**(700)-60 [Freedom of Information Act (FOIA)]{.underline}**

60.1 [Overview]{.underline}.

The Congress enacted the Freedom of Information Act, (FOIA), 5 U.S.C. §
552 (1994 & Supp. IV 1998) to provide the public with access to records
maintained by administrative agencies of the executive branch of the
federal government. Those seeking information pursuant to the FOIA are
not required to show a need for the information; instead, it is the
Government\'s burden to justify any decision to withhold information
from the public. The FOIA establishes standards for determining which
records must be made available for public inspection and which records
can be withheld from disclosure. The statute as well as memoranda issued
by the United States Attorney General requires federal agencies to
provide the \"maximum responsible disclosure of government information.
" Attorney General Reno\'s FOIA Memorandum, *reprinted in* *FOIA
Update*, Vol. XIV, No. 3 at 4-5. The statute also provides
administrative and judicial remedies for those denied access to records.

60.2 [Delegation Order]{.underline}.

TIGTA is operating in accordance with the provisions of [Delegation
Order No. 8](../../../tigta-delegation-orders/igdo8.doc) pertaining to
Freedom of Information Act (FOIA) and Privacy Act requests. This order
delegates the Inspector General's authority to make determinations on
and to respond to requests for information made pursuant to the FOIA and
the Privacy Act to the Chief Counsel. In addition, the order also
delegates the authority to respond to requests to amend records under
the Privacy Act to the Chief Counsel.

Further, the Inspector General for Tax Administration has delegated to
the Chief Counsel the authority to respond to administrative appeals
from denials of FOIA requests. The Chief Counsel has delegated this
authority to the Deputy Chief Counsel.

60.3 [Provisions]{.underline}.

60.3.1 The FOIA requires TIGTA to make its records promptly available to
any person who makes a request that complies with regulatory
requirements. Requests for information under the FOIA must be made in
writing and reasonably describe the desired records.

Any request for records made pursuant to the FOIA received by a TIGTA
employee should be forwarded to the Office of Chief Counsel\'s
Disclosure Section, which is responsible for processing and responding
to the request. By statute, TIGTA has twenty (20) business days from
receipt of the request to provide a response.

60.3.2 [Search for Responsive Records]{.underline}.

In responding to a valid FOIA request, TIGTA is required by statute to
undertake a \"reasonable\" search, *[i.e]{.underline}.*, a search that
is reasonably calculated to uncover all documents responsive to the
request. For purposes of the FOIA, \"documents\" include information
stored in both paper and electronic format, [e.g.]{.underline}, e-mails,
CD-ROM, etc. TIGTA is statutorily obligated to review, manually or by
automated means, all TIGTA records for purpose of locating any records
responsive to a FOIA request.

The Office of Chief Counsel\'s Disclosure Section will notify the TIGTA
function having jurisdiction over documents potentially responsive to a
valid FOIA request. It is the function\'s responsibility to perform a
reasonable search for the documents responsive to the FOIA request as
well as to document the search efforts. Any function having documents
responsive to a request should forward the documents to the Disclosure
Section. With the documents, the function should forward information
that may affect the document's disclosability, including, for example,
whether the documents contain return information, investigative or
prosecution threshold criteria, or information identifying, directly or
indirectly, a confidential informant, if any. If TIGTA later is sued to
compel release of the information withheld, the function creating the
document will need to execute affidavits supporting factually the basis
for the withheld information.

60.3.3 [FOIA Exemptions]{.underline}.

Records maintained by TIGTA must be made available to the public in
response to a valid FOIA request unless the information is specifically
exempted by statute and foreseeable harm would result from the release
of the exempt records.

The following exemptions are contained in the FOIA; however the
legislative history of the Act makes it clear that Congress did not
intend agencies to use these exempt categories to justify the automatic
withholding of information. Instead, the exemptions are to be narrowly
construed and are intended to designate those areas in which, under
certain circumstances, information may be withheld.

-   Exemption (b)(1) pertains to classified documents concerning
    national defense and foreign policy.

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-   Exemption (b)(2) pertains to matters \"related solely to the
    internal personnel rules and practices of an agency.\" 5 U.S.C. §
    552(b)(2). Examples of information that may be protected by this
    exemption are personnel\'s use of parking facilities or regulation
    of lunch hours, and statements of policy as to sick leave. Usually,
    however, this administrative information will be disclosed.

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-   Exemption (b)(3) incorporates the disclosure prohibitions that are
    contained in other federal statutes. Specifically, this exemption
    allows the withholding of information prohibited from disclosure by
    another statute provided that such statute: a) requires that the
    matters be withheld from the public in such a manner as to leave no
    discretion on the issue; or b) establishes particular criteria for
    withholding or refers to particular types of matters to be withheld.

    I.R.C. § 6103 is the type of statute to which subsection (b)(3) of
    the FOIA applies. Unless there is authority to make a disclosure of
    return information under I.R.C. § 6103, return information is exempt
    from release under the FOIA.

    Rule 6(e) of the Federal Rules of Criminal Procedure is another
    statute to which subsection (b)(3) of the FOIA applies. Thus,
    documents which contain grand jury information generated during the
    course of any grand jury investigation are exempt from release in
    response to a FOIA request.

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-   Exemption (b)(4) pertains to \"trade secrets and commercial or
    financial information obtained from a person that is privileged or
    confidential.\" 5 U.S.C. § 552(b)(4). This exemption is intended to
    safeguard submitters of business information from the competitive
    disadvantages that could result from disclosure of this type of
    confidential information.

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-   Exemption (b)(5) may be used to protect \"inter-agency or
    intra-agency memorandums or letters which would not be available by
    law to a party other than an agency in litigation with the agency.\"
    5 U.S.C. § 552(b)(5). This exemption incorporates the following
    civil privileges: deliberative process privilege material,
    attorney-client communications, and attorney-work product documents.

    The deliberative process privilege protects documents that reflect
    the predecisional deliberative processes of government agencies,
    [*i.e*.]{.underline}, internal agency documents containing the
    opinions, deliberations, and recommendations of governmental
    officials in connection with their official duties. This exemption
    only protects documents that are predecisional,
    [*i.e*.]{.underline}, antecedent to the adoption of an agency
    policy, and only deliberative communications, [i.e.]{.underline},
    information that is/was a direct part of the deliberative process in
    that it makes recommendations or expresses opinions on legal or
    policy matters is protected. Generally, facts cannot be protected
    under the deliberative process privilege unless they are
    inextricably intertwined with deliberative matter, or so selectively
    culled from a larger universe of facts, so as to reveal the
    deliberation itself. If a document prepared before a decision and
    used by the decision-maker(s) in reaching a decision is adopted as
    the rationale for the decision, the document loses its protection
    under the deliberative process privilege.

    The attorney work-product privilege protects documents prepared by,
    or at the direction of, an attorney in contemplation of litigation.
    Litigation need not have actually commenced so long as there is some
    articulable claim likely to lead to litigation.

    The attorney-client privilege protects confidential communications
    between an attorney and his client relating to a legal matter for
    which the client has sought professional advice. Unlike the attorney
    work-product privilege, the attorney-client privilege is not limited
    to the context of litigation. Although the privilege fundamentally
    applies to facts divulged by a client to his/her attorney, the
    privilege also encompasses any opinions given by an attorney to
    his/her client based upon those facts, as well as communications
    between attorneys which reflect client-supplied information.

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-   Exemption (b)(6) protects \"personnel and medical files and similar
    files the disclosure of which would constitute a clearly unwarranted
    invasion of personal privacy.\" 5 U.S.C. § 552(b)(6).

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-   Exemption (b)(7) exempts from disclosure \"records or information
    compiled for law enforcement purposes, but only to the extent that
    the production of such records:

    \(A\) could reasonably be expected to interfere with on-going
    enforcement proceedings;

> \(B\) would deprive a person of a right to a fair trial or an
> impartial adjudication;
>
> \(C\) could reasonably be expected to constitute an unwarranted
> invasion of personal privacy;
>
> \(D\) could reasonably be expected to disclose the identity of the
> confidential informant or information provided by the confidential
> source;
>
> \(E\) would disclose investigative techniques and procedures for law
> enforcement investigations or prosecutions, or would disclose
> guidelines for law enforcement investigations or prosecutions, if such
> disclosure could reasonably be expected to risk circumvention of law;
> or,
>
> \(F\) could be expected to endanger the life or physical safety of any
> individual."

-   Exemption (b)(8) pertains to information that is \"contained in or
    related to examination, operating, or condition reports prepared by,
    or on behalf of, or for the use of an agency responsible for the
    regulation or supervision of financial institutions.\" 5 U.S.C. §
    552(b)(8).

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-   Exemption (b)(9) applies to \"geological and geophysical information
    and data including maps concerning wells.\" 5 U.S.C. § 552(b)(9).

    60.3.4 [Reading Room Material]{.underline}.

    The FOIA also requires governmental agencies to make routinely
    available certain records for public inspection and copying. 5
    U.S.C. § 552a(a)(2). This provision is intended to guard against the
    development of agency \"secret law\" known to agency personnel but
    not to members of the public. The statute requires that the
    following types of information be made publicly available: final
    opinions on the adjudication of cases, statements of policy,
    administrative staff manuals or instructions to employees that
    establish policy, and records that have been, or are expected to be,
    the subject of repetitive requests.

    This information is generally made available in paper format in an
    agency reading room. In addition, for records created on, or after,
    November 1, 1996, TIGTA is required to make these policy documents
    publicly available in electronic format on a website,
    *[i.e.]{.underline}*, an electronic reading room.

60.4 [Appeals]{.underline}.

If TIGTA denies access to records or denies a request for waiver or
reduction of fees under the FOIA, a FOIA requester may file an
administrative appeal of the denial with the Office of Chief Counsel. To
ensure that the requester receives an independent review of the denial,
administrative appeals are assigned to Office of Chief Counsel personnel
who had no involvement in processing or making disclosure determinations
at the initial request level. Administrative appeals under the FOIA
should be addressed to the Office of Chief Counsel, TIGTA IG:CC, Suite
700A, 1125 15^th^ Street, N.W., Washington, D.C. 20005.

60.5 [Litigation]{.underline}.

The Freedom of Information Act gives a requester the right to file suit
against the agency in federal district court seeking production of
records allegedly wrongfully withheld pursuant to the FOIA. 5 U.S.C. §
552(a)(4)(B). The Office of Chief Counsel provides litigation support to
the Department of Justice attorney assigned to defend TIGTA in FOIA
litigation. The Office of Chief Counsel personnel assigned to the case
will contact the TIGTA functions whose records are at issue for
background information and to secure necessary information for any
supporting declarations to be executed by TIGTA personnel familiar with
the records and other facts relevant to defense of the lawsuit.

60.6 [Annual Report]{.underline}.

The FOIA imposes statutory reporting requirements upon government
agencies. Each agency is required to submit statistical information
about FOIA requests and administrative appeals received and/or processed
by the agency during the fiscal year. In addition, each agency is
required to report any lawsuits filed as a result of the agency\'s
response or failure to respond to a FOIA request.

The Office of Chief Counsel\'s Disclosure Section is responsible for
compiling the information necessary to satisfy TIGTA\'s reporting
requirements under the FOIA. At the end of each fiscal year, the
Disclosure Section provides the statistical information about TIGTA\'s
FOIA activities to the Department of the Treasury\'s Departmental
Disclosure Officer.

The Department of the Treasury compiles the information obtained from
each of its Bureaus and reports this statistical information in an
annual report to the Attorney General of the United States.