IRS Need Not Release “Private” Info in Freedom of Information Act Case

A recent Fourth Circuit Court of Appeals case emphasizes that taxpayers do not have an absolute right to access to government records. In practice, not only can the IRS choose which documents to disclose and potentially withhold some unless challenged, but also exemptions from the Freedom of Information Act (FOIA) allow the IRS to protect information it deems protected.[1] In Solers, Inc. v. Internal Revenue Service, the court evaluated whether the IRS needed to disclose a few different withheld or redacted documents requested under the FOIA by Solers, a company that was audited.[2] Initially, the IRS withheld 26 pages and redacted 32 pages of the 261 pages it managed to locate and produce. After Solers challenged the production, the IRS released most of these pages and removed redactions. The remaining withheld pages and redactions included the following: 1) handwritten notes by the revenue agent pursuing the Solers audit; 2) information about third parties contained in the revenue agent’s summary report, graph, and checklist made during the audit; 3) a mention of consultation with the IRS’s counsel regarding the audit contained in an activity record; and 4) contact information of IRS personnel contained in two emails.

Reviewing the reasons for withholding or redacting these documents, the court found that it was proper and justified for the IRS to do so. For one, the revenue agent’s thoughts and impressions were protected under law. Exemptions to the FOIA also protect third party privacy, permitting redaction of that information. The court also upheld redactions regarding consultation with the IRS’s counsel on a specific issue arising during the audit exam because although general mentions of seeking legal advice are not privileged, case law has found that the specific legal advice sought from counsel is privileged.

Finally, the court weighed the IRS personnel mentioned in the emails’ privacy interests against the public interest in “ ‘she[dding] light on an agency's performance of its statutory duties' or otherwise let[ting] citizens know ‘what their government is up to.’ ”[3] Finding that the IRS personnel had a strong interest in not having their identities and role in investigations disclosed because future harassment or embarrassment could occur, the court also stated that the “record contains no indication that disclosing the names and contact information of these IRS employees would serve the public interest.”[4] As a result, redaction of the IRS personnel information was upheld.

This decision reminds taxpayers that, while they do have a right to obtain government records regarding audits, not every document is subject to disclosure. The FOIA, still a valuable tool to learn about IRS investigations, has its limits.

— By Julia Damron, Esq., Barnes Law

Julia Damron is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 5 U.S.C. § 552 et seq. The exemptions are described in the FOIA and by case law.

[2] Solers, Inc. v. Internal Revenue Service, No. 15-1608 (4th Cir. June 30, 2016), available at (“Solers”).

[3] U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994) (internal quotations omitted) (quoting Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).

[4] Solers, supra.