FOIA Litigation with the IRS: What is the Freedom of Information Act?
The Freedom of Information Act, contained in 5 U.S.C. 552, provides any person the right to request access of federal agency records or information. The FOIA applies to records either created or obtained by an agency and under agency control at the time of the FOIA request. Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies are subject to the FOIA. State governments, municipal corporations, the courts, Congress and private citizens are not subject to the FOIA.
What is Subject to FOIA Disclosure?
All IRS records are subject to FOIA requests. However, FOIA does not require the IRS to release all documents that are subject to FOIA requests. The IRS may withhold information pursuant to nine exemptions and three exclusions contained in the FOIA statute.
While the Freedom of Information Act is an option in some cases, records that can be processed routinely in accordance with procedures identified in 26 CFR 601.702(d) are specifically excluded from the processing requirements of the FOIA. Many FOIA requests for IRS information can be obtained more efficiently using routine established agency procedures.
Requirements for IRS FOIA Responses
The IRS is required to determine within 20 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of a request whether to comply with the request under the FOIA. The IRS must provide the requester reasons if the request is denied in whole or in part. IRS must provide information about the right to appeal any adverse determination to the head of the IRS or his or her designee under section (a)(6)(A)(i) of the FOIA.
The FOIA permits the IRS to extend the 20-day statutory time limit by 10 additional days in unusual circumstances as set forth in the FOIA and Treasury Regulation 601.702(c)(11)(i)(A)(1)-(4). These circumstances include the need to collect records from field locations, review large numbers of records, and consult with other agencies. The IRS must notify requesters of any statutory extensions.
Filing an IRS FOIA Litigation Complaint
Treasury Regulation 601.702 (c)(13) sets forth the circumstances under which an FOIA requester may proceed with a judicial appeal. For example, a requester has the right to appeal the denial in court when an administrative appeal is denied. The burden of justifying the withholding of documents falls to IRS when a requester goes to court.
Most requesters require the assistance of an attorney to file a judicial appeal. A person who files a lawsuit and substantially prevails may be awarded reasonable attorney fees and litigation costs reasonably incurred. Some requesters may be able to handle their own case without an attorney. Details of the judicial appeal process have not been included because this is not a litigation guide. Anyone considering filing an FOIA lawsuit can begin by reading the provisions of the FOIA on judicial review.
The essential feature of both FOIA and the Privacy Act is that they make government agencies, including the IRS, accountable for information disclosure policies and practices. While neither law grants an absolute right to examine government documents, both laws establish the right to request records and to receive a response to the request. The requester is entitled to the reason for the denial if a record cannot be released. The requester also has a right to appeal the denial and, if necessary, to challenge it in court. These procedural rights granted by the FOIA and the Privacy Act make the laws valuable and workable.
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