William A. Dobrovir, Dobrovir, Oakes & Gebhardt, 1025 Vermont Avenue, N. W., Washington, D. C. 20005, for plaintiff. Edward J. Snyder, J. Brian Ferrel, Michael J. Salem, Department of Justice, Washington, D. C. 20530, for defendant.
CONSENT ORDER
This case coming before the Court on remand from the United States Court of Appeals for the District of Columbia, it is this 24th day of November, 1981.
ORDERED, in connection with implementing this Court's January 22, 1980 Order as follows:
1. With respect to GCM's, AOD's, the indices thereto, and TM's created after the effective date of this Order, and which are described in the opinion and order of the Court of Appeals of March 12, 1981, defendant has recognized that all such documents have been found by the Court to constitute materials which are required to be made available for public inspection pursuant to subsection (a)(2) of the Freedom of Information Act, 5 U. S. C., Section 552(a)(2). Consequently, defendant shall make these documents available to the public within a reasonable period of time, as more specifically set out below.
2. In accordance with paragraph 1, defendant shall make future GCM's relating to revenue rulings available for public inspection within ten working days after the publication of each such revenue ruling. As used in the preceding sentence, "publication" shall mean publication of the revenue ruling in the Internal Revenue Bulletin, as well as making the text of a revenue ruling available to the press in the form of advance IRS press announcements or galley proofs of the Internal Revenue Bulletin. The Service will not number, index or digest, nor will it circulate or cite this type of GCM (except in connection with the case to which it relates) until such time as the related revenue ruling is scheduled for publication. With respect to GCM's relating to private letter rulings, defendant shall make each such GCM available for public inspection simultaneously with the release to the public, pursuant to Internal Revenue Code of 1954, Section 6110 (26 U. S. C.), of the private letter ruling to which it relates. Consequently, this type of GCM will be made available for public inspection no earlier than 75 days, and no later than 90 days, after the notice of intention to disclose the private letter ruling is mailed to the person to whom it pertains, unless (1) the taxpayer sues to restrain disclosure of the private letter ruling under Code Section 6110(f)(3), in which case the GCM will be made available for public inspection within 30 days after the date on which the court decision under Code Section 6110(f)(3) becomes final, or (2) the taxpayer is granted a delay in accordance with Code Section 6110(g), in which case the GCM will be made available for public inspection on the date the private letter ruling is ultimately made available. With respect to GCM's relating to technical advice memoranda, defendant shall make each such GCM available for public inspection simultaneously with the release to the public, pursuant to Code Section 6110, of the technical advice memorandum to which it relates. Consequently, this type of GCM will be made available for public inspection no earlier than 75 days, and no later than 90 days, after the notice of intention to disclose the technical advice memorandum is mailed to the person to whom it pertains, unless the taxpayer sues to restrain disclosure of the technical advice memorandum under Code Section 6110(f)(3), in which case the GCM will be made available for public inspection within 30 days after the date on which the court decision under Code Section 6110(f)(3) becomes final. GCM's which do not relate to revenue rulings, private letter rulings or technical advice memoranda, but which are issued in response to general questions posed by the Assistant Commissioner (Technical) or (Employee Plans and Exempt Organizations) or other officials of the Internal Revenue Service shall be made available within ten days after the date the GCM is numbered. GCM's which relate to rulings on the qualified status of pension and profit sharing plans, exempt status, or foundation status shall be made available for public inspection within 90 days following issuance of the related ruling to the taxpayer. GCM's relating to private letter rulings, technical advice memoranda, and rulings on the qualified status of pension and profit sharing plans, exempt status, or foundation status will not be numbered, indexed or digested, nor will they be circulated or cited (except in connection with the case to which such GCM relates) until such time as the underlying written determination to which the GCM relates is issued to the taxpayer. The documents will be made available for public inspection subject to the redaction process set forth in paragraph 4.
3. In accordance with paragraph 1, defendant shall make future TM's available within ten working days after the date of publication in the Federal Register of the Treasury Decision to which each TM relates. Future AOD's shall be made available within ten working days after the date the AOD is signed, dated and distributed, except that AOD's for regular Tax Court decisions will be made available within ten working days after announcement in the Internal Revenue Bulletin of the Service's acquiescence or nonacquiescence in the Tax Court decision to which the AOD relates. Future AOD's concerning other than regular Tax Court decisions will be signed and dated on the date they are released for distribution to Chief Counsel and Internal Revenue Service personnel. These documents will not be cited, indexed or relied upon by IRS employees (except in connection with the case to which the AOD relates) until the AOD is distributed. AOD's for regular Tax Court decisions will not be signed, dated or distributed until after the acquiescence or nonacquiescence is published in the Internal Revenue Bulletin.
4. Prior to making these future documents available to the public, defendant shall redact the documents (either in whole or in part) to delete therefrom matter that is exempt from disclosure under Internal Revenue Code of 1954, Section 6103 (26 U. S. C.), or Freedom of Information Act exemptions 1, 2, 3 (other than as such exemption may incorporate Code Section 6103), 4, 6, 7, 8, or 9, 5 U. S. C., Sections 552(b)(1), (2), (3), (4), (6), (7), (8), (9).
5. Upon the effective date of this Order, defendant shall immediately commence the process of redacting existing GCM's AOD's, and TM's placed in final form in the time period July 4, 1967, to the effective date of the Order, for the purpose of deleting there-from (either in whole or in part) matter that is exempt from disclosure under Internal Revenue Code of 1954, Section 6103 (26 U. S. C.), or Freedom of Information Act exemptions 1, 2, 3, (other than as the exemption may incorporate Code Section 6103), 4, 6, 7, 8, or 9, 5 U. S. C., Sections 552(b)(1), (2), (3), (4), (6), (7), (8), (9). Defendant shall make available to plaintiff and the public (in the National Office of the IRS) each Monday, all such documents (and corresponding indexes) processed in the prior week. The first such disclosure shall be made no later than four months from the effective date of this Order and all disclosures shall be completed within two years of the effective date of this Order.
6. To the extent possible, existing documents shall be released in reverse chronological order, except in those instances involving GCM's which relate to revenue rulings which have not yet been published, or private letter rulings, technical advice memoranda and rulings on the qualified status of pension and profit sharing plans, exempt status, or foundation status which have not been issued to the person to whom such document relates. (In any event, however, the disclosure of these GCM's will be completed within the two-year period referred to in paragraph 5.) In addition, the release of GCM's AOD's, and the indexes relating thereto shall be coordinated so as to ensure the availability of indexes at the time the corresponding documents become available. Further, defendant shall, without reconstructing documents, take reasonable steps to ensure that the documents released under the terms of this order are legible, and shall provide a procedure by which plaintiff and the public can verify the correctness of their reading of documents that are wholly or partially illegible.
7. Adequate access to TM's exists by reason of IRS identification of each TM by the number of the issued Treasury Decision (TD) to which the TM corresponds, access to which is in turn provided by commercially available tax services; accordingly, defendant is not required to create a separate index for past or future TM's so long as it continues to identify TM's by TD number.
8. The foregoing paragraphs relating to existing GCM's, AOD's and TM's shall not preclude defendant from applying to the Court for appropriate extensions of time for good cause shown. "Good cause" shall specifically include, but not be limited to, such matters as reduction in force applied to personnel engaged in the processing for release of GCM's, AOD's, the indexes pertaining thereto, and TM's, or the cutback of funding to components to which such personnel are assigned. However, no extension of time will be permitted that amounts to de facto cessation of the release program directed by this order.
9. The procedures prescribed in paragraphs 4 and 5 shall be without prejudice to plaintiff's right under the Freedom of Information Act, 5 U. S. C., Section 552, or under the appropriate provisions of the Administrative Procedure Act, 5 U. S. C., Sections 701, et seq., to contest the deletions, provided however, that no such challenge shall be made by plaintiff more than 60 days after the release of the document in question.
10. The procedures prescribed in paragraphs 1-9 do not impose any obligation upon the Service to generate GCM's, AOD's and/or TM's in the future. The Service reserves the right to discontinue generating GCM's, AOD's and/or TM's at any time, and further reserves the right to alter its procedures for creating such documents, and/or to alter the character and format of such documents, at any time. However, defendant agrees that, in the event that it discontinues generating GCM's, AOD's, or TM's, and instead develops other documents which have the same function and use as GCM's, AOD's and TM's, but which are called by a different name, the provisions of this order shall apply to such documents.
11. The parties shall negotiate the amount of attorney's fees and costs defendant will pay to plaintiff's attorneys in connection with this action, if any. Should the parties be unable to agree on the amount, they shall submit the question to the Court for decision.
12. The effective date of this Order shall be 30 days after the date of its entry on the docket of this Court.