This is the third article in the Freedom Of Information Act Requests (FOIAs) and Government Data Practices Act Requests (GDPAs) series. This series is intended to provide taxpayers and practitioners with answers to the most commonly asked questions relating to the use of FOIAs and GDPAs. The use of FOIAs and GDPAs allow taxpayers and practitioners to recover information from the Internal Revenue Service (IRS) and Minnesota Department of Revenue (MDR) and use that information to resolve their case.
The focus of this article is on the basics for preparing the actual FOIA Request.
After making the decision to submit a FOIA Request, it is critical that you ensure your request is in writing and sent to the office with jurisdiction over the records sought. The FOIA Request does not have to be complex. Keep it short and simple. The basic elements of a FOIA Request are as follows:
1. State that the request is being made pursuant to the Freedom of Information Act.
2. Identify the records being sought as specifically as possible.
3. Requester information.
(a). If you request information involving individual or business tax records, be sure to include the taxpayer’s name and address, as appropriate, along with a copy of driver’s license or a sworn or notarized statement swearing to or affirming their identity.
(b.) If you request the tax records of another taxpayer, you must establish your authority to receive these records, for example, a Power of Attorney, Form 2848.
(c). Commitment to pay any fees which may apply.
4. Optional FOIA Items.
(a). The requester’s telephone number allows the IRS employee processing a request to speak with the requester, if necessary. If you are making the request as a Power of Attorney, include your telephone number.
(b). A statement of the maximum fees you are willing to pay. This allows you to be notified in advance if the charges will exceed the specified amount. If the cost is too much, you can withdraw the request.
i. A request for a waiver or a reduction of fees. This can be appropriate when the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
ii. A request that the response be in a specific form, like paper or a CD.
iii. A request for expedited processing. You must show a compelling need for a speedy response. A “compelling need” exists in three circumstances.
(1) Imminent Threat. The failure to obtain the records within an expedited deadline could reasonably be expected to pose an imminent threat to an individual’s life or physical safety.
(2) Current Exigency to the American Public. A request by someone “primarily engaged in disseminating information” and “a matter of current exigency to the American public.” “Primarily engaged” means information dissemination is the main activity of the requester.
(3) Loss of Substantial Due Process Rights. A reasonable person would conclude that delaying a response to a FOIA request would compromise a significant recognized interest to and throughout the American general public. The public’s right to know about government activity generally would not, by itself, be sufficient to satisfy this standard.
Our next article in this series will examine the options that the IRS has for responding to a properly submitted FOIA Request.