United States District Court for DC Judge Amy Berman Jackson on Monday demanded to see the White House emails saying, section 6103 of the tax code does not justify the IRS from withholding from FOIA requesters by refusing to say whether the records exist. She ordered the IRS to respond properly to an FOIA request submitted by the non-profit watchdog group Cause of Action.
Recently, the IRS revealed–two years late–that firebrand Lois Lerner had a secret email account under her dog’s name for IRS business. There have been multiple federal investigations for several years, and Ms. Lerner has refused to cooperate or testify. So, one might assume that American taxpayers would know about all of her emails by now. Indeed, IRS documents previously revealed a Lois Lerner email that warned IRS staffers about revealing too much information to Congress.
Berman said the tax agency “has not described an adequate search for records” sought in the FOIA and she said the IRS response to the FOIA “raises the question of whether executive branch requests for ‘return information’ are themselves ‘return information’ that cannot be disclosed.”
Cause of Action submitted its FOIA request after it was learned that the Treasury Inspector General for Tax Administration had investigated allegations that White House officials working for President Barack Obama had sought tax return information about conservative and tea party non-profit allegations during the 2010 and 2012 election campaigns. The court ruled that the IRS cannot hide behind a law used to shield the same misconduct it was enacted to prohibit.
Congress amended section 6103 in 1976 “in the wake of Watergate and White House efforts to harass those on its ‘enemies list,’” in order to “restrict government officers and employees from revealing ‘any return’ or ‘return information,’” and its “core purpose” is to “protect taxpayer privacy.” So, this Court questions whether section 6103 should or would shield records that indicate that confidential taxpayer information was misused, or that government officials made an improper attempt to access that information.
The IRS argues that “section 6103’s definition of ‘return information’ . . . makes no distinction based on the purpose for which a person might seek disclosure of the documents.” But accepting this argument would require a finding that even requests for return information that could involve a violation of section 6103 constitute “return information” that is exempt from disclosure under FOIA Exemption 3 and section 6103. The Court is unwilling to stretch the statute so far, and it cannot conclude that section 6103 may be used to shield the very misconduct it was enacted to prohibit.”
Congress has been investigating the IRS targeting of such groups for illegal harassment since the activity was first disclosed in 2013 by Lois Lerner, the former head of the tax agency’s tax-exempt review division. Lerner was allowed by the Obama administration to retire without disciplinary action after she twice refused to answer congressional questions about the illegal harassment.
It’s not known if the government will appeal Berman’s decision, but if the decision stands and the IRS is compelled to produce emails concerning White House requests for the targeted groups’ tax returns, plus all other IRS documents related to those requests, it could put the harassment back on the front page just as the 2016 presidential campaign is heating up.