TAX ANALYSTS
6830 North Fairfax Drive
Arlington, VA 22213,
AMERICAN HISTORICAL ASSOCIATION
400 A Street, SE
Washington, DC 20003,
ORGANIZATION OF AMERICAN HISTORIANS
112 North Bryan
Bloomington, IN 47408,
and
SOCIETY OF AMERICAN ARCHIVISTS
600 South Federal
Chicago, IL 60605,
Plaintiffs,
v.
INTERNAL REVENUE SERVICE
1111 Constitution Avenue, NW,
Washington, DC 20224,
and
NATIONAL ARCHIVES & RECORDS ADMINISTRATION
Seventh Street and Pennsylvania Avenue, NW
Washington, DC 20408,
Defendants.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
1. This is an action (a) by organizations of and representing historians of American history and archivists, suing on their own behalf and on behalf of their members, and a journalistic organization, all of whom are vitally interested in the preservation and availability for research of documents recording the history of taxation in the United States ("U.S."), (b) against the Internal Revenue Service ("lRS"), creator, recipient and possessor of valuable historical records concerning taxation in the U.S. and the National Archives & Record Administration ("NARA"), which is charged by law with oversight and supervision of and rule making concerning the management, preservation, scheduling, disposition and public availability of the records of U.S. government agencies (including IRS), (c) to compel IRS to comply and NARA to enforce and oversee IRS' compliance with statutes and regulations that IRS has violated and failed to comply with in the management, preservation, scheduling and disposition of IRS' records.
Jurisdiction
2. This court has jurisdiction of this action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, 702, 706, and 28 U.S.C. § 1331. Venue lies in this district, where both federal agency defendants reside, under 28 U.S.C. § 1391(e).
Parties
Plaintiffs
3(a) Tax Analysts ("TA") is a nonprofit corporation organized and existing under the laws of the District of Columbia and is qualified as a charitable and educational organization under Internal Revenue Code ("IRC") § 501(c)(3). TA's primary public education function is the publication of news and other information concerning the enactment and administration of the tax laws of the United States and the several states, the adjudication of tax cases by courts and other tribunals of the United States and the several states, and other subjects relating to taxation. TA's weekly publication, Tax Notes, is the leading periodical reporting in depth on taxation issues, including development of tax policy.
(b) TA's Tax History Project is conducting research into, and is engaged in publication of studies about, the evolution of U.S. tax policy and administration from 1890 to the present. Access to the records of IRS that record the history of the development of U.S. tax policy and of U.S. tax administration in such critical periods of U.S. history as the 1890's, 1910's and 1940's is crucial to the Tax History Project's work of research, writing and publication of the studies described above.
(c) IRS' failure to manage, preserve or schedule those records, its failure to transfer valuable historical records to NARA and its failure to make those records available to the public, as provided and required by law, have caused and are continuing to cause injury to TA in the work of its Tax History Project by depriving TA and the individuals employed by TA and assigned to carry out the work of the Tax History Project of access to valuable historical documents, thereby preventing them from effectively conducting the Tax History Project's research, writing and publication of its studies about the evolution of U.S. tax policy and of U.S. tax administration.
(d) TA has sought and obtained in the past and intends in the future to continue to seek access to IRS records of historical value under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from NARA, and otherwise for its publications, including publications of the Tax History Project.
4(a) The American Historical Association ("AHA") is a nonprofit corporation, founded in 1884 and incorporated by the U.S. Congress in 1889. AHA brings this action on its own behalf and on behalf of its members. AHA has about 15,000 members and is the largest association of professional historians in the U.S. Many of AHA's members use records made available to the public at facilities operated by NARA.
(b) AHA and its members have a strong interest in ensuring that records of historical value about IRS and the history of federal taxation and tax policy in the U.S. be preserved for, and made available to, its members and other historians for research purposes. The history of the development of tax policy and of tax administration in the U.S. is of great significance to the professional work of many members of AHA. Access to the records of IRS that record the history of the development of U.S. tax policy and of U.S. tax administration is crucial to those AHA members' professional work of research, scholarship, writing and teaching.
(c) IRS' failure to manage, preserve or schedule those records, its failure to transfer valuable historical records to NARA and its failure to make those records available to the public, as provided and required by law, have caused and are continuing to cause injury to these AHA members by depriving them of access to valuable historical documents, thereby preventing them from effectively conducting research, scholarship, writing and teaching about the history of the development of U.S. tax policy and of U.S. tax administration.
(d) Members of AHA have sought and obtained in the past and intend in the future to continue to seek access to IRS records of historical value under the FOIA from NARA, and otherwise for their research, scholarship, writing and teaching.
5(a) The Organization of American Historians ("OAH") is a nonprofit corporation organized and existing under the laws of Nebraska since its incorporation in 1914. OAH brings this action on its own behalf and on behalf of its members. OAH was founded as the Mississippi Valley Historical Association in 1907. It has about 12,000 members and is the largest association of historians devoted to research in and teaching of the history of the U.S.
(b) OAH's members conduct research, scholarship, writing and teaching about American history, including the history of taxation. For many of OAH's members the history of taxation is central to their study, understanding and explanation of American history. Two examples of the importance of taxation to American history include the resistance of Americans to taxation by Great Britain, which was the major cause of the American revolution and of the existence of the U.S. as a nation, and the adoption of a federal income tax to finance the Civil War, its declaration as unconstitutional by the Supreme Court and its restoration by the Sixteenth Amendment. OAH and its members have a strong interest in ensuring that records of historical value about IRS and the history of federal taxation and tax policy in the U.S. be preserved for, and made available to, its members and other historians for research purposes.
(c) A full and accurate understanding of the history of American politics, society and social theory for the research, scholarship, writing and teaching of members of OAH requires the availability for their historical research of IRS' historical records of tax policy, administration, and enforcement. IRS' failure to manage, preserve or schedule those records, its failure to transfer valuable historical records to NARA and its failure to make those records available to the public, as provided and required by law, have caused and are continuing to cause injury to these OAH members by depriving them of access to valuable historical documents, thereby preventing them from effectively conducting research, scholarship, writing and teaching about the history of the development of U.S. tax policy and of U.S. tax administration.
(d) Members of OAH have sought and obtained in the past and intend in the future to continue to seek access to IRS records of historical value under the FOIA from NARA, and otherwise for their research, scholarship, writing and teaching.
6(a) The Society of American Archivists ("SAA") was founded in 1936. It is a nonprofit corporation organized and existing under the laws of the District of Columbia since its incorporation in 1945. SAA brings this action on its own behalf and on behalf of its members. SAA has 3,800 members, including archival institutions such as major university libraries, major public libraries and state historical societies and individual archivists. SAA is the oldest and largest professional archival association in the U.S.
(b) The premier professional objective of SAA's members is the "documentation of democracy," i.e., to make available to scholars, historians and the general public the documentary history of our nation and its public institutions, including, e.g., the Congress, government agencies and legislatures. The national archival repository system that members of SAA represent includes, as important assets, the National Archives, regional NARA facilities and federal agency reading rooms like IRS'. SAA and its members have a strong interest in ensuring that records of historical value about IRS and the history of federal taxation and tax policy in the U.S. be preserved for, and made available to, its members and other archivists for their work.
(c) IRS' failure to carry out the rules and principles of record management, preservation, scheduling, disposition and public availability, its failure to transfer valuable historical records to NARA and its failure to make those records available to the public, as provided and required by law, have injured the members of SAA by keeping historical records of the development of tax policy, tax administration and the role of taxation in the birth, growth and development of the U.S. out of the national system of archival repositories and unavailable to the members of SAA and those who it is their professional duty to serve.
Defendants
7. IRS is an agency of the U.S. government charged with the enforcement and administration of federal tax laws. it has created, received and possesses a very great quantity of records relating to taxation in the U.S., including a great quantity of records of historical value.
8. NARA is an agency of the U.S. government charged with oversight and supervision of the management, preservation, scheduling, disposition and public availability of the records of all U.S. government agencies, including IRS; is charged with ensuring compliance by other U.S. government agencies, including IRS, with the federal records statutes, including the Federal Records Act, 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq. and 3301 et seq. ("FRA"), and is charged with the issuance and enforcement of rules and regulations to implement the federal records statutes, including rules and regulations presently set out in Title 36 of the Code of Federal Regulations ("the NARA regulations").
Claims for Relief
9. The purpose of the FRA and the NARA regulations is, among others, to ensure for scholars, teachers, journalists, archivists and the public at large, the creation, preservation and public availability of a full documentary record of U.S. history, in particular the organization, functions, policies, decisions, procedures, operations and other activities of the U.S. government, including U.S. government agencies and including IRS.
10. The FRA and the NARA regulations require U.S. government agencies, including IRS, to establish, implement and follow guidelines and directives regarding the management, preservation, scheduling, disposition and public availability of their records for historical purposes among others, that will achieve the objectives of the FRA and NARA regulations described in ¶ 9. IRS' guidelines, directives and practices regarding the management, preservation, scheduling, disposition and public availability of IRS' records are in violation of the FRA and NARA regulations.
11. IRS has violated the FRA and NARA regulations, in particular 36 C.F.R. § 1222.38, and IRS' own records control schedules, in the following respects, inter alia:
(a) IRS has not identified, located or scheduled numerous records that IRS possesses and that document both policy making and high-profile programs of IRS;
(b) IRS has not transferred to NARA important, permanent IRS records of historical importance and that document IRS' policies, decisions, programs, actions, commitments and activities;
(c) IRS has not yet inventoried many records in IRS storage vaults;
(d) IRS has not maintained its records management program up-to-date to reflect recent IRS reorganizations or technological developments;
(e) IRS has not properly stored many records of historical value to ensure their preservation and has allowed the destruction or deterioration of such records;
(f) IRS has prevented NARA from performing its duty to assess the historical value of IRS records and has denied NARA access to IRS records to which NARA is entitled by law;
(g) IRS has failed to ensure that written and electronic records are made and kept of agency business transacted by telephone or electronic mail ("E-mail");
(h) IRS' National Office or regional or district offices have intentionally destroyed or allowed the destruction of records without authorization and have erroneously scheduled for destruction policy records that are required to be kept or transferred to NARA as permanent records;
(i) IRS has not issued or maintained record keeping requirements and records control schedules that comply with the FRA and NARA regulations in a manner sufficient to (1) document the persons, places, and things or matters dealt with by the agency; (2) facilitate action by the agency officials and their successors in office; (3) make possible a proper scrutiny by the Congress or other duly authorized agencies of the Government; (4) protect the financial, legal and other rights of the Government and of persons directly affected by the Government's actions; (5) document the formulation and execution of basic policies and decisions and the taking of necessary actions, including all significant decisions and commitments reached orally (person to person, by telecommunications, or in conference); (6) document important board, committee, or staff meetings, and
(j) IRS has invoked improperly Internal Revenue Code ("IRC") § 6103 to prevent transfer of important historical records to NARA. IRS has adopted and applied erroneous interpretations of § 6103 as excuses for denying NARA access to IRS historical records, for refusing to transfer IRS historical records to NARA, and for denying to the IRS historian or to other IRS employees access to records to assess the records' historical value. Such erroneous interpretations include the position that any § 6103 return information, however little, in a document of historical value renders the entire document immune from examination for historical purposes, and that IRS has no duty or obligation to redact such return information in order to make the rest of the document available for transfer to NARA.
12. IRS' violations of the FRA and NARA regulations described in ¶¶ 11 and 12 are set out and documented by NARA in a report published in December 1995 under the title, A NARA Evaluation: Records Management in the Internal Revenue Service, Department of the Treasury (December 1995) ("Evaluation").
13. IRS responded to NARA's Evaluation in March 1996. The response either refused to correct the violations of law that NARA had identified or offered vague promises to take unspecified actions at unspecified times in the future to deal with the identified violations. On information and belief, neither in its response nor otherwise has IRS or the Commissioner of Internal Revenue initiated, as required by 44 U.S.C. § 2905(a), actions adequate to redress within a reasonable time the violations of the FRA and the NARA regulations set out in the Evaluation and notified to IRS by NARA in its Evaluation Notes prepared and provided to IRS between November 1994 and June 1995.
14. IRS had been aware for several years before publication of the NARA Evaluation of the violations described in ¶ 11, and others, which include
(a) failure by IRS' management and staff to pay attention to the requirements of FRA and NARA's regulations;
(b) the scattering of unscheduled historical records of IRS all over IRS' large "National Office" building at 1111 Constitution Avenue, NW, Washington, DC;
(c) the irretrievable loss of important historical documents;
(d) the absence of records control schedules providing for transfer of historical records to NARA;
(e) destruction or discarding, or proposed destruction, of records of historical importance without the sanction of approved records disposition schedules, which did not and still do not exist.
15. The violations described in ¶ 14 were reported to IRS in 1993 by the first and only IRS historian, who was appointed in 1988 and whose position was abolished in December 1995 at the same time the NARA Evaluation was published.
16. Internal IRS responses to the historian's reports largely rejected the historian's conclusions and endeavored to suppress or change the historian's reports.
17. On July 18, 1996, plaintiffs AHA, OAH and TA submitted a petition to the Commissioner of Internal Revenue which described in detail IRS' violations of the FRA and the NARA regulations alleged above, and which requested that she take or order action to comply promptly with the FRA and NARA's regulations, including (a) take steps to preserve its records from destruction and deterioration, (b) assign and train sufficient personnel to create an adequate set of records schedules, (c) catalogue and schedule its historical records and establish a system for easy location and retrieval, (d) desist from using an overbroad interpretation of IRC § 6103 as an excuse for denying public availability of historical records and for refusing to transfer records to NARA. The petition is incorporated here by reference.
18. On November 12, 1996, IRS replied to the petition only by expressing hope that in the future the concerns stated in the petition would be alleviated.
19. IRS' misuse of IRC § 6103 to deny NARA access to IRS historical records and to refuse to transfer such records to NARA has been of concern to the Congress for more than 12 years. In 1984, when the amendments to the NARA Act were under consideration, the Conference Committee urged NARA and IRS to cooperate to resolve the impasse. Nothing was done. Twelve years later, in September 1996, another Conference Committee again urged NARA and IRS to reach agreement on NARA's access to IRS records.
20. For many years NARA has failed properly to perform its duty to ensure IRS' compliance with the FRA and the NARA regulations, and on information and belief, NARA has taken no action since publication of its Evaluation to compel IRS to comply with the FRA and NARA regulations; in particular, NARA has taken no action to seek enforcement action by the Attorney General of the U.S. as provided by the FRA, 44 U.S.C. § 2905(a), to prevent destruction of IRS records of historical value, despite IRS' and the Commissioner of Internal Revenue's failure to initiate action as specified in ¶ 13 above.
21. As a consequence of the actions, failures to act and omissions of IRS and NARA described in ¶¶ 11-20 above, much valuable documentation of IRS activity and of the history of taxation in the U.S. has been lost or its loss is threatened and imminent.
22. IRS' actions and omissions set forth in ¶¶ 9-19 and in plaintiffs' petition described in ¶ 17 are violations of the FRA and the NARA regulations.
23. NARA'S failures to compel IRS to comply with the FRA and NARA's regulations described in ¶ 20 are violations of NARA's duties under the FRA.
24. Plaintiffs have exhausted their administrative remedies.
Relief Requested
As remedies for the violations of the FRA and the NARA regulations alleged above in this complaint, plaintiffs request the following relief.
1. A declaratory judgment that by the actions and omissions of IRS specified in ¶¶ 3(c), 4(c), 5(c), 6(c), 11, 13 and 14 above and the petition incorporated here by reference that is described in ¶¶ 17 and 18 above, IRS has violated and is continuing to violate the FRA and the NARA regulations; that those actions and omissions are abuses of discretion, arbitrary, capricious and contrary to law in violation of the APA, and that those actions and omissions have damaged and are continuing to damage plaintiffs TA, AHA, OAH and SAA and the members of AHA, OAH and SAA by depriving them of rights of access to IRS records of historical value that are secured to them by the FRA and the NARA regulations.
2. A declaratory judgment that IRS' interpretations of IRC § 6103 as including and rendering non-disclosable in its entirely any document that contains any return information, however little, and as absolving IRS from any duty to redact such return information and to dispose of the rest of the document in accord with the FRA and the NARA regulations is wrong and unlawful; that IRS' interpretation of IRC § 6103 is an abuse of discretion, arbitrary, capricious and contrary to law in violation of the APA, and has damaged and is continuing to damage plaintiffs TA, AHA, OAH and SAA and the members of AHA, OAH and SAA by depriving them of rights of access to IRS records of historical value that are secured to them by the FRA and the NARA regulations.
3. A declaratory judgment that IRC § 6103 does not bar NARA, and does not authorize IRS to bar NARA, from examining IRS records to determine their historical value, and does not
authorize IRS from withholding and refusing to transfer to NARA IRS records of historical value, or that, in the alternative, the Commissioner of Internal Revenue, head of the agency IRS, has discretion under the FRA, 44 U.S.C. § 2906(a)(2), to permit NARA to examine IRS records to determine their historical value notwithstanding any restrictions contained in IRC § 6103, but has failed and refused to exercise that discretion; that IRS' and the Commissioner of Internal Revenue's refusal to permit NARA to examine IRS records to determine their historical value and IRS' refusal to transfer to NARA IRS records of historical value are in abuse of discretion, arbitrary, capricious and contrary to law in violation of the APA, and have damaged and are continuing to damage plaintiffs TA, AHA, OAH and SAA and the members of AHA, OAH and SAA by depriving them of rights of access to IRS records of historical value that are secured to them by the FRA and the NARA regulations.
4. A declaratory judgment that the failure of NARA to enforce the FRA and the NARA regulations against IRS, as specified in ¶ 20, is a violation of duties imposed on NARA by the FRA and the NARA regulations; that NARA's failure to enforce the FRA and the NARA regulations against IRS is an abuse of discretion, arbitrary, capricious and contrary to law in violation of the APA; and that NARA's violations of those duties in respect of IRS and IRS records has damaged and is continuing to damage plaintiffs TA, AHA, OAH and SAA and the members of AHA, OAH and SAA by depriving them of rights of access to IRS records of historical value that are secured to them by the FPA and the NARA regulations.
5. Enjoin IRS from continuing and order IRS promptly to correct the actions and omissions specified in ¶¶ 3(c), 4(c), 5(c), 6(c), 11, 13 and 14, Requests for Relief 1, 2 and 3 above and the petition incorporated here by reference that is described in ¶¶ 17 and 18 above.
6. Enjoin NARA from continuing to fail to enforce and order NARA promptly to begin enforcing the FRA and the NARA regulations against IRS, as specified in ¶ 20 and Request for Relief 4 above.
7. Order NARA to refer to the Attorney General of the U.S., pursuant to 44 U.S.C. § 2905(a), for enforcement action, the violations of the FRA and the NARA regulations specified and referred to in ¶¶ 3(c), 4(c), 5(c), 6(c), 11, 13, 14 and 19, Requests for Relief 1, 2 and 3 above and the petition incorporated here by reference that is described in ¶¶ 17 and 18 above.
8. Enjoin IRS from continuing to refuse to redact return information from documents that contain return information, and order IRS to redact return information from documents of historical value that contain return information and to transfer such redacted documents to NARA.
9. Enjoin IRS and the Commissioner of Internal Revenue from continuing to abuse IRC § 6103 (a) to bar NARA from examining IRS records to determine their historical value, and (b) to justify IRS' refusal to transfer to NARA IRS records of historical value.
10. Order the Commissioner of Internal Revenue to exercise her discretion conferred by 44 U.S.C. § 2906(a)(2) to permit NARA to examine IRS records to determine their historical value.
Respectfully submitted,
WILLIAM A. DOBROVIR
D.C. Bar No. 030148
65 Culpeper Street
Warrenton, VA 20186
(540) 341-2183
Attorney for Plaintiffs
February 7, 1997