Among the several rights granted to United States citizens, the Freedom of Information Act (FOIA) is one that most people overlook. It is a significant privilege. In 1966, Congress enacted FOIA to provide individuals with access to “identifiable records.” Records could be obtained without the requirement to demonstrate a need or reason for the records. This means that the government had to show a reason for withholding information. Judicial remedies were granted to those people who were denied access to information. As our society has become more technological, Congress also enacted the “Electronic Freedom of Information Act” in 1996, which paved the way for citizens to access electronic records issues.
FOIA applies to records that are controlled and held by the administrative agencies of the executive branch. In the federal government, agencies must release these records upon request unless the information falls within one of the FOIA’s nine exemptions or three special law enforcement exclusions. Under FOIA, a record that an agency neither owns nor has control over does not constitute an agency record.
FOIA further establishes that the information requested by the public must be published in the Federal Register. The Federal Register includes the procedures for obtaining information under FOIA, agency functions and formal procedures, descriptions of available forms or where the forms can be retrieved, and rules of general applicability. FOIA also provides that certain information must be made available for public inspection and copying unless this information is promptly published and sold. An example of this would be where an agency’s decisions (such as Internal Revenue Service (IRS) private letter rulings) are routinely published by a legal publisher. The IRS is an administrative entity of the executive branch, and can be sued in a federal district court if records are not made available.
FOIA requests are processed at the place the requested documents are located. The written request must reasonably describe the records requested and must be approved by the appropriate district office. This request must be in writing, must be signed, and must state that the request is made pursuant to FOIA. It must also include the proper address of the IRS office and identify the requested records as accurately as possible so there is no ambiguity. If disclosure may be limited by statute, such as I.R.C. section 6103 protecting taxpayers’ confidential tax return information, the request must contain facts establishing the requester’s identity and right to the disclosure. The request must also state whether the
The requester must also indicate in the request whether they wish to inspect the records or have a copy of the records sent to them. Finally, the request must state that the requester agrees to pay the fees for the search and duplication of the records.
Once the request for information under FOIA is received by the IRS, the IRS has ten days to make an initial determination as to whether to release the information. However, the IRS usually requests an additional 30 more days to determine whether it will comply in full or part with the request. A negative determination may be appealed.
Robert V. Boeshaar Attorney at Law, LL.M.,PLLC
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