United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2018 Decided December 18, 2018

No. 17-5225

ELECTRONIC PRIVACY INFORMATION CENTER,

APPELLANT

v.

INTERNAL REVENUE SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00670)

John Davisson argued the cause for the appellant. Marc 

Rotenberg and Alan Butler were with him on brief.

Michael Murray, Attorney, United States Department of 

Justice, argued the cause for the appellee. Gilbert S. 

Rothenberg, Thomas J. Clark, and Geoffrey J. Klimas, 

Attorneys, were on brief. Richard Caldarone, Attorney, 

entered an appearance.

Before: HENDERSON and MILLETT, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: The Internal 

Revenue Service (IRS) collects more than money. It acquires 

and maintains a reservoir of sensitive information about 

taxpayers. And time was, the President could—for any reason 

or no reason at all—order the IRS to make that sensitive 

information public. The arrangement worked out fine for 

decades. Then the Nixon administration compiled a list of 

political enemies and ordered the IRS to harass them. The 

resulting scandal prompted the Congress to enact sweeping 

legislation to protect taxpayer privacy. The Internal Revenue 

Code (IRC) now mandates that tax “[r]eturns and return 

information shall be confidential” unless they fall within one 

of the statute’s narrowly drawn exceptions. I.R.C. § 6103(a).

At first blush, the IRC stands in tension with the Freedom 

of Information Act (FOIA), which vests the public with a broad 

right to access government records. 5 U.S.C. § 552(a)(3)(A). 

One statute demands openness; the other privacy. But as we 

explain infra, the statutes work well together. Not all records 

are subject to FOIA requests. An agency need not disclose 

records “specifically exempted from disclosure by statute.” 

Id. § 552(b)(3). Because the IRC is such a statute, records that 

fall within its confidentiality mandate are exempt from FOIA. 

This case presents the question whether a member of the 

public—here, a nonprofit organization—can use a FOIA 

request to obtain an unrelated individual’s tax records without 

his consent. With certain limited exceptions—all inapplicable

here—the answer is no. No one can demand to inspect 

another’s tax records. And the IRC’s confidentiality

protections extend to the ordinary taxpayer and the President 

alike. Accordingly, we affirm the dismissal of the Electronic

Privacy Information Center (EPIC)’s lawsuit seeking President 

Donald J. Trump’s income tax records.
3

I. BACKGROUND

EPIC is a nonprofit organization dedicated to focusing 

“public attention on emerging privacy and civil liberties 

issues.” A few months after the 2016 election, EPIC sent the 

IRS a FOIA request seeking President “Donald J. Trump’s 

individual income tax returns for tax years 2010 forward, and 

any other indications of financial relations with the Russian 

government or Russian businesses.” The IRS declined to 

comply with the request for two reasons. First, the requested 

“documents, to the extent that any exist, [] consist of, or contain 

the tax returns or return information of a third party,” which 

“may not be disclosed unless specifically authorized by law.” 

Second, the IRS’s rules require that a request for a third party’s 

tax returns include his consent. See 26 

C.F.R. § 601.702(c)(5)(iii)(C); see also I.R.C. § 6103(c). In 

fact, the IRS does not process a FOIA request that violates its 

rules. Id. § 601.702(c)(4). Because EPIC failed to obtain 

President Trump’s consent, the IRS did not process the request. 

EPIC then sent the IRS a second letter appealing the initial 

denial and renewing its request for President Trump’s abovedescribed tax information. The renewed request invoked 26 

U.S.C. § 6103(k)(3),1 which establishes an exception to the 

general rule that tax returns and return information are

confidential. Under section 6103(k)(3), the IRS may 

“disclose” return information to correct a misstatement of fact, 

if doing so is necessary to serve a tax administration purpose. 

 1 Section 6103(k)(3) provides: “The Secretary may, but only 

following approval by the Joint Committee on Taxation, disclose 

such return information or any other information with respect to any 

specific taxpayer to the extent necessary for tax administration 

purposes to correct a misstatement of fact published or disclosed with 

respect to such taxpayer’s return or any transaction of the taxpayer 

with the Internal Revenue Service.”
4

See I.R.C. § 6103(k)(3). Before releasing records under 

section 6103(k)(3), however, the IRS is statutorily required to

obtain approval from the Joint Committee on Taxation—

composed of members of the Senate Finance Committee and 

the House Ways and Means Committee. See id. § 8002(a). 

EPIC asserted that President Trump made misstatements of fact 

about his tax information and about his audit history. In 

EPIC’s view, releasing the President’s tax returns would 

promote public confidence in the IRS.

Again, the IRS declined to process the request, explaining 

that section 6103 prohibits the release of the requested records 

“unless disclosure is authorized by Title 26.” The second IRS 

letter stated that section 6103(k)(3) “does not afford any rights 

to requesters under the FOIA to the disclosure of tax returns or 

return information of third parties.” The letter concluded by 

telling EPIC “any future requests regarding this subject matter 

will not be processed.” 

EPIC soon sued the IRS. Its complaint advanced three 

claims under FOIA, 5 U.S.C. § 552, and two under the 

Administrative Procedure Act (APA), 5 U.S.C. § 706. The 

FOIA claims fault the IRS for failing to meet statutory 

deadlines for processing record requests (count one), failing to 

segregate nonexempt information (count two) and wrongfully 

withholding the President’s tax returns and information (count 

three). The APA claims assert that the IRS wrongfully 

withheld the President’s tax returns (count four) and failed to 

seek the Joint Committee’s approval (count five). The IRS

moved to dismiss the complaint and the district court granted 

the motion. It dismissed the FOIA claims for failure to 

exhaust administrative remedies and the APA claims for failure 

to state a claim upon which relief can be granted.
5

II. ANALYSIS

We review the district court’s dismissal de novo and may 

affirm its judgment on any basis supported by the record. 

Citizens for Responsibility & Ethics in Washington v. Office of 

Admin., 566 F.3d 219, 221 (D.C. Cir. 2009); Parsi v. 

Daioleslam, 778 F.3d 116, 126 (D.C. Cir. 2015).

A. FOIA CLAIMS

FOIA requires federal agencies to make “records promptly 

available” when a requester files a “request for records which 

(i) reasonably describes such records and (ii) is made in 

accordance with published rules.” 5 U.S.C. § 552(a)(3)(A). 

But an agency need not produce records that “fall within one 

of nine exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 

565 (2011). A FOIA request often seeks a mixture of exempt 

and non-exempt records. For such a request, an agency must 

segregate the non-exempt information from the exempt 

information, disclosing the former but not the latter. 5 

U.S.C. § 552(b) (“Any reasonably segregable portion of a 

record shall be provided to any person requesting such record 

after deletion of the portions which are exempt under this 

subsection”). To withhold records, then, the agency must 

establish that an exemption applies and, for mixed requests, 

must still disclose “all reasonably segregable, nonexempt 

portions of the requested record(s).” Assassination Archives 

& Research Ctr. v. CIA, 334 F.3d 55, 57–58 (D.C. Cir. 2003).

The IRS invokes exemption 3 of FOIA, which allows an 

agency to withhold records “specifically exempted from 

disclosure by statute” if the statute meets certain criteria. 5 

U.S.C. § 552(b)(3). Section 6103(a) of the IRC is an 

exemption 3 provision. Tax Analysts v. IRS, 117 F.3d 607, 

611 (D.C. Cir. 1997) (“That § 6103 is the sort of nondisclosure 

statute contemplated by FOIA exemption 3 is beyond 
6

dispute.”). It mandates that tax “[r]eturns and return 

information shall be confidential” unless they fall into one of 

thirteen tightly drawn categories of exceptions. 2 I.R.C.

§ 6103(a), (c)–(o). We have described the relationship 

between section 6103(a) and FOIA as “entirely harmonious,” 

concluding that tax returns and return information that 

section 6103(a) bars from disclosure are exempt from FOIA. 

Church of Scientology of California v. IRS, 792 F.2d 146, 149 

(D.C. Cir. 1986). At the same time, the thirteen exceptions to 

section 6103(a) allow the IRS to disclose certain tax records, 

id., which records, in turn, are subject to FOIA.

 2 Two exceptions are applicable here. As discussed above, 

section 6103(k)(3) allows for limited disclosure of returns and return 

information if the Joint Committee first approves of the disclosure 

and if the IRS determines that disclosing the records to correct a 

misstatement of fact will serve tax administration. I.R.C.

§ 6103(k)(3). Section 6103(c) permits a third party to request 

another’s tax return or tax information provided the taxpayer 

consents. Id. § 6103(c). It provides: 

The Secretary may, subject to such requirements and 

conditions as he may prescribe by regulations, 

disclose the return of any taxpayer, or return 

information with respect to such taxpayer, to such 

person or persons as the taxpayer may designate in 

a request for or consent to such disclosure, or to any 

other person at the taxpayer’s request to the extent 

necessary to comply with a request for information 

or assistance made by the taxpayer to such other 

person. However, return information shall not be 

disclosed to such person or persons if the Secretary 

determines that such disclosure would seriously 

impair Federal tax administration.

Id. 
7

The district court did not decide whether the IRS had met 

its burden of establishing that President Trump’s tax 

information is exempt from FOIA. Instead, it dismissed 

EPIC’s FOIA claims for failure to exhaust administrative 

remedies. Although we agree with the district court’s bottomline determination that EPIC is not entitled to relief, we take a 

different path to get there. Skinner v. U.S. Dep’t of Justice & 

Bureau of Prisons, 584 F.3d 1093, 1100 (D.C. Cir. 2009) 

(“[T]his court can ‘affirm a correct decision even if on different 

grounds than those assigned in the decision on review.’” 

(quoting Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 376 

(D.C. Cir. 2000), overruled on other grounds, Davis v. U.S. 

Sentencing Comm’n, 716 F.3d 660 (D.C. Cir. 2013))). As 

explained infra, exhaustion does not bar review of EPIC’s 

FOIA claims. Because EPIC requested only records that are 

in fact exempt from FOIA, however, we affirm on the merits 

the dismissal of the three FOIA claims.

1. ADMINISTRATIVE EXHAUSTION

The doctrine of administrative exhaustion applies to FOIA 

and limits the availability of judicial review. Oglesby v. U.S. 

Dep’t of Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990). A FOIA 

requester must complete the “statutory administrative appeal 

process, allowing the agency to complete its disclosure process 

before courts step in.” Id. at 65. “Although exhaustion of a 

FOIA request ‘is not jurisdictional because the FOIA does not 

unequivocally make it so,’ still ‘as a jurisprudential doctrine, 

failure to exhaust precludes judicial review if the purposes of 

exhaustion and the particular administrative scheme support 

such a bar.’” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 

2004) (per curiam) (citations omitted) (quoting Hidalgo v. FBI, 

344 F.3d 1256, 1258–59 (D.C. Cir. 2003)).
8

This is not the ordinary exhaustion case in that the IRS 

does not claim that EPIC neglected to file an administrative

appeal. Nor could it. EPIC appealed the denial of its FOIA 

request by letter dated March 29, 2017. Instead, the IRS 

argues that EPIC’s requests violated its “published rules.” 

The IRS reads its regulations as requiring that a FOIA requester 

establish his entitlement to records—in other words, establish 

that the requested records are not exempt—before the IRS has 

any processing duty. Because EPIC failed to supply either 

President Trump’s consent or the Joint Committee’s approval, 

the IRS contends that EPIC did not establish its “entitlement” 

to the requested records, a violation, by its lights, of 26 C.F.R 

§ 601.702(c)(4)(i)(E) 3 or 26 C.F.R § 601.702(c)(5)(iii)(C). 4

That violation, according to the IRS, left EPIC’s administrative 

remedies unexhausted.

As a starting point, we believe the IRS misunderstands its 

FOIA disclosure obligations. FOIA unambiguously places on 

an agency the burden of establishing that records are exempt. 

5 U.S.C. § 552(a)(4)(B); Assassination Archives & Research 

Ctr., 334 F.3d at 57–58. To withhold records, then, the IRS 

must establish that a requester seeks “returns” or “return 

 3 Section 601.702(c)(4)(i)(E) states: “The initial request for 

records must . . . [i]n the case of a request for records the disclosure 

of which is limited by statute or regulations (as, for example, the 

Privacy Act of 1974 (5 U.S.C. 552a) or section 6103 and the 

regulations thereunder), establish the identity and the right of the 

person making the request to the disclosure of the records in 

accordance with paragraph (c)(5)(iii) of this section.”

4 Section 601.702(c)(5)(iii)(C) provides, in relevant part, that 

“[i]n the case of an attorney-in-fact, or other person requesting 

records on behalf of or pertaining to other persons, the requester shall 

furnish a properly executed power of attorney, Privacy Act consent, 

or tax information authorization, as appropriate.”
9

information” subject to the section 6103(a) bar on disclosure. 

The IRS maintains that its “published rules,” however, shift 

that burden to the FOIA requester. See 26 

C.F.R. § 601.702(c)(4)(i)(E), (c)(5)(iii)(C). Granted, FOIA 

allows an agency to establish “published rules” governing “the 

time, place, fees (if any), and procedures to be followed” in 

making a FOIA request. See 5 U.S.C. § 552(a)(3)(A). But 

the IRS’s above-quoted rules do not speak to these purposes; 

instead they address a requester’s substantive right to records. 

And FOIA specifically places on the agency the burden of 

establishing that its records are exempt. Id. § 552(a)(4)(B). 

Neither an agency’s “published rules” nor its regulations can 

modify the Congress’s clear command. Chevron, U.S.A., Inc. 

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)

(“If the intent of Congress is clear, that is the end of the matter; 

for the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.”). Thus, the 

IRS cannot disregard the plain statutory text and apply its 

regulations in a way that forces a requester—like EPIC—to 

establish that records are not subject to section 6103(a)’s 

disclosure bar.

Even assuming that EPIC’s failure to meet the IRS’s 

above-quoted rules counts as a failure to exhaust, exhaustion 

would not apply here. See Wilbur, 355 F.3d at 677 (FOIA’s 

exhaustion bar inapplicable to requester who filed untimely 

administrative appeal but agency nonetheless considered 

appeal). Exhaustion applies only if its underlying purposes 

“support such a bar.” Id. (quoting Hidalgo, 344 F.3d at 1258–

59)). The purposes of exhaustion include “preventing 

premature interference with agency processes, . . . afford[ing]

the parties and the courts the benefit of [the agency’s]

experience and expertise, . . . [and] compil[ing] a record which 

is adequate for judicial review.” Hidalgo, 344 F.3d at 1259 

(all but fifth alteration in original) (quoting Ryan v. Bentsen, 12 
10

F.3d 245, 247 (D.C. Cir. 1993)); see also Harry T. Edwards et 

al., Federal Standards of Review 145 (2d ed. 2013) (discussing 

purposes of non-jurisdictional exhaustion). 

None of the purposes of exhaustion supports barring 

judicial review of EPIC’s claims. The IRS denied EPIC’s 

initial FOIA request, notifying EPIC that its request was closed 

“as incomplete.” EPIC faxed the IRS a letter “constitut[ing] 

an appeal and renewed request for disclosure of President 

Donald J. Trump’s tax returns.” The letter fully explained the 

basis of EPIC’s disagreement with the IRS’s initial 

determination. In response, the IRS again rejected EPIC’s 

arguments and notified it that “any future requests regarding 

this subject matter will not be processed.” The IRS’s response 

manifests that the administrative process had run its course. 

EPIC gave the IRS the opportunity to reconsider its position 

and bring its expertise to bear. Cf. Oglesby, 920 F.2d at 64

(“Allowing a FOIA requester to proceed immediately to court 

to challenge an agency’s initial response would cut off the 

agency’s power to correct or rethink initial misjudgments or 

errors.”). Its letter explained that section 6103(k)(3) provides 

EPIC’s entitlement to records, obviating any need for President 

Trump’s consent. The letter also set forth detailed allegations 

about President Trump’s misstatements of fact, asserting that 

“the IRS must exercise its power under § 6103(k)(3).” In 

short, EPIC followed the administrative appeal process to the 

limited extent the IRS allowed and was repeatedly met with a 

closed door. Accordingly, we conclude that exhaustion does 

not bar review of EPIC’s FOIA claims. Accord Hull v. IRS, 

U.S. Dep’t of Treasury, 656 F.3d 1174, 1179–83 (10th Cir. 

2011) (declining to apply exhaustion where IRS determined 

FOIA requester violated its published rules and rejected 

administrative appeal).
11

2. THE MERITS

The IRS urges us to affirm the district court’s dismissal on 

the alternative ground that counts one through three of the 

complaint fail to state a claim upon which relief can be granted. 

See Fed R. Civ. P. 12(b)(6). In particular, the IRS argues that 

EPIC’s requests seek only those records that are exempt from 

FOIA and thus EPIC’s FOIA claims fail. 

To survive dismissal, a plaintiff must “plead ‘enough facts 

to state a claim to relief that is plausible on its face’ and to 

nudge his claims ‘across the line from conceivable to 

plausible.’” Abbas v. Foreign Policy Grp., LLC, 783 F.3d 

1328, 1338 (D.C. Cir. 2015) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). In evaluating the IRS’s 

argument, we accept as true all factual allegations in EPIC’s 

complaint. Kassem v. Washington Hosp. Ctr., 513 F.3d 251, 

253 (D.C. Cir. 2008). A successful FOIA claim has three 

elements. The requester must establish (or, at this stage, 

plausibly allege) that the agency has (1) improperly (2) 

withheld (3) agency records. Kissinger v. Reporters Comm. 

for Freedom of the Press, 445 U.S. 136, 150 (1980). The 

second and third elements are not in dispute. President 

Trump’s tax returns and return information are “agency 

records.” See generally Forsham v. Harris, 445 U.S. 169, 

179–87 (1980) (discussing the definition of “agency records”). 

And the IRS withheld them. EPIC’s success, then, turns on 

whether the IRS’s withholding of those records is in error. 

The IRS asserts the records EPIC requests are, in their 

entirety, exempt from disclosure. As noted earlier, section 

6103(a) of the IRC is an exemption 3 provision and records 

falling within its confidentiality mandate are exempt from 

FOIA. See Tax Analysts, 117 F.3d at 611. But section 

6103(a) is limited in scope. Not all IRS records constitute tax 
12

returns or return information. E.g., id. at 616 (legal analysis 

included in IRS Field Service Advice Memoranda does not 

constitute “return information”). And some records that do 

constitute tax returns or return information can fall within 

exceptions to section 6103(a). E.g., I.R.C. § 6103(c) 

(requester may obtain third party’s tax records if third party 

consents); see also id. § 6103(d)–(o). 

In challenging the IRS’s denial decisions as erroneous, 

EPIC offers two theories. First, notwithstanding the IRS’s 

categorical non-disclosure, some of the requested information 

(although EPIC never specifies which portions) allegedly does 

not qualify as “returns” or “return information,” id. § 6103(a), 

and thus the IRS violated its duty to segregate and disclose any 

non-exempt records, see Assassination Archives & Research 

Ctr., 334 F.3d at 57–58. Second, the requested information 

allegedly falls under an exception to the section 6103(a) 

disclosure bar and therefore the IRS wrongfully withheld nonexempt documents. Neither of EPIC’s theories works.

A. SEGREGATION OF NON-EXEMPT RECORDS

We start with its first theory. Section 6103(a) bars the 

disclosure of tax “[r]eturns and return information.” I.R.C.

§ 6103(a).5 The first category, “returns,” is defined in section 

 5

 I.R.C. § 6103(a) provides: 

Returns and return information shall be confidential, 

and except as authorized by this title—

(1) no officer or employee of the United States,

(2) no officer or employee of any State, any local 

law enforcement agency receiving information 

under subsection (i)(1)(C) or (7)(A), any local child 
13

6103(b)(1). 6 The second category, “return information,” 

includes (among other things): “a taxpayer’s identity, the 

nature, source, or amount of his income, [and] . . . whether the 

taxpayer’s return was, is being, or will be examined or subject 

to other investigation or processing.” Id. § 6103(b)(2)(A). In 

its request, as noted earlier, EPIC “sought Donald J. Trump’s 

 

support enforcement agency, or any local agency 

administering a program listed in subsection 

(l)(7)(D) who has or had access to returns or return 

information under this section or section 6104(c), 

and

(3) no other person (or officer or employee thereof) 

who has or had access to returns or return 

information under subsection (e)(1)(D)(iii), 

subsection (k)(10), paragraph (6), (10), (12), (16), 

(19), (20), or (21) of subsection (l), paragraph (2) or 

(4)(B) of subsection (m), or subsection (n),

shall disclose any return or return information 

obtained by him in any manner in connection with 

his service as such an officer or an employee or 

otherwise or under the provisions of this section. 

For purposes of this subsection, the term “officer or 

employee” includes a former officer or employee.

6 I.R.C. § 6103(b)(1) provides: 

The term “return” means any tax or information 

return, declaration of estimated tax, or claim for 

refund required by, or provided for or permitted 

under, the provisions of this title which is filed with 

the Secretary by, on behalf of, or with respect to any 

person, and any amendment or supplement thereto, 

including supporting schedules, attachments, or lists 

which are supplemental to, or part of, the return so 

filed.
14

tax returns for tax years 2010 forward and any other indications 

of financial relations with the Russian government or Russian 

businesses.” The first half of the request seeks tax returns and 

thus is plainly covered by section 6103(a)’s bar. 

But what about EPIC’s request for “any other indications 

of financial relations” with Russian entities? IRS records 

containing the described information could reveal “return 

information,” including the “nature” and “source” of President 

Trump’s income. Id. § 6103(b)(2)(A). As the IRS correctly 

points out, “EPIC has framed its FOIA request in such a way 

that acknowledging the existence of any responsive documents 

would itself violate section 6103 by disclosing whether the 

President has filed income tax returns for the years in question; 

whether the President has Russian income, assets, expenses, 

etc.; and/or whether the IRS was, is, or may be investigating 

the foregoing.” Because any response to EPIC’s requests 

would reveal “[r]eturns [or] return information,” we agree with 

the IRS that section 6103(a) prevented the IRS from complying 

with the requests unless an exception to the disclosure bar 

applied. Id. § 6103(a).

B. SECTION 6103(K)(3) EXCEPTION

As to the second theory—that President Trump’s tax 

records fall within an exception to section 6103(a)’s disclosure 

bar—EPIC identifies only one relevant exception, section 

6103(k)(3). It provides:

The Secretary may, but only following approval 

by the Joint Committee on Taxation, disclose 

such return information or any other 

information with respect to any specific 

taxpayer to the extent necessary for tax 

administration purposes to correct a 

misstatement of fact published or disclosed with 
15

respect to such taxpayer’s return or any 

transaction of the taxpayer with the Internal 

Revenue Service.

Id. § 6103(k)(3) (emphasis added). The IRS letter denying 

EPIC’s second FOIA request explained that section 

“6103(k)(3) does not afford any rights to requesters under the 

FOIA to the disclosure of tax returns or return information of 

third parties.” EPIC disagrees, arguing that upon receiving its 

FOIA request, the IRS had to determine whether to exercise its 

section 6103(k)(3) discretion in favor of disclosure.

Our interpretation of section 6103(k)(3) starts “with the 

plain meaning of the text, ‘looking to the language itself, the 

specific context in which that language is used, and the broader 

context of the statute as a whole.’” Blackman v. D.C., 456 

F.3d 167, 176 (D.C. Cir. 2006) (quoting United States v. 

Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 2002)). Section 

6103(a) makes returns and return information confidential. 

I.R.C. § 6103(a). Section 6103(k)(3) allows the IRS to 

“disclose” the otherwise confidential tax information described 

therein if certain preconditions are met. Id. § 6103(k)(3). 

The preconditions include (1) the IRS’s determination that 

“disclosure” to “correct a misstatement of fact” is necessary to 

serve a “tax administration purpose[]” but only after obtaining 

(2) the Joint Committee on Taxation’s approval.7

 Id. Unless 

the two preconditions are met, section 6103(k)(3) provides no 

exception from section 6103(a)’s disclosure bar.

 7 EPIC also challenges as unconstitutional section 6103(k)(3)’s 

requirement that the IRS seek Joint Committee approval. Because 

we decide that EPIC has no right to records under section 6103(k)(3), 

we need not decide whether (k)(3)’s approval clause passes 

constitutional muster. 
16

The statute leaves undefined when the IRS must disclose 

records under section 6103(k)(3) and to whom. It does not 

speak to a request for disclosure, whether under FOIA or 

otherwise. It instead grants the IRS discretion to disclose 

certain information if the above-described preconditions are 

met. Even if the preconditions are met, however, the IRS may 

nonetheless choose not to disclose information. E.g., Anglers 

Conservation Network v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 

2016) (“may” generally grants discretion and does not create a 

duty to act); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“may” 

is “permissive”). In other words, there is no IRS duty to 

disclose information under section 6103(k)(3). See Ass’n of 

Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 

335–36 (D.C. Cir. 1987). But the disclosure authority is 

narrower still. Section 6103(k)(3) instructs the IRS to disclose 

information only “to the extent necessary for tax administration 

purposes.” I.R.C. § 6103(k)(3). Moreover, the IRS in its 

discretion can disclose only the information necessary to 

correct a misstatement of fact that was “published or disclosed” 

regarding a taxpayer’s tax “return” or other “transaction with 

the” IRS.8

 Id. 

 8 Our interpretation fits with what little we know about the 

Congress’ purpose in enacting section 6103(k)(3). It created the 

(k)(3) exception as part of the Tax Reform Act of 1976, Pub. L. No. 

94-455, § 1202(a)(1), 90 Stat. 1520, 1667–85. It placed the (k)(3) 

exception in the same statutory subsection as other exceptions that 

“allow the disclosure of tax information for miscellaneous 

administrative and other purposes.” H.R. Rep No. 94-1515, at 480 

(1976) (Conf. Rep.), as reprinted in 1976 U.S.C.C.A.N. 4117, 4184–

85. While the Tax Reform Act of 1976 was pending, the IRS 

Commissioner testified to the House Ways and Means Committee 

about the importance of section 6103(k)(3): “It is extremely 

important to Federal tax administration that [the] IRS be given 

discretionary authority to make limited disclosures necessary to 
17

There is scant history of the IRS’s use of

section 6103(k)(3). The IRC requires the IRS to provide the 

Joint Committee on Taxation an annual report listing (inter 

alia) “requests for disclosure of returns and return information” 

and “instances in which returns and return information were 

disclosed pursuant to such requests or otherwise.” Id.

§ 6103(p)(3)(C). In its 2000 report, the IRS listed “[o]ther 

[d]isclosures” under section 6103(k)(3) as having been made 

“to/for . . . federal agencies.” IRS, Disclosure Report for 

Public Inspection Pursuant to Internal Revenue Code Section 

6103(p)(3)(C) for Calendar Year 2000 3 (2001), available at 

https://www.jct.gov/publications.html?func=startdown&id=2

008. In addition, the Internal Revenue Manual includes 

provisions related to section 6103(k)(3). Internal Revenue 

Manual § 11.3.11.3 (9-21-2015). The provisions make clear 

that the (k)(3) disclosure process begins when “field personnel 

become aware of any situation where a misstatement may 

warrant correction by the IRS.” Id. The Manual describes 

the use of section 6103(k)(3) as “rare” and necessary only if 

“the misstatement will have a significant impact on tax 

administration.” Id. (emphasis added). Other than the 2000 

“disclosure,” the record before us manifests no history of 

disclosures involving the exception and not one case in which 

a FOIA litigant sued the IRS for failing to disclose records 

under it. Indeed, the record before us is silent regarding 

whether the Joint Committee has ever given its (k)(3) approval 

 

protect itself and the tax system against unwarranted public attacks 

on its integrity and fairness in administering the tax laws.” 

Confidentiality of Tax Return Information: Hearing Before the H. 

Comm. on Ways & Means, 94th Cong. 23 (1976) (statement of 

Donald C. Alexander, IRS Comm’r). Consistent with this history, 

we read section 6103(k)(3) as an administrative provision that grants 

the IRS—with the Joint Committee’s approval—discretion to make 

limited disclosures under limited circumstances. Those 

circumstances—at least up to now—do not include a FOIA request.
18

to the IRS. Section 6103(k)(3) is, as the district court aptly put 

it, a “rara avis.”

IRC provisions in pari materia with section 6103(k)(3) 

also manifest that, when the Congress intended to allow for 

public disclosure of IRS records under the exceptions to the 

section 6103(a) disclosure bar, it knew how to do so. For 

example, one exception requires the IRS to disclose or permit 

inspection of a third party’s tax returns if certain individuals 

file a written request. See, e.g., I.R.C. § 6103(e)(1)(E) (“The 

return of a[n] [estate] shall, upon written request, be open to 

inspection or disclosure to . . . the administrator, executor, or 

trustee of such estate, and any heir at law, next of kin, or 

beneficiary under the will, of the decedent, but only if the 

Secretary finds that such heir at law, next of kin, or beneficiary 

has a material interest which will be affected by information 

contained therein . . . .”). Section 6103 includes thirteen 

categories of exceptions to the disclosure bar. See id.

§ 6103(c)–(o). Within those exceptions, there are numerous 

circumstances in which section 6103 authorizes the IRS to 

disclose a return or return information “upon written request” 

from certain government officials or private parties. See, e.g., 

id. § 6103(d)(1), (e)(1), (e)(3), (e)(4), (e)(5), (f)(1), (f)(2), 

(f)(3), (g)(1), (g)(2), (i)(8), (j)(3), (j)(6), (l)(2), (l)(3), (l)(6), 

(l)(8)(A), (l)(12)(A), (l)(13)(A). In light of these subsections,9

we presume that the Congress’s omission of any public right to 

“request” disclosure under section 6103(k)(3) is intentional. 

Cf. Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 

755 (D.C. Cir. 2007) (“[E]xpressio unius est exclusio alterius 

 9 One exception does allow the public to inspect certain return 

information. I.R.C. § 6103(k)(1) (“Return information shall be 

disclosed to members of the general public to the extent necessary to 

permit inspection of any accepted offer-in-compromise”); see also 

id. § 6104 (allowing public inspection of limited records related to 

certain tax exempt organizations and trusts).
19

[means] the mention of one thing implies the exclusion of 

another thing.”). However the other section 6103 exceptions 

work with FOIA, the (k)(3) exception may be sui generis in 

that it affords a FOIA requester no disclosure right. EPIC has 

therefore failed to state a FOIA claim upon which relief can be 

granted and we affirm the district court’s dismissal of counts 

one through three of the complaint. 

B. APA CLAIMS

We next turn to the dismissal of EPIC’s APA claims. The 

APA authorizes a reviewing court to set aside final agency 

action “found to be . . . arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). It also allows the court to compel agency action 

“unlawfully withheld or unreasonably delayed.” Id. § 706(1). 

EPIC advances two APA claims. Count four alleges that the 

IRS unlawfully closed EPIC’s FOIA request and count five 

alleges that the IRS wrongfully withheld agency action by 

failing to seek approval of the Joint Committee on Taxation as 

required by section 6103(k)(3).

1. UNLAWFUL AGENCY ACTION

The APA provides a cause of action only if “there is no 

other adequate remedy in a court.” 5 U.S.C. § 704. “[T]he 

alternative remedy need not provide relief identical to relief 

under the APA, so long as it offers relief of the ‘same genre.’” 

Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (quoting 

El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of 

Health & Human Servs., 396 F.3d 1265, 1272 (D.C. Cir. 

2005)). Applying the “same genre” standard, we have 

expressed “little doubt that FOIA offers an ‘adequate remedy’ 

within the meaning of section 704.” Citizens for 

Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 
20

846 F.3d 1235, 1245 (D.C. Cir. 2017). FOIA offers an 

adequate remedy here. 

Count four challenges the IRS’s “closure” of EPIC’s FOIA 

requests. EPIC’s complaint seeks several forms of relief, 

including an order requiring the IRS to process the FOIA 

requests and to disclose all nonexempt records. It does not 

specify which relief relates to the APA counts and which 

relates to the three FOIA counts. No matter. FOIA 

empowers a reviewing court to “enjoin the agency from 

withholding agency records and to order the production of any 

agency records improperly withheld from the complainant”—

the very relief EPIC seeks. 5 U.S.C. § 552(a)(4)(B). We 

conclude, then, that the district court correctly dismissed count 

four. Citizens for Responsibility & Ethics in Washington, 846 

F.3d at 1246 (dismissing APA claim because FOIA provided 

adequate remedy). 

2. UNLAWFULLY WITHHELD AGENCY ACTION

EPIC’s count five fares no better, even assuming that 

FOIA does not provide an adequate remedy for that claim. 

The APA allows a reviewing court to compel agency action 

“unlawfully withheld” under narrow circumstances. 5 U.S.C. 

§ 706(1). An agency must have failed to perform a nondiscretionary duty to act. Norton v. S. Utah Wilderness All., 

542 U.S. 55, 64 (2004). “Thus, a claim under § 706(1) can 

proceed only where a plaintiff asserts that an agency failed to 

take a discrete agency action that it is required to take.” Id. 

EPIC claims that the IRS unlawfully withheld agency action by 

failing to seek approval from the Joint Committee for the 

disclosure of President Trump’s tax information. But the IRS 

has no duty to seek Joint Committee approval. As discussed 

above, supra at 16, section 6103(k)(3) gives the IRS discretion 
21

to disclose records but under no circumstances requires the IRS 

to do so.

Finally, EPIC argues that the Internal Revenue Manual 

creates a non-discretionary duty. True enough, an agency can 

create a non-discretionary duty by binding itself through a 

regulation carrying the force of law. Cf. Norton, 542 U.S. at 

65. The Internal Revenue Manual, however, does not do so. 

See Marks v. Comm’r of Internal Revenue, 947 F.2d 983, 986 

n.1 (D.C. Cir. 1991) (per curiam). “It is well-settled . . . that 

the provisions of the [M]anual are directory rather than 

mandatory, are not codified regulations, and clearly do not 

have the force and effect of law.” 10 Id. A non-binding 

document cannot impose on an agency an enforceable duty to 

act. Cf. W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 

1245 (D.C. Cir. 2018). Accordingly, we believe the district 

court correctly dismissed count five. 

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.

 10 In any event, the Internal Revenue Manual provisions related 

to section 6103(k)(3) provide IRS officials with ample discretion to 

determine whether a misstatement “may warrant correction.” 

Internal Revenue Manual § 11.3.11.3 (2015).