This section covers the processing of Freedom of Information Act (FOIA) requests for records maintained in the National Office, which includes all Associate Chief Counsel and Division Counsel Headquarters offices, and for records maintained in Area or Associate Area Counsel Offices.

All FOIA requests for National Office Chief Counsel records are coordinated with and processed by the Office of Associate Chief Counsel (Procedure & Administration). All FOIA requests for other Chief Counsel records are coordinated with and processed by the Area or Associate Area Counsel Office where the records are maintained.

Procedure & Administration (P&A) Branches 6 and 7 attorneys are available to answer questions regarding FOIA-related issues, such as:

National Office. A Disclosure Office within the Office of Governmental Liaison, Disclosure, and Safeguards (GLDS) will forward a copy of any FOIA request for National Office Chief Counsel records to the Chief, Disclosure and Litigation Support Branch (DLS) in the Legal Processing Division within P&A. Upon receipt of the request, a case will be opened in TECHMIS as FOIA-XXXXXX-YY (category D/A-L (Disclosure Advice and Litigation) and subcategory FOIA/R (FOIA Requests)), and the request will be assigned to a paralegal specialist in DLS for processing.

Area Counsel and Associate Area Counsel Offices. A Disclosure Office within GLDS will forward a copy of any FOIA request for other Chief Counsel records to the appropriate Area or Associate Area Counsel office where responsive records are likely be found. Upon receipt of the request from the Disclosure Office, a case will be opened in TECHMIS as FOIA-XXXXXX-YY (category D/A-L (Disclosure Advice and Litigation) and subcategory FOIA/R (FOIA Requests)), and the request will be assigned to a field attorney or paralegal specialist.

Upon receiving all responsive records, the DLS paralegal specialist will review the records for their appropriate disclosure treatment and respond, on behalf of the Office of Chief Counsel, to the Disclosure Office.

The office or offices maintaining or creating the requested records (originating offices) are not required to make any disclosure recommendations, but may do so if they wish.

DLS will coordinate with other offices as appropriate and document any such coordination in the case file history notes.

To the extent the file contains records created by another agency (including Treasury), the attorney will first determine whether Counsel has any institutional interest that warrants withholding the other agency records. If so, the attorney will inform the Disclosure Office of the need to coordinate disclosure with the other agency or to transfer the request. If no institutional interest for withholding exists, the attorney will separate the other agency’s records from the Counsel records and note their origin. See 31 C.F.R. part 1, § 1.5(c)(2).

Upon receipt of all records and any disclosure recommendations from National Office attorneys, the DLS branch will review both the records and recommendations and make an independent determination of what records should be recommended for release to the requester. If DLS disagrees with the originating office’s recommendations, DLS will coordinate with that office to reach an agreement. If an agreement cannot be reached, the disagreement will be resolved under Counsel reconciliation procedures. See CCDM 31.1.4.6.

After final disclosure determinations are reached, DLS will respond on behalf of the Office of Chief Counsel to the Disclosure Office.

Records in any legal file, including a pending litigation case file, are generally not to be withheld on a blanket or per se basis. Rather, the attorney must determine whether each record within a file is subject to one or more FOIA exemptions.

The attorney assigned to respond to the FOIA request will forward one complete clean set of the responsive records and one set of responsive records with clearly marked redactions to the Disclosure Office.

The attorney shall also provide a written articulation as to why each of the proposed redactions should be made.

The attorney shall complete the search questionnaire identifying the amount of time spent and the grade level of the individual performing the search.

The attorney may choose to coordinate with the IRS office. In that event, the coordination with the IRS office will be noted in any transmittal of the responsive records, and responsibility for the assertion of any exemptions will be attributed to the Counsel attorney or IRS office, as warranted. For example, the attorney may want to contact the Appeals Officer, if an Appeals Case Memorandum is among the responsive records, in order to determine whether the Appeals Case memorandum, or any portion, should be released or withheld. If it is necessary for the field attorney to coordinate with IRS offices, the attorney will notify the Disclosure Office of the need to coordinate. This will alert the Disclosure Office to ask for additional time, if necessary, to respond to the request.

To the extent the file contains records created by another agency (including Treasury), the attorney will first determine whether Counsel has any institutional interest that warrants withholding the other agency records. If so, the attorney will inform the Disclosure Office of the need to coordinate disclosure with the other agency or to transfer the request. If no institutional interest for withholding exists, the attorney will separate the other agency’s records from the Counsel records and note their origin. See 31 C.F.R. part 1, § 1.5(c)(2).

The FOIA provides for the disclosure of federal agency records. Congress is not a federal agency, and, therefore, congressional documents are not subject to FOIA. When Congress creates a document and provides it to the IRS, the document retains its status as a congressional record if Congress has manifested a clear intent to control the document.

See CCDM 34.9.1.2 for procedures on responding to requests for documents received from Congress or created by the IRS in response to a congressional committee inquiry. For a detailed discussion of Joint Committee on Taxation documents, see CCDM 35.5.4.9.

Searching for FOIA Requests. Counsel employees responding to discovery requests or involved in examinations should coordinate with HQ Disclosure Policy and Program Operations (PPO, formerly known as HQ Disclosure) to determine whether a FOIA request for similar records has been made by, or on behalf of, the taxpayer. PPO’s inventory management system tracks all FOIA requests filed nationwide with the IRS and includes data on subpoenas and other requests for IRS information.

Coordinating Responses. While FOIA is a separate, distinct, and independent process. Disclosure personnel and Counsel employees should coordinate responses to related requests for information to ensure consistency in asserting privileges, redacting records, or withholding records entirely. Counsel employees and Disclosure personnel should consider whether release of any records sought in a FOIA request would have an adverse effect on current litigation or examination.

Some FOIA exemptions are mandatory in nature and cannot be waived, e.g., FOIA exemption (b)(3) in conjunction with section 6103, which specifically prohibits the disclosure of returns and return information. Certain FOIA exemptions are not mandatory and can be waived as a matter of agency discretion. The most common discretionary exemptions can be found in FOIA Exemption (b)(5), which incorporates various common law or governmental privileges recognized in discovery, including the deliberative process privilege (sometimes referred to as "governmental or executives privilege" ), the work product doctrine, and the attorney-client privilege. The IRS’s decision to assert these privileges in responses to FOIA requests will be consistent with the application of these same privileges in the context of discovery.

The decision to waive any applicable exemption or privilege during discovery, at trial, or in response to FOIA requests will be made only after a full and deliberate consideration of the institutional (i.e., public accountability, safeguarding national security, law enforcement effectiveness, and the promotion of candid and complete deliberations), commercial, and personal privacy interests that could be implicated by disclosing this information. See Policy Statement 11-13, IRM 1.2.19.1.1 (4/23/2004).

The Office of Chief Counsel has considered the institutional interests implicated by the disclosure of the following four categories of documents (paragraphs 4-7 below) and has determined that discretionary privileges and FOIA exemptions are to be asserted in accordance with the procedures described below, except in extraordinary circumstances after consultation and coordination with the affected Associate Chief Counsel or Area Counsel office.

Documents pertaining to published guidance. Discretionary discovery privileges or FOIA exemptions will be asserted for documents pertaining to published guidance. Published guidance includes regulations, revenue rulings, revenue procedures, notices, and announcements that are disclosed to the public by publication in the Federal Register or the Internal Revenue Bulletin. See 5 U.S.C. § 552(a)(1) and (2).

Documents pertaining to statements of agency policy and interpretations adopted by the agency, administrative staff manuals, and instructions to staff within the meaning of FOIA, 5 U.S.C. § 552(a)(2)(B) and (C), including written determinations under section 6110. The discretionary exemptions or privileges will be asserted for documents that are generated during the preparation of any statements of agency policy (including written determinations subjects to section 6110), and interpretations adopted by the agency, administrative staff manuals, and instructions to staff within the meaning of FOIA, 5 U.S.C. § 552(a)(2)(B) and (C).

Documents pertaining to litigation. The decision to release information contained in this group of documents will be made after full consideration of the appropriate factors. The decision to waive the exemption or privilege will be documented in writing and approved by the designated level of authority, as set forth below. Documents pertaining to litigation include documents prepared by Counsel attorneys as well as documents maintained in the administrative files of the IRS to which the litigation pertains. The procedural requirements to elevate and coordinate are triggered only in those cases when waiver of the discretionary privileges or FOIA exemptions is recommended. Because the FOIA can be used as a discovery tool, Counsel employees will coordinate their responses in discovery with IRS personnel processing FOIA requests seeking the same documents or information. Counsel employees should consider the impact of the assertion or waiver of discretionary privileges on their own pending cases, on other pending cases, or future cases.

Documents pertaining to nondocketed legal advice. Discretionary discovery privileges or FOIA exemptions for documents pertaining to these matters may be waived only by the Associate Area Counsel in consultation with the affected IRS client at the supervisory level.

National Office. After reviewing the requested records, the Chief, DLS, will transmit to the Disclosure Office one clean set and one redacted set of the requested records and set forth in a separate memorandum the recommendations of the Office of Chief Counsel concerning disclosure of those records. DLS will also forward the search questionnaire completed by the Counsel office(s) to the Disclosure Office.

Area Counsel or Associate Area Counsel Office — After reviewing the records, the attorney will transmit one clean set and one redacted set of the requested records and set forth the recommendations of the Area or Associate Area Counsel Office concerning disclosure of those records. The attorney will also forward the search questionnaire completed by the Counsel office to the Disclosure Office.

Once the memorandum is sent to the Disclosure Office, the TECHMIS case will be closed.