Federal Court to IRS: Produce Documents Within 30 Days

A federal district court in New Hampshire issued an order earlier this week giving the Internal Revenue Service (IRS) 30 days to produce, for the court's review, a set of documents it has refused to produce in response to a FOIA request issued last June by the nonprofit Citizens for a Strong New Hampshire. This order is a direct response granting a portion of the relief the ACLJ has requested on behalf of Citizens for a Strong New Hampshire.

Last summer, Citizens for a Strong New Hampshire requested from the IRS, pursuant to the federal Freedom of Information Act (FOIA), communications between two New Hampshire Members of Congress (Jeanne Shaheen and Carol Shea-Porter) and specified IRS officials, including Douglas Shulman, Steven Miller, and Lois Lerner. After Citizens for a Strong New Hampshire waited over four months for a response, we filed a federal lawsuit on behalf of the organization based on the IRS's improper withholding of documents in violation of FOIA.

In filings with the court, the IRS described the search it performed to locate responsive documents and attempted to explain the basis for withholding 51 documents in their entirety. Based on the IRS's filings, however, it was clear to us that the agency failed to meet its burden to demonstrate that it performed an adequate search or that the 51 documents were properly withheld pursuant to a FOIA exemption.

In simple terms, information that is exempt need not be disclosed to a FOIA requester. The agency bears the burden of clearly demonstrating that documents withheld are in fact exempt. The IRS's filings, however, stated only that the documents withheld contained or consisted of exempt information, raising concerns that some of the documents should be disclosed subject only to redaction of any exempt information they might contain. In a subsequent filing the IRS attempted to backpedal, asserting that the withheld documents consisted entirely of exempt information, but this contention is clearly at odds with the agency's prior equivocal statement.

After we pointed out to the court the glaring inconsistencies in the IRS's statements (statements made under oath to a federal court), and asked that the IRS be required to produce the withheld documents for the court's inspection, the court issued an order on Monday giving the IRS 30 days to do just that.

This order demonstrates the IRS's utter failure to persuade not only us at the ACLJ but a federal judge herself of the veracity of its testimony. The unfortunate reality is that we have reached the point where the American people can have no confidence in one of our executive governmental agencies absent direct oversight by the federal judiciary. It is inexcusable that this day has arrived, but we are hopeful that the intervention of the court here will provide the assurances necessary to ensure that the rights and interests of our client are adequately protected and that any public information improperly withheld by the IRS will be brought to light.

At the same time, the ACLJ continues to challenge the IRS in a separate matter – our ongoing federal lawsuit against the IRS for unlawfully targeting dozens of Tea Party and conservative groups because of their political beliefs.

We intend to hold the IRS accountable - for its failure to be transparent in communications with members of Congress and for its unlawful actions in an unconstitutional targeting scheme.