Memo Updates Procedures for Denying Some FOIA Requests

Expiration Date: 11/26/2021
Affected IRM: 11.3.13

November 26, 2019

MEMORANDUM FOR
ALL DISCLOSURE EMPLOYEES

FROM:
Phyllis T. Grimes
Director, Governmental Liaison, Disclosure and Safeguards

SUBJECT:
Interim Guidance on Freedom of Information Act (FOIA)
Requests for Records Subject to 26 U.S.C. § 6103

Until Part 11.3.13 of the IRM is revised, this memorandum serves as guidance on processing FOIA requests for access to tax records protected by 26 U.S.C. §6103 where required identification or authorization has not been established by the requester. Please ensure this information is distributed to all affected employees within your organization.

Purpose:

Procedures regarding the response and disposition of FOIA requests for 26 U.S.C. §6103 records that lack required identification or authorization are changing to align with an existing statutory provision.

Background/Source(s) of Authority:

5 U.S.C. §552, 26 C.F.R. §601.702, 26 U.S.C. §6103, Electronic Privacy Information Center v. IRS, 910 F.3d 1232 (2018)

The FOIA statute, at 5 U.S.C. §552(a)(4)(B), places the burden on an agency to establish that records are exempt such that, when a requester seeks returns or return information subject to the confidentiality provisions of 26 U.S.C. § 6103, the agency must establish whether the records are exempt from disclosure. While FOIA does allow agencies to establish published rules for time, place, fees, and procedures to be followed in making a FOIA request; an agency is not permitted within its published rules to modify a requester's substantive rights to records. As a result, the IRS FOIA regulations within 26 C.F.R. §601.702, specifically 26 C.F.R. §601.702(c)(4)(i)(E) and (c)(5)(iii)(C), will no longer be relied upon in establishing a requester's right to a record.

Procedural Change:

Effective immediately, FOIA requests for access to IRS records protected under 26 U.S.C. §6103, that do not contain proper identification or authorization necessary to release tax records, will be denied citing FOIA exemption (b)(3)/26 U.S.C. §6103 and appeal rights will be granted. The closing disposition on these requests will no longer be “imperfect”.

The response letter must include approved pattern language that neither confirms, nor denies, the existence of any record under 26 U.S.C. §6103.

Both the inventory system and case notes must capture the exemption applied and reflect the reasoning that supports the final determination to withhold information utilizing FOIA exemption (b)(3)/26 U.S.C. §6103.

When all requirements of the FOIA statute have been met for the form of a request, but the request is for tax records and does not contain appropriate identification or authorization with the request, the caseworker should follow guidance in IRM 11.3.13.5.5(2) to contact requesters, when appropriate, prior to denying and closing a FOIA request that does not contain proper identification or authorization.

Effect on Other Documents:

This guidance will be incorporated into IRM 11.3.13, Disclosure of Official Information, Freedom of Information Act (FOIA) by July 31, 2020.

Effective Date:

November 26, 2019

Contact:

William J. White IV, Senior Disclosure Analyst, 312-292-3297 or by email William.White@irs.gov

Distribution:
Disclosure Employees
IRS.gov