In October 2012, Cause of Action submitted a FOIA request to the Internal Revenue Service (IRS) seeking records related to any requests from the President for individual or business tax returns. In response to our request, the IRS released 790 pages of records but redacted a substantial amount of information pursuant to Exemption 5 of the FOIA. Exemption 5 protects “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.” Nate Jones of the National Security Archive recently called it the “withhold it because you want to” exemption. It is often triggered to protect the “deliberative process” among government employees, but DOJ guidance from 2009 notes that, “records covered by the deliberative process privilege in particular have significant release potential.”
Cause of Action decided to challenge the IRS’s application of Exemption 5. We filed and an appeal that the IRS denied, and then filed a lawsuit on June 19, 2013. In its response to our lawsuit, the IRS “reconsidered some of the redactions made to the 790 pages.” The resulting changes show how broadly IRS applied Exemption 5 to redact parts of certain emails. Here’s a sample of what the IRS redacted pursuant to the exemption (see the documents here):
“Bernice and Gary, let’s make sure that, going forward, any FOIA requests that could even remotely be considered politically sensitive are elevated for discussion between us and that the response is given an extra layer of review. thanks”
Original Release
Unredacted
“They are concerned about whether the response could have been done better.”
Original Release
Unredacted
“Carmen’s email about what the IRS statement could be.”
Original Release
Unredacted
“I also coordinated with Carmen and Dave at DOJ so the IRS wouldn’t say anything to harm the IRS’ position in the law suit.”
Original Release
Unredacted
“Media Relations is attempting to refute allegations we are improperly hiding behind privacy laws.”
Original Release
Unredacted
“However, now that we’ve got the litigation threat, we have to determine if we were okay not to disclose the mere fact of WHETHER the president made any such requests at all, thereby disclosing the fact that either the documents did, or did not exist.”
Original Release
Unredacted
President Obama’s 2009 memo on FOIA declared, “In the face of doubt, openness prevails.” Attorney General Holder wrote, “[A]n agency should not withhold information simply because it may do so legally.” Despite these pledges, agencies are still choosing to hide information from the public. As these emails show, the IRS is abusing Exemption 5 to “withhold it because they want to.” Promises of transparency have not created more openness in government. Significant reform is needed to limit the abuse of FOIA exemptions so that citizens, journalists, and watchdog groups can continue to fight for accountability in the government.