FOIA exemptions

The exemptions protect against the disclosure of information that would harm: national security, the privacy of individuals, the proprietary interests of business, the functioning of the government, and other important recognized interests.

An entire record is not necessarily exempt when a record contains some information that qualifies as exempt. Instead, the FOIA specifically provides that any reasonably segregable portions of a record must be provided to a requester after exempt portions are deleted. FOIA requires the IRS to identify the location of deletions in the released portion of the record and, where technologically feasible, to show the deletion at the place on the record where the deletion was made, unless including that indication would harm an interest protected by an exemption.

Exemption 1. Classified Documents Pertaining to National Defense and Foreign Policy

The first FOIA exemption permits the withholding of matters specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified under such executive order. IRS does not generally deal with these types of matters; thus, this exemption is rarely used.

Exemption 2. Internal Personnel Rules and Practices

The second exemption covers matters related solely to IRS’s internal personnel rules and practices.

Exemption 3. Information Exempt Under Other Laws

The third exemption incorporates into the FOIA other laws that restrict the availability of information. A statute must require that matters be withheld from the public in such a manner as to leave no discretion on the issue to qualify under this exemption. Information may also be exempt if the other law establishes criteria for withholding or refers to particular types of matters to be withheld. Internal Revenue Code (IRC) Section 6103, which governs the disclosure of tax returns and return information, provides an example of a qualifying statute. By law, tax records may not be disclosed to any individual unless authorized by IRC Section 6103.

Exemption 4. Trade Secrets and Confidential Commercial or Financial Information

The fourth exemption protects from public disclosure two types of information: Trade secrets and confidential commercial or financial information. A trade secret has been narrowly defined by the courts under the FOIA as a commercially valuable plan, formula, process, or device that is used for making, preparing, compounding or processing trade commodities and that can be said to be the end product of either innovation or substantial effort. Protected data is also commercial or financial information obtained from a person that is privileged or confidential.

Exemption 5. Inter-Agency or Intra-Agency Memorandums or Letters

The fifth exemption applies to 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. An example may be a letter from one IRS office to another about a decision that has not yet been adopted by the agency. One purpose of this exemption is to safeguard the deliberative policymaking process of government (the deliberative process privilege). The exemption encourages frank discussion of policy matters between IRS officials by allowing certain pre-decisional, deliberative documents to be withheld from public disclosure. The exemption also protects against premature disclosure of deliberations before final adoption of an agency policy or position. While the policy behind the deliberative process privilege is well accepted, the application of the exemption is complicated. For example, the exemption protects the policymaking process, but does not generally protect purely factual information related to the policy process, which is protected under the deliberative process privilege. The deliberative process privilege distinguishes between documents that are pre-decisional and post-decisional. The public has a greater interest in knowing the basis for the decision once a policy is adopted. Therefore, the deliberative process privilege does not ordinarily apply to post-decisional documents. The exemption also incorporates other privileges that apply in litigation involving the government, including the attorney client and work product privileges. For example, certain documents prepared by IRS's lawyers may be withheld in the same way that documents prepared by private lawyers for clients are not available through discovery in civil litigation.

Exemption 6. Personal Privacy

The sixth exemption applies to personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects the privacy interests of individuals by allowing IRS to withhold personal data kept in its files where there is an expectation of privacy. Only individuals have privacy interests. Corporations and business associations have no privacy rights under exemption six, except for closely held corporations or similar business entities. Once it has been determined that a personal privacy interest is threatened by a requested disclosure, the exemption requires agencies to strike a balance between an individual's privacy interest and the public's interest in disclosure. The Privacy Act of 1974 also regulates the disclosure of personal information about an individual. The IRS will automatically consider a request for personal information under both the FOIA and the Privacy Act and will rely on the statute that provides the greater access.

Exemption 7. Law Enforcement

The seventh exemption allows agencies to withhold records or information compiled for law enforcement purposes, but only to the extent that the production of such records would cause one of the following harms described below:

allows the withholding of a law enforcement record that could reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure.

allows the withholding of law enforcement information that would deprive a person of a right to a fair trial or an impartial adjudication.

recognizes that individuals have a privacy interest in information maintained in law enforcement files. If the disclosure of information could reasonably be expected to constitute an unwarranted invasion of personal privacy, the information may be exempt from disclosure.

protects the identity of confidential sources. Information that could reasonably be expected to reveal the identity of a confidential source is exempt. A confidential source can include a state, local, or foreign agency or authority, or a private institution that furnished information on a confidential basis. In addition, the exemption protects information furnished by a confidential source if the data was compiled by a criminal law enforcement authority during a criminal investigation.

protects from disclosure information that would reveal techniques and procedures for law enforcement investigations or prosecutions or that would disclose guidelines for law enforcement investigations or prosecutions if disclosure of the information could reasonably be expected to risk circumvention of the law.

protects law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.

Exemption 8. Financial Institutions

The eighth exemption protects information that is contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions (such as FDIC, the Federal Reserve, or similar agencies).

Exemption 9. Geological Information

The ninth exemption protects geological and geophysical information, data, and maps, concerning wells.

FOIA Exclusions

The FOIA also contains three special protection provisions that expressly authorize federal law enforcement

Agencies under certain specified circumstances, to treat especially sensitive records as not subject to the FOIA. IRS may not be required to confirm the existence of these categories of records. If these records are requested, IRS may respond that there are no records responsive to the request. However, these exclusions do not broaden the authority of the IRS to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.

Exclusion 1

The first exclusion may be used when a request seeks information described in the FOIA, subsection (b)(7)(A), and meets the following requirements:

The investigation in question must involve a possible violation of criminal law.

There must be reason to believe that the subject of the investigation is not already aware that the investigation is underway.

Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

IRS may respond to an FOIA request for investigatory records as if the records are not subject to the requirements of the FOIA when all of these conditions exist. In other words, the IRS response does not have to reveal that it is conducting an investigation.

Exclusion 2

Informant records maintained by IRS criminal law enforcement filed under the informant's name or personal identifier are covered by Exclusion 2. IRS is not required to confirm the existence of these records unless the informant's status has been officially confirmed. This exclusion helps agencies to protect the identity of confidential informants.

Exclusion 3

The third exclusion only applies to records maintained by the Federal Bureau of Investigation, which pertain to foreign intelligence, counterintelligence, or international terrorism. When the existence of these types of records is classified, the FBI may treat the records as not subject to the requirements of FOIA.

Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review by filing suit in Federal District Court.