FOIA Suits Filed After IRS, Education Dept. Won't Release Records

By: (AP) The Internal Revenue Service recently refused to provide two university researchers with records requested under the Freedom of Information Act while simultaneously asserting, "We are not denying the release" of the documents.

The Education Department recently cut off all communication with an interest group about its FOIA request after the group published a critical report based on the first batch of documents released in response to that request.

Both requesters now have filed federal lawsuits in Washington to obtain the records they seek.

David Burnham and Susan Long, researchers with the Transactional Records Access Clearinghouse at Syracuse University, sued on Thursday for documents they requested in November.

These documents describe IRS information systems and numeric measures used to supply IRS managers with such data as how many audits were conducted, how much auditor time was spent and how many tax dollars the audits found were owed.

IRS spokesman John Lipold said the agency is committed to complying with the FOIA. "The IRS has ... furnished the organization with a large amount of data for years. The IRS continues working on the more than 60 FOIA requests TRAC has submitted," Lipold said.

People for the American Way Foundation, a liberal research group and civil liberties advocate, sued on Wednesday to obtain Education Department records of a federally funded pilot school voucher program in the District of Columbia.

Education Department spokeswoman Susan Aspey said she had not seen the suit and would not comment.

In the IRS case, TRAC requested Part 2 of the Internal Revenue Manual, which formerly was posted on the agency's public Web site. The researchers also sought a reference guide to program monitoring data and field office forms that describe information systems.

A tax law specialist and a manager in IRS's FOIA office wrote separately to deny the requests. Tax law specialist Symeria Rascoe wrote of the field office form: "We are not denying the release of the form; however, it is an agency policy not to release 'Internal Use' forms/documents to the public."

Manager Maureen Sapero wrote of the reference guide: "We are not denying release of the document" but said it "is an 'Internal Use' document and cannot be released to the public."

Rascoe said the section of the manual had been designed "Official Use Only" under new federal security requirements.

Burnham and Long argued that neither "Internal Use" not "Official Use Only" are recognized as exemptions to release under FOIA.

Sapero also invoked an FOIA exemption for the reference guide. An appeal panel later invoked the same exemption for Part 2 of the Internal Revenue Manual and added that terrorist attacks showed the need to protect critical infrastructure and records about it. The exemption covers records "related solely to the internal personnel rules and practices of an agency."

Burnham and Long argued that under court rulings about the exemption, these records could not be withheld because release would not enable people to circumvent agency enforcement operations.

Their lawyer, Scott Nelson of Public Citizen Litigation Group, said, "As tax day 2004 looms, it appears that there are now three certainties: death, taxes, and improper government reliance on national security as a pretext to stonewall FOIA requests."

In the education case, People for the American Way Foundation said that after it issued a report Feb. 7 critical of the voucher program, the Education Department had not responded to a second FOIA request or to an appeal of the withholding of some documents from its first FOIA request.

Nor had the agency communicated about documents it had said in December and February were being reviewed for release. The group said department officials had not responded to telephone messages or e-mails in the two months since the critical report was released.