IRS Auditor Must Process Tax Disclosure Request

(CN) - The chief auditor for the IRS must process a request for records pertaining to any investigations it may have done into the wrongful disclosure of tax return information to the White House, a federal judge ruled.

Plaintiff Cause of Action, a nonprofit formerly known as the Freedom through Justice Foundation, filed a wide-ranging Freedom of Information Act request with the Internal Revenue Service in October 2012.

Among the items it sought were any documents related to investigations of IRS employees disclosing tax return information to the Executive Office of the President.

That portion of the request was passed on to the Treasury Inspector General for Tax Administration. TIGTA is organized under the Department of the Treasury, but is independent of the department, according to its website. It audits and investigates IRS operations.

The TIGTA issued a Glomar response a month after the FOIA request, neither confirming nor denying the existence of relevant documents.

A "Glomar response" is one in which the government asserts that revealing whether or not a document exists would expose classified information.

It is named after the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.

The agency said its response was justified by FOIA Exemptions 3, 6 and 7(C), which prevent disclosure of information protected by other laws, private personnel files, and private law enforcement records, respectively.

Cause of Action sued TIGTA in August 2013, challenging the Glomar response, and the D.C. district court granted the nonprofit's motion for summary judgment on Monday, ruling that the response was improper and that TIGTA must process the FOIA request.

"The court finds that the fact of the existence of any records within the category of records that plaintiff seeks is not confidential 'return information' under section 6103 of the Internal Revenue Code, and so defendant's Glomar response is not supported by FOIA Exemption 3," U.S. District Judge Amy Jackson wrote.

Exemption 7(C) may apply in this case, but TIGTA waived that claim by acknowledging via email an investigation of a former White House council member, the judge said.

Austan Goolsbee, the former chairman of the Council of Economic Advisors, made a statement during a 2010 press conference "that led some to be concerned that he had 'improperly accessed and disclosed' the confidential return information of a taxpayer, Koch Industries Inc.," Judge Jackson said.

A TIGTA agent emailed Koch Industries in August 2011, saying that a report into the investigation of Goolsbee's press conference remark was completed and could be obtained by request, the ruling said.

"Although the existence of some records might be a fact protected by FOIA Exemption 7(C), the court finds that defendant has waived reliance on both Exemption 7(C) and Exemption 6 by officially acknowledging its investigation into questions raised by the public statements of a particular administration official, and by failing to offer any other basis that would support a Glomar response on those grounds," Jackson wrote.

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