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.

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.

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.

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.

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).

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.

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 By this action, the Attorney General rescinded the October 12, 2001 Attorney General Memorandum on the FOIA and established a new standard for defending agency decisions to withhold information.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

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."

All actions taken, and determinations made, in response to FOIA requests will be in accordance with procedural rules appearing at:

All FOIA activities must be reported under Single Entry Time Reporting (SETR) code 800-85330.

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.

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.

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.

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.

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.

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.

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

The following are other sources of guidance related to disclosures of information pursuant to the Freedom of Information Act:

Receipt and control of requests for information under FOIA includes:

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

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.

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.

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.

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.

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

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:

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.

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.

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.

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.

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.

An individual may also establish identity by presenting a notarized statement swearing to or affirming their identity.

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)."

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

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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

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.

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.

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.

Other federal agencies may request IRS involvement in FOIA requests they have received for two reasons - referrals or consultations.

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.

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.

Review these requests thoroughly as they may contain minor references to records or enforcement actions that help to identify specific records.

Process any request containing enough information to permit a reasonable identification of records sought.

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.

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.

Some characteristics which may assist in recognizing pseudo-requests:

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:

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.

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.

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.

After analysis, it may be unclear which statute the requester is using to seek access. The following variations may be encountered.

Resolve any lack of clarity about the applicable statute as closely as possible with the requester's stated intent and consistent with the law.

When the request cites neither the FOIA nor the Privacy Act:

When a request cites both the FOIA and the Privacy Act, and it is from the following:

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).

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.

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.

Routine established agency procedures apply to requests for:

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.

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.)

Disclosure personnel will conduct a reasonable search to ensure they locate the documents the requester seeks.

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.

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.

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.

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.

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.

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.

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.

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.

Document the following information in the case history notes if it is not already apparent in the case file:

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:

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.

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.

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:

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.

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."

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:

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.

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.

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.

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.

Decisions to withhold information protected under the FOIA's discretionary exemptions will be made only when:

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.

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.

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.

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:

"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.

The Freedom of Information Act includes three special exclusions for protecting certain law enforcement records under subsection (c) of the FOIA.

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.

Disclosure personnel must thoroughly familiarize themselves with the exclusion guidelines found in the DOJ Guide to the Freedom of Information Act.

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.

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."

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.

A Glomar response is not appropriate when the FOIA request is imperfect.

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" .

Appeal rights are provided to the requester when a Glomar response is used.

"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.

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.

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.

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.

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.

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.

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.

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.

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.

Requesters must be able to identify the exemptions that apply to the information being withheld.

Copies of records made in connection with FOIA matters must be as legible as possible.

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.

Indexing is a technique for creating a detailed list of the records that were reviewed in response to a FOIA request.

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.

Disclosure personnel must consider preparing an index whenever the case is sufficiently complex to warrant one.

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

You must first number the pages when preparing an index. Generally, an index will:

Blocks of substantially identical records may be described generally rather than in individual detail.

An index is not a required element in the response to the requester and is not generally provided.

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.

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:

In the request for voluntary extension of time to respond, you must provide the requester an opportunity to:

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.

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.

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.

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.

Any exceptions to not engage in rolling or interim productions, when records are clearly available, must be reflected and supported in case documentation.

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.

The Freedom of Information Act provides for expedited processing if the requester asks in writing and demonstrates a compelling need for the information.

A compelling need may exist when:

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.

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.

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..

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.

To comply with the Executive Order, the IRS designated the Disclosure Managers as the FOIA Public Liaisons for their respective offices.

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.

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.

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.

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.

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:

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.

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:

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:

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.

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

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.

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.

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.

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.

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.

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.

Declarations are based on the specific facts and circumstances of the particular case that led logically to the conclusions that relied on those facts.

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.

Disclosure personnel will assist the Counsel attorneys assigned to the litigation to:

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.

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.

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.

Written determination files are generally stored in the National Office of the Office of Chief Counsel. Written determinations include:

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.

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:

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.

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.

Requesters sometimes seek access to information which, although physically in IRS possession is:

Examples of information that may involve commercial or proprietary considerations include:

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.

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.

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.

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.

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.

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.

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.

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).

Give considerable weight to a business submitter's objections to disclosure unless they clearly conflict with legal precedent or obviously lack merit.

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).

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.

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.

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.

The Courts have addressed this area and have defined "news media" as follows:

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.

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.

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.

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.

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.

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.

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.