In December 2016, Cause of Action Institute (“CoA Institute”) sued the Internal Revenue Service (“IRS”) after it refused to produce a variety of records concerning its dealings with the Joint Committee on Taxation .  The IRS claimed that all such records, which CoA Institute requested under the Freedom of Information Act (“FOIA”), would be “congressional records” exempt from disclosure.  Yet the IRS never conducted a search.  Instead, it based its determination on questionable guidance from its Office of Chief Counsel, which contradicts long-standing legal precedents for when agency records must be provided to the public.

The IRS moved to dismiss CoA Institute’s lawsuit for lack of subject-matter jurisdiction, arguing that because any and all responsive records were presumptively “congressional,” the court lacked the authority even to hear CoA Institute’s arguments.  Once again, the IRS founded its position on the Chief Counsel’s guidance, as well as generalized descriptions of a consistent course of “confidentiality” in IRS’s communications with the Joint Committee on Taxation.  CoA Institute opposed the IRS’s motion and explained that the agency’s position relied on a serious misunderstanding and misapplication of the law, prescribed an overbroad and unjustified approach to distinguishing “agency” and “congressional records,” and would sweep a broad range of records, which should otherwise be subject to the FOIA, into an “exempt” category.  As I have argued elsewhere, “[t]he mere fact that a record controlled by an agency relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a congressional record.”  Its availability instead depends on whether Congress manifested clear intent to maintain its control over it.  Here, the IRS had failed to meet its burden in demonstrating that intent.  How could the agency do so when it refused to conduct a search for the very records at issue?

During oral argument at the end of August, the Court expressed its reservation about the novelty of the IRS’s argument and its presumptive application of the relevant legal standards to exclude categorically all of the requested records as being “congressional” records.  The Court also questioned whether the IRS had properly moved to dismiss for lack of subject-matter jurisdiction, rather than moving to dismiss for failure to state a claim upon which relief can be granted.  Although the distinction may seem like mere “legalese,” it is an important one that affects what sort of evidence outside the pleadings the Court may examine and whether the Court lacks authority to adjudicate a claim arising under federal law (i.e., subject-matter jurisdiction), or simply has no basis to provide the relief sought by a plaintiff, (i.e., an order to disclose non-exempt agency records).

Yesterday, CoA Institute filed a supplemental brief, arguing that the Court was correct to question whether the IRS had properly moved to dismiss for lack of subject-matter jurisdiction.  It is important that the Court reach the right answer to this procedural question.  It will have important implications for FOIA litigation.  The government, here and in other recent FOIA cases, seeks to collapse merits determinations—e.g., whether a requester has sought “agency records”—into jurisdictional questions.  The courts should not allow that to happen.  There is already an asymmetry of knowledge between requesters and agencies.  Forcing a requester to fight an agency on jurisdictional grounds, without the benefit of a search having been conducted and relevant records identified, is not only unfair but would provide the government yet another tool to evade its transparency obligations under the FOIA.

Ryan P. Mulvey is Counsel at Cause of Action Institute.