Professor Kwoka Sues IRS and Explains the Path of FOIA in Two Recent Important Law Review Articles

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Kwoka v IRS is a FOIA case from a federal district court in the District of Columbia. The case involves Professor Margaret Kwoka, one of the leading scholars of government secrecy in general and FOIA in particular. In the lawsuit, Professor Kowka is seeking records that categorize FOIA requests IRS received in 2015, including the names and organizational affiliations of third-party requesters and the organizational affiliation of first-party requesters. The IRS provided some of the information she sought, but not all of it.

In this post I will briefly describe Professor Kwoka’s research project and turn to the particular suit that generated last month’s opinion.

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Professor Kwoka teaches at the University of Denver Strum School of Law. Her recent research focuses on FOIA and how it has strayed from its main purpose of allowing third party requesters (like the press and non profits) holding government accountable.  A 2016 article in the Duke Law Journal, FOIA, Inc.  chronicles the growth at some agencies of commercial FOIA requests, that is requests that are primarily motivated by commercial interests of the requesters. A 2018 article in the Yale Law Journal, First-Person FOIA, highlights the rapid growth in FOIA cases from people or their lawyers or other representatives seeking information about their particular case, often to use in other litigation or administrative actions. It is these FOIA cases that are made by so called first person requesters.

The First-Person FOIA article has particular resonance for people interested in tax administration, as practitioners and taxpayers frequently turn to FOIA to learn more about their case as they challenge an IRS determination. The article looks at agencies like the Department of Veterans Affairs and Social Security Administration and Professor Kwoka demonstrates that a “significant amount of first-person FOIA requesting serves as a means for private individuals to arm themselves when they are subject to governmental enforcement actions or seek to make their best case for a government benefit.”

First-Person FOIA makes the case that while FOIA provides a vehicle for people to get needed information about their cases it has significant shortcomings when used for that purpose. The article does not minimize the need for access to information; she suggests solutions for individual access outside of FOIA, including expanding individuals’ online access to information and limited administrative discovery. Yet Kwoka argues that while “these requests represent legitimate efforts by private individuals to obtain information about themselves, they serve largely private, not public interests.” That, as Kwoka notes, has led some observers to question FOIA’s value and perhaps will have the unintended effect of reducing its role as helping the public keep government accountable, a goal that seems as important today as it did in the post-Watergate era when sunshine laws like FOIA took root as one way to keep government accountable.

That takes us to the lawsuit that Professor Kwoka filed to get more information so she could properly catalogue the FOIA requests IRS received in FY 2015. In her study Kwoka sought information about requesters from 22 different agencies; only six gave her the information she needed; three provided the information in publicly available form on their websites. IRS was one of seven agencies that provided some information but due to withholdings or redactions Professor Kwoka could not use it in her study. That is what led to her suing the IRS to get more specific information about the FOIA requesters and their affiliations. In particular in her FOIA request, she sought “[t]he name of the requester for any third-party request (for first-party requests I accept this will be redacted)” and “[t]he organizational affiliation of the requester, if there is one.”

In the suit IRS relied on Exemptions 3 and 6 to withhold the names of the third party requesters and the organizational affiliations of the first and third party requesters. Exemption 3 essentially requires IRS to withhold information that is exempted from disclosure under another statute—the biggie in tax cases is the general restriction on release of taxpayer information in Section 6103. Exemption 6 allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

With respect to its Exemption 3 defense, IRS argued that need not reveal the names or organizational affiliations of FOIA requesters because doing so could “reveal protected tax information including, but not limited to[,] the identity of a taxpayer.”   As part of its defense IRS pointed to the online log of FOIA requests that it maintains (see for example its FY 2015 log).  The IRS argued that if Kwoka obtained the names and organizational affiliation of third-party requesters, she could cross-reference that information with the online log and deduce the identities of the taxpayers.

The opinion pushed back on this, noting firstly that the topics the log lists are vague and more importantly  the “IRS’s conclusion does not follow from its premises.”

Even armed with the information she requests and the publicly accessible FOIA log, in most cases Kwoka could not know with any certainty the identity of particular taxpayers. Neither the log nor the information Kwoka requests generally reveals the target of a FOIA request—i.e., the person whose tax records the requester is seeking. Thus, for third-party requests in which a requester submits a request for someone else’s information, knowing the name and organizational affiliation of the requester (from her own FOIA request) in conjunction with the topic of the request (from the publicly accessible log) would not reveal the identity of the target of the request.

The requests for the organizational affiliations of the first-party requesters was a somewhat more nuanced issue, but there too the court sided with Kowka over the IRS argument that exemption 3 allowed a blanket excuse to withhold on all of the requested information:

In most cases, the same is true for first-party requesters who request their own tax return information. Kwoka concedes that the IRS can redact the names of first-party requesters, see FOIA Request; she asks only for their organizational affiliations. But because most organizations have many affiliated individuals, knowing a requester’s organizational affiliation—even in conjunction with the topic of the request—would not ordinarily reveal the identity of the requester (and thus the identity of the taxpayer). There may be a few exceptions where, for example, a particular organization has only one affiliate, or where a topic listed in the publicly accessible FOIA log is so specific (in contrast to the majority of the entries) that it would, in conjunction with the requester’s organizational affiliation, effectively reveal the first-party requester’s identity. See Def.’s Reply at 8 (arguing that “a FOIA request made by the owner of an individually held or closely held company, in concert with the subject of the request, would be enough to reveal the identity of the individual making the request”). Kwoka also concedes that “[w]here an individual requests tax records about the organization that is identical to the individual’s organizational affiliation as recorded in the IRS’s records, … the organizational affiliation would be subject to redaction.”

The opinion moved on to Exemption 6, which employs a balancing test and allows agencies to withhold certain information when disclosing it would result in a “clearly unwarranted invasion of personal privacy.”  IRS argued that it could rely on Exemption 6 for a blanket witthhoding of the requested information For reasons similar to its rejection of Exemption 3, the court disagreed with the IRS:

For many of the same reasons the IRS is not entitled to a blanket invocation of exemption 3, it is not entitled to one under exemption 6. The IRS argues that “third-party FOIA requesters in this case [would] be subject to harassment, stigma, retaliation, or embarrassment if their identities were revealed” and that “[t]he average citizen has ample reason not to want the world to know that someone else has used the FOIA to obtain information regarding his federal tax liabilities, or his tax examination status.” But, as explained above, in most cases, revealing the organizational affiliations of first-party requesters and the names and organizational affiliations of third-party requesters would not reveal the targetof the request. Moreover, FOIA requesters “freely and voluntarily address[] their inquiries to the IRS, without a hint of expectation that the nature and origin of their correspondence w[ill] be kept confidential.” Stauss v. IRS, 516 F. Supp. 1218, 1223 [48 AFTR 2d 81-5617] (D.D.C. 1981)…

Conclusion

The case continues, as the court concluded that the IRS could not rely on Exemptions 3 and 6 to provide a categorical denial of Professor Kwoka’s request though it may in specific instances rely on those exemptions as a basis for redacting or withholding information.

Kudos to Professor Kwoka for her important research and her efforts to uncover more information about the nature of FOIA requests across the government.

Leslie Book About Leslie Book

Professor Book is a Professor of Law at the Villanova University Charles Widger School of Law.

Comments

  1. It seems to me that even the fact of a taxpayer’s FOIA request for files relating himself should be public info, if any other person could have made the same FOIA request successfully.

    • I think those requests come under the Privacy Act, which are also processed by the Disclosure Officer who handles FOIA requests. You can ask for your own file, but I can’t successfully ask for your file.

      Trying to figure out what is going on in this case, I came across this IRS explanation in its reply to Professor Kwoka’s motion for summary judgment:

      “Declarant William Rowe, an attorney in the IRS’ Office of Procedure and Administration, explains that there are many situations in which the disclosure of the identities of FOIA requesters to include third-party requesters, combined with the subjects of their requests, could disclose information protected by 26 U.S.C. § 6103 after just a quick Google search.. . .Rowe explains, as an example, how a corporate shareholder who is aware that a company is under examination by the IRS may submit a FOIA request for the corporation’s examination files. The corporate shareholder in this scenario is a third party, the release of whose name Plaintiff contends cannot possibly reveal return information. But the subject of the corporate shareholder’s request – ‘examination files’ — is publicly available on the IRS’s FOIA log. A quick search of the internet would [sic] enough to connect the corporate shareholder with the corporation whose examination files he has requested, and to reveal that the corporation is under examination by the IRS. . . .The examination of a taxpayer by the IRS is exactly the type of information that 26 U.S.C. § 6103 prohibits disclosing, and which would potentially be disclosed if the names of third-party FOIA requesters to the IRS were revealed to the Plaintiff.

      “Rowe gives another telling example of such a potential disclosure: the request for records of an estate return or examination of an estate return by the relative of a deceased taxpayer. The combination of the requester’s name in a publicly available obituary with the subject matter of the request, i.e., ‘estate tax return’, ‘gift tax estate’, etc., could easily be enough to reveal the filing of an estate return. In this case, the estate is the taxpayer for purposes of § 6103, and the existence of an estate return is information protected from disclosure by that statute. “

      • Norman Diamond says:

        “The examination of a taxpayer by the IRS is exactly the type of information that 26 U.S.C. § 6103 prohibits disclosing, and which would potentially be disclosed if the names of third-party FOIA requesters to the IRS were revealed to the Plaintiff.”

        Cases involving liens and levies aren’t protected, even outside of the 9th Circuit. Maybe that’s because the liens and levies weren’t preceded by an examination?

  2. Norman Diamond says:

    ‘The article does not minimize the need for access to information; she suggests solutions for individual access outside of FOIA, including expanding individuals’ online access to information and limited administrative discovery.’

    The IRS says the opposite. When I requested some documents, the IRS’s counsel told me to use FOIA. The IRS’s diligent FOIA search found none of the documents. The IRS didn’t even find the one I gave as an example to show what I wanted — which I had because the IRS had submitted it as an exhibit. The IRS has also told others to use FOIA. Secrecy sure is a problem, even in first-party cases.

    ‘In the suit IRS relied on Exemptions 3 and 6 to withhold the names of the third party requesters and the organizational affiliations of the first and third party requesters. Exemption 3 essentially requires IRS to withhold information that is exempted from disclosure under another statute—the biggie in tax cases is the general restriction on release of taxpayer information in Section 6103.’

    Maybe in D.C., but not in the 9th Circuit. If a tax return becomes a subject of litigation, it’s supposed to be disclosed to the public. I only wonder how to reconcile this with the secrecy of documents requested under FOIA.

    ‘Exemption 6 allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”’

    Would an unwarranted invasion of personal privacy include a birth certificate? Documents that accompany Form W-7 and a few other forms are particularly sensitive. In one Tax Court case the IRS agreed to redaction of a birth certificate. In another Tax Court case the IRS opposed redaction of the same birth certificate. Tax Court of course did what it’s supposed to do; it did what the IRS told it to do in both cases.

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