The law protecting taxpayers’ rights to privacy—codified in 26 U.S.C. 6103—is a critical underpinning of our voluntary tax system. Under this law, access to tax returns or return information is limited to certain federal employees working on tax issues and certain other authorized persons. Such information is not to be released to the public or to other unauthorized government officials. Congress considered these protections, which are enforced by civil and criminal penalties, necessary to encourage taxpayers to voluntarily file accurate information about their taxes and to prevent inappropriate use of tax returns or return information. Government records management and retention laws have a different purpose. FRA requires agencies to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency . . . .” The objectives of records management include the maintenance of accurate and complete documentation of the policies and transactions of the federal government, the establishment and maintenance of control mechanisms to prevent the unnecessary creation of records, and judicious preservation and disposal of records. Both NARA and IRS agree that there are inconsistencies between the access restrictions of section 6103 and the provisions of FRA that require NARA to appraise federal records. The legislative history of the National Archives and Records Administration Act of 1984, while acknowledging the conflict, does not resolve it. In 1984, the Department of the Treasury (Treasury) determined that certain provisions of the draft legislation to make NARA an independent agency would allow NARA to review management records that might contain tax returns or return information. Treasury expressed opposition to any overriding of the access restrictions of section 6103, stating that it would endanger taxpayer compliance if NARA were given access to tax returns that were filed with the expectation of confidentiality. Accordingly, the Senate bill was amended to provide that, notwithstanding any provision of the act, no tax returns or return information as defined in section 6103 may be disclosed, except as authorized by that title. The conference report stated that the concern for the confidentiality of tax returns and return information was a legitimate issue that deserved consideration as a separate matter. The report also noted that the conferees were sensitive to the need to protect (1) the confidentiality of tax returns and return information while also protecting the permanent historical records of our government’s actions and (2) the public’s right to know about those actions at some future time. Consequently, the conferees urged NARA, IRS, and other affected agencies to devise a cooperative means to address the issue. The inconsistencies between the laws have resulted in a number of controversies. For example, the Department of Justice’s Office of Legal Counsel (OLC), which provides advice to resolve inconsistencies that arise within the executive branch from differing interpretations of federal statutes, has issued at least three memorandums addressing the section 6103 issue and the transfer of records containing tax returns or return information to NARA. OLC concluded in 1986—its most recent memorandum—that the statutory provisions generally empowering NARA to obtain and open 30-year-old records that are subject to statutory restrictions in 44 U.S.C. 2107 and 2108 do not apply to tax returns and return information, which are strictly protected by section 6103. Title 44 U.S.C. 2107(2) provides that when it appears to the Archivist to be in the public interest, he may direct the transfer to the National Archives federal agency records that (1) have been in existence for more than 30 years and (2) have been determined by the Archivist to have sufficient historical value to warrant their continued preservation. Title 44 U.S.C. 2108 in turn provides that the Archivist is responsible for the custody, use, and withdrawal of records transferred to him, and that such records are subject to the same statutory limitations and restrictions with respect to their examination and use as were applicable to the agency from which the records were transferred. Section 2108 provides further that statutory and other restrictions shall remain in force until the records have been in existence for 30 years, unless the Archivist, by order, having consulted with the head of the transferring agency, determines that for reasons consistent with standards established in relevant statutory laws, such restrictions shall remain in force for a longer period. Referring to its two previous memorandums, OLC advised that section 6103 and its legislative history indicated that such tax records are not to be transferred to NARA. OLC reasoned that the legislative history of section 6103 made it clear that Congress intended no disclosure of tax returns or return information, except in the carefully limited exceptions found in section 6103. Recent concerns raised about IRS’ records management program, as well as allegations that IRS was using the access restrictions of section 6103 to avoid making public records that could be embarrassing to the agency, led Congress to reopen this access issue last year. The conference report accompanying IRS’ 1997 budget directed the two agencies to submit a report to the cognizant committees by March 1, 1997. The report was to include an analysis of outstanding issues and recommendations as to how the disposition of certain IRS records should proceed. NARA and IRS submitted a report on March 17, 1997; however, because of a pending lawsuit the agencies did not provide specific recommendations in their report. The two agencies remained unable to reach agreement on the long-standing issue of access. In an attempt to end the long-standing access to IRS records issue, identical bills were introduced in both the Senate and the House of Representatives in July 1997 as part of the congressional effort to restructure IRS. Both bills provide the Archivist of the United States access to “all records of the Internal Revenue Service for purposes of scheduling such records for destruction or for retention in the National Archives.” Title 44 of the U.S. Code establishes standards and procedures for the creation, management, preservation, and destruction of federal records. These records management standards and procedures are intended to ensure (1) accurate and complete documentation of the policies and transactions of the federal government, (2) control of the quantity and quality of records produced by the federal government, (3) the establishment and maintenance of control mechanisms to prevent the unnecessary creation of records, and (4) the judicious preservation and disposal of records. Under title 44, each federal agency, including IRS, is to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency. Such records are to be designed to furnish the information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency’s activities.To do this, each agency is to establish and maintain an active, continuous records management program that provides effective controls over the creation, maintenance, and use of agency records that are sufficient to (1) document the persons, places, things, or matters dealt with by the agency; (2) facilitate action by agency officials and their successors in office; (3) make possible a proper scrutiny by Congress or other authorized agencies of the government; (4) protect the financial, legal, and other rights of the government and other affected persons; (5) document the formulation of agency policies and decisions; and (6) document important board, committee, or staff meetings. Title 44 also authorizes NARA to provide advice and assistance to federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the federal government, proper records disposition, and economical and effective records management. To fulfill this responsibility, NARA is authorized to inspect the records or records management practices and programs of any federal agency for the purpose of making recommendations for the improvement of the agency’s records management practices and programs. Under 44 U.S.C. 2904, NARA is to report to the appropriate oversight and appropriations committees of Congress on the results of inspections, the responses by agencies to NARA evaluation recommendations, and the estimates of the costs to the federal government resulting from the failure of agencies to implement such recommendations. NARA views the appraisal of federal records as its most important responsibility under title 44. Under 44 U.S.C. sections 3303-3303a and 3314, agency records may only be destroyed pursuant to a records schedule that has been approved by NARA. Accordingly, the head of each agency is to submit to NARA schedules of agency records proposing the time for disposal of those records that do not have sufficient administrative, legal, research, or other value to warrant further preservation. Under section 2107, NARA may direct and effect the transfer to the National Archives of the United States those records that have been in existence for more than 30 years and that the Archivist has determined to have sufficient historical value to warrant their continued preservation. Pursuant to its regulations,NARA is to appraise the records listed on agency schedules to determine which records have sufficient historical value to warrant preservation and transfer to its National Archives and is to approve the disposal of records having only temporary value. Historical records are defined by NARA as those that, among other things, (1) document agency policies, procedures, and decisionmaking; (2) generate widespread attention from the news media; (3) provide information about an agency’s mission, organization, and history; and/or (4) document persons, places, things, or matters dealt with by an agency that contain information with significant research or reference value. It is important to note that NARA’s appraisal process does not equate to public disclosure of federal records. The process of “appraising records” deals with the act of determining the value of records, which is an act involving NARA appraisers and the federal agencies, rather than the separate issue of public disclosure of the records. Organizationally, IRS maintains two records management groups. First, located within the Real Estate Planning and Management Division are the IRS Records Officer and Servicewide records management staff. They are responsible for planning, developing, and establishing standards and guidelines for the agency’s records management program.