verification. Personnel should verify the identity of the requester before processing the request.

(2) If a request is made in person, the requester shall be asked to establish his or her identity by presenting either:

(3) Requests for notification and/or access received by mail should not be processed unless the requester has established his or her identity in the request. Identity can be established by a signature, address, and one other item of identification such as a photocopy of a driver’s license or other document bearing the individual’s signature.

(4) An individual may also establish identity by providing a notarized statement or a statement made under penalty of perjury swearing or affirming to his or her identity and to the fact that he or she understands the penalties provided in 5 U.S.C. § 552a(i)(3) for requesting or obtaining access to records under false pretenses. See also 28 U.S.C. § 1746.

(5) Additional Proof. Notwithstanding the requirements for identification discussed above, the Chief, Disclosure & Litigation Support Branch or Privacy Coordinators may require additional proof of an individual’s identity before action will be taken on any request if it is determined that it is necessary to do so to protect against unauthorized disclosure of information in a particular case. If additional proof of identity is requested, the employee shall document in the case file the reason the proffered proof of identity was deemed insufficient.

(6) Parents, Guardians and Attorneys in Fact. The parent of any minor, the attorney in fact of any individual, or the legal guardian of any individual who has been declared by a court of competent jurisdiction to be incompetent due to physical or mental incapacity or age, must, in addition to the identification requirements discussed above, provide adequate proof of legal relationship before he or she may act on behalf of such minor or other individual.

(1) The Chief, Disclosure & Litigation Support Branch or field counsel (as appropriate) will advise the requester whether the system contains a record pertaining to the requester (unless the system is exempt); notify the requester of the time and place where inspection of the record can be made; or furnish a copy of the requested record to the requester, advising the requester of any copying charges. See IRM 11.3.5.7.1. No copying charges will be sought when the aggregate cost of copying is less than $10.00. If it is estimated that the total copying charges will amount to $250.00 or more, the individual making the request may be required to prepay the actual fees before copies will be furnished. See IRM 11.3.5.5.1.

(2) Deletion of Third Party Tax Information. Privacy Coordinators or Disclosure & Litigation Support Branch personnel will review the information to ensure that, to the extent third party tax information is also contained within the system of records, it is disclosed only as authorized by section 6103.

(3) Assertion of Applicable Exemptions. The Disclosure & Litigation Support Branch personnel or the Privacy Coordinator preparing the response should be knowledgeable about all applicable Privacy Act exemptions and assert those exemptions where it is in the interest of the Government to do so. The person preparing the response may withhold a record only if it is exempt under both the Privacy Act and the FOIA. 5 U.S.C. § 552a(t). Privacy Coordinators may obtain assistance from their local Disclosure Officer or the office of the Assistant Chief Counsel (DPL).

(4) Qualified Exemption under Subsection (k)(2). Records from a system of records exempt from disclosure pursuant to subsection (k)(2) of the Privacy Act may nevertheless be provided to the requester if the Service agrees with the requester’s assertion that the requester has been denied a right, privilege, or benefit to which the requester would otherwise be entitled because of the maintenance of the material. In such cases, information that would reveal the identity of a confidential source shall be redacted before the records are disclosed. See 5 U.S.C. § 552a(k)(2).

(5) Exemption of Confidential Source under Subsection (k)(5). If the record is from a system described in subsection (k)(5) of the Privacy Act, information that would reveal the identity of a confidential source shall be redacted before the record is disclosed. See 5 U.S.C. § 552a(k)(5).

(6) Response Granting Request. See Exhibit 37.2.1-3 for a sample letter granting access to the system of records.

(7) Response Denying Request. The denial will contain a statement of the reason(s) for not granting the request as made, specify the city in which the requested records (if any) are located, set forth the name, title, badge number, and telephone number of the responsible official, and advise the individual making the request of the right to file suit in accordance with 5 U.S.C. § 552a(g). See Exhibit 37.2.1-4 for a sample denial letter.

(8) Treasury’s Privacy Act regulations permit Treasury agencies, when denying a request, to neither confirm nor deny the existence of the record but to advise the individual only that no record available to him/her pursuant to the Privacy Act has been identified. This type of response is an option, not a requirement. Even if this option is exercised, the individual should be advised of the right to file suit in accordance with 5 U.S.C. § 552a(g).

(9) Close the case file after inputting data into CASE-MIS.

(1) Records Not Subject to Amendment. Certain requests to amend records pursuant to the Privacy Act are not properly subject to the amendment provisions of the Act. 5 U.S.C. § 552a(d)(2). The initial evaluation of any request should determine whether the record itself is subject to the amendment provisions of the Act, rather than whether the particular amendment requested is appropriate. Requests to amend records that cannot be processed on the basis of the following guidelines are to be returned to the requester with an appropriate explanation. A copy of the incoming letter and response will be maintained in an amendment case file.

(2) Only records that are part of a system of records subject to the Act can be subject to the amendment provisions.

(3) Records that are not retrieved by the name, identifying number, symbol, or other particular identifying information about an individual, or that do not pertain to a natural person, cannot be amended under the Act.

(4) Records that pertain to or are retrieved by the identity of a corporation, estate, trust, or partnership cannot be amended under the Act. A sole proprietorship, however, is deemed to be an individual for purposes of the Act.

(5) Individuals may not use the amendment provisions of the Privacy Act to amend or correct any tax record. See I.R.C. § 7852(e). The determination of liability for taxes imposed by the Code, the collection of such taxes, and the payment (including credits or refunds of overpayments) of such taxes are governed by the provisions of the Code and by the procedural rules of the Service. These procedures are the exclusive means available to an individual to contest the amount of any liability for taxes or the payment or collection thereof.

(6) Various systems of records have been determined to be exempt from some provisions of the Privacy Act and notices of these exemptions have been published in the Federal Register. Systems of records exempted in accordance with 5 U.S.C. § 552a(j)(2), (k)(2), (k)(4), (k)(5), and (k)(6) cannot be amended under the Act.

(7) In addition, the following kinds of records have been determined by regulation to not be subject to amendment:

(8) Form of Requests. If the request pertains to a record subject to the amendment provisions of the Act, the next step is to evaluate the adequacy of the request.

(9) Coordination with Record Owner. If the record is subject to the amendment provisions of the Act, the DPL attorney or Privacy Coordinator assigned to the amendment request should immediately contact the Office of Chief Counsel function whose records have been requested to be amended and obtain a copy of the record and a recommendation on whether the request to amend should be granted. See Exhibit 37.2.1-6.

(10) Failure to Locate Record. If no action can be taken because the record cannot be located, does not exist, or has been destroyed, the requester will be advised accordingly. A record will be maintained of the steps taken to locate the record, of the response, and of the content of the proposed amendment.

(1) If the request pertains to a record subject to the amendment provisions of the Act, the request is adequate to permit processing, and the record has been located, it must be determined whether the proposed amendment should be made by considering paragraphs (2) through (9).

(2) The portion of a record that is subject to correction because it is not accurate, relevant, timely, or complete is the factual information that pertains to the individual, such as his/her education, financial transactions, medical history, criminal history, or employment history, as opposed to subjective material that reflects opinion.

(3) Care should be taken that any amendment does not trigger further action that could result in altering a tax matter, which is not subject to the amendment provisions of the Act.

(4) Records may serve as a repository of information to be drawn upon for the purpose of making future determinations about an individual or they may merely serve to record past activities. The nature of the record will determine whether the existing information will be fully expunged from the record or will be annotated to reflect the amendment. Information that has already served as the basis for a Service action or determination may not be able to be fully expunged without distorting the historical experience that the record is intended to reflect. Care must be taken, however, that inaccurate, irrelevant, untimely, or incomplete existing information does not become the basis of a future determination.

(5) If doubt exists as to whether the amendment should be made, the individual should, where appropriate, be asked to supply verifying data or documentary evidence.

(6) Information that is not accurate is information that is not now and never has been correct. Such information should be corrected.

(7) Information that is not relevant may or may not be correct, but is not necessary to accomplish a purpose of the Office of Chief Counsel. Such information should generally be completely expunged from the record.

(8) Information that is not timely may have been correct when originally recorded but has become out of date. Such information need not be expunged since the addition of the current information would place the individual’s developing circumstances into proper perspective.

(9) Information that is not complete is any information about which the individual raises no objection other than that he or she wishes to have additional information inserted in the record. This situation does not call for expunging or altering existing information. Generally, there would be no objection to an individual adding information to his or her record that is pertinent to information contained in the record.

(10) If the proposed amendment has been accepted, the requester should be advised and provided with a courtesy copy of the corrected record if doing so is practical. Any difference between the correction actually made and the correction requested should be explained.

(11) If it is determined that the requested amendment should not be made, the requester should be advised by the Assistant Chief Counsel (DPL) or the Area or Associate Area Counsel of the reasons for refusal and provided with a statement outlining the available administrative appeal rights. A complete file of all denials, including a copy of the request, a copy of the portion of the record involved (if practical), and a copy of the response will be maintained.

(1) Notation of Amendment. Whenever records are amended, the record will be clearly marked "Information expunged, corrected, or added (whichever may be appropriate) Privacy Act Request" and the date.

(2) Amending Paper Records. When paper records are involved, expunging the prior entry means to completely erase or otherwise render the information illegible. Corrections made without expunging the prior entry will consist of lining through the entry so as to make it apparent that it is no longer in effect without rendering it illegible. Information added to the file may consist of entries by pen and ink or by attaching additional sheets to the record.

(3) Amending Non-paper Records. Records other than paper will be corrected by whatever means are ordinarily available for correcting erroneous entries or inserting additional information, so long as results comparable to 1 and 2 above are obtained.

(4) Guidance. If difficulties are encountered in handling the physical aspect of carrying out an amendment due to the unusual nature of a record, guidance should be requested from the office of this Assistant Chief Counsel (DPL).

(1) Requirements of the Act. Whenever a record is corrected at the request of an individual pursuant to the Privacy Act, each person or agency to whom that record has previously been disclosed must be notified of the exact nature of the correction to the extent that an accounting of disclosures was maintained.

(2) Identifying Prior Recipients. In order to make this notification, it must be determined whether the specific portion of the record being corrected has been disclosed. Only those persons or agencies who received the specific portion of the corrected record need be notified of the correction.

(3) Method of Notification. The system manager of the system of records that has been amended has the responsibility for notifying prior recipients. The usual manner of notification will be by providing the recipient with a photocopy of the amended record. In some circumstances it will be more practical to describe the correction made rather than send a photocopy, such as when the entire correction consists of deleting information.

(4) Nature of Notification to Prior Recipients. If the corrections have been extensive and do not appear to be particularly relevant to the prior recipients’ interests, or if sufficient time has passed to suggest that the recipient may not be maintaining the records disclosed any longer, the nature of the corrections may be described to the recipient in sufficient detail to permit the recipient to determine if photocopies should be provided.

(1) A request for a review of a refusal to amend a record will be addressed or delivered to the Director, Office of Governmental Liaison & Disclosure (or delegate).

(2) The Director, Office of Governmental Liaison & Disclosure (or delegate) will control the request for review of a refusal to amend records and refer to the Assistant Chief Counsel (DPL) that portion of the request for review of refusal to amend a record that pertains to an Office of Chief Counsel record.

(3) Requests for review of a refusal to amend a record pertaining to systems of records under the jurisdiction of the Office of Chief Counsel will be determined by the Associate Chief Counsel (P&A).

(4) A response to the request to review the refusal to amend an Office of Chief Counsel record will be prepared within 30 days of the receipt of the request to review. If the response cannot be completed within 30 days, the attorney assigned the case will so notify the individual within the 30 days and explain the reason for the delay and provide an approximate time when the response will be provided. See Exhibit 37.2.1-7.

(1) Requirements of the Act. An individual who disagrees with a final determination not to amend a record subject to amendment under the Privacy Act may submit a concise statement for insertion in the record stating the reasons for disagreement with the refusal of the reviewing officer to amend the record. 5 U.S.C. § 552a (d)(3). A statement of disagreement should be addressed to the Director, Office of Governmental Liaison & Disclosure.

(2) Assistant Chief Counsel (DPL) Responsibilities. The Director, Office of Governmental Liaison & Disclosure will forward the statement to the Assistant Chief Counsel (DPL), who will insert the statement in the individual’s record. Whenever physically possible, the contested entries in the record will be bracketed and the following notation placed on the record: See attached Statement of Disagreement.

(3) Future Recipients. The Statement of Disagreement will be provided to all future recipients of that portion of the record to which it applies.

(4) Prior Recipients. The system managers will ensure that prior recipients are notified of any Statement of Disagreement filed on the same basis as a correction.

(1) Section 552a(c)(3) of the Privacy Act requires that an accounting of disclosures be made available to an individual upon request. Disclosures from exempt systems of records or disclosures in response to written requests from law enforcement officials as described in 5 U.S.C. § 552a(b)(7) need not be included in the accounting. Section 6103(p)(3) does not affect persons’ rights of access to accountings. Even though section 6103(p)(3) requires accountings for certain disclosures of returns and return information pertaining to non-individuals, access to those accountings under 5 U.S.C. § 552a(c)(3) is available only to individuals.

(2) Treasury regulations provide that requests by individuals for accountings of disclosures must be in writing. Appropriate officials will establish the identity of the requester in accordance with instructions set forth in CCDM 37.2.1.2.1. See also IRM 11.3.18.8.1(3).

(3) The Individual Master File (IMF) has been designated as the central recording medium for disclosures of returns and return information.

(4) DPL attorneys or Privacy Coordinators (see CCDM 37.2.1.1) will analyze the request and prepare a letter to the requester in accordance with the following:

(1) Associate Chief Counsel, Division Counsel, and Area Counsel should instruct personnel under their supervision who are involved in the design, development, operation, or maintenance of any system of records, or in maintaining, collecting, using or disseminating any record, of the requirements set forth in the Treasury Department Regulations on Access to Records. See 31 C.F.R. § 1.28(a).

(2) Solicitation of information from an individual about himself should be accompanied by a Privacy Act Notice conforming to 5 U.S.C. § 552a(e)(3). This includes information sought from Service and Office of Chief Counsel employees by the agency — as an employer — on personnel forms. If there is no Privacy Act Notice on the solicitation or any accompanying instructions, contact the Assistant Chief Counsel (DPL).

(3) The "Umbrella" Notice for Solicitations of Information. Since many solicitations of information represent repeated contacts with the same individual pertaining to basically the same situation, the Service has adopted an umbrella approach in which the initial contact of a series will include a notice that the individual may retain and would be applicable to all future inquiries related to that situation. This approach spares the recipient from receiving repetitive and unnecessary identical notices and reduces the cost of complying with this requirement.

(4) 1040 "Umbrella" Notice. The Service will include in the Form 1040/1040A/1040EZ packages a universal notice that applies to U.S. Individual Income Tax Returns, to declarations of estimated tax, to any other tax return required to be filed by individuals, to schedules, statements, or other documents related to the returns, and to subsequent inquiries necessary to complete, correct and process the returns of these taxpayers to determine the correct tax liability and to collect any unpaid tax, interest, or penalty.

(5) Tax Cases. In view of the foregoing, it should not be necessary for Office of Chief Counsel personnel to furnish any additional notice to taxpayers with respect to tax cases handled by their offices.

(6) For information on giving of notice by Office of Chief Counsel personnel regarding expert witnesses, see CCDM 37.2.1.6.

(7) Office of Chief Counsel personnel should be aware that:

(1) The Office of Personnel Management has determined that six data elements pertaining to Federal employees are generally available to the public. See 5 C.F.R. § 293.311(a). Information provided in accordance with 5 C.F.R. § 293.311 is required to be made available under the FOIA.

(2) Where the context of the request means that furnishing the six items would reveal more than the authorized items of information and would constitute a clearly unwarranted invasion of privacy, the information will be withheld. These items of information are not furnished with respect to Series 1811 Criminal Investigators. See also 5 C.F.R. §293.311(b)(1); IRM 11.3.20.7.1.

(3) All requests for income or employment verification should be routed through the employee’s personnel office for response.

(4) Information to Other Federal Agencies. Service systems of records have a routine use for disclosure to a Federal agency in response to its request in connection with the hiring or retention of a former or current employee, or other benefit conferred by the requesting agency. Questions of this nature shall be responded to by the employee’s supervisor. An accounting is required for this type of disclosure.

(5) Non-agency Employment Reference. When requests for information from personnel files on former or present employees are received from people or organizations other than Federal agencies, no information other than that described in 5 C.F.R. § 293.311 may be provided unless written consent is obtained from the individual to whom the record pertains. Disclosures made with the consent of the individual nevertheless require an accounting.

(1) While security measures are necessary with respect to tax information, the Privacy Act imposes security requirements with respect to all information pertaining to an individual. All Office of Chief Counsel executives are responsible for the integrity of systems of records under their control. 5 U.S.C. § 552a(e)(10).

(2) All employees involved in the design, development, operation, or maintenance of any system of records are to be instructed with respect to the requirements of the Privacy Act. See 5 U.S.C. § 552(e)(9); 31 C.F.R. § 1.28(a). Associate Chief Counsel, Division Counsel, or Area Counsel, with the assistance of the Assistant Chief Counsel (DPL), as needed, should undertake such instruction of their personnel as is appropriate about the requirements of the Act.

(1) The Privacy Act requires that adequate advance notice to Congress, the Office of Management and Budget, and the public be given before the establishment or substantial alteration of any system of records. Publication of the notice invites comments on the proposed new system or substantial alteration of an existing system of records. 5 U.S.C. § 552a(o). Additionally, the Act requires publication in the Federal Register of any new or intended "routine use" 30 days before the final publication of such "routine use" to allow for comments. 5 U.S.C. § 552a(e)(4).

(2) The creation of new methods of recordkeeping or changes to existing methods could create new systems of records covered by the Act or have an impact on existing systems. Therefore, before any new system is established or any existing system is substantially altered, including the addition of routine uses, the foregoing advance notice must be provided. Associate Chief Counsel, Division Counsel and Area Counsel should contact the Assistant Chief Counsel (DPL).