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Introduction to the Freedom oflnformation Act (1966)

(5 u.s.c. 552)
President Lyndon Johnson signed the Freedom of Information Act
into law on July 4, 1966. His bill signing statement articulated the delicate
public policy balance that the FOIA was intended to develop between the
citizens and the Federal Government. "A democracy works best when the
people have all the information that the security of the nation permits. No
one should be able to pull the curtains of secrecy around decisions which can
be revealed without injury to the public interest""(July 4, 1966, LBJ).
A. Key concerns of the FOIA
1. That disclosure is the general rule, not the exception.
2. That all individuals have equal rights of access.
3. That the burden be on the government to justify the withholding of a document,
not on the individual who requested it.
4. The individual denied access to documents has a right to seek injunctive relief in
the courts.
5. That there be a change in government policy and attitude.
B. Key Processing Issues
1. Conduct a reasonable file search based on the request.
2. Review documents for reasonably segregable material.
3. Apply "Possession and Control" standards on Non-U.S. Government-Originated
documents.
4. Address processing costs as early as possible, especially for public interest fee
wavers.
5. Coordinate with in house counsel on initial details.
6. Have a response ready within 20 days.
C. Definitions
1. Search
a. All time spent looking.
b. Time to determine if document is responsive.
c. May charge for no records.
d. Not applicable to applying exemptions.
e. Manual or computer.
2. Review
a. Examining for exemptions.
b. Excision time.
c. Does not include resolving law or policy unrelated to exemptions.
d. Chargeable only to commercial requesters.
e. Initial Reviews.

3. Duplication
a. Duplication copy for requesters.
b. Paper copy microfiche, audiovisual.
c. Magnetic tape or disc.
d. Not duplicating for internal use.

1996 Electronic Freedom of Information

Act
....
~

A. Requires that 5 USC (a) (2) records created after November 1, 1996 be
made available to the public by computer telecommunications or other
electronic means.
1. Establishes a new category of (a) (2) record (a) (2) (d). which are records
released under a FOIA request, and which may become the subject of fature FOIA
requests
2. Requires that an index of (a) (2) (D) records be made available to the public by
December 31, 1999

B. Directs an agency to provide a record in any form or format requested if

the record is reproducible in that form or format.
1. Directs agencies to make reasonable efforts to maintain its records in forms or
formats that are reproducible.

C. Requires agencies to search for records in electronic form, unless such

effort would significantly interfere with the agency's automated
information systems.
D. Establishes multi-track processing based on amount of work and or time
required.
1. Allows requesters who don't qualify for the fast track to limit the request in order
to qualify.

E. Established that backlogs are not acceptable circumstance for delay

unless an agency shows reasonable progress in reducing its backlogs.
F. Provides expedited access for compelling need if:
1. A threat to life or safety.

2. A person engaged in disseminating information has an urgency to inform the

public on actual or alleged Federal Government activity.

G. Requires determination be provided within 10 days.

H. Requires that a requester must certify that compelling need is true and
correct.
I. Extends initial requests response time to 20 working days.

J. Requires an estimate of amount of material denied unless such would

harm an interest protected by an exemption.
K. Requires computer redactions be shown on the record if technically
feasible.
L. Changes Annual reporting requirements.
M.

Directs agency to make available to public, reference material or a guide

for requesting information, including:
1. An index of all major information systems.
2. A description of major information and record locator systems maintained by the
agency.
3. A handbook for obtaining information from the agency.

N. Allows for aggregation of request by the same requester or group of

requesters if requests actually constitute a single request because they
involve related matters.
1. Multiple requests involving unrelated matters shall not be aggregated.

0. Advance payment.
1. Cannot collect, unless requester failed to pay in timely fashion (i.e. 30 calendar
days), or fee estimated to exceed $250.00.
2. If fee exceeds $250.00 notify and insure payment ifrequester has no prompt
payment history.

3. If no history of payment, may collect advance payment up to full amount of

estimated charges.
4. Where failed to pay previously, may require full amount owed, plus interest, and
to make advance payment of full amount of estimated new fee.
5. After work is completed, may require payment prior to document release if no
history of payment, or history of bad payment.
6. May not require advance payment after work is done for requesters with history
of prompt payment.

P. Fee Guidance
1. Aggregating Requesters:
a. Attempts to breakup requests below threshold.
b. Time frame and subject matter.
c. Determine if requester is attempting to avoid fees, may aggregate multiple
requests and charge.
2. Debt collection of 1982 (PL 97-365)
a. May charge interest for outstanding fees beyond 30 calendar days.
b. Rate prescribed by title 31 U.S.C. Section 3717.
c. Must send one demand letter and allow 30 calendar days to expire.
d. May submit to finance and accounting office for collection.

Q. Commercial Requesters
1. Commercial purpose, trade, profit interest.
2. Determine use to which requester will put the document.
3. Charges for search, review and duplication.
4. Not entitled to two hours and 100 pages free.

Please read the next three pages from the Department of Treasury Internal
Revenue Service.

Internal Revenue Service

Department of the Treasury

Distnct
Director

300 E. 8th St. Austin. Texas 78701

P.er.son to..Contact:
Y a1ene

Mazur

Telephone Number:

(512) 499-5030
Refer Reply to:

E:DISC:FOIA # 1998-473
Date

~UL

o 6 1998

Dear Mr.
This is in response to your Freedom of Information Act request dated June 18, 1998, and
received in our office on June 22, 1998. We are unable to respond to your request for
information.
While the Freedom of Information Act (FOIA) provides for access by the public to records
maintained by the Federal government, the Statement of Procedural Rules, copy enclosed, sets
forth certain requirements which must be met in order for a request to be processed. As
submitted, your request fails to meet several of these requirements.
A request under the Freedom of Information Act must:

1. be made in writing and be signed by the person making the request;

2. state that it is made pursuant to the Freedom oflnformation Act, or regulations
thereunder;
3. be addressed to and mailed or hand delivered to the Director of the Internal Revenue
Service district where the requester resides, or the office having control of the records;
4. reasonably describe the records;
5. in the case of tax records, establish the identity ofthe requester and the requester's right
to receive the records;
6. set forth the address to which the response is to be sent;
7. state whether the requester wishes to inspect the records or have copies made without
prior inspection;
8. state the requester's agreement to pay for search and reproduction charges; and,

-2-

9. furnish an attestation under penalties of perjury as to the status ofthe requester.

The Statement of Procedural Rules states that the requester must sufficiently identify the
records to which he or she is seeking access. The type of records which are maintained in the
Austin District Office include Criminal Investigation Division, Collection, Examination, and
Appeals administrative case files which originated within the respective divisions. In your
request, please specify the type of records and the tax periods for which you are seeking
information.
Please note that the Freedom of Information Act does not require agencies to respond to
interrogatories. It also does not require agencies to conduct research to determine which
resolution, decision, or statute you are seeking.
To the extent you are seeking records which establish the authority of the Internal Revenue
Service to assess, enforce and collect taxes, please be advised of the following. The Sixteenth
Amendment to the Constitution authorized Congress to impose an income tax. Congress did so
in the Internal Revenue Code. The Internal Revenue Service administers the Internal Revenue
Code. The Code contains information that may be responsive to portions of your request.
Copies of the Code are available in many public libraries. Or, if you choose, you may
purchasse a copy from the National Office Freedom oflnformation Act Reading Room at the
Internal Revenue Service, P.O. Box 795, Ben Franklin Station, Washington, D.C. 20044.
Alternatively, copies of the Internal Revenue Code may be purchased in book stores or read in
public libraries.
As a courtesy, a copy o the Library of Congress publication, #97-59 A, Frequently Asked
Questions Concerning the Federal Income Tax, accompanies this reply.
If the requested documents originated within the Austin District, a perfected request for
information should be submitted to the Disclosure Office at:
300 E. 8th Street
Mail Stop 7000AUS
Austin, Texas 78701

-3-

If you have any questions, please contact the Disclosure Office at (512) 499-5030.

Disclosure Officer
Enclosures

Department of Treasury- IRS

FOIA Response Letter from the IRS

A. Many of us have received this exact letter or a version of it. If you have
been sending out FOIA request then you may have received one of these
letters yourself.
B. The 3rd paragraph down gives you what a request must contain which
needs to be customized to your request.
C. In the first paragraph on page 8 : Important points to remember:
1. Do not ask for interrogatories or in other words you do not ask questions.
2. Do not ask them to do research.
3. You are only to ask for specific documents.

D. Third paragraph: here they are bringing up the 16th amendment, which is
of no concern to most average Americans. Like the Tax cases proclaim,
"The 16th amendment gave congress no new taxing powers."
E. In the FOIA request in question we only asked for certain specific
documents, which are not contained in the code. See first full paragraph
at the top of page 8.
F. This is just one of the many ways they try to side step your request.
G.

For more information order items #110 and #145 on our literature list and
read where they actually teach Disclosure Officers to lie and to send you
the wrong information.

10

The Development ofFOIA 1966-1996

A. The next report, consisting of 36 pages put together by Professor Charles
J. Wichmann III, is one of the best articles we have read concerning the
FOIA development process.
B.

As you read the introduction remember Byron De Beckwith and how he

was framed. Item #126 on our literature list. The FBI actually planted a
bomb in his car then had local cops pull him over and guess what they
found.
1. Remember Ruby Ridge, Idaho where the Government settled with the Weaver
family for 3.1 million dollars out of court.
2. Remember Waco, Texas, and all the lies that the FBI Special Agent Ricks told on
National TV. The list of incidents such as these involving governmental
misconduct is much longer than you think.

C. When you read this section, make sure you have your yellow marker.
1. Be sure to read this section more than once.
2. Don't just skim through this. Mr. Wichmann III spent untold hours putting this
article together to enlighten and educate us. Take advantage of this.

D. This is called background material which is designed to open up your

mind and teach you what you can do if you simply apply yourself.
E.

The FOIA processs is not a flashy overnight "silver bullet" that is going
to cost you thousands of dollars for "hype" promoted by some ex-used
car salesmen. And there are a lot of them out there.

F.

Protect yourself. Don't rely on someone else's paperwork.

11

RIDDING FOIA OF THOSE "lTNANTICIPATED CONSEQuENCES": 1

REPAVING A NECESSARY ROAD TO FREEDO~I
CHARLES J. WICHMANN III
A government by secrecy benefits no one. It injures the people it seeks to serve; it damages
its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and
mocks their loyalty.~
The question, of course, is whether this public expense is worth it ... -~

1.\TRODCCTIO~

I. THE DEVELOPMENT OF FOIA, 1966-1996

A. The Birth of FO!A: Introducing an Era of Open Government

B. The /9 74 Amendments: The Source of Unanticipated Consequences
C The 1986 Amendments: Amending FOIA's Fee Structure Again
II. JUDICIAL ATTEMPTS TO BALANCE STATUTORY COMMA~"DS WITH FISCAL REALITIES
A. Time Extensions: Defining "Exceptional Circumstances" and "Due Diligence"
B. The "Central Purpose" Doctrine: Application to the Privacy Exemptions
III. THE ELECTRONIC FREEDOM OF 11'<rORMATION ACT A~1E};"DME~1S OF 1996
A. -FOIA's Major provisions
73. -FOIA 's Like~v Effect
IV. ADDITIONAL SUGGESTIONS TO STREAMLINE FOIA
A. Rewrning FO!A to Its Roots: Expanding the Central Purpose Doctrine
B. Fee provisions: Let the Agencies Keep tlze ;\.foney
CONCLUSION
FOOTNOTES

INTRODUCTION
On June 10, 1997, Elmer "Geronimo" Pratt, a former leader ofthe Black Panther Party \vho had been
convicted in 1972 of a 1968 murder-robbery, was freed on bail after a California state judge ordered a
new trial.:! The new trial order represented the culmination of more than t\vo decades of appeals and
denied writs.~ Pratt, who has always maintained his innocence, asserted that he was framed by the
Federal Bureau of Investigation (FBI) as part of an attempt to destroy the Black Panthers. 6 The judge
granted Pratt a new trial because his conviction was "tainted by the prosecutor's failure to
reveal that a crucial witness was also a police and FBI informer."~ Critical to Pratt's receiving a new trial
I
'
\vere several requests made under the Freedom oflnforrhation Act (FOIA). :s Pratt's FOIA requests
revealed that Julius Butler, a key prosecution witness \vho had testified that Pratt had confessed to
committing the murder, had provided police and FBI agents with information on the Black Panthers for

9/18/2001

12

almost two and a half years preceding the Pratt trial.~ Since Butler had denied under oath that he had
ever been a police or FBI informant, this information would have enabled Pratt's defense attorneys to
impeach his credibility ..!.Q The effect that this information could have had on Pratt's 1972 trial is
demonstrated by the fact that several jurors in that original trial have since stated that they would not
have voted to convict Pratt if they had known that Butler was an informant..!..!.
Pratt's FOIA requests also turned up FBI documents that showed that FBI director J. Edgar Hoover had
ordered that Pratt and other prominent Panther members be "neutralized." 12 Pratt also discovered
documents that supported his contention that he was in Oakland on the night of the murder. 12 The
impact ofthe documents Pratt and his attorneys procured through FOIA is clear; without FOIA, Pratt
would still be in jail. 14
If Geronimo Pratt's story were the norm, FOIA's usefulness would be beyond debate. For
every one case like Geronimo Pratt's, however, there are many cases like that of Frank Jimenez.
Jimenez, a prisoner at the Oxford Federal Correctional Institution in Wisconsin, has submitted numerou,
FOIA requests which appear to have done nothing but waste the government's time and resources.
Jimenez sought all records held by eight separate executive agencies that were "in any way connected tc
related to or even remotely in reference to his name."~ For example, Jimenez requested the U.S. Postal
Service (USPS) to provide "all records concerning himself regarding mail he received in the states of
Wisconsin and Illinois." 16 Government agencies must undertake a serious search in response to each
FOIA request, and the burden is on the agencies to establish that materials have not been improperly
withheld ..!.?. The USPS, therefore, performed an "exhaustive but unfruitful" search of its records.~
Similarly, Jimenez's request to the Bureau of Alcohol, Tobacco & Firearms (ATF) turned up no
responsive records -- a result which was hardly surprising since the ATF had not been involved in the
investigation or prosecution of Jimenez. 19 The FBI, however, had more difficulty responding to
Jimenez's FOIA request. Citing extremely limited resources and a backlog of 3,080 requests ahead of
Jimenez's, the FBI moved to stay the proceedings to give it until March 2000 to process the request. 20
Unconvinced that Jimenez's request was necessary or urgent, the district court agreed with the FBI that
the
Agency's delay was justifiable and thereby granted the motion to stay the proceedings unti:
March 2000.~
The use ofFOIA by prisoners such as Frank Jimenez and Geronimo Pratt highlights the benefits and
problems of the statute. One ofFOIA's purposes is to enable people to expose government action to "the
light of public scrutiny. "22 In Pratt's case, the government had paid an informant and then improperly
withheld this information which, had it been disclosed at trial, may well have led to an acquittal.
Twenty-five years later, Pratt was able to use FOIA to depose that improper government action and to
use the previously withheld information to regain his freedom. In contrast, Jimenez's experience shows
how FOIA can be abused at enormous cost to American taxpayers and illustrates the delays that can
occur as understaffed federal agencies struggle to respond to requests for information that the agencies
may or may not possess.--'
.,~

This Note surveys recent FOIA cases which illustrate the delays that have come to plague FOIA
administration. In 1996, in an effort to cure these delays and update FOIA for the computer age,
Congress passed the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA). ~ 4 This
of E-FOIA and concludes that congressional attempts to
Note analyzes the major provisions
use administrative changes to reduce delays in FOIA administration are destined to fail as long as
agency FOIA-processing units remain under-staffed and underfunded. Part I begins by briefly sketching

13

the beginnings and intended purposes ofFOIA. It then examines the early amendments to the statute and
discusses how these amendments led to many unanticipated consequences, including enormous
increases in the administrative cost ofFOIA and in the time delays in processing requests. Part I
concludes by discussing the 1986 FOL\ amendments which included changes to FOIA's fee provisions.
Part II evaluates judicial attempts to balance FOIA's requirement of open government with present fiscal
constraints and agency staffing problems. Part III outlines the major provisions ofE-FOIA and explores
how it may affect a typical FOIA case and whether it will help reduce the administrative and financial
burdens of FOIA. Part IV surveys alternative measures that have been suggested by scholars and
legislators for reducing FOIA's cost and agency backlogs. It concludes that none of these measures
would effectively address FOIA's problems while preserving the benefits of a policy of open
government.

I. THE DEVELOPI\'IENT OF FOIA, 1966-1996

A. The Birth of FOIA: Introducing an Era of Open Government

The Freedom of Information Act was born out of concerns about a growing federal bureaucracy that was
not accountable to the electorate 25 and about the "mushrooming growth of Government secrecy."2 6
Early champions of a freedom of information bill recognized the importance of an informed populace in
a democracy, believing that "[f]ree people are, of necessity, informed; uninformed people can never be
free. "27 They saw FOIA as an essential way to ensure
that the government would be open. In
the vanguard of the freedom of information movement was the press, a group that had historically
encountered administrative roadblocks in its quest to inform the public about questionable governmental
practices. 28 Despite the press's traditional role as the public's watchdog, legal complications were
depriving the press of its "most vital raw material" -- public records and proceedings. 29 Frustrated by the
lack of an enforceable legal right to examine public records, reporters had to rely upon "the favorable
exercise of official grace or indulgence or 'discretion."' 3.Q
The Freedom of Information Act of 1966 31 fundamentally changed the way that requests for information
were handled by creating a presumption in favor of disclosure and by requiring agencies to justify any
nondisclosure. 32 Prior to FOIA, the release of governmental records was governed largely by the
Administrative Procedure Act (APA), 33 which required only that public records be made available to
"persons properly and directly concerned," and exempted the nebulous category "information held
confidential for
good cause found." 34 The introduction to FOIA explicitly stated that its
purpose was "to clarify and protect the right of the public to information."~" It required that records be
made available to "any person,"~~ and an agency seeking to withhold a record after 1966 had to show
that the information contained in the record fell within one of nine limited statutory exemptions.-~-:B. The 197-1 Amendments: The Source of Fnanticipated Consequences

Despite the powerful rhetoric employed by proponents of a freedom of information statute, FOIA as
originally enacted was relatively ineffective. 38 Administrative agepcies routinely "delayed responses to requests for documents, replied with arbitrary denials, and overclassified documents to take
advantage of the 'national security' exemption." 39 FOIA began to develop into its present fom1 in 1974,
\vhen Congress amended it in an effort to remedy the perceived deficiencies in the statute's
administration. -t~ The amendments significantly reduced agencies' discretion over whether to release

14

information~_!_ and eliminated inefficiencies in the processing of requests "in order to contribute to the

fuller and faster release of information, which is the basic objective ofthe Act."~ 2 Unfortunately,
Congress did not anticipate a major effect of its alterations: after the 1974 amendments, the number of
FOIA requests skyrocketed. ~ 3 Prior to the changes, Congress had estimated that the new amendments
would cost the government about $50,000 for the first year, and $100,000 for each of the following five
years. 44 The actual costs ofFOIA quickly and dramatically surpassed these conservative estimates. 45 By
1991, FOIA's annual expense totaled $91 million, 46 and in 1992, the figure had increased to $108
million. 47
These dramatic increases came about because of a change in FOIA's fee provisions.~~ Prior to
1974, an agency could charge requesters for the costs of searching for responsive documents, reviewing
documents for exempted information that the agency could then delete, and duplicating the documents
that were to be released. 49 The 1974 amendments limited fees to "reasonable standard charges for
document search and duplication and provide[d] for recovery of only the direct costs of such search and
duplication. n50 The change forced agencies to bear the cost of reviewing documents for exempted
material. This review process is the most expensive part of processing FOIA requests because it often
requires the use of highly trained agency personnel.~ For example, documents requested by prisoners
are typically investigative files that may contain referen~es to a confidential source, 52 or material that, if
released, could reasonably result in an unwarranted invasion of personal privacy. 53 In processing such a
request, someone familiar with the investigation must go through the documents "line by line to delete
those portions, and only those portions, that would disclose a confidential source or come within one of
the other specific exceptions to the requirement of disclosure.'' 54
C. The 1986 Amendments: Amending FOIA 's Fee Structure Again

In an attempt to address FOIA's rapidly escalating costs, Congress passed the Freedom of Information
Reform Act of 1986 (1986 Reform Act), 55 which significantly increased agencies' ability to charge
Hatch, one of the Act's
requesters for the costs ofprocessing requests. 56 Senator Orrin
sponsors, estimated that if agencies could charge commercial requesters for the cost of document
review, the agencies would be able to collect up to $60 million per year in additional fees. 5? The
amendments established a three-tiered fee system, dividing requests into ( 1) requests for commercial
use; (2) non-commercial requests by the news media or by educational or scientific institutions whose
purpose is scholarly or scientific; and (3) all other non-commercial requests. 58 For category ( 1) requests,
agencies may assess charges for document search, duplication, and review.~~ For category (2) requests,
agencies may only assess document duplication charges. 6 For category (3) requests, agencies may
assess search and document duplication charges but not-charges for review. 6 .1 In addition, category (2)
and (3) requesters may not be charged for the first two hours of search time or the first I 00 pages of
duplication. 62 Regardless of which category the request falls into, no fee may be charged if the costs of
collecting or processing the fee would likely exceed the amount ofthe fee.~~ Finally, if a reguester has
previously failed to pay fees in a timely manner or if the agency determines that the fee will' exceed
$250, t1"\e agency may require advance payment ofthe expected fee.~

The 1986 Reform Act also clarified the circumstances under \vhich a fee waiver is appropriate. The
1974 FOIA amendments required documents to be furnished at a reduced rate or at no charge \vhen the
agency determined that doing so was "in the public interest because furnishing the information can be
considered as primarily benefiting the general R'3blic." 65 In interpreting this section, courts had given

agencies broad discretion to determine whether to grant a

fee waiver. 66 The 1986 Reform Act
narrowed the definition of "public interest," so that an agency must grant a fee waiver only when
disclosure of information "is likely to contribute significantly to public understanding of the operations
or activities of the government and is not primarily in the commercial interest of the requester."6= The
Act also changed the standard ofreview so that courts would review an agency's fee waiver
determination de novo. 68
The fee provisions that the 1986 Reform Act established draw the proper balance between keeping
government activities open to the light of public scrutiny and fiscal realities. Requesters \vhose primary
interest in certain government information is commercial should pay the government the entire price of
collecting, reviewing, and disclosing that information. Similarly, requesters whose primary purpose is to
inform the public about governmental activities should be able to procure such information with
minimal costs. Unfortunately, despite these fee provisions, backlogs and delays continue to exist. 69

II. JUDICIAL ATTEMPTS TO BALANCE STATUTORY COMMANDS WITH

FISCAL REALITIES
The inadequacy of congressional attempts to ameliorate the problems surrounding FOIA's
administration, coupled with agencies' inability to handle the huge influx of requests due to woeful
underfunding and understaffing, left the judiciary to sort out the mess. Since the passage ofthe 1974
amendments, courts have granted besieged agencies tremendous time extensions and, relying on early
legislative history, have interpreted FOIA to allow agencies to withhold more information than they
previously could.
A. Time Extensions: Defining "Exceptional Circumstances" and "Due Diligence"

The first case in which a court intervened to permit understaffed federal agencies to take more time to
process FOIA requests was Open America v. Watergate Special Prosecution Force. 70 In Open America,
a public interest group, a law professor, aiJd severallaw._,students sought documents relating to a former
Acting Director of the FBI's role in the Watergate scandal.2.!. After the FBI received the request, it
notified the plaintiffs that there were 5,137 FOIA requests in front oftheirs.72 The district court granted
the plaintiffs' motion to require detailed justification, itemization, and indexing of documents within
thirty days.7 3 The government appealed, arguing that the FBI had exercised "due diligence" in
processing the FOIA requests, but that "exceptional circumstances" existed that prevented it from
processing them within the statutory time limits.?~ In such circumstances, the 1974 FOIA amendments
state, "the court may retain jurisdiction and allow the agency additional time to complete its revie\v of
the records."~
The U.S. Court of Appeals for the D.C. Circuit, citing the language and legislative history of the 1974
FOIA amendments, vacated the district court's order. 76 According to FOIA at that time, an agency that
received a request for information had to determine whether it would grant or deny that request within
ten days. 77 In "unusual circumstances," however, the agency was permitted an additional tep \vorking ,
days. 78 After that period, the requester was deemed to have
exhausted his administrative
remedies2? and could bring an action in district court to compel production of the documents.S 0 The
agency could obtain a stay in the proceedings, ho\vever, and thus gain additional time to revie\v the
records, if it could "show [that] exceptional circumstances exist[ ed] and that the agency [was] exercising
:
due diligence in responding to the request."SI
16

In Open America, the D.C. Circuit examined the legisla~ve history of the 1974 FOIA amendments and
determined that Congress inserted the "exceptional circumstances" language of section 552(a)(6)(C) "as
a safety valve after the protests of the [Ford] administration that the rigid limits of [sections 552(a)(6)]
(A) and (B) might prove unworkable." 82 The court stated that "exceptional circumstances" exist when
an agency "is deluged with a volume of requests for information vastly in excess of that anticipated by
Congress, [and] the existing resources are inadequate to deal with the volume of such requests within the
time limits of subsection (6)(A). " 83 Applied to the facts, the court found that the FBI's expenditure of
$2,675,000 in processing FOIA requests in 1976, a year in which Congress had anticipated that FOIA
would cost the entire government only $100,000, constituted "exceptional circumstances.":).+ It further
found that the agency's use of a two-track system to handle simple and complex requests on separate
"first-in, first-out" bases satisfied the "due diligence" requirement. 85 Since the plaintiffs alleged no urgency or exceptional need for the information they had requested, the court reasoned that a
stay was appropriate. 8 6

More than twenty years later, courts are still struggling with the same problems. In Edmond v. United
States Attomey, 87 a prisoner sued the United States Attorney's Office (USAO) to force the agency to
disclose information responsive to a FOIA request that he had made on August 14, 1992. 88 The
prisoner, Rayful Edmond, Jr., sent a request to the USAO seeking all documents in the possession of the
Drug Enforcement Administration (DEA), the FBI, the United States Attorney, and the United States
Bureau ofPrisons (USBP) which "pertain[ed] to him, mention[ed] his name, or refer[red] to him." 89
Five days later, the USAO notified Edmond that his request would be handled in the order in which it
was received. 90 When Edmond had received no documents by December 1994, he wrote a letter to the
USAO asking about the status ofhis request.2.!. The USAO's response explained that his request would
be handled in its turn but noted that the agency was unable to give a specific date for completion of its
processing of the request. 92 Edmond and the USAO exchanged similar letters in 1995 and 1996. 93
Having received no documents and still in prison, Edmond finally resorted to filing suit in district court
on October 15, 1996.94
The USAO, estimating that the records responsive to Edmond's request consisted of 2,000
pages, and noting that there were thirty-one requests in front of Edmond's, asked the district court for an
additional two years to process his request. 95 The district court held that, based on the record before it,
the USAO had satisfied the "exceptional circumstances" test as defined in Open America.')(, It further
held that the USAO's use of a "first-in, first-out" system satisfied the due diligence requirement. 9 -:The court noted that a stay would not be appropriate if Edmond could make a showing of"exceptional
need or urgency," which the court defined as "potential jeopardy to ... life or personal safety. or to
substantial due process rights." 98 Edmond asserted that the requested documents contained exculpatory
material that would aid him in overturning his criminal Gonviction. 99 The court held, howeYer. that
unless Edmond could "provide an adequate showing" that it \vas likely that the requested documents
contained "materially exculpatory information," he was not entitled to priority'processing of his FOIA
request. !Y-.9 Since Edmond had not made such a showing, he was not entitled to priority processing. 1U. 1
The court was not satisfied, howe"ler, that it would take the government t\vo years to process the thirtyone requests in front of Edmond's. 102 The court therefore granted the government only one additional
year to complete the processing of Edmond's request, "with an opportunity to seek a further extension if
necessary at a later date." I 03
17

Edmond raises several troubling issues concerning the state ofFOIA law. First, Edmond had already
been waiting four and a half years for the information when the district court granted the agency
additional time to respond to the request. 104 While it is true that the
court chose only to grant
the agency a one-year extension, instead of the requested two-year extension, it is troublesome that a
prisoner will be forced to wait over five years to obtain any exculpatory material that the government
might possess. Second, the court's requirement that Edmond make a showing that the requested material
likely contains exculpatory material in order to obtain priority review is nearly impossible to satisfy. It is
absurd to think that a person in Edmond's position would be able to know what possible exculpatory
material might be contained in documents that the government has made an effort to keep secret.
Nonetheless, the court in Edmond reasoned that allowing prisoners to obtain priority processing without
some additional showing would require courts to grant a large number of such requests filed by federal
prisoners, 105 thus negating the "exceptional" nature of the circumstances. 106
Edmond is not unique; other cases have involved even longer delays. In Fox v. United States
Department ofJustice, 107 for example, the plaintiff had requested that the FBI furnish him with all
documents in its possession relating to him. 108 The FBI had located over 300 pages of documents
pertaining to Fox but, citing a backlog of 11,828 requests and Congress's failure to delegate money to
expand the FBI's small staff ofFOIA processors, said that it did not expect to be able to process those
documents until 1999. 109 The court granted the government's motion to stay the case, requiring only that
the FBI
file a status report within a year informing the court of any progress it makes in the
processing of Fox's request. 110
There are strong policy arguments on both sides of the debate over expedited processing for prisoner
FOIA requests. On the one hand, prisoners are among the most litigious classes of citizens in the
country,.!...!...!. and granting their requests priority review without requiring some additional showing that
the requests are likely to uncover exculpatory information could have a crippling effect on the efficient
functioning ofFOIA. On the other hand, uncovering exculpatory material that was improperly withheld
by the government is, perhaps, the quintessential example of why FOIA is needed in a supposedly just
society.~

Long delays in processing FOIA requests have been one of the statute's most serious problems since its
enactment,~ and the delays have continued in the 1990s.~ While courts have routinely granted
extensions -- even though such extensions were intended only for "exceptional circumstances" 115 -their action is an understandable response to agencies that are faced with inadequate resources for
processing FOIA requests. But unfortunately, these long delays increase
public cynicism
towards the government,~ and can occasionally result in serious harm to the disappointed requester. I I'
B. The "Central Purpose" Doctrine: Application to the Pri~acy Exemptions

By granting agencies additional time to process FOIA requests, courts have helped agencies cope with
extensive FOIA backlogs. Courts have also helped agencies by giving them a way to quickly dispose of
certain requests. They have accomplished this latter end through the "central purpose" doctrine, a
judicially created tool designed to alle~iate the problem inherent in balancing the competing concerns of
disclosure under FOIA and personal privacy interests in preventing disclosure. 1~ The cornerstone of the
doctrine was laid by the Supreme Court in 1989, in United States Department ofJustice v.
,
Reporters Committee for Freedom ofthe Press.!J.2. In that case, a CBS news correspondent had sought
the criminal records of organized crime figure Charles Medico and three members of his family. 120
Medico's family business had been investigated by the Pennsylvania Crime Commission for allegedly

18

obtaining several defense contracts through improper ties with a corrupt congressman. 121 The CBS
reporter asserted that information concerning past crimes by Medico would potentially be "a matter of
special public interest." 122 The issue was whether Medico's criminal rap sheet was exempt from
disclosure under FOIA Exemption 7(C), 123 which permits an agency to withhold a document when
disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy."12~
To determine whether the invasion of privacy that would result from disclosure was warranted, the
Supreme Court used a balancing test, weighing Medico's privacy interest against the public interest in
disclosure. 125 The Court refused, however, to give the alleged public interest much weight in the
balance, stating instead that:
[A]lthough there is undoubtedly some public interest in anyone's criminal history,
especially if the history is in some way related to the subject's dealing with a public official
or agency, the FOIA's central purpose is to ensure that the Government's activities be
opened to the sharp eye of public scrutiny, not that information about private citizens that
happens to be in the warehouse of the Government be so disclosed. 126
'

The Court concluded that the public interest in the information sought by the reporter simply fell
"outside the ambit of the public interest that the FOIA was enacted to serve." 127 In the context of the
privacy-public interest balancing test, this requirement that requested information open governmental
activities "to the sharp eye of public scrutiny" has subsequently been referred to as the "central purpose"
doctrine. 128
.
The Court's decision in Reporters Committee, which was not based on any language found in
fundamentally "changed the FOIA calculus." 130 The central purpose doctrine has been
subsequently reaffirmed and expanded. In 1991, the Supreme Court, in United States Department of
State v. Ray,~ extended the central purpose doctrine to FOIA Exemption 6, 132 the other privacy
exemption, which covers "personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy." 133 The Court reaffmned and
strengthened the central purpose doctrine in 1994, in United States Department ofDefense v. Federal
Labor Relations Authority (FLRA), 134 another Exemption 6 case. The Court in FLRA explicitly stated
that when balancing the public interest in disclosure against the potential invasion of privacy, "the only
relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure
would serve the core purpose of the FOIA, which is contributing significantly to public understanding of
the operations or activities ofthe govemment." 135
FOIA, 129

In 1997, the Court, in a per curiam decision, reversed a Ninth Circuit panel and reaffirmed its FLRA
decision.!.:~ Bibles v. Oregon Natural Desert Association (ONDA.) involved a FOIA request to the
Oregon Bureau of Land Management (BLM) for the names and addresses of recipients ofthe BLM's
newsletter._l_.-~2 The Ninth Circuit panel found a "substantial public interest in knO\ving to whom the
government is directing information, or as ONDA characterizes it, 'propaganda,' so that those persons
may receive information from other sources that do not share the BLM's self-interest in presenting
government activities in the most favorable light." 138 The Supreme Court viewed the Ninth Circuit
decision as resting on "a perceived public interest in providing persons on the BLM's mailing list with
additional information," 139 a foundation that was "inconsistent" with FLRA.. 1 ~
Soon after Reporters Committee was decided, the United States Department of Justice Office of
Information and Privacy issued a report concerning the ramifications of that decision on FOIA

19

processing.!..:..!. The Justice Department advised agency FOIA offices that the Court's "new 'core purpose'
public interest standard ... should govern the process ofbalancing interests under Exemptions 6 and 7
(C)." 142 The Supreme Court's terse decision in ONDA reaffirmed the strong signal it sent to lower courts
and government agencies in its earlier decisions, confirming the Court's intention to continue to strictly
enforce the central purpose doctrine. Thus, at least when the privacy exemptions are involved, agencies
may continue to rely on the central purpose doctrine and deny requests that fail the balancing test with
little fear of reversal by the judiciary.l 4 3

III. THE ELECTRONIC FREEDOM OF INFORIHATION ACT Al\IENDl\lENTS OF

1996
In an attempt to address the serious problem of agency backlogs in processing FOIA requests, Congress
passed the Electronic Freedom oflnformation Act Amendments of 1996. 144 While these amendments
have been praised as fmally bringing FOIA into the electronic age, 145 they do not solve all the problems
facing FOIA. 146
Some commentators have argued that E-FOIA will actually increase both the
147
cost ofFOIA
and agency time delays in responding to requests. 148 Even more troublesome is the
potential that this overhaul ofFOIA will require relitigation ofFOIA issues, as agencies try to sidestep
settled FOIA doctrine by citing E-FOIA's alterations to the statutory language. 149
A. E-FOIA 's Major provisions

1. Electronic Reading Rooms: Placing Government Information On-Line. Section 4 ofE-FOIA requires
agencies to make certain records created on or after November 1, 1996, available for public inspection
"by computer telecommunications or ... by other electronic means" within one year of their creation. 150
This provision,
designed to promote access to government information via the Internet} 5 1
creates what Attorney General Janet Reno termed "electronic reading rooms." 152 Ofthe documents
subject to this provision, the type that will be ofmost interest to the general public and that has the
greatest potential for reducing the total number ofFOIA requests are copies of previously released
records that are likely to be the subject of subsequent requests. 153 In the FBI's electronic reading
room, 15 4 for example, documents posted in compliance~:with this provision include information of
popular interest on such topics as Elvis Presley, 155 Julius and Ethel Rosenberg, 156 and various UFO
sightings. 157
Some FOIA observers have argued that this provision will lead to extensive litigation since "a requester
who disagrees with an agency's assessment of the likelihood of future requests may be able to sue to
challenge that assessment." 158 The merits ofthis argument are questionable for two reasons. First, it is
difficult to imagine how an individual would have standing to challenge the agency's assessment, since
the individual would not have suffered any concrete harm as a result of an agency decision not to make a
particular document or set of documents available in electronic reading rooms. 159 Second,
EFOIA leaves to agency discretion the determination ofwhich records are likely to become the subject of
repeated requests. 160 Since courts have historically shown great deference to the exercise of agency
discretion in the context of FOIA}~.!. any challenge to an agency determination likely \vill be
unsuccessful.
Critics also argue that agencies may divert resources to publishing older, preYiously released documents
20

at the expense of processing current requests. 162 This argument cynically assumes that agencies will act
in bad faith and will actively attempt to delay FOIA processing. The merits of this viev. are questionable
given the Clinton administration's efforts to encourage open government. In 1993, after the dismal FOIA
performance record of the Reagan and Bush administrations, 163 President Clinton signaled a desire to
reverse the trend. In a memorandum to department and agency heads, he made it clear that "[t]he
existence of unnecessary bureaucratic hurdles has no place in [FOIA's] implementation." 16 ~ In 1997,
following the passage ofE-FOIA, Attorney General Janet Reno 'Wrote another memorandum to
department and agency heads, reaffirming the administration's position on FOIA. 165 \vnile the Clinton
administration has not earned a perfect FOIA report card,I 66 agencies appear to be moving away from
actively impeding FOIA administration. 16 7
The creation of these electronic reading rooms has a tremendous potential for making
important information readily available to the general public.I 6 S The electronic reading rooms will also
save time and money for agencies, as they will be able to unburden themselves of requests by multiple
persons for similar information. 169 This provision creates a relatively inexpensive and efficient method
of "open[ing] agency action to the light of public scrutiny." 170
2. Specifying the Format of Requested Information. Prior to the passage ofE-FOIA, an agency was
under no obligation to accommodate a requester's preference for a particular format for requested
information. In Dismukes v. Department of the Interior,}}J_ the requester sought to obtain from the
Bureau of Land Management (BLM) a copy of a computer tape which listed the names and addresses of
the participants in six 1982 BLM Simultaneous Oil and .Gas Leasing lotteries. 1 72 The Agency was
willing to make the information available on microfiche, but the requester argued that
the
173
computer tape version would be more convenient for his purposes.
The district court held that release
174
on microfiche was sufficient.
The court stated that the Agency was only required to provide
"responsive, nonexempt information in a reasonably accessible form." 175 The district court's decision
seriously undermined the effectiveness of FOIA in the electronic age. By not releasing information in
the requested format, an agency can substantially decrease the usefulness of the information to the
requester, sometimes effectively denying access to the information. I76 For information-seekers looking
for "trends, abuses and outrages," electronic searching of government material can reduce search times
from days or weeks to hours or minutes. I77
An illustration of how important format can be is the Environmental Working Group's (EWG) request to
the FDA for pesticide monitoring results.~ The EWG, a nonprofit organization, wanted certain data to
enable it to "analyze the variance between levels of toxins that are inherent in imported foods consumed
by infants and children, as compared to adults." I79 The FDA refused to release the data in electronic
form, instead releasing the data in the "umvieldy physical form of [6,000 pages of] paper documents," a
form that was "cumbersome, confusing, and unorganized [sic] for the efficient statistical analysis
necessary for quality scientific research." ISO The EWG was able to complete its project, but only at an
unnecessarily high cost:
The FDA's decision left the EWG with no choice other than to bear the financial
burden of paying a commercial scanning firm to input the pesticide data. Then, the E\VG
had to go through the labor intensive chore of converting the data into suitable electronic
format -- the very format that the FDA maintained all along. IS 1

21

E-FOIA will prevent such inefficiencies from occurring in the future by requiring agencies to provide a
requested record "in any form or format requested by the person if the record is readily reproducible by
the agency in that form or format." 182 This provision was intended to override the holding in
Dismukes, 183 and the new language should increase the usefulness and efficiency ofFOIA.
3. First In/First Out and }yfulti-Track Processing. Courts have permitted agencies to process FOIA
requests on a first in/first out (FIFO) basis. 18-t FIFO processing standing alone is problematic, however,
because simple requests that could be processed rapidly are delayed while earlier, more complex
requests are handled. 185 In the interest of efficiency and speed, some agencies, such as the FBI, have set
up two-track systems -- dividing requests into simple and complex requests -- which are processed on
separate FIFO bases. 186 E-FOIA gives agencies statutory authority to establish such multi-track
systems, but it does not require the establishment of such systems. 187 Since some agencies had already
established multi-track systems, this development is not very momentous; the multi-tracking option in
the statute will, at most, give agencies that do not currently use multi-tracking a reason to consider
whether they might benefit from such a system. While the lack of explicit guidelines has drawn some
criticism, 188 it would be unwise to require all agencies to set up a uniform multi-tracking system since
lengthy delays do not plague every agency. 189 By permitting individual agencies to design their own
systems, E-FOIA allows each agency to tailor a processing system to its distinct needs. For example, an
agency with a severe backlog might want to create three tracks and assign its most experienced
personnel to the track containing the most complex requests. Other agencies with only minor backlogs
might prefer a two-track system, or even a single-track system. Encouraging agencies to set their own
. rules regarding multi-track systems will likely encourage experimentation. Through this
process, agencies will learn which procedures work best, and will be able to borrow from other agencies'
experiences with various systems.
4. Expedited Review. Occasionally, a FOIA requester will have an urgent need for the requested
information, and delays in processing the request can have serious consequences. 190 In response, EFOIA requires agencies to set up a system of expedited processing for cases where the requester
demonstrates a "compelling need." 191 This requirement can be met in one oftwo ways. First, a
compelling need is present when "a failure to obtain requested records on an expedited basis ... could
reasonably be expected to pose an imminent threat to the life or physical safety of an individual." 192
This provision will help minimize the most severe kinds of adverse effects which delays in FOIA can
have on requesters. Furthermore, since it is doubtful tha! many people will be able to meet the
provision's high standard, 193 it is unlikely that the provision will result in serious delays to the
processing of non-expedited requests. Since an agency's denial of a request for expedited review is
subject to judicial review, 194 requesters will likely challenge denials of expedited revie\v in the courts.
But courts should have little trouble absorbing any increased litigation. After all, prior to E-FOIA. courts
were already making
such determinations, albeit at a later stage, when determining whether to
stay proceedings and grant an agency additional time to process a request. 195
Second, for requesters that are "primarily engaged in disseminating information," the compelling need
requirement may be satisfied by a showing of "urgency to inform the public concerning actu_al or alleged
Federal Government activity." 196 The media will be the primary beneficiary ofthis provisioh, and it is
reasonable to expect that reporters will attempt to invoke it frequently. FOL-\ critics have found fault
1
with the statute precisely because it is no longer used primarily by the media to inquire into the activities
of the govemment. 197 While this provision will not prevent non-media requesters from using FOI.-\, and
thus does not directly respond to these critics' concerns, it will give certain media requests preferential

22

procc:ssmg, thereby making FOI.A. work more effectively for the media. Accelerating media access to
information on government activities is a positive development for FOIA. Since one of FOIA's original
reasonable
objectives was to "open agency action to the light ofpublic scrutiny," 198 it is both
and desirable to give preferential treatment to requests that are intended to publicize governmental
activities.
5. Twenty-Day Time Limit. Prior to the passage ofE-FOIA, an agency was required to determine
whether it would comply with a request for information within ten days of its receipt of the request. 199
Agency disregard for the time limits prompted strident criticism from observers such as Senator Patrick
Leahy, author of the Senate version ofE-FOIA. When testifying before the House Subcommittee on
Government Management, Information and Technology of the Committee on Government Reform and
Oversight, Leahy complained:
The current time limits in the FOIA are a joke. Few agencies actually respond to FOIA
requests within the 10-day limit required in the law. Such routine failure to comply with the
statutory time limits is bad for morale in the agencies and breeds contempt by citizens who
expect government officials to abide by, not routinely break, the law. 200
In an attempt to remedy the problem, Congress doubled the statutory time limit from ten days to twenty
days. 201 The expansion ofthe time limit was intended to "help Federal agencies in reducing their
backlog of FOIA requests. "202 Congress's recognition of the need for expanded time limits is
commendable, and the new provision likely will enable agencies with only minor backlogs to process
requests within the statutory limits. 203 Unfortunately, a twenty-day limit is barely more realistic than a
ten-day limit for agencies such as the FBI or the CIA, whose enormous backlogs draw the most
criticism. While these agencies may be able to process some of their smaller, simpler FOIA requests
_ izing a multi-track system, 204 their backlogs are several
within the twenty-day limit by utilmonths long. 205 The FBI receives requests for law enforcement information that may fall within
Exemption 7, 206 and the CIA receives requests for information that may be covered under the National
Security Act and may thus be exempt from disclosure under Exemption 3. 207 The FBI 2.2~ and the CIA
can actively invoke these exemptions to ensure effective law enforcement or to protect national security,
thus necessitating close and extensive review of requested documents. 209 In view of these
circumstances, it is unlikely that the expanded time limits will result in a substantial reduction of these
agencies' backlogs. 210
Furthermore, the new twenty-day limit, like its ten-day predecessor, is rife with exceptions. E-FOIA
maintains the provision for a ten-day extension in "unusual circumstances." 211 If it is unlikely that the
agency will complete processing of the request within that time, the agency must only notify the
requester and give that person the opportunity to limit the scope of the request so that it may be
processed within the time limit. 212 lfthe agency fails to conform to the time limits, irrespective of
v.-hether the requester chose to limit the scope of his request, the requester is deemed to have exhausted
his administrative remedies and may bring suit in federal district court.~ 13 The district court has the
power to allow the agency additional time to process the request, however, if the agency can show that
diligence in responding
"exceptional circumstances exist dnd that the agency is ~xercising due
214
to the request."
Prior to the passage ofE-FOIA, no statutory definition of"exceptional
circumstances" existed, and the term was thus left tb unbridled judicial construction. In an attempt to
constrain what was seen as liberal judicial allowance of significant time extensions for agencies faced
with request backlogs, 215 and to encourage agencies to reduce those backlogs. Congress explicitly stated

23

in E-FOIA that "the term 'exceptional circumstances' does not include a delay that results from a
predictable agency workload of requests under this section, unless the agency demonstrates reasonable
progress in reducing its backlog of pending requests. rrl1 6
The new statutory language was intended to limit ajudge's ability to give an agency additional time to
respond to a request absent truly extraordinary circumstances, and thereby to coerce agencies into
reducing their backlogs of requests. 217 The new statutory language is loose enough, however, to enable
judges to continue to grant time extensions to beleaguered agencies.~ While this reality is contrary to
congressional intent, it is both unavoidable and desirable in view of the currently inadequate levels of
agency funding for FOIA request processing. It would be problematic if a judge were forced by statute
to compel disclosure of requested documents without giving the agency adequate time to review the
documents to ensure that they do not contain exempted material. 219 The risks involved are particularly
severe in regard to material that may contain information that must be kept secret for national security
reasons, 220 or information whose disclosure would result in an invasion ofprivacy.22 1
An application of the new statutory language to the facts of Edmond v. United States
illustrates the ease with which judges could continue to grant time extensions to
underfunded agencies. First, while the statute explicitly states that "the term 'exceptional circumstances'
does not include a delay that results from a predictable agency workload ofrequests," 223 Congress did
not define "predictable agency workload." The district court in Edmond noted that the USAO had
received "a volume of requests for information vastly in excess of that anticipated by Congress." 224 The
judge could easily determine that such an unanticipated volume was not "predictable" under E-FOIA's
language. Second, delays from a predictable agency workload can constitute exceptional circumstances
if the agency "demonstrates reasonable progress in reducing its backlog of pending requests. " 225 The
statute leaves to the courts the job of determining what constitutes "reasonable progress." Courts could
liberally construe this language to give agencies a fair opportunity to process requests. The Edmond
court noted that the USAO had increased its FOIA staff from one to four people. 226 The court could
consider this action to be "reasonable progress" toward reducing the agency's FOIA backlog under the
new language. Tbird, if a FOIA requester had earlier refused to narrow the scope of his request or to
arrange for an alternative timetable, 227 the judge must consider this refusal as a factor in determining
whether "exceptional circumstances" exist. 228 Therefore, unless a requester was willing to narrow the
scope of his request before the suit was filed, E-FOIA gives judges an additional means of granting
liberal time extensions to agencies faced with understaffing and too many FOIA requests.
While it is unfortunate that people will have to be satisfied with less information if they want to receive
it in a timely manner, such a result is unavoidable given-Congress's refusal to allocate sufficient
resources to agencies for FOIA processing.

AttomeT-22

B. E-FOIA 's Likely Effect

Congress passed E-FOIA to accomplish two goals. The first goal, which it largely achieved, was to
"encourage electronic access to Government information." 229 The requirement that agencies release as
much information as possible in the format requested, including on CD-ROM or diskette, was a longoverd~e step. 230 The provisions relating to on-line publication of government information promise to
make information maintained and collected by the government more accessible to a larger segment of
the American public. 231, The second goal, to encourage and assist reduction of agency backlogs of FOIA
requests, will likely prove more elusive. Although increased funding for FOIA processing is the action
most likely to reduce backlogs significantly, 232 such an increase \Vas noticeably absent from the

24

7''
reforms._.).)

The changes the amendments did accomplish will likely have a mixed effect on the backlogs. As
agencies publish more information on the Internet, people will need to turn to FOIA less frequently to
obtain desired information and multiple requests for the same information will certainly be reduced. 234
But FOIA will still continue to be widely used; agency FOIA processing teams will continue to be underfunded and understaffed; and the time requjred to process requests will continue to result in
backlogs. The provisions authorizing multi-tracking will probably speed up the processing of simpler
requests, but the fact that the FBI had a system of multi-tracking in place prior to E-FOIA, 23_.:' yet had
one ofthe worst backlogs, 236 demonstrates that multi-tracking is not a panacea. It remains to be seen
how expedited review will work in practice, because the amendments leave the details to agency
regulations. 237 While the expedited processing provisions may lead to more litigation 23 and may
increase overall delay and costs, 239 their benefits outweigh these drawbacks. Expedited review will
secure rapid access to information for those requesters with the most urgent need for information, and it
will accelerate the media's efforts to provide the public with important information about governmental
activities. Finally, the twenty-day time limit may help agencies with minor backlogs, but it will have
only a minor effect on agencies with the largest backlogs, and congressional attempts to limit the
judiciary's ability to grant these agencies time extensions likely will be ineffective. Thus, since it is
doubtful that E-FOIA will substantially improve the speed at which FOIA requests are processed, more
invasive surgery is required.

IV. ADDITIONAL SUGGESTIONS TO STREAMLINE FOIA

Congressional attempts in the 1970s and 1980s to reduce the cost and delays associated with FOIA were
inadequate. Likewise, it appears that E-FOIA will not substantially accelerate agency processing of
FOIA requests. These failures result from Congress's apparent
. preference for administrative
solutions, such as multi-track processing and expanded time limits. This focus on administrative
improvements shifts the debate away from the underlying cause ofFOIA's problems: a lack of adequate
funding and staffing for agencies' FOIA-processing divisions.
One group of scholars has suggested expanding the central purpose doctrine as a means of making FOIA
more efficient and less costly. 240 Their claim is that this proposal would return the statute to its intended
purpose as a tool for citizens to open governmental operations to the light of public scrutiny. 241 It would
also avoid the need for additional funding. This Part examines this proposal as well as a funding
provision that was in the original Senate E-FOIA bill 242 but that was not included in the final Act. These
proposals are analyzed both for their potential effects on the cost and delays associated with FOIA and
for their ability to conform to an overarching commitment to openness in government.
A. Rt!turning FOIA to Its Roots: Expanding the Central Purpose Doctrine

Anyone may use FOIA to procure non-exempt information for any reason.;~:~ Some critics have
attacked the absence of a purpose requirement because public dollars are not unlimited and other public
~ I
causes may be more deserving. 244 The absence of such a requirement invites abuse, -_4_:- "bring[ ing] into
the system requests that are not
really important enough to be there, [and] crowding out the
genuinely desirable ones to the ~nd of the line. " 246 One possible solution to these problems is to expand
the central purpose doctrine 247 beyond the realm of the privacy exemptions, empo\vering agencies to
apply the doctrine directly to all FOIA requests received. 248 Advocates of a universal central purpose

25

standard argue that it would dramatically reduce the costs and delays currently associated with FOIA. 2-+9
Agencies could use the doctrine to decide quickly whether to deny a request as being outside the scope
of FOIA, or whether to process the request more fully. Supporters argue that the doctrine would help
eliminate FOIA abuses and would help return FOIA to its original purpose of enabling citizens to learn
about the activities of government. 250 Such a proposal is theoretically feasible, given the apparent
willingness within some federal courts to expand the central purpose doctrine beyond the privacy
exemptions. 251 There are, however, several problems with such a proposal.
At a practical level, the current Congress appears to be moving away from limiting the scope of FOIA
and has, in fact, reaffll1I1ed its commitment to universal access to FOIA for any purpose. The findings
accompanying E-FOIA explicitly state that "the purpose of [FOIA] is to ... establish and enable
enforcement ofthe right ofany person to obtain access to the records of[agencies of the Federal
Government], subject to statutory exemptions, for any public or private purpose. " 2 ~ 2 Senator
Leahy explained the fmding as follows:
This finding is intended to address concerns that the reasoning of the Supreme Court in
Department ofJustice v. Reporters Committee and the U.S. Department ofDefense v.
Federal Labor Relations Authority analyzed the purpose of the FOIA too narrowly ....
Efforts by the courts to articulate a 'core purpose' for which information should be released
imposes a limitation on the FOIA which Congress did not intend and which cannot be found
in its language, and distorts the broader import of the Act in effectuating Government
openness. 253
Senator Leahy's comments illustrate his dissatisfaction with the central purpose doctrine. Nonetheless,
the central purpose doctrine will likely survive within its present boundaries because nothing in the
statute expressly prohibits courts from employing the doctrine as part of the privacy exemptions'
balancing tests. 254 The legislative findings, however, may prevent courts from expanding the central
purpose doctrine to other areas ofFOIA, and they send a strong signal that Congress is not likely to limit
the scope of FOIA in the near future.
A second practical problem with the proposed expansion of the central purpose doctrine is that agencies
might exercise a broader power too expansively. Agency determinations would have to be reviewable by
the courts, and this increased litigation would dramatically increase the costs and delays associated with
FOIA -- the very problems such a solution was intended to fix. 255
A final practical problem is that requesters often do not know in advance what their requests
will reveal. Thus, while it is true that FOIA is being use9 by corporate lawyers to conduct industrial
espionage, 256 the information they obtain occasionally reveals hidden governmental abuses: 2::;corporate requesters cannot anticipate these contents until after the agencies have disclosed the material
and the requesters have had the opportunity to examine it. Thus, while such requesters may have selfish
motives for making their requests, the public may benefit from the information as well. \Vhile such
occasional indirect benefits may be difficult to justify given that government resources are limited, 25 S
the proper response to this problem is not to limit the scope ofFOIA; the proper response was made in
1986 when FOIA's fee provisidns were amended to shift the cost of processing primarily commercial
requests to the requester. 259 It is unwise to place limits on who can use FOIA and for what purposes
they can use it, because limiting a basic freedom can end up having the unintended consequence of
hurting those who need it most.~~o Any initial limitation of a freedom facilitates subsequent limitations
of that freedom; it is preferable not to start down that road.

26

Expans10n ot the central purpose doctrine would perform the undesired service of further tipping the
scales toward government secrecy and away from disclosure. 161 The central purpose doctrine
was ostensibly intended to return FOIA to its original purposes. In deciding the central purpose doctrine
cases, however, the Supreme Court ignored one ofFOIA's important original purposes. Section 3 of the
Administrative Procedure Act had required agencies to disclose information only "to persons properly
and directly concerned. " 162 The passage of FOIA in 1966 was specifically intended to eliminate "the
test of who shall have the right to different information. "263 That change was essential to the new
scheme that FOIA established. 264 FOIA represents the basic idea that information in the government's
possession should be made available to anyone for any purpose, unless the information is explicitly
exempted. 165 It is too simplistic to suggest that FOIA has one single, central purpose that should
override this equally important ideal. Limiting the scope ofFOIA also ignores the collateral benefits of
having a broad public disclosure law, such as "ensur[ing] for the individual citizen a sense of
empowerment and control over a government that can at times appear monolithic and imperious." 166 It
ignores the idea that if "information is power, then to deny public ownership of government information
is to deny public control over the government. "267 Limiting the amount of information available through
FOIA does limit, in a sense, the amount of power we have over our government. Since government
resources are not infinite, however, it is proper, in some cases, to place a price on access to certain types
of information. FOIA's current fee provisions appropriately balance the philosophy of open government
with fiscal realities, however, and it would be unwise to expand the central purpose doctrine. 26 8

B. Fee provisions: Let the Agencies Keep the Money

In passing E-FOIA, Congress recognized that inadequate agency resources are one of the primary causes
of delay in FOIA ad.ministration. 269 This is not a novel insight; previous legislators, as well as scholars
and agency heads, have all highlighted the need for more FOIA funding to ensure the effective operation
ofthe statute. 27 Congress attempted to recoup some ofthe costs ofFOIA by amending the statute's fee
structure in 1986. 271 In 1992, agencies spent about $1 OS million processing FOIA requests, and charged
$8 million in fees. 272 Under the current scheme, however, agencies do not keep those fees; the money is
deposited in the Treasury. 273 This fee collection structure does nothing to help agencies process FOIA
requests more rapidly.

In 1996, Senator Leahy introduced a bill that would have permitted agencies to collect a portion of
FOIA fees directly if, looking at all of their requests, they were in "substantial compliance" with FOIA's
time limits. 274 The purpose of the Senate bill was to give agencies an incentive to comply with the
These fee-sharing provisions, however, failed to make it into the final
statutory time limits. 275
draft of E-FOIA. While Senator Leahy had good intentions, his bill would not have been the most
effective solution. First, it would have helped the agencies that needed the least assistance, while the
agencies with the biggest backlogs would not have received the additional money needed to reduce their
backlogs. 276 Second, an agency can be in "substantial compliance" by either providing responsive
documents or by denying requests. 1T Since the stated purpose of the proposed requirement was to
provide agencies with a financial incentive to reduce backlogs, it is possible that agencies would have
denied requests in order to attain "substantial compliance." This would have threatened to shift FOIA's
delicate balance towards initial non-disclosure, an undesirable result. Finally. the administrative costs to
the GAO would tlave outweighed the benefits of the procedure. 278 Under the provision, the GAO might
have been required to conduct a substantial number ofF.OIA audits annually. 2 ~ Since the GAO's
budget, like that of many agencies, has recently been cut, some critics argued that "meeting demands for

27

FOIA audits would diminish the agency's ability to carry out other functions. " 2_S_Q
One positive feature ofthe Leahy proposal is that it required that agencies use the fees collected to
improve their FOIA processing capabilities. 281 That aspect of the Leahy bill could be integrated into a
provision that would allow agencies to keep all the FOIA fees that they collect, irrespective of their level
of compliance with the time limits. 282 This solution would eliminate the expense of agency performance
audits, and, "rather than simply rewarding agencies that already are in compliance with FOIA time
limits, funds [would] become available to those agencies that experience backlogs to assist them in
overcoming their timing problems. n283

CONCLUSION
FOIA is not perfect. It is often used by the "wrong" people for the "wrong" reasons. 284 But the basic
principle underlying FOIA should not be abandoned. In the context of a $1.63 trillion federal budget,~~
the $100 to $200 million that FOIA costs each year is minuscule. When one considers that FOIA
spending is roughly equivalent to federal spending on military bands, 286 FOIA suddenly does not seem
so extravagant and wasteful. Spending $200 million or more on open government is worth the price
even after "the era of big government is over." 287 FOIA..today is very different than its creators could
have imagined; it is indeed "a far cry from John Q. Public finding out how his government works." 288
Still, FOIA serves many valuable purposes, 289 and the lofty rhetoric used by early supporters of open
_
. cretive federal government,
government 290 continues to have merit. The specter of a seespecially one as large and impersonal as the current one, is reasv1i" enough to continue efforts to perfect
the statute. FOIA has many obvious benefits, but there are hidden benefits as well. Simply having a
public disclosure statute in the United States Code "serves as an effective deterrent to government waste,
abuse, and mismanagement." 291 With all of the benefits-- tangible and intangible-- FOIA is worth the
cost. As Judge Patricia Wald observed: "It takes constant vigilance, commitment, and common sense to
make any law work. I hope we as citizens have all these qualities -- in large measure -- to keep the FOIA
around for a long time and to make it work. n292
E-FOIA is illustrative of Congress's adherence to this goal. In passing E-FOIA, Congress demonstrated
both a willingness to adapt FOIA to changing times and a desire to continue searching for ways to make
FOIA more effective. Internet publication of government information will facilitate broad public access
to information without requiring people to bear the added time and expense of making a FOIA request.
E-FOIA's administrative improvements are a small step toward increased efficiency in FOIA processing.
Nevertheless, E-FOIA should not be the final effort to perfect FOIA. Future efforts should be directed at
funding agency FOIA-processing divisions. Only adequate funding will enable agencies to eliminate
backlogs and delay and allow FOIA to reach its full potential.

FOOTNOTES
l.

3.

Antonin Scalia, The Freedom ofInformation Act Has No Clothes, REGULATIO~. ~hr.-Apr.
1982, at 15, 15 (criticizing the Act as "the Taj Mahal of the Doctrine of Unanticipated
Consequences, the, Sistine Chapel of Cost-Benefit Analysis Ignored").
110 CONG. REC. 17,087 (1964) (statement ofSen. Long).
Scalia, supra note l at 17.

28

4.
5.
6.

7.
8.
9.
10.
11.

12.

13.
14.

15.

16.

17.

See William Booth, Ex-Black Panther Freed; After 25 Years. "The Struggle Continues," WASH.
POST, June 11, 1997, at AL
See Edward l Boyer, Larvyer Presses 23-Year Battle on Behalfof"Geronimo" Pratt, LA.
TIMES, Mar. 13, 1997, at B1 [hereinafter Boyer, Larvyer Presses 23-Year Battle].
See Edward J. Boyer, Pratt Strides into Freedom, LA. TIMES, June 11, 1997, at A1 [hereinafter
Boyer, Pratt Strides into Freedom] ("Pratt said he understood that former FBI Director J. Edgar
Hoover and former President Richard Nixon 'launched a program to kill us all. [The Black Panther
Party was) at the center ofthe bull's-eye."'); see also Clarence Page, Commentary, Time for a New
Peek at Old FBI Fifes, CHI. TRIB., Sept. 14, 1997, at 21 ("Pratt always had maintained that the
FBI knew he was innocent because it allegedly haq him under surveillance in Oakland when the
murder occurred in Santa Monica."). M. Wesley Swearingen, a 25-year FBI veteran, supports
Pratt's view, contending that wiretap logs placed Pratt in Oakland at the time of the murder but that
"someone had destroyed these logs." M. WESLEY SWEARINGEN, FBI SECRETS: AN
AGENT'S EXPOS ... 86 (1995).
Booth, supra note~. at Al.
5 U.S.C. 552 (1994 & Supp. II 1996).
See Boyer, Lawyer Presses 23-Year Battle, supra note~. at B 1.
See id.
See Booth, supra note 4, at A 1. The judge who reversed Pratt's conviction noted that the
information about Butler would have enabled Pratt's lawyers to "put the whole case in a different
light." Edward J. Boyer, D.A. Appeals Decision to Release Ex-Black Panther, LA. TIMES, Jan.
31, 1998, at B 1 [hereinafter Boyer, D.A. Appeals].
See Tony Jones, Cochran: Past, Present Future, TRI-STATE DEFENDER, May 10, 1995, at 1A.
A retired FBI agent has corroborated these documents, stating that Pratt was "framed as part of the
FBI's now-defunct counter intelligence program-covert efforts to 'neutralize' what they called
'black hate groups."' Boyer, Pratt Strides into Freedom, supra note~' at AI.
See Booth, supra note~. at Al.
On January 30, 1998, Los Angeles County District Attorney Gil Garcetti appealed Pratt's release,
arguing that "nothing points to Pratt's innocence; everything points to his guilt." Boyer, D.A.
Appeals, supra note 11, at BL The Los Angeles Times characterized Garcetti's decision to appeal
as "unwise" and "a fool's errand." Editorial, Misguided Move Against Pratt, LA. TIMES, Feb. 3,
1998, at B6. Ifthe appeal fails, most legal observers believe that the prosecution will be unable to
win a new trial since Butler has been discredited and the only eye-witness is now dead. See Boyer,
Pratt Strides into Freedom, supra note~. at AI.
Jimenez v. FBI, 938 F. Supp. 21,25 (D.D.C. 1996). Jimenez made FOIA requests to the FBI, the
Drug Enforcement Agency, the U.S. Postal Service, the Bureau of Prisons, the Bureau of Alcohol,
Tobacco & Firearms, the Executive Office of the U.S. Attorney, the U.S. Marshals Service, and
the Criminal Division of the Department of Justice. See id. at 24-25.
!d. at 26.
See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 ( 1989) (citing FOIA's
legislative history to support the Court's holding that the burden is on the government agency); see
also Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (holding that a search is
adequate if it is "reasonably calculated to discover the requested documents"); ~1eeropol v. Meese,
790 F.2d 942, 956 (D.C. Cir. 1986) ("[A] search need not be perfect, only adequate, and adequacy
is measured by the reasonableness of the effort in light of the specific request."); Weisberg v.
United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) ("\Vhat the agency must
show beyond material doubt is that it has conducted a search reasonably calculated to uncover all
relevant documents.").

29

18. Jimenez, 938 F. Supp. at 26.

19. See id.
20. See id. at 31.
21. See id. at 31-32. FOIA permits courts to grant time extensions under certain conditions: "If the
Government can show exceptional circumstances exist and that the agency is exercising due
diligence in responding to the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records." 5 U.S.C. 552(a)(6)(C) (1994).
22. Department of the Air Force v. Rose, 425 U.S. 352,372 (1976).
Legislative and scholarly commentators have focused their criticism on these costs and delays, and
the abuses ofFOIA have engendered debate over the wisdom and merits ofhaving such a freely
available window into the operation of federal agencies. Compare The Electronic Freedom of
Information Improvement Act: Hearings on S. 1940 Before the Subcomm. on Tech. and the Law of
the Senate Comm. on the Judiciary, 99th Cong. 1 (1992) (statement of Sen. Leahy) ("FOIA proves
that the best way to combat the coverups, the mistakes, and the secret policies that undermine faith
in our democratic system is to expose them to public view."), and Jane Kirtley, Freedom of
Information Act-How Is It Working?, COl\tfM. LAW., Fall 1996, at 7, 9 [hereinafter Kirtley,
FOIA] (arguing that oversight by the press and the public "provides the only independent
assurance that the rights of the individual are being preserved"), and Christopher P. Beall, Note,
The Exaltation ofPrivacy Doctrines over Public Information Law, 45 DUKE L.J. 1249, 1299
(1996) ("Access to information ... ensures for the individual citizen a sense of empowerment and
control over a government that can at times appear monolithic and imperious."), with Scalia, supra
note 1, at 19 ("The defects ofthe Freedom oflnformation Act cannot be cured as long as we are
dominated by the obsession that gave them birth-that the first line of defense against an arbitrary
executive is do-it-yourself oversight by the public and its surrogate, the press.").
24. Pub. L. No. 104-231, 110 Stat. 3048 [hereinafter E-FOIA] (codified at 5 U.S.C. 552 (Supp. II
1996)).
25. See Patricia M. Wald, The Freedom ofInformation Act: A Short Case Study in the Perils and
Paybacks ofLegislating Democratic Values, 33 EMORY L.J. 649,650 (1984) (noting that
Congress enacted FOIA at a time when, even before Watergate, the public was suspicious of
government bureaucracy).
26. H.R. REP. NO. 89-1497, at 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2419.
27. Freedom ofInformation: Hearings on S. 1666 and S. 1663 Before the Subcomm. on Admin.
Practice and Procedure of the Senate Comm. on the Judiciary, 88th Cong. 3 (1964) (statement of
Sen. Edward Long); see also HAROLD L. CROSS, THE PEOPLE'S RIGHT TO KNOW:
LEGAL ACCESS TO PUBLIC RECORDS AND PROCEEDINGS xiii (1953) ("Public business
is the public's business. The people have the right to know. Freedom of information is their just
heritage. Without that the citizens of a democracy have but changed their kings."); H.R. REP. NO.
93-876, at 2 (1974) ("An informed public makes the difference between mob rule and democratic
government. If the pertinent and necessary information on government activities is denied the
public, the result is a weakening of the democratic_process and the ultimate atrophy of our form of
government.") (quoting Letter of William L. Dawson)), reprinted in 1974 U.S.C.C.C.A.N 6267,
6268; Letter from James Madison to W.T. Barry (Aug. 4, 1822) ("A popular Government, without
popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or,
perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their O\\TI
Governors, must ann themselves with the power which knowledge gives."), reprinted in THE
COMPLETE !vfADISON 337 (Saul K'. Padover ed., 1953).
28. SeeWald, supra note 25, at 650 & n.4 (discussing the press's frequent encounters with
"government agencies'random, unexplained denials of access to information about crucial

30

29.
30.
31.
32.

33.

34.
35.
36.
37.

decisions, denials which had covered up the mistakes or irregularities of the time").
CROSS, supra note 27, at 4.
!d. at 197.
Pub. L No. 89-487,80 Stat. 250 [hereinafter FOIA] (codified as amended at 5 U.S.C. 552 (1994
& Supp. ll 1996)).
See id. at 251 (codified as amended at 5 U.S.C. 552 (1994 & Supp. II 1996)) ("[E]very agency
shall, upon request for identifiable records ... make such records promptly available to any
person." (emphasis added)). Upon complaint of nondisclosure made to a district court, "the court
shall determine the matter de novo and the burden shall be upon the agency to sustain its action."
!d. From an administrative law perspective, FOIA is unique because of its de novo review ofmany
agency determinations, including the determination that a particular document is exempted under
the statute. See 5 U.S.C. 552(a)(4)(B) (1994 & Stipp. II 1996). Outside ofFOIA, a reviewing
court can normally set aside agency findings and conclusions only if they are "arbitrary,
capricious, [or] an abuse of discretion." 5 U.S.C. 706(2)(A) (1994).
Pub. L No. 79-404, ch. 324, 60 Stat. 237 (1946) [hereinafter APA]. The original APA no longer
exists in recognizable form. After being modified by FOIA, it was replaced when Congress
enacted Title 5 ofthe United States Code. See Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat.
378.
APA, supra note 33, 3(c), 60 Stat. at 238.
FOIA, supra note~. 80 Stat. at 250.
!d. at 251.
See 5 U.S.C. 552(b)(1)-(9) {1994). The exemptions covered documents:
{1) Classified as secret for national defense or foreign policy reasons;
(2) Related solely to internal agency personnel rules and practices;
(3) Specifically exempted from disclosure by another statute;
(4) Containing trade secrets or confidential commercial or financial information;
(5) Containing legally privileged information;
(6) Containing personnel, medical or "similar" files that, if disclosed, would result in an invasion
of privacy;
(7) Involving law enforcement investigations, but only to the extent that disclosure
(A) Would interfere with law enforcement proceedings;
(B) Would deprive a person of a fair trial;
(C) Could result in an invasion of privacy;
(D) Could disclose the identity of a confidential source;
(E) Would disclose law enforcement techniques; or
(F) Could endanger the life or safety of any person;
(8) Involving financial regulatory activities; or
(9) Involving geological information about oil or natural gas wells.
See id.

Six of the nine exemptions have survived to this day with little or no change to their original
language. The exemptions that have undergone siWtificant changes are Exemption 1, which was
amended in 1974 to limit the exemption to classified documents, see Act of Nov. 21, 1974, Pub. L
No. 93-502, 2(a), 88 Stat. 1561, 1563 [hereinafter 1974 Amendments] (codified at 5 U.S.C.
552(b)(1) (1994)); Exemption 3, which was amended in 1976 to add a set of criteria intended to
limit the situations where the exemption could be invoked, see Government in the Sunshine Act,
Pub. L. No. 94-409, 5(b), 90 Stat. 1241, 1247 (1976) (codified at 5 U.S.C. 552(b)(3) (1994));

31

38.

39.

40.
41.
42.
43.

44.

45.

46.
47.
48.
49.
50.
51.
52.
53.
5-l.
55.

and Exemption 7, which was expanded in 1986 to further limit public access to certain
investigatory files, see Freedom oflnformation Reform Act of 1986, Pub. L. No. 99-570, 1802
(a), 100 Stat. 3207-48,3207-48 to 3207-49 [herein~fter 1986 Reform Act] (codified at 5 U.S.C.
552(b)(7) (1994)).
.
See DAVID M. O'BRIEN, THE PUBLIC'S RIGHT TO KNOW: THE SUPREME COURT A1"'D
THE FIRST AMENDMENT 7 (1981) ("Initial administrative compliance with the Freedom of
Information Act was not particularly impressive."); Scalia, supra note 1, at 15 ("The 1966 version
[ofFOIA] was a relatively toothless beast .... ").
Scalia, supra note 1, at 15; see also H.R. REP. NO. 92-1419, at 8-9 (1972) ("The efficient
operation of the Freedom of Information Act has been hindered by five years of foot-dragging by
the Federal bureaucracy.").
See 1974 Amendments, supra note 37, 88 Stat. at 1561.
See O'BRIEN, supra note 38, at 8.
H.R. REP. NO. 93-876, at 1 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6267.
For example, the FBI received 447 FOIA requests in 1974, and 13,875 requests in 1975. See Open
America v. Watergate Special Prosecution Force, 547 F.2d 605, 617 n.3 (D.C. Cir. 1976)
(Leventhal, J., concurring).
See H.R. REP. NO. 93-876, at 9, reprinted in 1974 U.S.C.C.A.N. 6267, 6275. Congress believed
that agencies' operating budgets would be able to absorb most of the costs, including the cost of
searching for the requested information. See id.; see also Eric J. Sinrod, Freedom ofInformation
Act Response Deadlines: Bridging the Gap Between Legislative Intent and Economic Reality, 43
AM. U. L. REV. 325, 334 (1994) (noting that, based on the beliefthat administration ofFOIA
would not entail significant costs, Congress did not appropriate additional resources to fund the
1974 amendments).
In fact, the cost of implementing FOIA in fiscal year 1974 for the FBI alone was $160,000. See
Open America, 547 F.2d at 612. By fiscal year 1976, the actual costs for the FBI totaled
$2,675,000. See id. The FBI was not alone. A single request by a former CIA agent cost the CIA
an estimated $400,000. See Agee v. CIA, 517 F. Supp. 1335, 1342 n.5 (D.D.C. 1981). These sums
had been amassed at individual agencies despite projections that the cost ofFOIA to the entire
government for the period 1976-80 would amount to no more than $500,000. See supra text
accompanying note 44.
See Sinrod, supra note 44, at 334.
SeeS. REP. NO. 104-272, at 21 (1996).
See Scalia, supra note ! at 16.
See id.
1974 Amendments, supra note 37, 1(b)(2), 88 Stat. at 1561 (amended 1986) (emphasis added).
See Onin G. Hatch, Balancing Freedom of Information with Confidentiality for Law Enforcement,
9 J. CONTEMP. L. 1, 8 ( 1983 ); Scalia, supra note 1, at 16.
Such material would be exempt under 5 U.S.C. 552(b)(7)(D).
Such material would be exempt under 5 U.S.C. ~.52(b)(7)(C).
Scalia, supra note !, at 16.
1986 Reform Act, supra note 37, 1803, 100 Stat. at 3207-48 (codified at 5 U.S.C. 552(a)(4)(A)
(1994)). The 1986 FOIA amendments were attached to the Anti-Drug Abuse Act as part of a lastminute addition.1 See Susan L. Beesley & Theresa A. Newman Glover, ~ote, Delelopments Under
the Freedom of Information Acr-1986, 1987 DUKE LJ. 521, 524 (1987). Congress had been
considering a more substantial overhaul ofFOIA, but additional measures died in the Senate after
passing the House. See id. at 523-24.

32

57. See 132 CONG. REC. 26,771 (1986).

58. See 1986 Reform Act, supra note 37, 1803, 100 Stat. at 3207-49 to 3207-50 (codified at 5
U.S. C. 552(a)(4)(A)(ii)(I)-(III) (1994)).
59. See id. (codified at 5 U.S.C. 552(a)(4)(A)(ii)(I) (1994)).
60. See id. (codified at 5 U.S.C. 552(a)(4)(A)(ii)(II) (1994)).
6 I. See id. (codified at 5 U.S.C. 552(a)(4)(A)(ii)(III) (1994)).
62. See id. (codified at 5 U.S.C. 552(a)(4)(A)(iv)(II) (1994)).
63. See id. (codified at 5 U.S.C. 552(a)(4)(A)(iv)(I) (1994)).
6~. See id. (codified at 5 U.S.C. 552(a)(4)(A)(v) (1994)).
65. 1974 Amendments, supra note 37, 1(b)(2), 88 Stat. at 1561. It is perhaps interesting to note that
indigence does not entitle a requester to a fee waiver. See Crooker v. Bureau of Alcohol, Tobacco
and Firearms, 577 F. Supp. 1213, 1216 (D.D.C. 1983) (permitting agency to deny fee waiver
despite claim of indigence where there is no showtng that the public would benefit from
disclosure).
66. See, e.g., Shaw v. FBI, 604 F. Supp. 342, 346 (D.D.C. 1985) (holding that an agency
determination not to waive search fees should be disturbed only if that determination is arbitrary
or amounts to an abuse of discretion).
67. 1986 Reform Act, supra note 37, 1803, 100 Stat. at 3207-50 (codified at 5 U.S.C. 552(a)(4)(A)
(iii) (1994)).
68. See id. (codified at 5 U.S.C. 552(a)(4)(A)(vii) {1994)).
69. See infra text accompanying note 109 (giving recent estimates ofthe backlog and delay at the
FBI).
70.
71.
72.
73.
74.
75.

547 F.2d 605 (D.C. Cir. 1976).

See id. at 608.
See id. Of these, 1,084 were in "various stages of completion." /d.

See id.
See id. at 610.

1974 Amendments, supra note 37, 1, 88 Stat. at 1563 (codified as amended at 5 U.S.C. 552(a)
(6)(C) {1994 & Supp. II 1996)).76. See Open America, 547 F.2d at 610-13, 616.
~
77. See 5 U.S.C. 552(a)(6)(A)(i) (1994). FOIA's time limits were doubled in 1996. See E-FOIA,
supra note 24, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(A)(i) (Supp. II 1996)). These
changes are discussed infra Part III.A.5.

78. See 5 U.S.C. 552(a)(6)(B) (1994). "Unusual circumstances" included:

(i) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;
(ii) the need to search for, collect, and appropriately examine a ,oluminous amount of
separate and distinct records \vhich are demanded in a single request; or
j

(iii) the need for consultation, which shall be conducted with all practicable speed,
\Vith another agttncy having a substantial interest in the determination of the request or
among two or more components of the agency having substantial subject-matter
interest therein.

33

79.
80.
81.
82.

83.
84.
85.

86.

87.
88.
89.

90.
91.

92.

!d. 552(a)(6)(B)(i)-(iii).
See id. 552(a)(6)(C).
See id. 552(a)(4)(B).
!d. 552(a)(6)(C).
.
Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976).
!d. at 616.
See id. at 612.
See id. at 616. But see Mayock v. INS, 714 F. Supp. 1558, 1566 (N.D. Cal. 1989) (holding that a
first-in, first-out processing policy did not constitute "due diligence" because the INS did not
accord priority to requests for information needed for immigration proceedings), rev'd and
remanded sub nom. Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991). A-fayock v. INS was initiall:
decided on summary judgment. The Ninth Circuit reversed and remanded for the resolution of
outstanding issues of fact. See Nelson, 938 F.2d at 1008. After the case was remanded, the parties
entered into a settlement agreement that resulted in changes to FOIA processing practices at the
INS. See infra note 117 (discussing elements of the settlement agreement).
See Open America, 547 F.2d at 614-16. The court recognized that, given the FBI's finite resources,
priority processing of the plaintiffs' request would have necessitated taking personnel away from
other prior requests. See id. at 614. The court was unwilling to order such a reallocation of
resources when the plaintiffs "have alleged no urgency, have alleged no exceptional need, for the
information they seek." !d.
959 F. Supp. 1 (D.D.C. 1997).
See id. at 2.
!d. Edmond is serving an 18-year sentence in fedeFal prison after pleading guilty to distributing a
kilogram of crack cocaine. See Like Son, Like Father; Edmond Gets 18 Years, WASH. POST,
Dec. 18, 1991, at C5. Edmond is the father ofRayful Edmond ill, who is currently serving three
life terms after being convicted in 1989 of running the District of Columbia's largest crack
distribution ring. See id.
See Edmond, 959 F. Supp. at 2.
See id.
See id. The USAO refused to give a specific date was given despite explicit statutory instructions
that required it to do so:
The time limits ... may be extended by written notice to the person making such
request setting forth the reasons for such extension and the date on which a
determination is expected to be dispatched. No such notice shall specify a date that
would result in an extension for more than ten working days.

93.
94.
95.
96.

97.
98.

5 U.S.C. 552(a)(6)(B) (1994).

See Edmond, 959 F. Supp. at 2.
See id.
See id.
1
See id. at 4. Edmond was decided under FOLA. as if stood prior to E-FOIA. The new rules relating
to time limits, discussed infra Part III.A.5, went into effect on Oct. 2, 1997. See E-FOIA. supra
note 24, 12, 110 Stat. at 3054.
See Edmond, 959 F. Supp. at 3.
!d.

34

99. See id.

100. !d. at 4 (internal quotation marks omitted) (quoting Billington v. United States Dep't of Justice,
CIV.A. No. 92-0462-RCL (D.D.C. July 21, 1992)). The court emphasized that a mere "naked
assertion" is not enough. !d.
101. See id.
102. See id.
103./d.
104. Edmond made his initial FOIA request on August 14, 1992. See id. at 2. The district court's order
-was issued on February 27, 1997. See id. at 1.
105. See id. at 4. The court noted that "a mere challenge to a conviction which might subsequently
--release prisoner [sic] from incarcerative status does not warrant an expedited process." !d.
106. See id. Courts have required that a plaintiff establish an "exceptional need or urgency" to get
--prioritization over earlier requests. !d. at 3. This judicial practice was codified by E-FOIA with the
establishment of a system of expedited review. Se~ infra Part ID.A.4.
107. No. CV-94-4622, 1994 WL 923072, at *1 (C.D. Cal. Dec. 14, 1994).
108. See id. Fox asserted that the FBI began investigating him following his participation in a peaceful
--protest against the House Un-American Activities Committee in 1947. See id. As part of this
investigation, FBI agents spoke to his parents. See id. Fox maintained that after his parents learned
of his involvement in the protest, his relationship with them deteriorated. See id. Fox asserts that
he was excluded from the trust left by his parents due to this soured relationship. See id. Prior to
bringing his FOIA suit, Fox had brought a separate action challenging the validity of the trust and
accusing the trustee of misappropriation of $2 million. See id. That court granted summary
judgment in favor of the trustee. See id. According to Fox, he would not have lost that suit if he
had been able to introduce the FBI documents into evidence, and he planned to pursue the action
further. See id.
109. See id. at *1-*2.
110. See id. at *3. The court concluded that expedited process was not warranted in this case because
- - Fox had failed to show how the documents "could substantially change the outcome of the state
court litigation." Jd. at *2.
111. See Julie M. Riewe, The Least Among Us: Unconstitutional Changes in Prisoner Litigation Under
-the Prison Litigation Reform Act of 1995, 47 DUKE L.J. 117, 117 (1997) (noting that "[t]he
federal courts increasingly have been inundated with prisoner litigation").
112. See, e.g., supra notes 4-14 and accompanying text ..( discussing how Geronimo Pratt used FOIA to
- - obtain information that led to his release from prison).
113. See H.R. REP. NO. 104-795, at 23 (1996) (citing agency delay in responding to requests as "the
-single most frequent complaint about the operation ofthe FOIA"), reprinted in 1996 U.S.C.C.A.N.
3448, 3466; see also Robert G. Vaughn, Administrative Alternatives and the Federal Freedom of
Information Act, 45 OHIO ST. L.J. 185, 188 n.24 (1984) (citing a 1983 GAO study which found
that the average time it took to answer a FOIA request that turned up responsive documents was
191 days for the FBI and 270 days for the Office of Information and Privacy).
11-l. SeeS. REP. NO. 104-272, at 16 (1996) (noting that only 28 of75 agencies responding to a
-Department of Justice sul-vey in February 1994 reported no backlog of requests); ~tichael M.
Lowe, Note, The Freedom oflnfomzation Act in 1993-94,43 DUKE LJ. 1282, 1285 (1994)
(reporting that the FBI had a backlog of8,000 FOIA and Privacy Act requests in 1990); Congress
Brings Information Act into Electronic Age, :tvfULTI MEb. & VIDEODISC MO~ITOR. Oct. 1,
1996, available in 1996 WL 8303113 (reporting that the average time for the FBI to process a
FOIA request was 923 days).

35

115. See Edmond v. United States Attorney, 959 F. Supp. 1, 3 (D.D.C. 1997) ("Courts have uniforrn1v
--granted the government reasonable periods of time in which to review FOIA requests when ther~
is a backlog."); Sinrod, supra note 44, at 342 (noting the irony that "the condition of 'exceptional
circumstances' has become the norm").
116. See 142 CONG. REC. S10,894 (daily ed. Sept. 18, 1996) (statement ofSen. Leahy) ("[R]outine
- - failure to comply with the statutory time limits ... breeds contempt by citizens who expect
government officials to abide by, not routinely bre~, the law.").
117. Timely FOIA responses are particularly important to aliens facing deportation proceedings. See
- - Sinrod, supra note 44, at 350. Since discovery is not permitted in deportation proceedings, see
Kulle v. INS, 825 F.2d 1188, 1194 (7th Cir. 1987), aliens often must rely on FOIA to obtain
information from the INS. See Mayock v. INS, 714 F. Supp. 1558, 1560 (N.D. Cal. 1989) ("FOIA
is essentially the only procedure which aliens can use to obtain from the INS information relevant
to their cases."); see also Guevara Flores v. INS, 786 F.2d 1242, 1252 (5th Cir. 1986) (affirming
the denial of a subpoena sought against the INS because the plaintiff "failed to meet her burden of
proving that the materials she sought were essential to her case and otherwise unavailable" (since
FOIA was available to obtain the requested information) (emphasis added)).
An example of the serious consequences that can result from FOIA delays is the case of Hassan
Tehranijam, an Iranian alien who had petitioned for political asylum, fearing persecution if
returned to Iran. See Sinrod, supra note 44, at 351. The immigration judge doubted the
authenticity ofTehranijam's political asylum claim and ordered him deported. See id. Prior to the
deportation order, Tehranijam's attorney had made a FOIA request to the INS for documentation
to support the claim of political persecution, but a large backlog of requests at the INS delayed
processing of his request. See id. Without this needed documentation to support his claim,
Tehranijam was deported. See id. Tehranijam's attorney eventually sued the INS in order to change
its procedures. See Maycock, 714 F. Supp. at 1559-60. That case ended with a settlement
agreement under which the INS instituted some cnanges in its processing of FOIA requests. See
Sinrod, supra note 44, at 353-54. The Mayock settlement agreement included arrangements for
expedited processingof certain time-sensitive requests and a two-track processing system to
separately handle simple and complex requests. See id. at 354-55. These features were included in
E-FOIA, to the effect that certain FOIA requests may receive expedited processing, see infra Part
ill.A.4, and all agencies are authorized to create a multi-track processing system. See infra Parts

m.A.3.
118. See generally Fred H. Cate et al., The Right to Privacy and the Public's Right to Know: The
-"Central Purpose" of the Freedom of Information Act, 46 ADMIN. L. REV. 41, 67-69 (1994)
(defining and discussing the central purpose doctrine); Beall, supra note 23, at 1253-61 (same).
119.489 u.s. 749 (1989).
120. See id. at 757.
121. See id.
122. !d.
123. 5 U.S.C. 552(b)(7)(C) (1994).
124. !d.
125. See Reporters Comm., 489 U.S. at 762.
126. !d. at 774.
.
127. !d. at 775.
1_28. See Cate et al., supra note 11 S, at 67; Beall, supra note 23, at 1258.
129. See United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 507 ( 1994)

36

(Ginsburg, J., concurring).

130. !d. at 505 (Ginsburg, J., concurring); see also Glenn Dickinson, Comment, The Supreme Court's
--Narrow Reading of the Public Interest Served by the Freedom of Information Act, 59 U. CIN. L.
REV. 191,211 (arguing that the Reporters Committee decision shifted the balance away from full
disclosure); Beall, supra note 23, at 1261 (criticizing the central purpose jurisprudence for shifting
the burden to the FOIA requester "and against the underlying principle of disclosure").
131. 502 u.s. 164 (1991)
132. Seeid. at 171,177-79.
133. 5 U.S.C. 552(b)(6) (1994).
13~. 510 U.S. 487 (1994).
135. !d. at 495 (internal quotation marks omitted) (first emphasis added).
136. See Bibles v. Oregon Natural Desert Ass'n (ONDA), 117 S. Ct. 795, 795-96 (1997) (per curiam).
137. See Oregon Natural Desert Ass'n v. Bibles, 83 F.3d 1168, 1169 (9th Cir. 1996), rev'dper curiam,
117 S. Ct. 795 (1997).
138. !d. at 1171.
139. ONDA, 117 S. Ct. at 795.
140. See id.
141. See Privacy Protection Under the Supreme Court's Reporters Committee Decision, FOIA
-UPDATE (Office of Info. and Privacy, U.S. Dep't of Justice), Spring 1989, at 3.
142. !d. at 6.
143. But see infra notes 252-54 and accompanying text (discussing the possible elimination of the
--central purpose doctrine by the 1996 Electronic Freedom of Information Act Amendments).
144. E-FOIA, supra note 24, 110 Stat. 3048. The House noted, in passing these amendments, that the
--"lack of sufficient agency resources has constrained the effectiveness ofthe FOIA." H.R. REP.
NO. 104-795, at 6 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3449.
145. See Statement on Signing the Electronic Freedom oflnformation Act Amendments of 1996,32
-WEEKLY COJ.\1P. PRES. DOC. 1949, 1949 (October 2, 1996) [hereinafter E-FOIA Signing
Statement]. Earlier attempts to expand FOIA to electronic records had failed. See, e.g., Electronic
Freedom of Information Act of 1993, S. 1782, 103d Cong.; Freedom of Information Improvement
Act and the Electronic Freedom of Information Improvement Act, S. 1940, 102d Con g. ( 1991 );
H.R. 2773, 101st Cong. (1989).
146. See Kirtley, FOIA, supra note 23, at 9 (pointing out that E-FOIA does not tackle the problems of
--excessive access fees or the tension between privacy and disclosure in FOIA doctrine).
14 7. See Cate et al., supra note 118, at 73 ("[FOIA's] costs threaten to increase exponentially when the
FOIA is applied to the increasing number of computerized agency records.").
l ~S. See Robert Gellman, I Predict That E-FOL4. Will Slow Down Agency Responses, GOV'T
-COMPUTER NEWS, Nov. 18, 1996, at 27 [hereinafter Gellman, E-FOIA Will Slow Dov.:n Agenc;.:
Responses] (arguing that new procedural requirements will cause agency FOIA operations to slow
down "as agencies spend more time on process and less on actual disclosure").
l-l9. See Mike Feinsilber, Freedom ofInformation Act Updated, COM. APPEAL, Sep~. 22, 1996, at
13A (recounting the concern ofDavid Burnham, co-directorofthe Transactional Records Access
Clearing House, that changing FOIA "will give reluctant federal agencies grounds for ignoring
[past] decisions"). Burnham worries that FOIA requesters "may have tp refight battles that have
already been won." !d.
150. E-FOIA, supra note 24, 4, 110 Stat. at 3049 (codified at 5 U.S.C. 552(a)(2) (Supp. II 1996)). If
an agency does not have the means necessary to publish the materials on the \Veb, the agency

37

would be able to satisfy the requirements of this section by making the records available on CDROM or diskette. See H.R. REP. NO. 104-795, at 20 (1996), reprinted in 1996 U.S.C.C.A.N.
3448, 3463. The records that are to be made available for public inspection by electronic means
are:
(A) fmal opinions, including concurring and dissenting opinions, as well as orders,
made in the adjudication of cases;
(B) those statements of policy and interpret~tions which have been adopted by the
agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staffthat affect a member of the
public;
(D) copies of all records, regardless of form or format, which have been released to
any person ... and which, because of the nature of their subject matter, the agency
detennines have become or are likely to become the subject of subsequent requests
for substantially the same records; and
(E) a general index of the records referred to under subparagraph (D).

E-FOIA, supra note 24, 4, 110 Stat. at 3049 (codified at 5 U.S.C. 552(a)(2) (Supp. II 1996)).
One commentator has erroneously stated that 552(a)(2) requires all records created after
November 1, 1996, to be made available electronically within one year of their creation. See David
MacDonald, Note, The Electronic Freedom ofInformation Act Amendments: A Minor Upgrade to
Public Access Law, 23 RUTGERS COMPUTER & TECH. L.J. 357,375 (1997). Such a
requirement would be nearly impossible for agenc!.es to fulfill and would be an incredible waste of
agency resources.
151. See H.R. REP. NO. 104-795, at 11, reprinted in 1996 U.S.C.C.A.N. 3448, 3454.
152. Attorney General Reiterates FOIA Policy, FOIA UPDATE (Office of Info. and Privacy, U.S.
Dep't of Justice), Spring 1997, at 1 [hereinafter Reno Memo].
153. See E-FOIA, supra note 24, 4, 110 Stat. at 3049 (codified at 5 U.S.C. 552(a)(2)(D) (Supp. II
-1996)).
154. FBI FOIA Electronic Reading Room (visited Apr. 1, 1998) <http://v.ww.tbi.gov 'foipa:
document.htm>.
- -155. See Index oflfoipalelvis (visited Apr. 1, 1998) <http://w,nv.tbi.gov/foip~~-~~is>.
156. See Index oflfoipalrosen (visited Apr. 1, 1998) <http://\nvw.fbi.gov/foipa. ros~~ ?
157. See Index of/foipalufo (visited Apr. 1, 1998) <http:/1\V\\'W.fbi.gov/foipa/ufo/>.
158. Electronic Freedom of Information Improvement: Hearing on S. 1090 Before the Subcomm. on
Gov't Management, Info. and Tech. ofthe House Comm. on Gov't Reform and Oversight, 104th
Cong. 74 (1996) (testimony of Robert Gellman) [hereinafter Gellman Testimony]; see also
MacDonald, supra notejl50, at 382 (arguing that the provision will likely result in an "explosion
of litigation").
159. An agency's assessment would not be aimed at anyone in particular, and an indi\idual would still
-have access to the document through traditional FOIA channels. Cf Lujan v. Defenders of
Wildlife, 504 U.S. 555, 575-76 ( 1992) ("[T)he alle-ged violation of a right to have the Government
act in accordance with law [is] notjudicially cognizable because 'assertion of a right to a particular

38

kind of Government conduct, which the Government has violated by acting differently, cannot
alone satisfy the requirements of Art. III .... "' (quoting Allen v. Wright, 468 U.S. 737, 754
(1984))).
160. See E-FOIA, supra note 24, 4, 110 Stat. at 3049 (codified at 5 U.S.C. 552(a)(2)(D) (Supp. II
-1996)).
161. See supra note 66 and accompanying text (discussing agency discretion in the context of granting
--fee waivers). 162. See MacDonald, supra note 150, at 383 n.164 (arguing that "(a)gencies may find less political risk
--in processing antiquated documents than current and controversial ones"); Gellman Testimony,
supra note 158, at 74.
163. See Jane Kirtley, Public Access to Records Always Under Attack, EDITOR & PUBLISHER
l\1AG., July 7, 1997, at 48 (noting that the Clinton administration "inherited a legacy of entrenched
bureaucratic resistance to openness promulgated during the Reagan and Bush administrations").
164. Memorandum from President Clinton on FOIA to Heads ofDepartments and Agencies (Oct. 4,
1993), reprinted in FOIA UPDATE (Office ofinfo. and Privacy, U.S. Dep't of Justice),
Sununer!Fall 1993, at 3 [hereinafter 1993 Clinton Memo].
165. See Reno Memo, supra note 152, at 1 ("As your department or agency implements the Electronic
- - FOIA amendments, I urge you to be sure to continue our strong commitment to the openness-ingovernment principles that President Clinton and f [have] established .... ").
166. See Open Records Ensure Freedoms, WIS. ST. J., July 4, 1997, at 13A (noting that the Clinton
--administration's record is "mixed," but emphasizing that it is "an improvement upon the policies of
the Reagan and Bush administrations").
167. See Federal Information Policy Oversight: Hearing Before the Subcomm. on Gov't Management,
--Info., and Tech. of the House Comm. on Gov't Reform and Oversight, 104th Cong. 51 (1996)
(statement of J. Kevin O'Brien, Chief, Freedom of Info. and Privacy Acts Section, FBD
[hereinafter O'Brien Testimony] (asserting that the FBI would continue its "best efforts" to reduce
its backlog of unprocessed FOIA requests); Letter from John C. Dwyer, Acting Associate
Attorney General, to The Speaker ofthe United States House of Representatives (July 1, 1997)
(expressing the Clinton administration's "firm commitment" to FOIA and to "its faithful
implementation in [a] strong spirit of government openness"), reprinted in OFFICE OF INFO.
AND PRIVACY, U.S. DEPT OF JUSTICE, DOJ ANNUAL FOIA REPORT TO CONGRESS
1996, available at DOJ Annual FOIA Report to Congress- 1996 (visited Apr. 1, 1998)
<http://W\\-w.usdoj.gov/oip/annual report/1996/96-sp.htm>. There is a risk, of course, that future
administrations will revert to a more restrictive FOIA policy. If that scenario becomes a reality,
the courts could intervene and set reasonable limitations on agency discretion. Agencies would
still be subject to FOIA's time limits, and if, as a result of diverting resources to post previously
released material, an agency took too long responding to newer requests, the courts could compel
disclosure and require the agency to shift resources back to processing current requests.
168. The system is by no means perfect, however. For example, when I examined some FBI
- - information on UFOs, the documents on the screen were barely legible due to the condition of the
original documents. See FBI FOIA Electronic Reading Room. UFO: Section l (visited Apr. 1,
1998) <http://v.--..nv.fbi.gov/foipa/ufo/ufo 1.pdf>.
169. SeeS. REP. NO. 104-272, at 9 (1996) ("Government dissemination of more varieties and greater
- - amounts of its information holdings via [the information] 'superhighway' may reduce the volume
of FOIA requests .... ").
170. Department of the Air Force v. Rose, 425 U.S. 352, 3 72 ( 1976).
171. 603 F. Supp. 760 (D.D.C. 1984).
172. See id. at 760-61.

39

l 73. See id. at 762.

174. See id. at 763.
175. !d.
176. See Ira Chinoy, Amendment Seeks to Open Public Files to Digital Diggers, WASH. POST, Sept.
18, 1996, at A17 (quoting Senator Patrick Leahy, E-FOIA's Senate sponsor, as saying: "In the
society we're in today, you are not going to have the access to what the government is doing in any
practical fashion if you don't have access electronically"); cf Feinsilber, supra note 149, at A13.
Feinsilber discusses the experience of the Miami Herald, which wanted to match the names of
those with permits to carry concealed weapons against a list of school bus drivers. The Herald was
given the requested information under the Florida state FOIA-but on "yards and yards of paper."
The Herald was forced to abandon the project because it could not perform a computer match. See
id.
177. Chinoy, supra note 176, at A17.
178. See Jeffrey Norgle, Comment, Revising the Freedom of Information Act for the Information Age:
The Electronic Freedom ofInformation Act, 14 J. MARSHALL J. COMPUTER & INFO. L. 817,
817-19 (1996).
179. !d. at 817-18 (citations omitted).
180. !d. at 818.
181. !d. at 818-19.
182. E-FOIA, supra note 24, 5, 110 Stat. at 3050 (codified at 5 U.S.C. 552(a)(3)(B) (Supp. II
-1996)).
183. SeeS. REP. NO. 104-272, at 14 (1996).
184. See supra notes 85 & 97 and accompanying text.
185. See H.R. REP. NO. 104-795, at 23 (1996), reprinted in 1996 U.S.C.C.A.N. 3448,3466.
186. See Gellman, E-FOIA Will Slow Down Agency Responses, supra note 148, at 27.
187. See E-FOIA, supra note 24, 7, 110 Stat. at 3050 (codified at 5 U.S.C. 552(a)(6)(D)(i) (Supp. II
1996)) ("Each agency may promulgate regulations ... providing for multi-track processing ...
."(emphasis added)).
-:
188. See, e.g., Gellman, E-FOIA Will Slow Down Agency Responses, supra note 148, at 27 (arguing
-that E-FOIA's multi-track authorization is likely to make "[l]engthy administrative delays" more
commonplace).
189. SeeS. REP. NO. 104-272, at 16 (1996) (noting that 28 of75 agencies responding to a Department
of Justice survey in February 1994 reported no backlog of requests).
190. See supra note 117 and accompanying text.
191. E-FOIA, supra note 24, 8, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(E)(i)(I) (Supp. II
1996)).
192. !d. (codified at 5 U.S.C. 552(a)(6)(E)(v)(I) (Supp. II 1996)).
193. See MacDonald, supra note 150, at 384 ("Only a small nwnber of requesters should be able to
-show that their own or other lives [are] hanging in the balance pending a FOIA request.").
194. See E-FOIA, supra note 24, 8, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(E)(iii) (Supp.
II 1996)).
i
!?5. See supra notes 98-101 and accompanying text.
196. E-FOIA, supra note 24, 8, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(E)(v)(II) (Supp. II
-1996)).
197. See, e.g., Amy E. Rees, Recent Developments Reg~rding the Freedom of Information Act: A

40

"Prologue to a Farce or a Tragedy; or, Perhaps Both," 44 DUKE L.J. 1183, 1184 (1995)
(lamenting the fact that "FOL\ has rarely if ever been used as a powerful external check on
governmental affairs," and noting that "the typical FOIA request is made by a wily civil litigant
circumventing traditional discovery rules, a corporate counsel in search of competitor's financial
information, or a conspiracy theorist demanding operational files of the [CIA] on himself or other
players in covert intelligence maneuvers in Cuba"); Scalia, supra note 1, at 16 ("[FOIA was]
promoted as a boon to the press, the public interest group, the little guy; [it has] been used most
frequently by corporate lawyers .... [The current situation] is a far cry from John Q. Public
finding out how his government works."). Perhaps the most scathing and extensive critique of
FOIA was delivered by Assistant Attorney General Stephen J. Markman, in 1988:
Today, a typical FOIA scenario is not, as envisioned by the Congress, the journalist
who seeks information about the development of public policy which he will shortly
publish for the edification of the electorate. Rather, it is the corporate lawyer seeking
business secrets of a client's competitors; the felon attempting to learn who it was who
informed against him; the drug trafficker trying to evade the law; the foreign requester
seeking a benefit that our citizens cannot obtain from his country; or the private
litigant who, constrained by discovery limitations, turns to the FOIA to give him what
a trial court will not.
The Freedom ofInformation Act: Hearings Before)he Subcomm. on Tech. and the Law ofthe
Senate Comm. on the Judiciary, 1OOth Cong. 37 (1988) (footnote omitted).
198. Department ofthe Air Force v. Rose, 425 U.S. 352,361 (1976) (internal quotation marks omitted).
199. See 5 U.S.C. 552(a)(6)(A)(i) (1994).
200. 142 CONG. REC. S10,894 (daily ed. Sept. 18, 1996) (statement of Sen. Leahy); see also Sinrod,
--supra note 44, at 342 (noting that "compliance with FOIA's ten-day rule has become the exception
rather than the norm"); Beall, supra note 23, at 1254 n.14 ("[T]he 10-day time limits imposed by
[the 1974] Congress no longer have any significance.").
201. See E-FOIA, supra note 24, 8, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(A)(i) (Supp. II
-1996)).
202. H.R. REP. NO. 104-795, at 26 (1996), reprinted in 1996 U.S.C.C.A.N. 3448,3469.
203. There is a risk, however, that the new time limits will slow down some FOIA processing since
--agencies that currently respond within ten days will no longer have the pressure to comply within
ten days. See Gellman Testimony, supra note 158, at 75.
204. See supra notes 186-89 and accompanying text.
205. See Congress Brings Information Act into Electronic Age, supra note!~
206. See Sarah Henderson Hutt, In Praise of Public Access: Why the Government Should Disclose the
-Identities of Alleged Crime Victims, 41 DUKE L.J. 368,383 n.88 (1991).
207. See Michael H. Hughes, CIA v. Sims: Supreme Cqurt Deference to Agency Interpretation of FOIA
-Exemption 3, 35 CATH. U. L. REV. 279,281 (1985).
208. See Hutt, supra note 206, at 383 n.88.
209. See Hughes, supra note 207, at 281.
' 210. See Gellman Testimony, supra note 158, at 75 (noting that no matter whether the time limits are
- - ten or twenty days, agencies with very large backlogs "will never be in compliance" because "they
will not have any more resources").
211. See E-FOIA, supra note 24, 7(b), 110 Stat. at 3050-51 (codified at 5 U.S.C. 552(a)(6)(B)
(Supp. II 1996)). One supporter of a twenty-day time limit argues that the expanded limit should

41

replace the "unusual circumstances" provision, contending that the added administrative burden of
sending out notices of extensions to requesters is unnecessary. See Sinrod, supra note~~. at 357.
212. See E-FOIA, supra note 24, 7(b), 110 Stat. at 3050-51 (codified at 5 U.S.C. 552(a)(6)(B)(i)(ii) (Supp. II 1996)).
213. See 5 U.S.C. 552(a)(6)(C)(i) (Supp. II 1996).
214.Id.
215. See supra Part II.A.
216. E-FOIA, supra note 24, 7, 110 Stat. at 3051 (codified at 5 U.S.C. 552(a)(6)(C)(ii) (Supp. II
1996)).
21 7. See H.R. REP. NO. 104-795, at 24 ( 1996) (explaining that the language does not cover "routine
-backlogs" because permitting such backlogs to "give agencies an automatic excuse to ignore the
time limits ... provides a disincentive for agencies to clear up those backlogs"), reprinted in 1996
U.S.C.C.A.N. 3448, 3467.
218. See infra notes 222-28 and accompanying text.
219. See supra notes 52-54 and accompanying text.
220. Information that is classified by executive order in the interest of national defense or foreign
-policy is exempted from disclosure by 5 U.S.C. 552(b)(l).
221. Such information is exempted from disclosure by 5 U.S.C. 552(b)(6) and (b)(7)(C). President
--Ford, when he initially vetoed the 1974 FOIA amendments, voiced such a concern:
I believe that confidentiality would not be maintained if many millions of pages of
FBI and other investigatory law enforcement files would be subject to compulsory
disclosure .... Our law enforcement agencies do not have, and could not obtain, the
large number of trained and knowledgeable personnel that would be needed to make
such a line-by-line examination of information requests that sometimes involve
hundreds of thousands of documents, within the time constraints added to current law
by this bill.
Veto of Freedom of Information Act Amendments, 1974 PUB. PAPERS 374,375 (Oct. 17, 1974).
222. 959 F. Supp. 1 (D.D.C. 1997), discussed in detail supra at pages 1228-29.
223. E-FOIA, supra note 24, 7, 110 Stat. at 3051 (codified at 5 U.S. C. 552(a)(6)(C)(ii) (Supp. II
-1996)).
224. Edmond, 959 F. Supp. at 2.
225. E-FOIA, supra note 24, 7, 110 Stat. at 3051 (codified at 5 U.S.C. 552(a)(6)(C)(ii) (Supp. II
1996)).
226. See Edmond, 959 F. Supp. at 3 n.2.
227. See supra text accompanying note 212 (discussing opportunity to narrow scope of requests).
228. See E-FOIA, supra note 24, 7, 110 Stat. at 3051 (codified at 5 U.S.C. 552(a)(6)(C)(ii) (Supp. II
-1996)).
229. S. REP. NO. 104-272, at 5 (1996); see also E-FOIA, supra note 24, 2(a)(6), 110 Stat. at 3048
("Government agencies should use new technology to enhance public access to agency records
1
and information.").
230. See Electronic Freedom of Information Improvement: Hearing on S. 1090 Before the Subcomm.
- o n Gov't Management. Info., and Tech. of the House Comm. on Gov't Reform and Oversight,
104th Cong. 98 (1996) (testimony of James P. Lucier, Jr.) (categorizing E-FOIA's technological
provisions as not "particularly astonishing" and "Iinle more fundamental than requiring agencies to

42

publish their telephone numbers now that telephones have been invented").
231. See E-FOIA Signing Statement, supra note 145, at 1949.
232. See O'Brien Testimony, supra note 167, at 51 ("It fs clear, however, that only more analysts,
- - trained to process requests, can sigru!iCantly diminish the backlogs .... ").
233. See MacDonald, supra note 150, at 384 (calling the failure to fund "[t]he first and primary failure"
- - ofE-FOIA). For a discussion of the Senate proposal to fund the amendments that was not passed,
as well as other proposed ways to fund FOIA, see infra Part IV.B.
234. SeeS. REP. NO. 104-272, at 9 (1996) ("Government dissemination of more varieties and greater
--amounts of its information holdings via a 'superhighway' may reduce the volume ofFOIA
requests.").
235. See Gellman, E-FOIA Will Slow Down Agency Responses, supra note 1-lS, at 27.
236. See 142 CONG. REC. S10,894 (daily ed. Sept. 18, 1996) (statement of Sen. Leahy) (noting that
- - FOIA requests to the FBI can take up to four years to be processed).
237. See E-FOIA, supra note 24, 8, 110 Stat. at 3051 (codified at 5 U.S.C. 552(a)(6)(E)(i) (Supp. II
- - 1996)). For example, it is unknown how expedited review will function in combination with multitrack processing. One commentator suggests that an agency might put all other requests on hold so
it can devote all of its FOIA resources to processing the expedited cases. See Gellman, E-FOIA
Will Slow Down Agency Responses, supra note 148, at 27. One of the only finn requirements that
the amendments place on agency regulations is that they ensure "expeditious consideration of
administrative appeals of [the] determinations of whether to provide expedited processing." EFOIA, supra note 24, 8, 110 Stat. at 3052 (codified at 5 U.S.C. 552(a)(6)(E)(ii)(II) (Supp. n
1996)).
:>
238. Cf Gellman Testimony, supra note 158, at 74 (noting that "virtually every word in the FOIA has
--been the subject of intense litigation~
239. See MacDonald, supra note 150, at 383 (arguing that the expedited review provisions "will add
- - significant costs to administrative overhead" and will "further drain agency resources and slow
down FOIA compliance overall").
240. See, e.g., Cate et al., supra note 118, at 67-69.
241. See id. at 45.
242. S. 1090, 104th Cong. (1996).
243. The statute itself places no limitations on who may request records or for what reason. As long as
--the records do not fall within one of the statutory exemptions, an agency, "upon any request for
records which (A) reasonably describes such records and (B) is made in accordance with
published rules stating the time, place, fees (if any), and procedures to be followed, shall make the
records promptly available to any person." 5 U.S.C. 552(a)(3) (1994) (emphases added). Courts
have reaffirmed this basic principle ofFOIA, noting that Congress "clearly intended the FOIA to
give any member of the public as much right to disclosure as one with a special interest in a
particular document." United States Dep't of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 771 (1989) (internal quotation marks omitted); see also H.R. REP. NO. 104-795, at
6 (1996) ("Requesters do not have to show a need or reason for seeking information."), reprinted
._.
in 1996 U.S.C.C.A.N. 3448, 3449.
244. See Scalia, supra note 1, at 17 (criticizing FOIA and its costs because requests that "may be
motivated by no mo~ than idle curiosity" take "money from the Treasury that could be better
spent elsewhere").
245. See Scott Shane:Panningfor Gold in Government Files: Businesses Mc.1ke Afost of Public Right to
-Know, BAL TIM:ORE SUN, July 28, 1997, at 1A (noting that some people have become "FOIA
hobbyists"). One such FOL-\. hobbyist, Michael J. Ravnitsky of St. Paul, Minnesota, "has flooded a

43

dozen agencies with 2,200 FOIA requests." !d. Ravnitsky, who recently got a bill from the FBI for
$18,000 in costs, stated: "'I think FOIA is great fun. It's a national treasure."' !d. He says that he is
not planning on paying the bill. See id.
2-+6. Scalia, supra note ~ at 17.
2-+ 7. See discussion supra Part II. B. (discussing the central purpose doctrine, which has been used to
--uphold the denial, based on the privacy exemptions, ofFOIA requests that do not serve FOIA's
"central purpose," which is to ensure access to information concerning the activities of
government, not those of private citizens).
2-+8. See Cate et al., supra note 118, at 67 ("The test for whether a request seeks 'official information'
- - should be the touchstone for disclosure under FOIA .... [O]nly information that will serve the
purpose of ensuring that 'the Government's activities be opened to the sharp eye of public scrutiny'
should ever be subject to disclosure under the FOIA." (quoting Reporters Conzm., 489 U.S. at
774)). But see Beall, supra note 23, at 1279-80, 13.00 (criticizing the central purpose doctrine as
"contrary to the original spirit ofFOIA," and expressing dismay over the doctrine's "exaltation of
privacy doctrines" that erode "one of the central bulwarks to a free democracy," access to
information).
249. See Cate et al., supra note 118, at 69, 72.
250. See id. at 67-68.
251. See Beall, supra note 23, at 1273-80 (reviewing cases in which lower courts incorporated the
--central purpose doctrine's language in non-privacy exemption cases).
252. E-FOIA, supra note 24, 2(a)(1), 110 Stat. at 3048 (emphases added).
253. S. REP. NO. 104-272, at 24 (1996) (additional views of Senator Leahy) (citations omitted).
254. In fact, it is difficult to avoid the use of a balancing test. For example, under Exemption 7(C),
- - material may be withheld if disclosure would result in an "unwarranted invasion" of privacy. See 5
U.S.C. 552(b)(7)(C) (1994). In order to determine whether an invasion of privacy would be
unwarranted, a court is forced to weigh the relative merits of the interest in disclosure and the
privacy interest involved. See Dickinson, supra note 130, at 209-10 ("[B]y casting the personal
privacy exemptions as balancing tests, Congress reintroduced into disclosure disputes the issue of
merit."). Senator Leahy appears to have recognized this necessity. His attachment to the Senate
report accompanying E-FOIA states that the requester's intended use can properly be considered
when balancing the public interest in disclosure against the privacy interest. SeeS. REP. NO. 104272, at 27 (additional views of Senator Leahy). Most likely, any congressional attempt to fully
overturn Reporters Committee and its progeny and to eliminate the central purpose doctrine would
need to be more explicit.
255. One way to avoid such a problem would be to require FOIA requesters to state how the
information they are requesting is likely to shed light on the activities and operations of the
government. This type of initial purpose statement would assist agencies in making the initial
determination. But see Cate et al., supra note 118, at 68 n.229 (arguing that a congressional
attempt to limit the use ofFOIA for purely private purposes by requiring that requesters
demonstrate a "public purpose use" for the requested information would be ineffective and
ultimately "umvorkable").
256. SeeWald, supra note 25, at 666.
257. See id. at 670 (noting the risk of "increas[ing] the cozy, closed door government-business dealings
-which were the very sort of practices the Act was designed to root out") (internal quotation marks
omitted). Public interest groups argue that moving too quickly to cut off public di3closure of
business data would be unwise, claiming that such a move would shield such embarrassing
information as "drug company tests on humans [that are performed] before completing animal
tests, toxic chemicals dumped into streams and rivers, inspection reports of the Department of

44

Agriculture concerning unwholesome meat, [and] misleading reports by a utility to its ratepayers
about the costs of a new nuclear plant." !d. at 669-70 (footnotes omitted).
258. See Scalia, supra note l, at 17-18 ("[FOIA's] defects ... might not be defects in the best of all
--possible worlds. They ire foolish extravagances only because we do not have an unlimited amoun 1
of federal money to spend, [or] an unlimited numb-er of agency employees to assign .... ").
259. See 1986 Reform Act, supra note 37, 1803, 100 Stat. at 3207-48 (codified at 5 U.S.C. 552(a)
(4)(A)(iii) (1994)). For a discussionof the 1986 amendments, see supra Part I.C.
260. Cf The Electronic Freedom of Information Improvement Act: Hearings on S. 1940 Before rhe
- - Subcomm. on Tech. and the Law of the Senate Comm. on the Judiciary, 100th Cong. 96 (1992)
(statement of Sen. Leahy) ("[A]ll of us would look at some requests as frivolous, but that is part of
the price of democracy.").
261. See Beall, supra note 23, at 1262 (arguing that the use of the central purpose doctrine as a
--gatekeeper "would work a dramatic volteface from the principles ofFOIA, improperly shifting the
Act from one that favors disclosure to one that favors secrecy").
262. Pub. L. No. 79-404, ch. 324, 3, 60 Stat. 237,238 (1946).
263. S. REP. NO. 89-813, at 40 (1965).
264. See H.R. REP. NO. 99-832, at 7 ( 1986) ("The inclusion of any type of purpose test ~vould have
--made the FOIA as useless as the disclosure statute it replaced.").
265. SeeS. REP. NO. 89-813, at 3. This 1965 Senate Report states that the primary purposes of the law
- - were "to establish a general philosophy of full agency disclosure unless information is exempted
under clearly delineated statutory language and to provide a court procedure by which citizens and
the press may obtain information wrongfully withheld." !d.
266. Beall, supra note 23, at 1299.

267. !d.
268. See discussion supra Part I.C (arguing that the 1986 Amendments strike the proper balance
--between keeping government activities open to the light of public scrutiny and fiscal realities).
269. See H.R. REP. NO. 104-795, at 13 (1996) ("A principal constraint to the full effectiveness of the
- - FOIA has been the lack of adequate agency resources."), reprinted in 1996 U.S.C.C.A.N. 3448,
3456; S. REP. NO. 104-272, at 16 (1996) ("The reasons for [the backlogs] may vary, but
principally it appears to be a problem oftoo few resources in the face of too heavy a workload.").
270. See, e.g., H.R. REP. NO. 99-832, at 11 (1986) (citing inadequate resources as a reason for delay in
- - FOIA processing); Memorandum from Attorney General Janet Reno on FOIA to Heads and
Departments of Agencies (Oct. 4, 1993) (noting that the principal reason for backlogs appears to
be "too few resources in the face oftoo heavy a workload"), reprinted in FOIA UPDATE (Office
of Info. and Privacy, U.S. Dep't of Justice), Summer/Fall 1993, at 5; Sinrod, supra note -t..t, at 33-t
("Congress' failure to fund FOIA adequately led to backlogs and delays in many agencies: ... ").
271. See discussion supra Part I.C (noting that the 1986 Amendments significantly increased agencies'
-ability to charge requesters for the costs of processing requests).
272. SeeS. REP. NO. 104-272, at 21.
273. See id.
27-t.
S. 1090, 104th Cong. 6(a) (1996). The bill's lang~age
provided:
-I
.
If at an agency's request, the Comptroller General determines that the agency annually
has either provided responsive documents or denied requests in substantial
compliance with the [time limit] requirements of[5 U.S.C. 552(a)] (6)(A), one-half
of the fees collected under this section shall be credited to the collecting agency and
expended to offset the costs of complying with this section through staff development

45

and acquisition of additional request processing resources. The remaining fees

collected under this section shall be remitted to the Treasury as general funds or
miscellaneous receipts.
!d.
275. SeeS. REP. NO. 104-272, at 16.
176. See id. at 21 (estimating that, in 1992, agencies that would likely be eligible to retain fees
--accounted for only about 10% of the total fees collected, while the four agencies with the largest
backlogs accounted for almost 75% of the total fees collected).
177. SeeS. 1090, 6(a).
278. See Gellman Testimony, supra note 158, at 74 (stating that the provision was "guaranteed to lose
- - money for the government").
279. See id. at 75.
280. !d.
281. SeeS. 1090, 6(a).
282. See Sinrod, supra note 44, at 361.
283. !d. at 361-63 (footnote omitted).
284. SeeWald, supra note 25, at 683 (noting that FOIA "sometimes helps the unworthy").
285. See 1998 INFORMATION PLEASE ALMANAC 125 (Borgna Brunner ed., 1998).
286. See Harvey L. Pitt & Karen L. Shapiro, Securities Regulation by Enforcement: A Look Ahead at
- t h e Next Decade, 7 YALE J. ON REG. 149,283 & n.568 (1990) ("$167.5 million [was] allocated
[in Fiscal Year 1989] to military bands."); Wald, supra note 25, at 665 (arguing that one must put
the cost of FOIA in context and noting that in 1984 "we spent nearly $100 million annually on
military bands").
287. William J. Clinton, Address Before a Joint Session of the Congress on the State of the Union, 1
-PUB. PAPERS 79,79 (Jan. 23, 1996); cf Wald, supra note 25, at 650 ("It is seductively easy to
let go of legislated freedoms on the ground that they are too costly for a beleaguered Twentieth
Century democracy.") (emphasis omitted).
288. Scalia, supra note.!_, at 16.
289. As the House Report accompanying the 1986 FOIA amendments stated:

If it were possible to trace all of the disclostifes made under the FOIA, the identifiable
dollar savings to the taxpayer resulting from those disclosures would almost certainly
exceed the cost of the FOIA. In fact, the savings from a single FOIA disclosure can
pay the cost of the entire FOIA for an entire year or even longer. \\-'hen [one
considers] the non-monetary benefits that result from FOIA disclosures-such as fairer
and more responsive government, better agency policy, health and safety
improvements, and a better informed citizenry-the total benefits ofthe FOIA far
exceed the costs.
H.R. REP. NO. 99-832, at 10-11 (1986) (internal citations omitted). This House Report recounts
several instances where use ofFOIA led to recovery of misspent tax dollars. See id. at 9-10.
Sometimes the amount recovered is relatively small. For example, the Better Government
Association used FOIA "to document that a [government official] illeg:1lly used :1n :1gency
chauffeur for non-official transportation." /d. at 10. The official eventu:11ly reimbursed the
government $6,411. See id. The savings can be substantial, however, such as when the Better
Government Association used FOIA during an investigation of a Navy shipbuilding contractor.

46

See id. at 9. The investigation uncovered waste and false billing by the contractor. and " [ u]
ltimately a settlement was reached with the contractor that resulted in potential savings to the
government of$170 million." !d.
290. See supra notes 25-27 and accompanying text.
291. H.R. REP. NO. 99-832, at 9; accord H.R. REP. NO. 104-795, at 7 (1996) (noting that FOIA "mav
--have a certain degree of preventive effect, prompting a higher degree of probity and
conscientiousness in the performance of government operations"), reprinted in 1996 U.S.C.C.A.~.
3448, 3450; William Safire, Essay, Free Speech v. Scalia, N.Y. Tlv1ES, Apr. 29, 1985, at A17
(asserting that FOIA "has done more to inhibit the abuse of Government po\ver ... than any
legislation in our lifetime"). This deterrent value exists because "[a]gency managers knO\v that
many oftheir actions are subject to public oversight through documents obtained by the press and
by citizens through the FOIA." H.R. REP. NO. 99-832, at 9.
292. Wald, supra note 25, at 683 (emphasis added).

47

Unanticipated Consequences
A. We hope you found the preceding report enlightening as to why
you should be using the FOIA process to your benefit.
B. We have read many ofthese type of reports. We have read every
appellate and Supreme Court case cited in the previous report plus
hundreds more. We read everything we can find on FOIA. Our
goal is to help everyone who needs help and is willing to listen to
us.
C. Some people are doing FOIA requests on their own, but seem to

lack the deeper understanding of the benefit of using this process.

1. Many of these requesters are asking the Disclosure Officers to do
research.
2. They do not ask for specific documents.
3. They request 10, 15, or 20 or more records in one FOIA request.

D. We suggest you ask for "one" specific item at a time.

1. Date each request with a different date.
2. Keep each FOIA request in its own file folder by date.
3. The Disclosure Officer will usually respond to your request by citing
the date you used on your FOIA request.
4. Match each dated response from the Disclosure Officer with the
corresponding date on the original request and put it in the folder.
5. You can decide what the next course of action you choose to follow.
6. Each FOIA request is a separate issue on its own and serves a
particular purpose.
7. Many times you will get a response form the IRS Disclosure Officer

stating "we have no documents responsive to your request."

48

8. These types of responses are what we consider "Golden Letters."

9. People often contact us because they feel they didn't get a
meaningful response when, in fact, many times these are Golden
Letters.
10. Golden Letters are responses you receive in which the IRS
unknowingly demonstrates that they failed to follow Due Process.
11. Remember each one of these requests is a separate issue.
12. Now, you start building your case against the IRS, FOIA by FOIA.
13. Some people who have been self-assessing themselves believe they
are going to have codes on their IMF or BMF that indicate they are
drug runners or are involved in some excise taxable activity. Not so.
a. This is just one of the many myths that surround the FOIA process.
b. We have found a number of people who are disseminating false
information concerning the FOIA request process. Whether they are
doing it with good intentions or not, it's still the wrong information!
c. We often wonder if some of these people have ever read anything with
substance concerning the FOIA process.
d. Then there are those who teach against using any FOIA process at all.

E. Dishonesty, Fraud, Deceit, or Willful Misrepresentation.

1. The FOIA process can be used to combat all the above with
documented substantiated facts concerning your own case.
2. We have heard three different Federal Judges say that decisions are
made on an individual case by case basis. And this is what we have
relied upon in building affirmative defenses.
3. FOIA can be used to prove:
a. Dishonesty regarding procedural compliance.
b. Fraud in your documents that was created by someone at the IRS.
c. Deceit by the government agents in destroying, concealing, or
withholding documents, that would expose their corruptness and your
innocence.
d. WILLFUL MISREPRESENTATION ofthe facts in question. Even
their own manuals teach them to lie.

49

F. We were standing before a Judge with no lawyer, with all our

accumulated evidence on the table in front of us, and the Judge
said, "What if everybody did this?" We replied that we didn't care
about anybody else's case as we are here for our own case. We
don't care what anybody else does. He then proceeded to run us
out of his courtroom and told us to never come back in his
courtroom ever again. Then he screamed at the prosecutor "Never
bring that man back into this courtroom again!"
1. If we had been using some stupid Idiot Legal Argument, would that
have happened?
2. We've had a number of people trying to pump us full of their stupid
idiot legal arguments that they are still circulating around the
country, which most of them are all hype and prove nothing.
G. This 36-page report sends a very clear message "The average
people are not using the FOIA process." Why Not?
1. We simply try to teach people the first, second, and third stages of
using and implementing the FOIA process.
H. Just like Mr. Prat who set himself free by using the FOIA process.
So can you!
I. We find a number of people who will spend thousands on this or
that program, yet they will not spend 34 cents on a stamp to send
in a FOIA request for there Uv1F or BMF.

J.

Mr. Pratt stayed with the FOIA program and saw it through.
So can you!

K. Just as Mr. Pratt exposed the FBI lies, you can expose the lies of
the IRS.
L. We have people call us who want to argue against doing FOIA
requests. Usually in the first minute, we know that they don't
have a clue of what they are talking about.
M. Read and learn for yourself like thousands of others are doing.

50

Your Right to Federal Records

A. We wanted you to have direct access to the original source of this
information.
B. Even though they give us all this great information, they never talk about
the practical applicability of using the FOIA request.
C. What do you ask for and to whom do you send it? It depends upon what
agency you have dealings with and what documents you are seeking.
D. Sometimes we will read hundreds of pages concerning the FOIA process
and only find one or no items to request. We spend hours searching for
specific items to request through the FOIA process.
E. There has been a lot of contention around the country Concerning
Privacy Act VS. Freedom of Information Act as to how to obtain
information. Who cares how you get this valuable information as long
as you get it.
1. This is another minor issue that we have been questioned about big time.
2. We want to acquire certain specific records.
3. We hope to get these specific documents or get a reply back that states "we have
no documents responsive to your request". Thousands ofyou may have received
these types of responses.
4. If they give you what you ask for, that's great. In most cases you can make an
effective use of the"we have no documents" letters.

F. Our goal is to expand your understanding, not only in making FOIA

requests, but also in the practical use of their responses, to produce
credible evidence that rebuts the government's erroneous presumptions.
G. When you use our services to decode your IMF or BMF we hope to take
you up to the next level, and beyond.
H. Learn to protect yourself by using the FOIA process.
I.

Learn more and use our Specialized Services and better protect yourself.

51

YOUR RIGHT TO FEDERAL RECORDS

Questions and Answers
on the Freedom of Information Act
and the Privacy Act

A joint publication of
U.S. Genera1 Services Administration
Washington, DC 20405

U.S. Department of Justice

Washington, DC 20530

At the time of this publication's printing, the Electronic Freedom of

Information Act Amendments of 1996 became Public Law 104-231.
P.L.
104-231 amends the Freedom of Information Act to provide for public
access to information in an electronic format, and for other purposes.
For details on how this amendment may affect your search for
information, please contact the Freedom of Information Act Officer at
the agency in which the records are being soJght.

Table of Contents
The Freedom of Information Act
What the Freedom of Information Act is and how to use i t . . . . . . . . . . . . . .
The Privacy Act
What the Privacy Act is and how to use i t . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
~- Compari_son of the Freedom o= In=ormation Ac~ and ~h~_ _l'r:.vacy__::>.:::::
Relationship between the two acts and deciding which to use . . . . . . . . . . .

Other Sources of

Informat~on

Text of the Freedom of Information Act

Introduction

This brochure provides basic g~laance about the Freedom of Information

Act (FOIA) and the Privacy Act of 1974, to assist members of the public

52

-
in exercising their rights.
It uses a question-and-answer format to
present information about these laws in a clear, simple manner.
The
brochure is not intended to be a comprehensive treatment of the complex
issues associated with the FOIA and the Privacy Act.
It also does not
discuss the availability of federal agency information electronically,
although many federal agencies maintain Internet World Wide Web sites at
which a wide range of information is readily available.
The questions answered in this brochure are those frequently asked by
persons who contact the Federal Information Center (FIC) for information
on the FOIA and the Privacy Act.
The answers were compiled by the FIC
and the Consumer Information Center (CIC) of the U.S. General Services
Administration. They were reviewed by the Department of Justice, the
agency responsible for coordinating the administration of the FOIA and
encouraging agency compliance with it.
The Office of Management and
Budget (OMB), which has a similar responsibility for the Privacy Act,
reviewed the answers to questions on that act.
The FOIA, enacted in 1966, provides that any person has the right to
request access to federal agency records or information. Federal
agencies are required to disclose records upon receiving a written
request for them, except for those records that are protected from
disclosure by the nine exemptions and three ~~elusions of the FOIA.
This right of access is enforceable in court:
The Privacy Act is another federal law regarding federal government
records or information about individuals.
The Privacy Act establishes
certain controls over how the executive branch agencies of the federal
government gather, maintain, and disseminate personal information.
The
Privacy Act also can be used to obtain access to information, but it
pertains only to records that the federal government keeps about
individual U.S. citizens and lawfully admitted permanent resident
aliens.
The FOIA, on the other hand, covers all records in the
possession and control of federal executive branch agencies.
This brochure contains information about the most significant provisions
of the FOIA and the Privacy Act. We hope you find it helpful.

The Freeaom of Information Act

What information is available under the FOIA?

The FOIA provides access to all federal agency records (or portions of
those records), except for those records tha~ are protected from
disclosure by nine exemptions and three exclusions (reasons for which a~
agency may withhold records from a requester).
The exemptions cover (1) classified national defense and foreign
relations information, (2) internal agency rules and practices, (3)
information that is prohibited from disclosure by another law, (4) trade
secrets and other confidential business information, (~) inter-agency or
intra-agency communications that are protected by legal privileges, ( 6)
information involving matters of personal privacy, (7) certain
information compiled for law enforcement purposes, (8) information
relating to the supervision of financial institutions, and (9)
geological information on wells.
The three exclusions, which are rare~y
used, pertain to especially sensitive law enforcement and national
53

security matters.
Even if information is exempt from disclosure under the FOIA, the agency
still may disclose it as a matter of administrative discretion when that
is not prohibited by any law and would not cause any foreseeable harm.
The full text of the FOIA is printed beginning on page 15 of this
brochure.
The FOIA does not apply to Congress, the courts, or the immediate office
of the White House, nor does it apply to records of state or local
governments.
However, nearly all state governments have their own
FOIA-type statutes. You may request informat~on about a state's records
access law by writing to the office of the attorney general of that
state.
The FOIA does not require a private organization or business to release
any information directly to the public, whether it has been submitted to
the federal government or not.
However, information submitted to the
federal government by such organizations or companies can be available
through a FOIA request if it is not protected by a FOIA exemption, such
as the one covering trade secrets and confidential business information.
Under the FOIA, you may request and receive by mail a copy of any record
that is in an agency's files and is not covered by one of the exemptions
or exclusions.
For example, suppose you have heard that a certain toy
has been recalled as a safety hazard and you want to know the details.
The Consumer Product Safety Commission could help you by providing
copies of the recall documents.
Perhaps you want to read the latest
inspection report on conditions at a nursing home certified for
Medicare.
Your local Social Security office keeps such records on file.
Or you might want to know whether the Department of Veterans Affairs has
a file that mentions you.
In all of these examples, you could use the
FOIA to request information from the appropriate federal agency.
(See
the discussion below on how to find the right agency office and
address.)
When you make a FOIA request, you must describe the records that you
want as clearly and specifically as possible. If the agency cannot
identify and locate records that you have requested with a reasonable
amount of effort, it will not be able to assist you. While agencies
strive to handle all FOIA requests in a customer-friendly fashion, with
no unnecessary bureaucratic hurdles, the FOIA does not require them to
do research for you, to analyze data, to answer written questions, or in
any other way to create records in order to respond to a request.

Whom do I contact in the federal government with my request?

get the right address?

How do I

No one office of the federal government handles all FOIA requests.

Each
FOIA request must be made to the particular agency that has the records
that you want.
For example, if you want to know about an investigation
of motor vehicle defects, write to the Department of Transportation.
If
you want information about a work-related accident at a nearby
manufacturing plant, write to the Department of Labor (~ its office in
the region where the accident occurred) . Most of the larger federal
agencies have several FOIA offices.
Some have one for each major burea~
or component; others have one for each region of the country.
You may have to do a little research to

54

find~he

proper agency office to

handle your FOIA request, but you will save t_.i.me in the long run if yo:..:
send your request directly to the most appropriate office.
For
assistance, you can contact the Federal Information Center (FIC) .
The
FIC is specially prepared to help you find the right agency, the right
office, and the right address.
The FIC is administered by the U.S.
General Services Administration.
Information on how to contact the FIC
begins on page 14.
The U.S. Government Manual, the official handbook of the federal
government, may also be useful.
It describes the programs within each
federal agency and lists the names of top personnel and agency
addresses.
The Manual is available at most public libraries and can be
purchased from the Superintendent of Documents.
(Ordering instructions
are on page
.)
Additionally, each agency publishes FOIA regulations
in the Code of Federal Regulations (CFR) that contain the mailing
addresses of its FOIA offices.
(For example, the Department of
Justice's FOIA regulations can be found in Volume 28 of the CFR, Par~
16.) The CFR is available at most public libraries.

How do I request information under the FOIA?

All you have to do to make a FOIA request is write a letter to the

agency.
(For the quickest possible handling,,., mark both your letter and
the envelope "Freedom of Information Act Request.")
Although you do not
have to give a record's name or title, you should identify the records
that you want as specifically as possible to increase the likelihood
that the agency will be able to locate them. Any facts or clues you can
furnish about the time, place, authors, events, subjects, and other
details of the records will be helpful to the agency in deciding where
to search and in determining which records respond to your request,
saving you and the government time and money.
As a general rule, FOIA requesters are not required to state the reasons
why they are making their requests.
You may do so if you think it might
help the agency to locate the records. If you are not sure whether the
records you want are exempt from disclosure, you may request them
anyway. Agencies often have the legal discretion to disclose exempt
information and, in line with the government's openness policy, they are
encouraged to do so whenever possible.
A sample request is shown below.
Keep a copy of your request.
need to refer to it in further correspondence with the agency.

You may

Sample FOIA Request Letter

Date
Freedom of Information Act Request Agency Head or FOIA Officer Name of
agency or agency component Address (see discussion above on whom to
contact)

Dear
Under the Freedom of Information Act,

55

5 U.S.C. subsection 552,

I am

requesting access to [identify the records as clearly and specifically

as possible].
If there are any fees for searching for or copying the records, please
let me know before you fill my request.
[Or, please supply the records
without informing me of the cost if the fees do not exceed $ _______
which I agree to pay.]
If you deny all or any part of this request, please cite each specific
exemption you think justifies your refusal to release the information
and notify me of appeal procedures available under the law.
Optional:
If you have any questions about handling this request, you
may telephone me at
(home phone) ~r at
(office
phone).
Sincerely,

Name Address

What about costs for getting records under the FOIA?

The FOIA permits agencies to charge fees to FOIA requesters.

For
noncommercial requesters, an agency may charge only for the actual cost
of searching for records and the cost of making copies. Search fees
usually range from $10 to $30 per hour, depending upon the salary levels
of the personnel needed for the search.
The charge for copying
documents can be as little as 10 cents per page at some agencies, but
may be considerably more at other agencies.
For noncommercial requests, agencies will not charge for the first two
hours of search time or for the first 100 pages of document copying.
Agencies also will not charge if the total cost is minimal. An agency
should notify you before proceeding with a request that will involve
large fees, unless your request letter already states your willingness
to pay fees as large as that amount. If fees are charged, you may
request a waiver of those fees if you can show that the records, when
disclosed to you, will contribute significantly to the public's
understanding of the operations or activities of the government.

How long will it take to answer my request?

Under the FOIA, federal agencies are required to respond to your reques~
within 10 working days of receipt (excluding Saturdays, Sundays, and
federal holidays).
If you have not received a response by the end of
that time (allowing for mailing time), you may telephone the agency or
write a follow-up letter to ask about the status of your request.
Sometimes an agency may need more than 10 working days to find the
records, examine them, possibly consult other persons or agehcies,
decide whether to disclose all of the information requested, and prepare
the records for disclosure. Agencies may extend this 10-day period ~p
to 10 more working days, with written notice to you.
Some agencies,
particularly law enforcement agencies, receive large numbers o:
requests, many of which involve voluminous records or require
exceptional care to process.
If an agency has a backlog of reques~s

56

that were received before yours and has assigned a reasonable portion of
its staff to work on the backlog, the agency ordinarily will handle
requests on a first- come, first-served basis and may not respond to all
requests within the statutory time period.

What happens if the agency denies my request?

If the agency locates records in response to your request, it can

withhold them (or any portion of them) only if they are exempt from
disclosure.
If an agency denies your request, in whole or in part, it
must tell you the reason(s) for the denial in writing and inform you of
your right to appeal to a higher decisionrnaking level within the agency.

How do I appeal a denial?

All that is necessary to appeal a denial is to promptly send a letter to

the agency.
Most agencies require that appeals be made within 30 to 45
days after you receive notification of a denial. The denial letter
should tell you the office to which your appeal letter should be
addressed.
For the quickest possible handling, you should mark both
your request letter and the envelope "Freedom of Information Act
Appeal."
To appeal, simply ask the agency to review your FOIA request and its
denial decision.
It is a good idea also to ~1ve your reason(s) for
believing that the denial was wrong.
Be sure to refer to any pertinent
communications you have had with the agency on the request and include
any number the agency may have assigned to your request.
It can save
time in acting on your appeal if you include copies of your FOIA request
and the agency's denial letter.
You do not need to enclose copies of
any documents released to you.
Under the FOIA, the agency has 20
working days (excluding Saturdays, Sundays, and federal holidays) to
decide your appeal.
Under certain circumstances, it may also take an
extension of up to 10 working days. At some agencies, as with initial
requests, some appeals may take longer to decide.

What can I do if my appeal is denied?

If the agency denies your appeal, or does not respond within the
statutory time period, you may take the matter to court.
The agency's
denial letter should tell you that you can file a FOIA lawsuit in the
U.S. District Court where you live, where you have your principal place
of business, where the documents are kept, or in the District of
Columbia.
In court, the agency will have to prove that any withheld
information is covered by one of the exemptions listed in the act.
If
you win a substantial portion of your case and your lawsuit is found to
be a matter of public interest, the court rna~ require the government to
pay court costs and reasonable attorney's fees for you.

The Privacy Act

What is the Privacy Act?

57

The federal government compiles a wide range of information on

individuals.
For example, if you were ever in the military or employed
by a federal agency, there should be records of your service.
If you
have ever applied for a federal benefit or received a student loan
guaranteed by the government, you are probably the subject of a file.
There are records on every individual who has ever paid income taxes or
received a check from Social Security or Medicare.
The Privacy Act, passed by Congress in 1974, establishes certain
controls over what personal information is collected by the federal
government and how it is used.
The act guarantees three primary rights:
(1) the right to see records about oneself, subject to the Privacy Act's
exemptions; (2) the right to amend that record if it is inaccurate,
irrelevant, untimely, or incomplete; and (3) the right to sue the
government for violations of the statute, in~luding permitting others to
see your records, unless specifically permitted by the act.
The act also provides for certain limitations on agency information
practices, such as requiring that information about an individual be
collected from that individual to the greatest extent practicable;
requiring agencies to ensure that their records are relevant, accurate,
timely, and complete; and prohibiting agencies from maintaining
information describing how an individual exercises his or her First
Amendment rights unless the individual consents to it, a statute permits
it, or it is within the scope of an authorized law enforcement
investigation.

What information may I request under the Privacy Act?

The Privacy Act applies only to records about individuals maintained by

agencies in the executive branch of the federal government.
It applies
to these records only if they are in a "system of records," which means
they are retrieved by an individual's name, social security number, or
some other personal identifier. In other words, the Privacy Act does not
apply to information about individuals in records that are filed under
other subjects, such as organizations or events, unless the agency also
indexes and retrieves them by individual name~ or other personal
identifiers.
There are 10 exemptions to the Privacy Act under which an agency can
withhold certain kinds of information from you. Examples of exempt
records are those containing classified information on national security
and those concerning criminal investigations. Another exemption often
used by agencies is that which protects information that would identify
a confidential source.
For example, if an investigator questions a
person about your qualifications for federal employment and that persor.
agrees to answer only if his identity is protected, then his name or any
information that would identify him can be withheld.
The 10 exemptions
are set out in the act.
If you are interested in more details, you should read the Privacy Act
in its entirety.
Though the act is too lengthy to publish ps part of
this brochure, it is readily available.
It is printed in the U.S. Code
(Section 552a of Title 5), which can be found in many public and school
libraries.
You may also order a copy of the Privacy Act of 1974, P~bli=
Law 93-579, from the Superintendent of Documents.
(Ordering
instructions are on page 12.)

58

Whom do I contact in the federal government with my request?

get the right address?
~

How do I

As with the FOIA, no one office handles all Privacy Act requests. To
locate the proper agency to handle your request, follow the same
guidelines as for the Freedom of Information Act.

How do I know if an agency has a file on me?

If you think a particular agency has a file pertaining to you, you may
write to the Privacy Act Officer or head of the agency. Agencies are
generally required to inform you, upon request, whether or not they have
files on you.
In addition, agencies are required to report publicly the
existence of all systems of records they keep on individuals.
The
Office of the Federal Register publishes a listing of each agency's
systems of records notices, including exemptions, as well as its Privacy
Act regulations.
The multi-volume work, Privacy Act Issuance's
Compilation, is updated every two years and can be found in most large
reference and university libraries.

How do I request information under the Privacy Act?

Write a letter to the agency that you believ~ may have a file pertaining
to you. Address your request to the Privacy Act Officer or head of the
agency, such as "Secretary, Department of Health and Human Services." Be
sure to write "Privacy Act Request" clearly on both the letter and the
envelope.
Most agencies require some proof of identity before they will give you
your records.
Therefore, it is a good idea to enclose proof of identity
(such as a copy of your driver's license) with your full name and
address.
Do not send the original documents.
Remember to sign your
request for information, since your signature is a form of
identification.
If an agency needs more proof of identity before
releasing your files, it will let you know.
Give as much information as possible as to why you believe the agency
has records about you. The agency should process your request or contact
you for additional information.
A sample request is shown below.
Keep a copy of your request.
need to refer to it in further correspondence with the agency.

You may

Sample Privacy Act Request Letter

Date

Agency Head or FOIA Officer Name of agency or agency component Address

(see discussion above on whom to contact)

59

Dear
Under the Freedom of Information Act, 5 U.S.C. subsection 552, and the
Privacy Act, 5 U.S.C. subsection 552a, I am requesting access to
[identify the records as clearly and specifically as possible].
If there are any fees for searching for or copying the records, please
let me know before you fill my request.
[Or, please supply the records
without informing me of the cost if the fees do not exceed $ -----which I agree to pay.]
If you deny all or any part of this request, please cite each specific
exemption you think justifies your refusal to release the information
and notify me of appeal procedures available under the law.
Optional:
If you have any questions about handling this request, you
may telephone me at
(horne phone) ~or at
(office
phone).
Sincerely,

Name Address

What about costs for getting records under the Privacy Act?

Under the Privacy Act, an agency can charge only for the cost of copying
records for you, not for time spent locating them.

How long will i t take to answer my request?

Under the terms of the Privacy Act, the agency is not required to reply
to a request within a given period of time.
However, most agencies have
adopted the 10-day period in their regulations.
If you do not receive
any response within 4 weeks or so, you might wish to write again,
enclosing a copy of your original request.

What if I find that a federal agency has incorrect information about me

in the files?

The Privacy Act requires agencies maintaining personal inforrna~ion about

individuals to keep complete, accurate, timely, and relevant files.
If,
after seeing your file, you believe that it contains incorrect
information and should be amended, write to the agency official who
released the record to you.
Include all pertinent doclli~entation for
each change you are requesting.
The agency will let you know if further
proof is needed.
The act requires an agency to notify you of the
receipt of such an amendment request within 10 working days.of receipt.
If your request for amendment is granted, the agency will ttll you
precisely what will be done to amend the record.
You may appeal any
denial.
Even if an agency denies your appeal, ycu have the right to
submit a statement explaining why you think the record is wrong and t~e
agency must attach your statement to the record involved.
The agency
must also inform you of your right to go to court and have a judge
review the denial of your appeal.

60

What can I do if I am denied information requested under the Privacy

Act?

There is no required procedure for Privacy Act appeals, but an agency

should advise you of its own appeal procedur~ when it makes a denial.
Should the agency deny your appeal, you may take the matter to court. I f
you win your case, you may be awarded court costs and attorney's fees.

A Comparison of the Freedom of Information Act and the Privacy

What is the relationship between the FOIA and the Privacy Act?

Although the two laws were enacted for different purposes, there is some
similarity in their provisions. Both the FOIA and the Privacy Act give
people the right to request access to records held by agencies of the
federal government.
The FOIA's access rights are given to "any person,"
but the Privacy Act's access rights are given only to the individual who
is the subject of the records sought (if that individual is a U.S.
citizen or a lawfully admitted permanent resident alien).
The FOIA applies to all records of federal agencies. The Privacy Act,
however, applies to only those federal agency records that are in
"systems of records" containing information about individuals that is
retrieved by the use of a name or personal identifier. Each law has a
somewhat different set of fees, time limits, ~nd exemptions from its
right of access.
If the information you want pertains to the activities of a federal
agency, an organization, or some person other than yourself, you should
make your request under the FOIA, which covers all agency records.
If
the information you want is about yourself, you should make the request
also under the Privacy Act, which covers most records of agencies that
pertain to individuals.
Sometimes you can use the FOIA to get records
about yourself that are not in a Privacy Act "system of records."
If
you are in doubt about which law applies or would better suit your
needs, you may refer to both in your request letter.
If you request
records about yourself and the Privacy Act applies, the agency should
process the request under both the FOIA and the Privacy Act and withhold
requested information from you only if it is exempt under both laws.

Can I request information about other people?

Yes, but it might be withheld to protect their personal privacy. The

FOIA contains two very important provisions concerning persona.:. privacy:
Exemption 6 and Exemption 7(C). They protect you from others who may
seek information about you, but they also may block you if you see~
information about others. The FOIA's Exemptiop 6 permits an agency to
withhold information about individuals if disclosing it would be "a
clearly unwarranted invasion of personal privacy." This includes, for
example, almost all of the information in medical and financial penefit
files and much of the information in personnel files. Exemption ~(C)
similarly protects personal privacy interests in law enforcement
records.
To decide whether to withhold information under these two :OIA
privacy exemptions, an agency must balance personal privacy interests
against any public interest that would be served by disclosure.
Neither
Exemption 6 nor Exemption 7(C) can be used to deny you access to
information about yourself, only to deny you information about other
persons.
61

The Freedom of Information Act, 5 U.S.C.

552

Public information; agency rules, opinions, orders, records, and

proceedings
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public-(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may obtain information, make submittals or requests, or obtain
decisions;
(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
(C) rules of procedure, descriptions of form~ available or the places at
which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the
extent that a person has actual and timely notice of the terms thereof,
a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register
and not so published.
For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein
with the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying-(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;

a~d

(C) administrative staff manuals and instructions to staff that affect a

member of the public; unless the materials are promptly published and
copies offered for sale.
To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, or staff manual or in~truction.
However, in each case the justification for the deletion shall be
explained fully in writing.
Each agency shall also maintain a~d make
available for public inspection and copying current indexes providing
identifying information for the public as to any matter issued, adcpted,
or promulgated after July 4, 1967, and required by this Faragraph to be
made available or published.
Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by
order published in the Federal6~ecister that the ~~blica:icn ~c~l~ b~

unnecessary and impracticable, in which case the agency shall

nonetheless provide copies of such index on request at a cost not to
exceed the direct cost of duplication. A final order, opinion,
statement of policy, interpretation, or staff manual or instruction that
affects a member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency only if-(i) it has been indexed and either made available or published as
provided by this pa~agraph; or
_
(ii) the party has actual and timely notice of the terms thereof.
(3) Except with respect to the records made available under parag~aphs
(1) and (2) of the subsection, each agency, upon any request for records
which (A) reasonably describes such records and (B) is made in
accordance with published rules stating the time, place, fees (if any),
and procedures to be followed, shall make the records promptly available
to any person.
(4) (A} (i) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests under the section and establishing procedures and
guidelines for determining when such fees should be waived or reduced.
Such schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment, by the
Director of the Office of Management and Budget and which shall provide
for a uniform schedule of fees for all agencies.
(ii) Such agency regulations shall provide that-(I} fees shall be limited to reasonable standard charges for document
search, duplication, and review, when records are requested for
commercial use;
(II} fees shall be limited to reasonable standard charges for document
duplication when records are not sought for commercial use and the
request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be fu~nished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of
the information is in the public interest because it is likely to
contribute significantly to public understanding of the ope~ations or
activities of the government and is not primarily in the comme~cial
interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct
costs of search, duplication, or review.
Review costsl shall include
only the direct costs incurred during the initial examination of a
document for the purposes of determining whethe~ the documents must be
disclosed under this section and for the purposes of withholding any
portions exempt from disclosure under this section.
Review costs may
not include any costs incurred in resolving issues of law or policy tha~
may be raised in the course of processing a request under this section.

63

No fee may be charged by any agency under this section-(I) if the cost of routine collection and processing of the fee are
likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of this
subparagraph for the first two hours of search time or for the first one
hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion,
agency has determined that the fee will exceed $250.

or the

(vi) Nothing in this subparagraph shall supersede fees chargeable under

a statute specifically providing for setting the level of fees for
particular types of records.
(vii) In any action by a requester regarding the waiver of fees under
this section, the court shall determine the matter de novo: Provided,
that the court's review of the matter shall be limited to the record
before the agency.
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant.
In such a case the
court shall determine the matter de novo, and may examine the contents
of such agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the agency to
sustain its action.
{C) Notwithstanding any other provision of law, the defendant shall
serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the defendant of the
pleading in which such complaint is made, unless the court otherwise
directs for good cause shown.
(D) [Except as to cases the court considers of greater importance,
proceedings before the district court, as authorized by this subsection,
and appeals therefrom, take precedence on the docket over all cases and
shall be assigned for hearing and trial or for argument at the earliest
practicable date and expedited in every way.]
Repealed. Pub. L. 98-620,
Title IV,
402 (2), Nov. 8, 1984, 98 Stat. 333'5, 3357.
(E) The court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case under
this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation cdsts, and the
court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding, t~e
Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding.
The Special Counsel,

64

after investigation and consideration of the evidence submitted, shall

submit his findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative.
The
administrative authority shall take the corrective action that the
Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and ir.
the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each
member in every agency proceeding.
(6) (A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall-(i) determine within ten days (excepting Saturdays, Sundays, and legal
public holidays) after the receipt of any such request whether to comply
with such request and shall immediately notify the person making such
request of such determination and the reasons therefor, and of the right
of such person to appeal to the head of the agency any adverse
determination; and
(ii) make a determination with respect to any appeal within twenty days
(excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal.
If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(B) In unusual circumstances as specified in this subparagraph, the time
limits prescribed in either clause (i) or clause (ii) of subparagraph
(A) may be extended by written notice to the~erson making such request
setting forth the reasons for such extension and the date on which a
determination is expected to be dispatched.
No such notice shall
specify a date that would result in an extension for more than ten
working days.
As used in this subparagraph, "unusual circumstances"
means, but only to the extent reasonably necessary to the proper
processing of the particular request-(i) the need to search for and collect the requested records from field
facilities or other establishments that are separate from the office
processing the request;
(ii) the need to sear2h for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
a single request; or

i~

(iii) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(C) Any person making a request to any agency for records ~nder
paragraph (1), (2), or (3) o this subsection shall be deemed to have
exhausted his administrative remedies with respect: to sc:ch request i
the agency fails to comply with the applicabfe time limit provisions o
this paragraph.
If the Government can show exceptional circumstances

65

exist and that the agency is exercising due diligence in responding to

the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records.
Upon any
determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such
request.
Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(b) This section does not apply to matters that are-(1) (A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified pursuant to such
Executive order;
(2) related solely to the internal personnel rules and practices of an
agency;
(3) specifically exempted from disclosure by statute (other than section
552b of this title), 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~matter to be withheld;
(4) trade secrets and commercial or financial information obtained from
a person and privileged or confidential;

(5) 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;
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) records or information compiled for law enforcement purposes, but to
the extent that the production of such law enforcement records or
information (A) could reasonably be expected to interfere with
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 a confidential
source, including a State, local, or foreign agency or authority or any
private institution which furnished information or. a confidential basis,
and: in the case of a record or information compiled by a criminal law
enforcement authority in the course of a cri~jnal investigation, or by
an agency conducting a lawful national secur{ty intelligence
investigation, information furnished by a confidential source, (E) would
disclose 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 the law, or (F) could rtasonably be
expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination, opera~~ng, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial ins:ituticns;
or

66

(9) geological and geophysical information and data, including maps,

concerning wells.
Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which arc
exempt under this subsection.
(c) (1) Whenever a request is made which
described in subsection (b) (7) (A) and--

i~volves

access to records

(A) the investigation or proceeding involves a possible violation of

criminal law; and
(B) there is reason to believe that (i) the subject of the investigation
or proceeding is not aware of its pendency, and (ii) disclosure of the
existence of the records could reasonably be expected to interfere with
enforcement proceedings, the agency may, during only such time as that
circumstance continues, treat the records as not subject to the
requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement
agency under an informant's name or personal identifier are requested by
a third party according to the informant's name or personal identifier,
the agency may treat the records as not subject to the requirements of
the section unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
subsection (b) (1), the Bureau may, as long as the existence of the
records remains classified information, treat the records as not subject
to the requirements of this section.
(d) This section does not authorize withhold~ng of information or limit
the availability of records to the public, except as specifically stated
in this section.
This section is not authority to withhold information
from Congress.
(e) On or before March 1 of each calendar year, each agency shall submit
a report covering the preceding calendar year to the Speaker of the
House of Representatives and President of the Senate for referral to the
appropriate committees of the Congress.
The report shall include-(1) the number of determinations made by such agency not to comply with
requests for records made to such agency under subsection (a) and the
reasons for each such determination;
(2) the number of appeals made by persons under subsection (a) (6), the
result of such appeals, and the reason for the action upon each appeal
that results in a denial of information;
j

(3) the names and titles or positions of each person responsible for the
denial of records requested under this section, and the number of
instances of participation for each;
(4) the results of each proceeding conducted pursuant to subsection
(a) (4) (F), including a report of the disciplinary action taken against
the officer or employee who was primarily responsible for improperly

67

withholding records
taken;

OY

an explanation of

why~disciplinaYy

action was not

(5) a copy of every rule made by such agency regarding this section;
(6) a copy of the fee schedule and the total amount of fees collected by
the agency for making records available under this section; and
(7) such other information as indicates efforts to administer fully this
section.
The Attorney General shall submit an annual report on or before March l
of each calendar year which shall include for the prior calendar year a
listing of the number of cases arising under this section, the exemption
involved in each case, the disposition of such case, and the cost, fees,
and penalties assessed under subsections (a) (4) (E), (F), and (G).
Such
report shall also include a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this section.
(f) For purposes of this section, the term "agency" as defined in
section 551{1) of this title includes any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent
regulatory agency.
.

68

THE FEDERAL REGISTER

Svstem
o[Records
...
...
A. In these "VIP Dispatches" if you notice we usually start out in the FOIA
request using the appropriate Systems of Records number.
1. 24.030 for Hv1F
2. 24.046 for BMF
3. 34.018 for NMF

B. We have included some sample pages from the Federal Register

containing the 10, December 2001, Systems of Records for the IRS. The
complete book is item # 195 on our literature list.
1. As you look through these records, you'll see that many are for IRS

personal or for other Government Agencies. So they do not pertain to most

of us.
2. Some are for criminal purpose only. So, if you do not have a CI ongoing in
your situation then they would not apply to you.
a. Being referred over to CI from the examination officer is different than having
an actual CI ongoing.
b. Being notified that you are a target of a Grand Jury Investigation is a different
situation.

C. If you have been self-assessing yourself and sending in whatever forms

you believe are correct, signing forms under penalty of perjury, keeping
and storing all those books and records for at least 10 years, most of the
items in the Systems of Records will be of little benefit to you except for
educational purposes.
D. If you are one ofthe approximately 56 million Americans who have had
enough and are sick and tired of dealing with such a sick system in
today's fast paced information highway, then this Systems of Records
could be very helpful to you.
E. We meet people in their late teens and early twenties who have never
filed a return of any kind. And many don't really plan on doing so.

69

F. Now read through the next four pages with your highlighter so you get a
feel of how to use the System of Records.
G. This Federal Register of Dec. 10, 2002 could just prove to be a valuable
tool for your use in the FOIA process.
H. Learn to use it to your advantage. It is Item # 195 on our literature list.
I. Tum off the electric toilet (TV) in your living room and spend some time

creating your own FOIA requests pertaining to your situation.

J. It used to take us 2 to 4 hours to do one request on our old Royal
typewriter. The came the word processor and the 1.6 GHz computer.
1. We have gone from 4hrs and a bottle of white out to 15 minutes or less and no
white out.
2. We still spend hours doing research and development of the actual FOIA requests.
3. We like to know as much as we can about what we ask for in order to answer the
following questions:
a. What exactly we are asking for.
b. Why are we asking for it.
c. When in the FOIA process do we use it.
d. How to use the reply that we receive back from the request.
e. What we expect to accomplish by using it.

70

Monday,
December 10, 2001

Part

Department of the
Treasury
Internal Revenue Service
Privacy Act of 1974, as Amended; System
of Records; Notice

71

63784

Federal Register/Vel. 66, No. 237/Monday. December 10, 2001/Notices

64 FR 32095, and as amended on

October 25, 2000. at 65 FR 63919)
Internal Revenue Service
IRS 22.062-Electronic Filing Records.
(Published August 31. 2000. at 65 FR
Privacy Act of 1974, as Amended;
53089)
System of Records
IRS 46.051--Criminal Investigation
Audit Trail Records System.
AGENCY: Internal Revenue Service,
(Published April4, 2000. at 65 FR
Treasury.
21236)
ACTION: Notice of systems of records.
IRS 22.028-Disclosure Authorizations
for United States Residencv
SUMMARY: In accordance with the
Certification Letters. (Published
requirements of the Privacy Act of 1974,
March 6. 2000. at 65 FR 11833)
as amended. 5 U.S.C. 552a, the Internal
IRS 34.037-IRS Audit Trail and
Revenue Service. Treasury, is
Security Records System. (Published
publishing its Privacy Act systems of
November 18, 1999, at 64 FR 63108).
records.
The following systems of records have
been removed from IRS' inventorv of
SUPPLEMENTARY INFORMATION: Pursuant
Privacy Act systems:

to the Privacy Act of 1974 (5 U.S.C.

552a) and the Office of Management and IRS 34.005-Parking Space Application
Budget (OMB) Circular No. A-130, the
and Assignment. (December 14, 2000,
Internal Revenue Service (IRS) has
at 65 FR 78263).
IRS 36.888-Employee Tax Compliance
completed a review of its Privacy Act
Records (ETC). (Published February 6,
systems of records notices to identify
2001. at 66 FR 9142).
minor changes that will more accurately
describe these records.
Systems Covered by This Notice
The changes throughout the
This notice covers all systems of
document are editorial in nature and
consist principally of changes to system records adopted by the Bureau up to
August 1, 2001. The systems notices are
locations and system manager
reprinted in their entirety following the
addresses. Revisions have also been
made due to the restructuring of the IRS Table of Contents.
along business lines.
Dated: September 26, 2001.
The IRS Restructuring and Reform Act W. Earl Wright. Jr.,
of 1998 included specific provisions
Chief Management and Administrative
impacting the Office of the Chief
Programs Officer.
Inspector, Internal Revenue Service. The
Table of Contents.
law provided for the appointment of a
Treasury Inspector General for Tax
Internal Revenue Service (IRS}
Administration (TIGTA), effective
IRS 00.001~rrespondence Files (including
January 19, 1999, who reports directly
Stakeholder Relationship files) and
to the Secretary of the Treasury. As a
Correspondence Control Files
consequence. two IRS systems of
IRS 00.002~rrespondence Files/Inquiries
records were affected by the transfer of
About Enforcement Activities
IRS 00.003-Taxpayer Advocate Service and
responsibility (published June 15, 1999
Customer Feedback and Survey Records
at 64 FR 32096). The first, IRS 60.008IRS 00.333-Third Party Contact Records
Security, Background, and Character
Party Contact Reprisal
Investigation Files, Inspection, has been IRS 00.334-Third
Records
renumbered and renamed as "IRS
IRS 10.001-Biographical Files, Chief,
34.021-Personnel Security
Communications and Liaison
Investigations. National Background
IRS 10.004-Stakeholder Relationship
Investigations Center-Treasury/IRS."
Management and Subject Files. Chief.
Communications and Liaison
The second. IRS 60.011-lntemal
IRS 21.001-Tax Administration Resources
Security Management Information
File. Office of Tax Admi.nistration
Svstem (ISMIS) has been renumbered
Advisory Services
and renamed as "IRS 34.022-National
IRS 22.003-Annual Listing of Undelivered
Background Investigations Center
Refund Checks
Management Information System
IRS 22.011-File of Erroneous Refunds
(NBICMIS)-Treasurv/IRS."
IRS 22.02~Form 1042S Index by Name of
The following seven systems of
Recipient
records have been added to the IRS'
IRS 22.027-Foreign Information System
(FlS)
inventory of Privacy Act notices since
IRS 22..028-Disclosure Authorizations for
September 30. 1998:
U..S. Residency Certification Letters
IRS 00.334-Third Partv Contact
IRS 22..032-Individual Miaofilm Retention
Reprisal Records. (PUblished October
Register
25. 2000. at 65 FR 63917)
IRS 22.034-lndividual Returns rues.
Adjustments and Miscellaneous
IRS 00.333-Third Party Contact
Documents Files
Records. (Published June 15. 1999, at
DEPARTMENT OF THE TREASURY

72

IRS 22.043-Potential Refund Litigation Case

Files
IRS 22.044-P.O.W.-M.l.A. Reference File
IRS 22.054-Subsidiary Accounting Files
IRS 22.059-Unidentified Remittance File
IRS 22.06D-Automated Non-Master File
(A..'<'MFJ

IRS 22.061-Individual Return Master File

(!&~)

IRS 22.062 Electronic Filing Records

IRS 24.013-Combined Account Number
File. Taxpayer Services
IRS 24.029-Individual Account Number File
(IA.r.W)

IRS 24.03o--GADE Individual Master File

(Formerlv: Individual Master File

(IMFJJ
.
IRS 24.046-CADE Business Master File
(BMF) (Fonnerlv: Business Master File
(BMFJ)
.
IRS 24.047-Audit Underreporter Case File
IRS 24.07D-Debtor Master File (DMF)
IRS 26.001-Acquired Property Records
IRS 26.006-Fonn 2209. Courtesy
Investigations
IRS 26.008-IRS and Treasury Employee
Delinquency
IRS 26.009-Lien Files (Open and Closed)
IRS 26.01D-Lists of Prospective Bidders at
Internal Revenue Sales of Seized
Property
IRS 26.011-Litigation Case Files
IRS 26.012-0ffer in Compromise (OICJ File
IRS 26.013-Trust Fund Recovery Cases/One
Hundred Percent Penalty Cases
IRS 26.014-Record 21, Record of Seizure
and Sale of Real Property
IRS 26.016-Returns Compliance Programs
(IMF),

(RCPJ
IRS 26.019-Taxpayer Delinquent Accounts
(TD .>,.) Files including subsystems: (a)
Adjustments and Payment Tracers Files,
(b) Collateral Files. (c) Seized Property
Records. (d) Tax SB/SE. W8d. LMSB
Waiver. Forms 900. Files, and (e)
Accounts on Child Support Obligations
IRS 26.02D-Taxpayer Delinquency
Investigation (TDIJ Files
IRS 26.021-Transferee Files
IRS 26.022-Delinquency Prevention
Programs
IRS 30.003-Requests for Printed Tax
Materials Including Lists
IRS 30.004-Securitv Violations
IRS 3.;.003-Assignment and Accountability
of Personal Property Files
IRS 34.007-Record of Government Books of
Transportation Requests
IRS 3.;.009-Safety Program Files
IRS 3.;.012-Emergency Preparedness Cadre
Assignments and Alerting Rosters Files
IRS 3.;.013-ldentification Media Files
System for Employees and Others Issued

IRS ID

IRS 34.014-!'vfotor Vehicle Registration and

Entrv Pass Files
IRS 34.0l6-Securitv Clearance Files
IRS 3-1.02D-IRS Audit Trail Lead Analvsis
Svstem (ATLo\S)

IRS 3i021-Persorufel Securitv

Investigations. National Boldground
Investigations Center (formerly: IRS
60.008-Security. Background. and
Character Investigation F"'.les.Inspection)
IRS 3-1.022-National Background
Investigations Center Management

63800

Federal Register/Val. 66, No. 237/Monday, December 10. 2001/Notices

CATEGORIES OF RECORDS IN THE SYSTEM:

Taxpayer entity records (name.

address, taxpayer identification number,
and filing requirements related to entity
liability); and tax modules (specific tax
returns. tax vears. and transactions
which have been recorded relative to
the module) when specifically requested
bv a service center, or if a notice for
balance of tax due has been issued; a
specific tax period is in taxpayer
delinquent account status (TDA); a
specific tax period is either credit or
debit balance; no return has been posted
and the return due date (RDD) has
passed; or when a specific tax period is
in taxpayer delinquent return (TDI)
status.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

5 u.s.c. 301; 26 u.s.c. 7602, 7801

and 7802.
PURPOSE(S):

This system maintains records

necessary to efficiently identify
individuals having specific current
business with the IRS.

accordance with instructions appearing

at 31 CFR part 1. subpart C, appendix
B. Inquiries should be addressed as in
"Record access procedures" below.
RECORD ACCESS PROCEDURES:

Individuals seeking access to any

record contained in this system of
records may inquire in accordance with
instructions appearing at 31 CFR part 1.
subpart C, appendix B. Inquiries should
be addressed to the Director of the
Internal Revenue Service Center
servicing the area in which the
individual resides. (See IRS appendix A
for addresses.)
CONTESTING RECORD PROCEDURES:

26 U.S.C. 7852(e) prohibits Privacy

Act amendment of tax records.

By social security number.

SAFEGUARDS:

Access controls will not be less than

those provided by the Automated
Information System Security Handbook,
IRM 2(10)00, and the Manager's
Security Handbook, IRM 1(16)12.

7602. 7801

PURPOSE(S):

To increase the efficiencv of tax

administration. the IRS maintains
records of tax returns. payments, and
assessments including Telefile records.

Disclosure of returns and return

information mav be made onlv as
provided by (1) 26 U.S.C. 3406, and (2)
26 u.s.c. 6103.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

POUCIES AND PROCEDURES FOR STORING,

RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:

None.

CADE Individual Master File (IMF}Treasury/IRS.

RETRIEVABIUTY:

c.s.c.

Tax returns and other filings made by

the individual and agency entries made
in the administration of the individual's
tax account.

Disclosure of returns and return

information may be made only as
provided by 26 U.S.C. 6103.

Disk storage.

5 u.s.c. 301; 26
and 7802.

RECORD SOURCE CATEGORIES:

TreasurynRS

STORAGE:

AUTHORrTY FOR MAINTENANCE OF THE SYSTEM:

ROUnNE USES OF RECORDS MAINTAINED IN THE

SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSES OF SUCH USES:

ROUTINE USES OF RECORDS MAINTAINED IN THE

SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSES OF SUCH USES:

POUCIES AND PROCEDURES FOR STORING,

RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:

transactions. and a code identifying

taxpayers who threatened or assaulted
IRS employees. An indicator will be
added to any taxpayer's account who
owes past due child and/or spousal
support payments and whose name has
been submitted to IRS bv a state under
provisions of Pub. L. 97:.35.

24.030
STORAGE:

SYSTEM NAME:

Magnetic media.

SYSTEM LOCAnON:

Martinsburg Computing Center,

Martinsburg. West Virginia 25401, and
IRS Service Centers.
CATEGORIES OF INDMDUALS COVERED BY THE
SYSTEM:

Individuals who file and/or are

included on Federal Individual Income
Tax Returns (i.e., Forms 1040, 1040A.
and 1040EZ); individuals who file other
information filings; and power of
attorney notifications for individuals.
CATEGORIES OF RECORDS IN THE SYSTEM:

Taxpayer entity records (name.

address, identification number (SSN).
and other indicators pertaining to entity
RETENTION AND DISPOSAL:
Records are maintained in accordance maintenance, including zip code), and
tax modular records which contain all
with Records Disposition Handbooks,
records relative to specific tax returns
IRM 1.15.2.1 through IRM 1.15.2.31.
for each applicable tax period or year.
Modular records for authorization
SYSTEM MANAGER(S) AND ADDRESS:
information (name, address,
Official prescribing policies and
identification number and type of
practices-management official (Wage
and Investment and Small Business Self authority granted. and the name of the
representative(s) for the taxpayer.
Employed). Officials maintaining the
Modular records for the representative
system-Internal Revenue Service
(name. address and unique
Center Directors. (See IRS appendix A
identification number). Recorded here
for addresses.)
are tax transactions such as tax amount.
NOnFlCATlON PROCEDURE:
~dditions. abatements of tax payments.
Individuals seeking to determine if
1nterest and like type transactions
this system of records contains a record recorded relative to each tax module.
pertaining to themselves may inquire in power or attorney authorization

73

RETRIEV ABIUTY:

By taxpayer identification number

(social security number or employer
identification number), document
locator numbers and alphabetically by
name.
SAFEGUARDS:

Access controls will not be less than

those provided by the Automated
Information System Security Handbook.
IRM 2(10)00, and the Manager's
Security Handbook. ~\11(16)12.
RETENTION AND DISPOSAL:

Records are maintained in accordance

with Records Disposition Handbooks,
IRM 1.15.2.1 through IRM 1.15.2.31.
Generally. the code identifying
taxpayers who threatened or assaulted
IRS employees may be removed five
years after initial input.
SYSTEM MANAGER(S) AND ADDRESS:

Official prescribing policies and

practices-Commissioner
(Commissioner, Wage and Investment).
Officials maintaining the systemInternal Revenue Service Center
/Campus Directors and the Director,
Martinsburg Computing Center. (See IRS
appendix A for addresses.)
NOnFlCAnON PROCEDURE:

Individuals seeking to determine if

this svstem of records contains a record
pertaining to themselves may inquire in

Federal Register I Vol. 66, No. 237 I Monday. December 10. 2001/ Notices
accordance with instructions appearing
at 31 CFR part 1. subpart C. appendix
B. Inquiries should be addressed as in
"Record access procedures" below.
RECORD ACCESS PROCEDURES:

Individuals seeking access to any

record contained in this system of
records may inquire in accordance with
instructions appearing at 31 CFR part 1.
subpart C, appendix B. Inquiries should
be addressed to the Area Director or the
Internal Revenue Service Center/
Campus Director servicing the area in
which the individual resides. (See IRS
appendix A for addresses.)
CONTESTING RECORD PROCEDURES:

26 U.S.C. 7852(e) prohibits Privacy

Act amendment of tax records.
RECORD SOURCE CATEGORIES:

Tax returns and other filings made by

the individual and agency entries made
in the administration of the individual's
tax account.
EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.
TreasurynRS 24.046
SYSTEM NAME:

CADE Business Master File (BMF}Treasury /IRS.

SYSTEM LOCATION:

Martinsburg Computing Center,

Martinsburg, West Virginia 25401,
Cincinnati Service Center, 201 West
River Center Blvd .. Covington. KY
41019; Memphis Service Center/
Campus, 3131 Democrat Road,
Memphis, TN 38118; and Ogden Service
Center/Campus, 1160 West 1200 South
Street, Ogden, UT 84201, and other IRS
Service Centers. (See IRS appendix A
for addresses.)
CATEGORIES OF INDMDUALS COVERED BY THE
SYSTEM:

Persons in a sole proprietary role who

file business tax returns, including
Employer's Quarterly Federal Tax
Returns (Form 941). Excise Tax Returns
(Form 720). Wagering Returns (Forms
llC and 730). Highway Use Returns
(Form 2290). and Form 1065 (U.S.
Partnership Returns of Income). and
U.S. Fiduciary Returns (Form 1041) and
Estate and Gift Taxes (Forms 706.
706NA, and 709). The latter can be
individuals not in a sole proprietorship
role.
CATEGORIES OF RECORDS IN THE SYSTEM:

Taxpayer entity records (name.

address. taxpayer identification number
(TIN) which may be either EIN or SSN.
and other indicators pertaining to entity
maintenance. including zip code), and

tax modules which are all the records

relative to specific tax returns for each
applicable tax period. Recorded are tax
transactions such as tax amount.
statements/additions to tax, payments.
interest and like type transactions
relative to each tax module. The
Employer Identification Number (EIN)/
Name Control file which contains EINs
and the associated IRS name controls.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

5 u.s.c. 301; 26 u.s.c. 7602. 7801

and 7802.
PURPOSE{S):

To increase the effi.ciencv of tax

administration. the Service maintains
magnetic media records of tax returns
filed by business taxpayers. and
payments and assessments made to the
accounts.
ROUTINE USES OF RECORDS MAINTAINED IN THE
SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSES OF SUCH USES:

Disclosure of returns and return

information may be made as provided
by 26 U.S.C. 6103, and for meeting the
requirements of 26 U.S.C. 3406. 26
U.S.C. 3406 provides, in part, that the
Secretary of the Treasury notify a payor
that the TIN (Taxpayer Identification
Number) furnished by the payee is
incorrect.
POUCIES AND PROCEDURES FOR STORING,
RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:

63801

NOTIFICATION PROCEDURE:

Individuals seeking to determine if

this svstem of records contains a record
pertaining to themselves may inquire in
accordance with instructions appearing
at 31 CFR part I. subpart C. appendix B.
Inquiries should be addressed as in
"Record access procedures" below.
RECORD ACCESS PROCEDURES:

Individuals seeking access to any

record contained in this system of
records may inquire in accordance with
instructions appearing at 31 CFR part 1.
subpart C. appendix B. Inquiries should
be addressed to the Director of the
Internal Revenue Service Center
servicing the area in which the
individual resides. (See IRS appendix A
for addresses.)
CONTESTING RECORD PROCEDURES:

26 U.S.C. 7852(e) prohibits Privacy

Act amendment of tax records.
RECORD SOURCE CATEGORIES:

Tax returns and other filings made by

the individual and agency entries made
in the administration of the individual's
tax account.
EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.
TreasurynRs 24.047
SYSTEM NAME:

Audit Underreporter Case FileTreasury/IRS.

SYSTEM LOCATION:

STORAGE:

Magnetic media.

Internal Revenue Service Centers and

Martinsburg Computing Center. (See IRS
appendix A for addresses.)

RETRIEVABIUTY:

By name. type of tax. and identifying

number (including document locator
number).
SAFEGUARDS:

Access Controls will not be less than

those provided by the Automated
Information System Security Handbook.
IRM 2(10)00, and the Manager's
Security Handbook. IRM 1(16)12.
RETENTION AND DISPOSAL:

Records are maintained in accordance

with Records Disposition Handbooks,
IRM 1.15.2.1 through IRM 1.15.2.31.
SYSTEM MANAGER(S) AND ADDRESS:

Official prescribing policies and

practices-Management Official-Small
Business Self Employed. Officials
maintaining the system-Internal
Revenue Service Center/Campus
Directors. and the Director. Martinsburg
Computing Center. (See IRS appendix A
for addresses.)

74

CATEGORIES OF INDMDUALS COVERED BY THE

SYSTEM:

Recipients of income who appear not

to have declared on their income tax
returns (Forms 1040, 1040A, and
1040EZ) all income paid to them in the
tax year under study.
CATEGORIES OF RECORDS IN THE SYSTEM:

Records maintained are taxpayer (i.e..

payee) entity records containing payee
name. address, taxpayer identification
number. and other indicators relating to
entitv maintenance; and income records
contiining the types and amounts of
income received/reported. and
information identifying the income
payer.
A~ FOR IIAINTENANCE OF THE SYSTEM:

5 u.s.c. 301; 26 u.s.c. 7602.7801

and i802.

PVRPOSE(S):

These records provide a way to

identify recipients of income who

Introduction to the FOIA Section

A. In this issue we only included three basic FOIA requests on purpose.
B.

After going through this issue we want you to develop your own request
and send it in.
1. Form a FOIA study group and help each other with requests. Then compare the
results you get back.

C. Every once in awhile something slips through. You may get a two to six
page answer that can prove to be very interesting!
D. If you get something out of the norm, we would like to take a look at it.
You can fax it to 313-557-0708. That way we can all learn and help
others. Don't forget to use a cover letter so we know who is sending the
fax.
E.

FOIA is a very precise way of building your file by using their

documents. And learning how to use the System of Records is a way of
helping that process. FOIA upon FOIA ...

F.

These FOIA requests come back in your name not somebody else's
name.

G.

If you are one ofthe millions who have stopped self-assessing yourself
then this process is critical for your overall protection.

75

1.) FOIA request for your "IMF"

A. Once you have it ready to go you can send it in by regular mail to your

correct local disclosure office.

B. We suggest you keep this request very simple by not mixing this IMF
request with any other request.
C. Try to keep your request limited to 3 or 4 years at a time.
D. Your Hv1F will generally run 1 %, to 2 years behind. If you ask for the
current year or last year's IMF they will probably not yet be in the IDRS
system.

E. We provide a complete decoding service of your IMF that goes into great
depth and detail. The decoding that we do will include another group of
FOIA requests for you to send in which are based upon what the IRS has
posted to your IMF and other documents.
F. The first 100 pages of a FOIA request are free. It is 1Ocents a page after
that. The first two hours of research are free.
G. The IRS has 20 days to respond to your request. But do not hold your
breath. Some people get responses within a couple of weeks. With others it
may take months.
H. When you send this or any other FOIA request it has to have a notarized
statement or you can use your driver's license copied onto the FOIA request
to verify that you are the correct requester.
I. If you no longer have a SSN you might want to put "former SSN" in front

of the SSN number in the account area of the FOIA request.

76

FREEDOM OF INFORMATION ACT REQUEST

TO:
Disclosure Officer
Internal Revenue Service
iraddrl
iraddr2
FROM: name
addrl
addr2
Account#
Dear Disclosure Officer:
1.

This is a request under the Freedom oflnformation Act, 5 USC 552, or

regulations thereunder. This is my firm promise to pay fees and costs for locating
and duplicating the records requested below, ultimately determined in accordance
with 26 CFR 601.702 (f).

2.

If some of this request is exempt from release, please furnish me with those
portions reasonable segregable. I am waiving personal inspection of the requested
records.

3.

This request pertains to the years:

4.

Please send me a copy of all documents maintained in the system of records

identified as Individual Master File (IMF) specific and not literal; Data Service,
Treasury I IRS 24.030, which pertain to this requester.

5.

Please certify all documents with the Form 2866, certificate of official record. If
there are no specific documents pertaining to this request, certify your response
with Form 3050, certificate oflack of records.

DATED:

Respectfully,

name, Requester

77

AFFIDA v!T I DECLARATION

COUNTY OF _ _ _ _ __

STATE O F - - - - - - -

)
)

ss

SUBSCRIBED Ai'l"D AFFIRMED:

On this
day of
, ~arne, personally appeared. personally
kno\\'n to me, OR proved to me on the basis of satisfactory evidence to be the one whose
name is subscribed to the \\'ithin instrument.

Witness my hand and official seal.

Signature ofNotary
I, Name, hereby swear and affirm that I have the authority to request information
pertaining to Entitv name.

Name

78

FOIA Section
A. FOIA, your key to relief.

B. You will notice the FOIA requests in this section are also in the past issues. This
issue is geared to giving you a background on the FOIA process with a little study.
1. Both BMF and IMF have the same items that you want to obtain through FOIA request.
2. If you want to teach a class on the IMF, the BMF, or the NMF you will have them in the past issues.
3. Some people will be buying a certain issue because someone they know has a problem in this area. Then,
if that individual wants a year subscription they can order it for themselves.

C. In the March VIP Dispatch concerning the NMF (Non-Master File) the FOIA
requests are the key and will continue to be. That is why this issue is so important.
D. Each "VIP Dispatch" is designed to be a self-contained unit based on one main topic.
E. We will introduce several new FOIA requests that can be used with the IMF or BMF
in the following issues.
F. After years of teaching about the FOIA process we want people to say; "that was
exactly the FOIA request that we were looking for," Or "look what I received back
from that FOIA request. I had no idea they were keeping this type of information on
me."
G. FOIA requests are a great tool to use to document actual IRS Procedural Due Process
abuse against you.
I. These documented procedural due process violations are the only real issue that the federal system
will sit up and take notice of in tax matters.

2.

If you get good at this and with some divine providence you can trace these procedural due
process violations to one or two specific agents. You can then file a complaint against them. First
you must gather the documented facts.

H. When you do a BMF request make sure you use the Entity name and not your
personal name.
l.Make sure you use the entities EIN and not your SSN.

I.

We have hundreds of entities who obtain their BMF's. They do exist and can be
acquired for its use as credible evidence to rebut the Prima Facia presumptions of the
IRS.

J. If the IRS is coming after an entity, the BMF will show how far along they are in the
process.

79

1.)

The FOIA request (or your BMF (Business Master File)

A. There are two important points to remember concerning a request for a

BMF.
1. In order to have a BMF you must have an EIN (Employer Identification Number).

2. If you have an SSN you will not have a BMF. But the IRS will still input BMF codes
into your IMF file to make you liable for some kind of an excise tax.

B. If you have a trust with an EIN then you can send off for the BMF of that
trust.
C. We also offer decoding process for your BMF which can get somewhat
complicated and time consuming depending on the size of the BMF.
D. Remember: There must be an affidavit/declaration, notary statement
filled out and signed, and attached to each FOIA request.
1. Sometimes the disclosure officer will send back your original request in the case of a
trust asking to see a copy of the trust document making you the qualified individual to
receive the information asked for.
2. If you do not have this document, contact whoever sold you your last trust packet.
Ask for this page or create it yourself, if you are the qualified trustee, and make sure
there is a notary statement with it, or it will probably be returned again.

80

FREEDOM OF INFORMATION ACT REQUEST

TO:
Disclosure Officer
Internal Revenue Service
iraddrl
iraddr2
FROM: Entity name
addrl
addr2
Account (EIN) #
Dear Disclosure Officer:
1.

This is a request under the Freedom oflnformation Act, 5 USC 552, or

regulations thereunder. 1bis is my firm promise to pay fees and costs for locating
and duplicating the records requested below, ultimately determined in accordance
with 26 CFR 601.702 (f).

2.

If some of this request is exempt from release, please furnish me with those
portions reasonable segregable. I am waiving personal inspection of the requested
records.

3.

This request pertains to the years:

4.

Please send me a copy of all the documents maintained in the System of Records
k.no\Vn as Returns and Information Processing D:R:R - Treasury I IRS Business
Master File Specific (BMF): 24.046 which pertains to the above referenced EIN#
and entity.

5.

Please certify all documents with the Form 2866, certificate of official record. If
there are no specific documents pertaining to this request, certify your response
\Vith Form 3050, certificate of lack of records.

DATED:

Respectfully,

name, Qualified Requester

81

AFFIDAVIT I DECLARATION

COUNTY O F - - - - - -

)
)

STATE O F - - - - - - -

ss

SUBSCRIBED AND AFFIRMED:

On this
day of
Name, personally appeared, personally
known to me, OR proved to me on the basis of satisfactory evidence to be the one whose
name is subscribed to the within instrument.

Witness my hand and official seal.

Signature ofNotary
I, Name. hereby swear and affirm that I have the authority to request information
pertaining to Entity name.

Name

82

FOIA request concerning the NMF

A. The FOIA request for a NMF can cover an Il\IIF or Bl\IIF.
B. When you do a FOIA request in this section make sure it is customized
for a Il\IIF or Bl\IIF.
C. Triple check your FOIA request to make sure if it's filled out correctly.
1. If it is for an IMF make sure all fill in items pertain to an IMF type of request.
Your name, your SSN are in all the correct places and dated.
2. Treat the BMF request in the same manner but using the entity name with the EIN
in all the correct places. Also, make sure you have the date on it.

D. Ifyou or the entity has not had a CP-504 or a CP-518 then you probably
do not have a NMF.
E. If you should even have a FOIA request returned the Disclosure Officer
will send a form letter telling you why. Just correct it and send it back in
again. Do not let anything or anyone sidetrack you from doing your
FOIA request.
F. This FOIA process is your key to unlocking the IRS's "BIG DARK
CHEST OF SECRETS," that they are hiding from you.

83

FREEDOM OF INFORMATION ACT REQUEST

TO:
Disclosure Officer
Internal Revenue Service
iraddr1
iraddr2
FROM: (your name or entity name)
addr1
addr2
Account#
Dear Disclosure Officer:
1.

This is a request under the Freedom of Information Act, 5 USC 552, or

regulations thereunder. This is my firm promise to pay fees and costs for locating
and duplicating the records requested below, ultimately determined in accordance
with 26 CFR 601.702 (f).

2.

If some of this request is exempt from release, please furnish me with those
portions reasonable segregable. I am waiving personal inspection of the requested
records.

3.

This request pertains to the years:

4.

Please send me a copy of the Non Master file and Comments Field maintained in
a System of Records known as Integrated Data Retrieval System I IRS 34.018
which pertain to the above referenced SS# or EIN#.

5.

Please certify all documents with the Form 2866, certificate of official record. If
there are no specific documents pertaining to this request, certify your response
with Form 3050, certificate of lack of records.

Dated:
Respectfully,

name, Qualified Requester

84

AFFIDAVIT I DECLARATION
COUNTY OF _ _ _ _ __
STATE OF _ _ _ _ _ __

)
)
)

ss

SUBSCRIBED AND AFFIRMED:

On this
day of
, Name, personally appeared, personally
known to me, OR proved to me on the basis of satisfactory evidence to be the one whose
name is subscribed to the within instrument.

Witness my hand and official seal.

Signature of Notary
I, Name, hereby swear and affirm that I have the authority to request information
pertaining to Entity name.

Name

85

CERTIFICATION OF IDENTITY
From the: U.S. Department of Justice
A. Every once in a while we will get a call from someone whose FOIA was
returned because lack of identity.
1. If it is for an IMF type of document you can use your Driver's License by
photocopying it right on the request. That will also save you a notary fee.
2. If it is for a BMF type of document then sometimes they will want to see your
corporate papers or a trust document that shows you are a qualified requester.

B. You can use the following form from U.S.D.O.J.

1. The information they request is information they already have on you anyway.

C. One thing we like about this Form is item 3, Social Security Number. If
you go to the bottom of the page at item 3, even the D.O.J. says
providing your SSN is "VOLUNTRY."
1. This Form makes a nice little exhibit to use when some entity wants that number
from you.

86

t:.S. Department of Justice

Certification of Identity

Privacy Act Statement. In accordance with 28 CFR Section 16.4l(d) personal data sufficient to identify the individuals submitting requests
by mail under the Privacy Act of 1974, 5 u.S. C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of
individuals who are the subject of U.S. Depanment of Justice systems of records are not wrongfully disclosed by the Department. Failure to
furnish this information \viii result in no action being taken on the request. False information on this form may subject the requester to criminal penalties under 18 t.J.S.C. Section 1001 and or 5 U.S.C. Section 552a(i)(3).
Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing instructions, searching existing data sources. gathering and maintaining the data needed, and completing and reviewing the collection
of information. Suggestions for reducing this burden may be submitted to Director, Facilities and Administrative Services Staff, Justice
Management Division, U.S. Department of Justice, Washington, DC 20530 and the Office of Information and Regulatory Atfairs, Office
of \-lanagement and Budget, Public use Reports Project ( 1103-00 16), Washington, DC 20:503.

Full Name of Requester

Citizenship Status 2 - - - - - - - - - - - - Social Security Number 3 _ _ _ _ _ _ _ _ _ _ _ __

CurrentAdilless - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Date of B i r t h - - - - - - - - - - - - - - Place of B i r t h - - - - - - - - - - - - - - - I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that I am the
person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S. C. Section 1001
by a fine of not more than S 10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s)
under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than $5,000.

Signature" -----------------------------------Date ____________

OPTIONAL: Authorization to Release Information to Another Person
This form is also to be completed by a requester who is authorizing information relating to himself or herself to be released to another person.
Further, pursuant to 5 U.S. C. Section 552a(b), I authorize the U.S. Department of Justice to release any and all information relating to me to:

Print or Type Name

Kame of individual who is the subject of the record sought.
Individual submitting a request under the Privacy Act of 1974 must be either .. a citizen of the Cnited States or an Alien lawfully
admitted for permanent residence," pursuant to 5 U.S.C. Section 552a(a)(2). Requests will be processed as Freedom of lnform:ltion .-\ct
requests pursuant to 5 C.S.C. Section 552. rather than Privacy Act requests. for indi\iduals who are not Cnited States citiz.:ns or ali.:ns
lawfully admitted for permanent residence.
3 Pro~iding your social security number is voluntary. You are asked to provide your social security number only to facilitate the
identific:mon of records relating to you. Without your social securiry number. the Department may be unable to locate any or all records
p.:rtaining to you.
" Signarure of indi\idual who is the subject of the record sought.
I

FOR~!

FOR'! APPROVED OMI3 ,0. 1103-'lOio

EXPIRSC-c904

87

001361
APR.<! I

ADMINISTRATIVE APPEAL PROCEDURES

A. The following four pages give you an overall view of Administrative
Appeal Procedures.
B. The first page covers the basics of the Administrative Appeal. Read it
carefully and follow all procedures.
C. On the second page you will find a sample FOIA Appeal letter. Make

sure you send it to the correct address.

1. Make sure you write FOIA appeal on the lower left-hand comer ofthe envelope,
"FOIA APPEAL."

D. On the third and fourth page is a report by the Treasury Inspector General
for Tax Administration concerning FOIA appeals.
1. When you send in your appeal you can actually attach these two pages as an
exhibit.

E. The next level is the filing of a suit in Federal District Court, which can
be an educational experience, or pure pain in the rear depending on your
attitude and abilities.
1. Before you decide to go to this level research it and weigh your options.

F. We have found few people who wish to expend the time or money
necessary to do an appeal or file a suit.
G. If you get a request back and they have blacked out large portions of
what they send you or admitted to withholding documents, then you
might consider doing the appeal. Then follow up with a suit.
H. If they say, "we have no documents responsive to your request" we
usually accept that, and use it as an admission on their part that they have
failed to follow due process.
I.

We know of one individual who has filed over 10,000 FOIA requests.
Many have gone to appeal and suit.

88

Administrative Appeal Procedures

Whenever an FOIA request is denied, the agency must inform the requester of the reasons
for the denial and the requester's right to appeal the denial to the head of the agency. A
requester may appeal the denial of a request for a document or for a fee waiver. A requester
may contest the type or amount of fees that were charged. A requester may appeal any other
type of adverse determination including a rejection of a request for failure to describe
adequately the documents being requested. A requester can also appeal because the agency
failed to conduct an adequate search for the documents that were requested.
A person whose request was granted in part and denied in part may appeal the part that was
denied. If an agency has agreed to disclose some but not all requested documents, the filing
of an appeal does not affect the release of the documents that are disclosable. There is no
risk to the requester in filing an appeal.
The appeal to the head of the agency is a simple administrative appeal. A lawyer can be
helpful, but no one needs a lawyer to file an appeal. Anyone who can write a letter can file
an appeal. Appeals to the head of the agency often result in the disclosure of some records
that had been withheld. A requester who is not convinced that the agency's initial decision is
correct should appeal. There is no charge for filing an administrative appeal.
An appeal is filed by sending a letter to the head of the agency. The letter must identify the
FOIA request that is being appealed. The envelope containing the letter of appeal should be
marked in the lower left hand comer with the words "Freedom oflnformation Act Appeal."
Many agencies assign a number to all FOIA requests that are received. The number should
be included in the appeal letter, along with the name and address of the requester. It is a
common practice to include a copy of the agency's initial decision letter as part of the
appeal, but this is not required. It can also be helpful for the requester to include a telephone
number in the appeal letter.
An appeal will normally include the requester's arguments supporting disclosure of the
documents. A requester may include any facts or any arguments supporting the case for
reversing the initial decision. However, an appeal letter does not have to contain any
arguments at all. It is sufficient to state that the agency's initial decision is being appealed.
The FOIA does not set a time limit for filing an administrative appeal of an FOIA denial.
However, it is good practice to file an appeal promptly. Some agency regulations establish a
time limit for filing an administrative appeal. A requester whose appeal is rejected by an
age?cy because it is too late may refile the original FOIA request and start the process
agam.
A requester who delays filing an appeal runs the risk that the documents could be destroyed.
However, as long as an agency is considering a request or an appeal, the agency must
preserve the documents.
An agency is required to make a decision on an appeal within twenty days (~xcluding
Saturdays, Sundays, and federal holidays). It is possible for an agency to extend the time
limits by an additional ten days. Once the time period has elapsed, a requester may consider
that the appeal has been denied and may proceed with a judicial appeal. However, unless
there is an urgent need for records, this may not be the best course of action. The courts are
not sympathetic to appeals based solely on an agency's failure to comply with the FOIA's
time limits.
89

Sample FOIA Appeal Letter

Page 1 of 1

Sample FOIA Appeal Letter

Freedom of Information Act Appeal

Office of General Counsel
Federal Trade Commission
600 Pennsylvania Avenue, N.W.
washington, D.C. 20580
Dear Sir/Madam:
This is an appeal under the Freedom of Information Act. My request was assigned the following
identification number:
. On [date], I received a response to my request in a letter signed by
[name of offician. I appeal the denial of my request.
[Optionan

The documents that were withheld must be disclosed under the FOIA because ...
[Optionan

I appeal the decision to deny my request for a waiver of fees. I believe that I am entitled to a
waiver of fees. disclosure of the documents I requested in is in the public interest because the
information is likely to contribute significantly to public understanding of the operations or activities
of government and is not primarily in my commercial interest. [provide details]
[Optiona~

I request that you release the withheld documents notwithstanding their exempt status. The public
interest in their release outweighs the public interest in withholding them because ... [provide
information on purpose for which the records would be used]
If you need to discuss this request, I can be reached at [daytime phone numberj. Thank you for
your consideration of this appeal.
Sincerely,
Name
Address
City, State, Zip
Telephone Number

90

113112002

TREASURY INSPECTOR GENERAL

Page 1 of2

TREASURY INSPECTOR GENERAL

FOR TAX ADMINISTRATION
TAXPAYERS SHOULD BE PROVIDED TIMELY SERVICE WHEN APPEALING DENIED
REQUESTS UNDER THE FREEDOM OF INFORMATION ACT
August 2000
Reference No. 2000-10-116

Executive Summary
The Freedom oflnformation Act (FOIA) established an effective legal right of access to government
information by requiring agencies to make various information available to the public. Taxpayers who
file FOIA requests can administratively appeal to the Commissioner when the Internal Revenue Service
(IRS) Disclosure Offices deny requests or when the IRS does not respond timely and asks for an
extension oftime to process the requests. Taxpayers who do not agree to voluntarily extend the time
frame can consider the delay a denial of their request for information and, therefore, may appeal.
The Assistant Chief Counsel (Disclosure Litigation) in the IRS Office of the Chief Counsel was
responsible for processing the administrative appeals; this Office closed almost 1,700 appeals cases in
Fiscal Year 1999. The IRS' Modernization Plan transfers responsibility for reviewing appeals to the
Chief, Appeals because it more appropriately falls within that Office's jurisdiction.
The objective of the audit was to evaluate the IRS' efforts to provide prompt and appropriate service to
taxpayers who appeal a denial of a FOIA request for information or a delay in providing information.

Results
The Assistant Chief Counsel (Disclosure Litigation) staff made appropriate determinations in the 50
cases we sampled. Attorneys and paralegals generally worked cases when taxpayers appealed because
the IRS denied their requests for information. Attorneys and paralegals properly determined whether the
IRS' decisions to not provide information were appropriate. Clerical employees generally worked cases
timely and appropriately when taxpayers appealed because of IRS delays in providing information.
Although the IRS correctly processed taxpayers' appeals, improvements to the service can be made by:
Responding timely when taxpayers appeal because the IRS denied their requests for information.
Analyzing FOIA appeals case information to identify potential trends in resource or case
resolution issues in Disclosure Offices.

The Internal Revenue Service Should Timely Respond to

App~als

of Denied Requests

At the end of Calendar Year 1999, the Office of the Chief Counsel inventory records indicated that 918
appeals had been open an average of 420 workdays. These appeals had been filed by taxpayers when the
IRS denied their requests for information. The 420 workdays extend significantly beyond the 20
workday requirement in the law. These cases were assigned, based on complexity, to attorneys or to
paralegals to make determinations as to the appropriateness ofthe IRS' initial denial of the requests.
91

1/31/2002

TREASURY INSPECTOR GENERAL

Page 2 of2

Although the Office of the Chief Counsel records indicated that, on average, attorneys expended 19
hours and paralegals expended 6 hours working an appeal, the appeals were often in inventory several
months and sometimes for years before decisions were made and provided to the taxpayers.
Management from the Assistant Chief Counsel (Disclosure Litigation) cited two main reasons for these
extensive time frames: the loss of paralegal staff who principally handled FOIA appeals, and the
subsequent distribution of appeals to attorneys who had higher priority work.
The Chief, Appeals has been implementing its Modernization Plan, including the transfer of
responsibility for FOIA appeals. That Office, however, has not set a specific target date for transferring
the FOIA appeals responsibilities or conducted an analysis to determine the staffing necessary to timely
process the appeals.

The Internal Revenue Service Should Analyze Freedom of Information Act Appeals
Case Information to Identify Potential Trends in Disclosure Offices
FOIA appeals information was not analyzed to identifY trends that Disclosure Offices could address. For
example, data may indicate an inordinate number of appeals due to delays in a few Disclosure Offices or
common characteristics among cases decided in favor of taxpayers. IdentifYing these characteristics and
resolving any associated problems could reduce the need for taxpayers to appeal.

Summary of Recommendations
The Office of the Chief Counsel should work with the Chief, Appeals to expedite the transfer of
responsibility for resolution ofFOIA appeals. The Chief, Appeals should determine the staffing
necessary to timely process FOIA appeals and should capture case information and periodically trend
FOIA appeals data.
Management's Response: IRS management agrees that expediting the transfer of responsibility for
processing FOIA appeals and ensuring an appropriate level of staffing necessary to process FOIA
appeals quickly are critical steps towards the IRS' renewed commitment to the FOIA. The Chief,
Appeals is considering staffing needs required to process FOIA appeals more quickly and effectively
and will work with the Office of the Chief Counsel to ensure that workload transition issues and training
needs are addressed.
Management's response did not address specific corrective actions for the report recommendation to
periodically trend FOIA appeals data. As a result, we could not determine whether adequate corrective
action was planned to capture case information and periodically trend the data. As part of our follow-up
activities, we are asking management to provide us more specific information on its planned corrective
action. Management's complete response to a draft of this report is included as Appendix IV.

92

1/3112002

DISCLOSURE LITIGATION REFERENCE BOOK

A. This is their newest book of which we only enclosed the first few pages
out of 313 pages.
B. Much of this book does not have a lot to do with most of us.
C. We did want you to have these first pages as they present a good overall
history ofthe history and development of the current tax code.
D. The footnotes are an excellent source for further study in this matter
E. At part C page 106, we find the "Summary of Permissible Disclosures".
This list identifies to whom, and for what purposes, your tax returns and
other information can be released.
F. They can also give your information to the Federal Reserve Bank. Who
knows what they do with that information?
G. Where does much of the "money" go that the IRS collects? We plan on
doing a "VIP Dispatch" in the future based on that question.
H. Page 105 the 1st full paragraph tells us that the IRS is really an
information collection agency and the money is really a side issue.
I. The Internal Revenue Code is essentially a manual on how to keep

Americans complacent and dependent on the government of the United

States. An interesting definition of the term "United States" is found in
28 usc 3002.

93

Assistant Chief
Counsel
(Disclosure
Litigation)

Disclosure
Litigation
Reference
Book
Rev. 4-2000

IRS

Department of the Treasury

Internal Revenue Service
www.irs.ustreas.gov
Document 8448 (4-2000)
Catalog Number 24147Q

94

OEPARTMENTPF THE TREASURY

INTERN.A.LREVENUE SERVICE
WASHINGTON; D.C. 29}t24
OFFIC! .OF
CHIEF C01JN'SEC

April200b
To the Reader.
This refer~r~C?e boc>k ccivers the primary disclci$ure laws that affect the Internal Revenue
Service (t.R.C. 6103; the Freedom of lnfoi-mation Act (FOIA),and the Privacy Act. of
1$'74), arid(rel.ate~ statutes. Toget11er, these !alNS repre~nt efforts by the Congress to
Strlk~ bC!h!nce between a citizen's expectations of privacy and an open government.
Guidance teg~l matters concerning these .discl~ure:hiws:Js.provioed by thE;! ooce of
AssistantC))Je'f Counsel {Disclosure Litigation); This.offioe l.s also .responsiblf:dor
the Privacy .ArJr. of
defending r,iigatlqn filed pursuaMtto l;f\.C, 6103;: the FOIA.

on

and

1974:
This reference b,ook wiiLbeused.aphe June f,QOO course *Disclosure Training for Chief
Counse[ Attorneys"~ we hope thatthis material will also prove to be a useful reference
tool for your office. Wewelcome your comments and suggestions for improvement
I,

<-

{.

/Jh~ tt~

i .OHN B. CUMMI~S
/ AssistantChietCounsel
(Disclosure 'Litigation}

N.B. Attorneys in the Office of Chie{,Counsel (Disc:;losure Litigation) prepared

this textbook for trainil1g purposes (mly. Disclosure laws turn on factual
nuances, and factual varia~ons may make:s\gnificanft:lifferences in
provldlng the correct legal advice. This reference book is intended only as
arefereJ1Ce; it may n.otused or cited as authority for setting or SUStaining a
tegal position.

95

CHAPTER 1
PART 1: I.R.C. 6103-- HISTORY AND OVERVIEW
OBJECTIVES

At the end of this chapter, you will be able to:

1. describe the historical development of the disclosure laws so that you
understand the concepts forming ttre basis of I.R.C. 61 03; and
2. identify the major provisions of I.R.C. 6103.

I. HISTORY OF TAX CONFIDENTIALITY LAWS

A. Introduction

Except for a few periods in our history, tax information generally has not been
available to the public-its disclosure has been restricted. Congress has used
two basic approaches in determining whether, and under what circumstances,
tax information could be disclosed. Under the first approach, taken prior to 1977,
tax information was considered a "public record", but was only open to inspection
under Treasury regulations approved by the President or under presidential
order. Under this scheme, the rules regarding disclosure were essentially left to
the Executive branch.
By the mid-1970's, there was increased congressional and public concern about
the widespread use of tax information by government agencies for purposes
unrelated to tax administration. This concern culminated with the total revision of
section 6103, which was enacted as part of the Tax Reform Act of 1976. There,
Congress eliminated Executive discretion regarding what information could be
disclosed to which Federal and State agencies. Under this second approach,
Congress established a new statutory scheme in which tax information was
confidential and not subject to disclosure except to the extent explicitly provided
by the Internal Revenue Code. Although there have been many amendments to
1

Much of the information in this chapter was taken from "Report on Administrative
Procedures of the Internal Revenue Service to the Administrative Conference of the
United States," S. Document 266, 94th Cong., 2d Sess., 821-1028 (October 1975);
Zaritsky, "Legislative History of Tax Return Confidentiality: Section 6103 of the Internal
Revenue Code of 1954 and Its Predecessors," U.S. Congressional Research Service,
Library of Congress, D.C.: 74-211A (1974); Janssen, "Income Tax Snooping Through
History," Wall Street Journal, May 6, 1970, at 18; and Rogovin, "Privacy and Income
Tax Returns," The Washington Post, October 13, 1974, at C4.
1-1

96

II! i I

the law since that time, the basic statutory scheme established in 1976 remains
in place today.
B. Publicity of Tax Returns

The history of tax information confidentiality may be traced to the Civil War
Income Tax Act of 1862, 2 when tax information was posted on courthouse doors
and sometime published in newspapers to promote taxpayer surveillance of
neighbors. For the next 70 years, there was debate in Congress as to the effect
of public disclosure on the tax system and to societal interests in general.
1. 1866-1913

In 1866, Congress debated prohibiting publication of assessment lists in the

newspapers, but the proposal failed, principally because many congressmen
believed that publication of the assessed tax would assist in preventing tax fraud.
In 1870, the Commissioner prohibited newspaper publication of the annual list of
assessments, but the list itself remained available for public inspection. 3 The
Revenue Act of 1870 confirmed this directive. 4 Two years later, in part because
of problems stemming from publicity of tax returns, the income tax law was
allowed to expire. When the income tax was reinstated by the Revenue Act of
1894, Congress affirmatively prohibited both the printing and the publishing in
any manner of any income tax return unless otherwise provided by law, and
provided criminal sanctions for unlawful disclosure. 5

Act of July 1, 1862, 12 Stat. 432. Ambiguities in that provision regarding public
inspection led Congress, in 1864, to explicitly permit public inspection of the
assessment list:
It shall be the duty of the assessor ... to submit the
proceedings of the assessors ... and the annual lists taken
and returned as aforesaid, to the inspection of any and all
persons who may apply for that purpose.
Act of June 30, 1864, 13 Stat. 218, 228.
3

Treasury Decision (April 5, 1870).

Act of July 14, 1870, 16 Stat. 256, 259.

Income Tax Act of August 15, 1894, ch. 349, 28 Stat. 509.
1-2

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In 1895, the Supreme Court declared the tax unconstitutional in Pollock v.

Farmers' Loan and Trust Co, 157 U.S. 429 (1895). After this decision, according
to one commentator, the cause of confidentiality received its ultimate victory, the
burning of all tax returns.
It was not until the enactment of the Payne-Aldrich Tariff Act of 1909, 6 which
imposed a special excise tax on corporations, that the question of tax return
publicity was raised anew. Paragraph six of section 38 of that Act seemed to
provide that corporate returns were fully public, but paragraph seven imposed a
penalty for the disclosure of any information obtained by a U.S. employee in the
discharge of his duties. 7 The legislative history does little to illuminate these
apparently conflicting provisions. Since, however, the Payne-Aldrich legislation
did not provide any funds for the examination of returns filed pursuant to the Act,
it became necessary, in 1910, to appropriate them. During the debate on the
Appropriations Act of 1910, considerable light was shed upon the Congressional
intention behind the 1909 legislation.
The prevailing opinion seems to have been that paragraph six of the 1909
legislation was intended to make corporate tax returns "public records" which

Act of August 5, 1909, 36 Stat. 11,116.

Section 38 of the legislation read as follows:

Sixth. When the assessment shall be made, as provided in this section,
the returns, together with any corrections thereof which may have been
made by the Commissioner, shall be filed in the office of the
Commissioner of Internal Revenue and shall constitute public records and
be open to inspection as such.
Seventh. It shall be unlawful for any collector, deputy collector, agent,
clerk, or other officer or employee of the United States to divulge or make
known in any manner whatever not provided by law to any person any
information obtained by him in the discharge of his official duty, or to
divulge or make known in any manner not provided by law any document
received, evidence taken, or report made under this section except upon
the special direction of the President; and any offense against the
foregoing provision shall be a misdemeanor and be punished by a fine not
exceeding one thousand dollars, or by imprisonment not exceeding one
year, or both, at the discretion of the court. (Emphasis added).
1-3

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were open to public inspection. 8 It was believed by many that public inspection
of corporate tax returns would be of great assistance in the supervision and
control of corporate entities (there was considerable fear of the power of
corporations at that time).
The contrary view, held by a minority, acknowledged that the 1909 legislation
made tax returns public documents. However, paragraph seven of the law made
it a criminal offense for any government officer or employee to release material
contained in these public documents without special instruction from the
President. If, the argument proceeded, the public access granted by paragraph
six had been entirely unfettered, paragraph seven would not have imposed
criminal sanctions for divulging information without the President's consent. This
illogical result was taken to mean that tax returns had not been opened to
indiscriminate public inspection but only to persons having a proper interest in
the returns. 9
While there was disagreement over what was intended by the 1909 legislation, it
was universally conceded that it altogether failed to open corporate returns to the
public. Some blame this result on inadequate draftsmanship. Others thought
the failure lay in lack of an appropriation to provide clerks to do the publicizing.
At any rate, a majority did conclude that another approach was necessary. An
amendment to the provision in the 1910 Appropriations Act resulted.
The 1910 legislation, which appropriated funds for the necessary classifying,
indexing, and processing of corporate returns, also stated: 10
any and all such returns shall be open to inspection only upon the
order of the President under rules and regulations to be prescribed
by the Secretary of the Treasury and approved by the President.
The debate surrounding the 1910 Act plainly indicates that Congress intended by
the quoted provision to back away from the fully "public" treatment of corporate

"The truth is, however, that the intention was to provide complete publicity of the
returns made by these corporations." Comments of Mr. Fitzgerald, 45 Cong. Rec. 4137
(1910).
9

"It will be noted that the law does not provide the returns shall be subject to public
inspection, but that the returns shall become public records and open to inspection as
such ... the mere branding of these instruments as public records did not carry with it
the right of indiscriminate public inspection." Comments of Mr. Smith, 45 Cong. Rec.
4136 (1910).
10

Act of June 17, 1910, 36 Stat. 468,494.

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99

returns. Some Congressmen argued for full publicity, as opposed to publicity

only at the whim of the Administration, as provided by the bill. The majority,
however, chose the approach that returns would be made public only on the
order of the President.
Left standing was the notion of the 1909 Act that returns constitute "public
records" open to public inspection. The 191 0 effort to revise congressional intent
merely added on the seemingly contradictory and confusing concept that these
"public" records would be available only upon order of the President. The history
of tax information confidentiality may be traced to the Civil War Income Tax Act
of 1862, when tax information was posted on courthouse doors and sometime
published in newspapers to promote taxpayer surveillance of neighbors. For the
next 70 years, there was debate in Congress as to the effect of public disclosure
on the tax system and to societal interests in general.
2. Revenue Act of 1913
Even though the statute seemed to have two rather inconsistent threads,
Congress wove both of them into the Tariff Act of 1913. 11 In pertinent part, it
provided:
G.(d)1 When the assessment shall be made, as provided in this
section, the returns, together with any corrections thereof which
may have been made by the Commissioner, shall be filed in the
office of the Commissioner of Internal Revenue and shall constitute
public records and be open to inspection as such: Provided, That
any and all such returns shall be open to inspection only upon the
order of the President, under rules and regulations to be prescribed
by the Secretary of the Treasury and approved by the President.
The 1913 Congress thereby merged the mismatching philosophies from the
1909 Act and the 1910 amendment. Although there was, through the years,
some change in language, the basic pattern adopted in 1913 remained part of
the law until 1976.
3. 1913 to 1976
The enactment of each revenue act subsequent to 1913 was, at least through
1934, accompanied by debate on the question of whether or not individual and
corporate returns should be made fully public. Two main arguments were made
in favor of making tax returns public:

11

Tariff Act of 1913, ch. 16,38 Stat. 114.

1-5

100

(1) publicity in the affairs of businesses generally is appropriate and

would serve to end improper trade policies, business methods, and
conduct and
(2) publicity would assure fuller and more accurate reporting by
taxpayers.
The proponents of full disclosure obtained their fundamental philosophy from a
speech by the former President Benjamin Harrison who, before the Union
League Club of Chicago in 1898, stated: 12
each citizen has a personal interest, a pecuniary interest in the tax
return of his neighbor. We are members of a great partnership,
and it is the right of each to know what every other member is
contributing to the partnership and what he is taking from it.
The other point of view, consistently taken over the years by the Department of
the Treasury, opposed the publicity of tax information. Secretary of the Treasury
Mellon articulated this position when he stated that:
While the government does not know every source of income of a
taxpayer and must rely upon the good faith of those reporting
income, still in the great majority of cases this reliance is entirely
justifiable, principally because the taxpayer knows that in making a
truthful disclosure of the sources of his income, information stops
with the government. It is like confiding in one's lawyer.
Secretary Mellon later observed that: 13
there is no excuse for the publicity provisions except the
gratification of idle curiosity and filling of newspaper space at the
time the information is released.
The proponents of full disclosure had a limited victory in 1924. The Revenue Act
of 1924 provided that the Commissioner would: 14

12

Rogovin, Privacy and Income Tax Returns, The Washington Post (Oct. 13, 1974),
at C4.
13

69 1h
14

Hearings on Revenue Revision 1925 Before the House Ways and Means Comm.,
Cong., 1st Sess. 8-9 (1925).
Act of June 2, 1924, ch. 234, 43 Stat. 253, 293.
1-6

101

as soon as practicable in each year cause to be prepared and

made available to public inspection ... lists containing the name and
... address of each person making an income tax return ... together
with the amount of income tax paid by such person. 15
As a result of the 1924 Act, newspapers devoted pages to publishing the taxes
paid by taxpayers, and the right of newspapers to publish these lists was upheld
by the Supreme Court. 16 The Revenue Act of 1926, however, removed the
provision requiring that the amount of tax be made public while leaving the
requirement that a list be published containing the name and address of each
person making an income tax return. 17
In 1934, after a widely publicized income tax evasion scandal, those favoring
publicity obtained enactment of another form of limited disclosure. The Revenue
Act of 1934 contained provision for the mandatory filing of a so-called "pink slip"
with the taxpayer's return. 18 The pink slip, to be filed with the return, was to set
forth the taxpayer's gross income, total deductions, net income and tax payable.
The pink slip was to be open to public inspection. Fueled by images of
kidnappers sifting through pink slips looking for worthwhile victims, the provision
was repealed even before it took effect. 19
From 1934 until 1976 there was no substantial change in the statute respecting
the disclosure of tax returns. The pre-1976 statute was thus very much the
product of the 1909 and 1910 legislation, continuing with the oddity of "public"
records open to inspection only under regulations or orders of the President.
C. Disclosure to Government Agencies

Although corporate returns were, in 1910, made available to the public, as well
as to other government agencies, individual returns were kept within Treasury
until 1920. In 1920, individual returns joined corporate returns as being generally

15

One news article reported that in 1924, within 24 hours after it was announced
that tax lists were ready for inspection, Internal Revenue officers throughout the country
were besieged by applications from promoters, salespeople, and advertisers.
16

U.S. v. Dickey, 268 U.S. 378 (1975).

17

Act of Feb. 26, 1926, ch. 27, 44 Stat. 9, 52.

18

Act of May 10, 1934, ch. 277,48 Stat. 680,698.

19

Act of April19, 1935, ch. 74,49 Stat. 158.

1-7

102

available to federal agencies. 20 The 1930's saw a new technique of more

general access being granted to specific agencies as well as to congressional
committees. The 1940's, 1950's, and 1960's were marked by almost
unrestrained growth in the use of tax returns by government agencies. During
this time tax returns became a generalized governmental asset. The public,
however, was denied access.
D. Summary 1866-1970

This diverse history on disclosure reveals the existence of a statute which, in all
significant respects, went unchanged since 1910. Thus, the story is one of the
exercise of discretion granted by a Congress unwilling to define precisely the
policy to be followed. Having committed discretion to the President, and an
agency headed by his designee, it was not surprising that the power was
exercised toward expanding the use of information. Indeed, it would have been
unrealistic to assume that the President could have been expected to resist
agency arguments for more information on which to base important decisions,
even though such information might not be necessary and might well be used for
many purposes other than that apparently intended.
E. Developments in the 1970's

By the mid-1970's Congress became increasingly concerned about the

disclosure and use of information gathered from and about citizens by agencies
of the federal government. 21 The events leading to the revision of the tax
disclosure laws in 1976 can, however, be directly traced to Executive Orders
11697 and 11709, issued by President Richard M. Nixon authorizing the
Department of Agriculture to inspect the tax returns of all farmers "for statistical
purposes."
During 1973, two subcommittees of the House of Representatives held hearings
regarding the Department of Agriculture's need for the tax data disclosed by the
two executive orders. 22 During these hearings, sentiments against the orders
were expressed. Officers of the Department of Justice testified that the two

20

T.D. 2961, 2 C.B. 249 (Jan. 7, 1920)

21

This concern led directly to the enactment of the Privacy Act of 1974, 5 U.S.C.

552a.
22

Hearings on Executive Orders 11697 and 11709 Permitting Inspection by the

Department of Agriculture of Farmers' Income Tax Returns Before House Subcomm.
On Foreign Operations and Government Information of Comm. on Government
Operations, 93rd Con g., 1st Sess. (1973).
1-8

103

orders were prototypes of future orders opening other tax returns to inspection
by other agencies. Responding to the adverse sentiment expressed in these two
hearings, the President revoked both orders on March 21, 1974.
The concern over tax return confidentiality that remained after revocation of the
two orders was increased by disclosures made in hearings of both the Senate
Select Committee on Presidential Campaign Activities (Watergate Committee)
and the House Judiciary Committee investigating the possible impeachment of
President Nixon. The Watergate Committee's hearings revealed that former
White House counsel John Dean had sought from the IRS political information
on so-called "enemies." Furthermore, it was disclosed to that committee that the
White House actually was supplied information on IRS investigations of Howard
Hughes and Charles Rebozo. The Committee noted that tax information and
income tax audits were commonly requested by White House staff and supplied
by IRS personnel.
The House Judiciary Committee's impeachment inquiry also revealed apparently
unauthorized use of IRS tax data by the President. One of the Articles of
Impeachment proposed by the Judiciary Committee alleged that President Nixon
had: 23
endeavored to obtain from the Internal Revenue Service, in
violation of the constitutional rights of citizens, confidential
information contained in income tax returns for purposes not
authorized by law.
Congressional interest in tax return confidentiality also manifested itself in 1974
when, as part of the Privacy Act of 1974, Congress ordered the
newly-established Privacy Protection Study Commission to report to the
President and Congress on the proper restrictions which should be placed on the
disclosure of federal income tax information. This report was issued on June 9,
1976, and suggested major changes in the distribution of tax data to the
Department of Justice for both tax and nontax law enforcement, distribution of
tax data to the states and to local governments, and transfer of information to the
President and the executive agencies. It also recommended more severe
penalties for wrongful disclosure of tax data. The commission did not
recommend a general denial of tax data to nontax federal agencies.
On June 10, 1976, the Senate Finance Committee issued its report on H.R.
10612, the Tax Reform Act of 1976, in which it proposed substantial revisions in

23

Report on the impeachment of Richard M. Nixon, President of the United States,

H.R. Rep. No. 93-1305 at 3 (1974).
1-9

104

the rules governing tax return confidentiality. 24 The Finance Committee's

proposal dealt with the same general issues as had the Privacy Protection Study
Commission's report, but it resolved them differently. With few technical
changes, the Conference Committee on H.R. 10612 adopted the Senate
Finance Committee's version of the tax confidentiality rules as part of the Tax
Reform of 1976.
II. PRINCIPAL AREAS OF REVISION IN THE TAX REFORM ACT OF 1976
A.

Congressional Philosophy behind the 1976 Amendments to Section

6103

Congress recognized that the IRS had more information about citizens than any
other federal agency, and that other agencies routinely sought access to that
information. Congress also recognized that citizens reasonably expected that
the tax information they were required to supply to the IRS would be kept private.
If the IRS abused that reasonable expectation of privacy, the loss of public
confidence could seriously impair the tax system.
Although Congress felt that the flow of tax information should be more tightly
regulated, not everyone agreed where the lines should be drawn. The debates
on accessibility were most heated in the area of nontax criminal law enforcement
purposes. One side, led by Senator Long, sought more liberal access rules in
order to fight white collar crime, organized crime, and other violations of the law.
This side felt "the Justice Department is part of this Federal Government. It is all
one Government." The other side, led by Senator Weicker, wanted very
restrictive rules. This side recognized that it was cheaper and easier for Justice
to come directly to the IRS. But they also felt that when citizens made out their
tax returns, they made them out for the IRS, and no one else.
Ultimately Congress amended section 6103 to provide that tax returns and return
information are confidential and are not subject to disclosure, except in limited
situations, as delineated by the Internal Revenue Code, where disclosure is
warranted. In each area of allowable disclosure, Congress attempted to balance
the particular office or agency's need for the information involved with the
citizen's right to privacy, as well as the impact of the disclosure upon the
continuation of compliance with the voluntary tax assessment system. 25 In short,
Congress undertook direct responsibility for determining the types and manner of
permissible disclosures.

24

S. Rep. No. 94-938 at 315-349, 1976-3 C.B. (Vol. 3) 353-387.

25

Staff of Joint Committee on Taxation, 94th Gong., General Explanation of the Tax
Reform Act of 1976, 313-316 (Comm. Print 1976), 1976-3 C.B. (Vol. 2) 325-328.
1-10

105

B. Structure of Tax Information Confidentiality Provisions

The Tax Reform Act of 1976 enacted a comprehensive statutory scheme

regulating the use and disclosure of tax returns and tax return information. There are
four basic parts to this statutory scheme.
The general rule of I.R.C. 61 03(a) making tax returns and tax return information
confidential except as expressly authorized in the Internal Revenue Code. Definitions
of key terms, such as return and return information, are contained in I.R.C. 6103(b).
The exceptions to the general rule detailing permissible disclosures-I.R.C.

6103(c)-6103(o).
Technical, administrative, and physical safeguard provisions to prevent the recipients
of tax information from using or disclosing the information in an unauthorized manner,
and accounting, recordkeeping and reporting requirements that detail what disclosures
are made for what purposes to assist in Congressional oversight. I.R.C. 61 03(p).
Criminal penalties, including a felony for the willful unauthorized disclosure of tax
information, a misdemeanor for the unauthorized inspection of tax information, 26 and a
civil cause of action for the taxpayer whose information has been disclosed in a manner
not authorized by section 6103. I.R.C. 7213 (criminal penalty for unauthorized
disclosure), 7213A (criminal penalty for unauthorized inspection), 7431 (civil damages
provision).
C. Summary of Permissible Disclosures

1. Disclosures to taxpayer's designees (consent)- section 61 03(c).

2. Disclosures to state tax officials- section 61 03(d).
3. Disclosures to the taxpayer and other persons having a material
interest- section 6103(e).
4. Disclosures to committees of Congress - section 61 03(f).
5. Disclosures to the President and White House - section 61 03(g).
6. Disclosures to federal employees for tax administration purposessection 61 03(h).

26

In addition, the unauthorized access of tax information in government computer

files is a felony under 18 U.S.C. 1030(a)(2)(B).
1-11

106

7. Disclosures to federal employees for non tax law enforcement purposes

-section 61 03(i).
8. Disclosures for statistical purposes- section 61 03U).
9. Disclosures for certain miscellaneous tax administration purposes section 61 03(k).
10. Disclosures for purposes other than tax administration section 61 03(1).
11. Disclosures of taxpayer identity information -section 61 03(m).
12. Disclosures to contractors for tax administration purposes - section
6103(n).
13. Disclosures with respect to wagering excise taxes- section 6103(o).

1-12

107

Appendix 2

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14-15

108

o.. .

Memorandum.[or the Heads ofExecutive Department

and Agencies
A. You can read this three-page report for yourself. See if you can spot the
main points.
B. Go to the middle of the second page paragraph (b) where it discusses the
OMB.
1. On page 111, in section (b)( 1), we find a directive concerning the System of
Records
2. Essentially, this section directs all Federal Agencies to update their System of
Records.

C. We read a report from the OMB and GAO that all federal agencies had
compiled and updated their System of Records- Except the IRS.
1. Finally on December 10, 2001 the IRS completed this task and released the
updated System of Records.
2. You can now obtain this updated version. Just go to our web site near the end of
our literature list and place your order. (Item 195) It is an essential tool for
defending your substantive rights.

D. If you are sending FOIA requests to some other Federal agency we

encourage you to obtain their System ofRecords Manual and
request those records also.

109

White House Privacy Memo 5/14/98

Page 1 of3

ELECTRONIC PRIVACY INFORMATION CENTER

MEMORANDUM FOR THE HEADS OF EXECUTIVE

DEPARTMENTS AND AGENCIES
THE WHITE HOUSE
Office of the Press Secretary
(Eisenach, Germany)
For Immediate Release
May 14, 1998

May 14, 1998

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND
AGENCIES
SUBJECT: Privacy and Personal Information in Federal Records
Privacy is a cherished American value, closely linked to our concepts of personal freedom
and well-being. At the same time, fundamental principles such as those underlying the First
Amendment, perhaps the most important hallmark of American democracy, protect the free
flow of information in our society.
The Federal Government requires appropriate information about its citizens to carry out its
diverse missions mandated by the Constitution and laws of the United States. Long mindful
ofthe potential for misuse of Federal records on individuals, the United States has adopted
a comprehensive approach to limiting the Government's collection, use, and disclosure of
personal information. Protections afforded such information include the Privacy Act of
1974, the Computer Matching and Privacy Protection Act of 1988, the Paperwork
Reduction Act of 1995, and the Principles for Providing and Using Personal Information
("Privacy Principles"), published by the Information Infrastructure Task Force on June 6.
1995, and available from the Department of Commerce.
Increased computerization ofF ederal records permits this information to be used and
analyzed in ways that could diminish individual privacy in the absence of additional
safeguards. As development and implementation of new information technologies create
new possibilities for the management of personal information, it is appropriate to reexamine
the Federal Government's role in promoting the interests of a democratic society in personal
privacy and the free flow of information.
Accordingly, I hereby direct the heads of executive departments and agencies ("agencies")
as follows:

http://www. epic. org/pri vacy /laws/clinton-privacy 1rill:mo-59 8 .html

White House Privacy Memo 5/14/98

It shall be the policy of the executive branch that agencies shall:

(a) assure that their use of new information technologies sustain, and do not
erode, the protections provided in all statutes relating to agency use, collection,
and disclosure of personal information;
(b) assure that personal information contained in Privacy Act systems of
records be handled in full compliance with fair information practices as set out
in the Privacy Act of 1974;
(c) evaluate legislative proposals involving collection, use, and disclosure of
personal information by the Federal Government for consistency with the
Privacy Act of 1974; and
(d) evaluate legislative proposals involving the collection, use, and disclosure
of personal information by any entity, public or private, for consistency with
the Privacy Principles.
To carry out this memorandum, agency heads shall:
(a) within 30 days ofthe date ofthis memorandum, designate a senior official
within the agency to assume primary responsibility for privacy policy;
(b) within 1 year ofthe date ofthis memorandum, conduct a thorough review
oftheir Privacy Act systems of records in accordance with instructions to be
issued by the Office of Management and Budget ("OMB"). Agencies should, in
particular:
(1) review systems of records notices for accuracy and
completeness, paying special attention to changes in technology,
function, and organization that may have made the notices out of
date, and review routine use disclosures under 5 U.S.C. 552a(b)(3)
to ensure they continue to be necessary and compatible with the
purpose for which the information was collected;

(2) identify any systems of records that may not have been
described in a published notice, paying special attention to Internet
and other electronic communications activities that may involve
the collection, use, or disclosure of personal information;
(c) where appropriate, promptly publish notice in the Federal Register to add or
amend any systems of records, in accordance with the procedures in OMB
Circular A-130, Appendix I;
(d) conduct a review of agency practices regarding collection or disclosure of
personal information in systems of records between the agency and State, local,
and tribal governments in accordance with instructions to be issued by OMB;
and
(e) within 1 year ofthe date ofthis memorandum, report to the OMB on the

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Page 2 of3

White House Privacy Memo 5114/98

Page 3 of 3

results of the foregoing reviews in accordance with instructions to be issued by

OMB.
The Director of the OMB shall:
(a) issue instructions to heads of agencies on conducting and reporting on the
systems of record reviews required by this memorandum;
(b) after considering the agency reports required by this memorandum, issue a
summary of the results of the agency reports; and
(c) issue guidance on agency disclosure of personal information via the routine
use exception to the Privacy Act (5 U.S.C. 552a(b)(3)), including sharing of
data by agencies with State, local, and tribal governments.
This memorandum is intended only to improve the internal management of the executive
branch and does not create any right or benefit, substantive or procedural, enforceable at
law or equity by a party against the United States, its agencies or instrumentalities, its
officers or employees, or any other person.

WILLIAM J. CLINTON

http://www.epic.org/privacy/laws/clinton-privacy-~mo-598.html

Disclosure, Privacy Act, and Paperwork Reduction Act

Notice
A. Page 72 from the 1040 Handbook. You can get this at most post offices.
Have you ever read this page before? Do you understand what is says?
B. First and Second paragraphs: We keep asking for this information they
are talking about but it seems the only answer we receive, if any, is "Oh
it's in title 26 USC."
C. In the third column under "The Time It Takes To Prepare Your Return",
they admit the tax laws are very complex.
D. We could spend several pages on this page alone but we want stress just
how long it takes out of your life to fulfill your alleged "duties" to fill out
all their forms.
E. Add it up. 70 hours of your life in one year. Is that what you would like
to devote to them? Free? What else will you do for free?
F. If you can do it that fast let us know. I know people who have small

business that spend at least one hour every work night plus part of almost
every weekend trying to keep up with their "books and records."
G. How much are you being paid to do all of that plus save these records for
up to 10 years?
1. When we ask these questions the common answer we usually get is, "That is the
price you pay to live in a civilized society."

H. If they get paid to look at that information, then we want to be paid to

comply, as we are not one required to do that under their own code,
regulations, and statutes.
1. If I am a person required, then show me the exact code section, regulation, or
statute at large which creates such requirement. We have read and read, and
haven't found it yet.
2.

If there was such a law, then there wouldn't be a need for them to falsify our files
and lie to us so much.

113

Disclosure, Privacy Act, and Paperwork Reduction Act Notice

The IRS Restructuring and Reform Act of 1998.

the Privacy Act of 1974. and Paperwork Reduction Act of 1980 require that when we ask you
for information we must first tell you our legal
right to ask for the information. why we are
asking for it. and how it will be used. We must
also tell you what could happen if we do not
receive it and whether your response is voluntary.
required to obtain a benefit. or mandatory under
the law.
This notice applies to all papers you file with
us. including this tax return. It also applies to any
questions we need to ask you so we can complete.
correct. or process your return: figure your tax:
and collect tax. interest. or penalties.
Our legal right to ask for information is Internal Revenue Code sections 600!, 60 II, and
6012(a) and their regulations. They say that you
must file a return or statement with us for any
tax you are liable for. Your response is mandatory
under these sections. Code section 6109 requires
that you provide your social security number or
individual taxpayer identification number on
what you file. This is so we know who you are,
and can process your return and other papers. You
must fill in all parts of the tax form that apply to
you. But you do not have to.check the boxes for
the Presidential Election Campaign Fund or for
the third-party designee. You also do not have to
provide your daytime phone number.
You are not required to provide the information requested on a form that is subject to the
Paperwork Reduction Act unless the form displays a valid OMB control number. Books or
records relating to a form or its instructions must
be retained as long as their contents may become

material in the administration of any Internal Revenue law.

We ask for tax return information to carry out
the ta'{ laws of the United States. We need it to
figure and collect the right amount of tax.
If you do not file a return, do not provide the
information we ask for. or provide fraudulent
information. you may be charged penalties and
be subject to criminal prosecution. We may also
have to disallow the exemptions. exclusions.
credits. deductions. or adjustments shown on the
tax return. This could make the tax higher or
delay any refund. Interest may also be charged.

other Federal agencies for the purposes of determining entitlement for benefits or the eJigibilitv
~

for and the repayment of loans.

Please keep this notice with your records. It
may help you if we ask you tor other information.
If you have questions about the rules for filing
and giving information. please call or visit any
Internal Revenue Service office.

The Time It Takes To Prepare

Your Return
We try to create forms and instructions that can
be easily understood. Often this is difficult to do
because our tax laws are very complex. For some
people with income mostly froR1 wages. filling
in the forms is easy. For others who have businesses. pensions. stocks. rental income, or other
investments,
it is more difficult.
.
.

Generally. tax returns and return information

are confidential, as stated in Code section 6!03.
However, Code section 6103 allows or requires
the Internal Revenue Service to disclose or give
the info~ation shown on your tax return to
others as described in the Code. For example, we
may disclose your tax information to the Depart- We Welcome Comments on Forms
ment of Justice, to enforce the tax laws, both civil
and criminal, and to cities, states, the District of If you have comments concerning the accuracy
Columbia, U.S. commonwealths or possessions, of the time estimates shown below or suggestions
and certain foreign governments to carry out their for making these forms simpler, we would
tax laws. We may disclose your tax information . be happy to hear from you. You can e-mail
to the Department of Treasury and contractors for
us your suggestions and comments through
tax administration purposes; and to other persons
the
IRS
Internet
Home
Page
as necessary to obtain information which we
(www.irs.gov/help/email2.htrnl) or write to the
cannot get in any other way in order to determine Tax Forms-Committee, Western Area Distributhe amount of or to collect the tax you owe. We tion Center, Rancho Cordova, CA 95743-0001.
may disclose your tax information to the CompDo not send your return to this address. Instead,
troller General of the United States to permit the
see the back cover.
Comptroller General to review the Internal Revenue Service. We may also disclose your tax
information to Committees of Congress; Federal,
state, and local child support agencies; and to

Estimated Preparation Time

The time needed to complete and file Form 1040, its schedules, and accompanying worksheets will vary depending on individual circumstances.
The estimated average times are:
Copying,
Learning
assembling,
about
and sending
the law or
the form
Preparing
Totals
Form
Recordkeeping
the form
to the IRS
the form
Form 10-W
Sch. A
Sch. B
Sch. C
Sch. C-EZ
Sch: D
Sch. D-1
Sch. E
Sch. EIC
Sch. F:
Cash \lethod
Accrual :\kthod
Sch. H
Sch. J
Sch. R
Sch. SE:
Short
Long

34
20
20
41
20
34
3-+
34
20

min.
min.
min.
min.
min.
min.
min.
min.
min.

13 hr .. 27 min.
5 hr.. 37 min.
I hr .. 26 min.
10 hr .. 35 min.
I hr.. 43 min.
7 hr .. 36 min.
59 min.
5 hr .. 58 min.
34 min.

I hr .. 27 min.
I hr .. 25 min.
53 min.
I hr., 32 min.
30 min.

20
20
34
20
34

min.
min.
min.
min.
min.

5
5
3
2
I

13 min.
35 min.

13 min.
20 min.

2 hr .. -+6 min.
3 hr .. 4 min.
33 min.
6 hr.. 4 min.
45 min.
1 hr .. 29 min.
13 min.
3 hr.

3 hr .. 30 min.
39 min.
8 min.
I hr .. 31 min.
3 min.
2 hr .. 59 min.
1 min.
1 hr.
I min.

6 hr .. 37
1 hr .. 34
25 min.
2 hr .. 19
35 min.
2 hr .. 34
II min.
1 hr .. 24
13 min.

3 hr.. 29 min.
3 hr.. 36 min.
I hr .. 38 min.
19 min.
19 min.

36
26
30
II
15

13 min.
26 min.

14 min.
20 min.

min.
min.
min.
min.
min.

- 72-

min.
min.
min.
min.
min.

hr ..
hr ..
hr..
hr ..
hr ..

52
47
35
22
38

min.
min.
min.
min.
min.

53 min.
1 hr .. 41 min.

'/C>

hi'.S,

Criminal Tax Trials

A. This paragraph came from the Disclosure Litigation Reference Book,
which we have briefly covered already.
B. This Paragraph demonstrates the requirements imposed on the
government and enhances the FOIA process you will be using. It reduces
the likelihood that you'll actually go to court.
C. By learning what to ask for in the FOIA process, following the
procedure, seeing the responses to your requests, and studying our
materials, you will gain a broader understanding of the "big picture."
D. The harder they come after you the more FOIA requests and Rebuttal
letters you want to send back to them. All erroneous presumptions, that
are not rebutted, stand in the record as accepted facts.
E. For every page they send you, you send them back 100 pages, if that's
what it takes to rebut their presumptions.
F. We were working with someone, who had been using an Idiot Legal
Argument and had been indicted. He obtained our courses, started the
FOIA process filing over thousands of pages of paperwork into the case
and the judge said if everybody who had a case in this court entered in
that much paperwork the courthouse would collapse from the weight of
the paperwork. Using the process, his possible nine-year sentence
became a plea bargain of less then a year of house arrest with work
privileges.
G. One of our goals is to provide the tools you need to let the IRS know that
you know that they are violating their own due process.
H. You want to build your file so you will not be selected to be one of their
victims in the first place.
I. Remember that the Federal Prosecutors prefer to pursue the people they

know will bring them a win, or will quiet someone that they want to
quiet. They are limited by fiscal constraint and a strict quota system,
which limits the number of tax cases they can prosecute.

115

XIV. CRIMINAL TAX TRIALS

Two Ninth Circuit cases, United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991 ), and
United States v. Jennings, 960 F.2d 1488 (9th Cir. 1992), have established the
requirement that upon request by a criminal defendant, the government has an
obligation to search its own files for exculpatory material including evidence affecting
the credibility of its proposed witnesses and to provide that material to the defense. For
witnesses who are government employees, this includes a review of their personnel
files. Jennings makes clear that this requirement is based upon the Constitutional
underpinnings of the Fifth Amendment as set forth in Brady v. Maryland, 373 U.S. 83
(1963). This requirement overrides any Privacy Act considerations.

11-27

116