Washington, D.C. (July 18, 2019) – U.S. District Court Judge Ketanji Brown Jackson yesterday denied the Internal Revenue Service’s (“IRS”) motion to dismiss Cause of Action Institute’s (“CoA Institute”) Freedom of Information Act (“FOIA”) lawsuit over the agency’s refusal to produce records relating to its dealings with Congress’s Joint Committee on Taxation (“JCT”).  To date, the IRS has refused to search for records potentially responsive to CoA Institute’s FOIA requests.  The agency instead has argued that all relevant records would categorically be “congressional records” outside the scope of disclosure permitted under the FOIA.  In its failed motion, the IRS claimed that the federal district court even lacked the authority—or subject-matter jurisdiction—to adjudicate CoA Institute’s well-pleaded claims in the first instance.

CoA Institute Counsel Ryan Mulvey: “We are grateful for Judge Jackson’s careful legal analysis, which exposes the government’s flawed understanding of a fundamental legal concept—subject-matter jurisdiction—and which calls into question the agency’s motivation for its motion.  By allowing our case against the IRS to continue, the Court has recognized the potential merit in our claims and, more importantly, provided the public with an affirmation of its right to access government information.  Federal agencies should pay heed: they cannot shift the burden of meeting their obligations under the FOIA onto requesters under the guise of a jurisdictional prerequisite.”

Pointing to the IRS’s “misguided” and “confused contention[s],” Judge Jackson clarified the ambiguous use of the term “jurisdiction” in Section 552(a)(4)(B) of the FOIA, which could refer either to subject-matter jurisdiction—the authority of a court to hear a case—or remedial power—the authority to order certain remedies for a party.  The Court rejected the government’s argument that a requester had to establish certain “factual prerequisites” to gain access to a federal court, and instead reiterated that these “factual prerequisites of a successful claim” involve a “merits-based inquiry” that cannot implicate subject-matter jurisdiction.

The Court also rejected the IRS’s sovereign immunity argument, explaining that the government’s position would reverse the traditional presumptions made in jurisdictional inquiries, and that it would improperly shift the burden of proving that an agency had met its FOIA obligations onto a requester.  In plain terms, Judge Jackson characterized the IRS as trying to put the “cart before the horse.”  Finally, looking to Rule 12(b)(6), the Court affirmed that CoA Institute had “made a plausible claim for relief under the FOIA.”

Case Background

In December 2015, the IRS Office of Chief Counsel issued new guidance claiming that nearly all IRS records relating to the JCT should be treated as “congressional records” and therefore shielded from public disclosure under FOIA.  This revised guidance contradicted long-standing precedent for the sorts of records that agencies must provide under the FOIA.

For months, CoA Institute fought to gain access to IRS communications with the JCT, and other JCT-related records.  Such information, by definition, would comprise “agency records,” as they would have necessarily been received or created by the IRS and are currently in the possession of the agency.  Further, these records would have been used by IRS employees and uploaded or stored into IRS recordkeeping systems, including e-mail or correspondence tracking databases.

Judge Jackson’s decision comes nearly two years after the IRS’s motion was argued in court.  The agency is expected now to file an Answer and to search for and process the records responsive to CoA Institute’s FOIA requests.


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