White House emails to the IRS about individual tax returns cannot be exempted by the embattled agency under the Freedom of Information Act, a federal judge ruled Friday.
United States District Court for the District of Columbia Judge Amy Berman Jackson ruled that 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.
“As we have said all along, this administration cannot misinterpret the law in order to potentially hide evidence of wrongdoing. No administration is above the law, and we are pleased that the court has sided with us on this important point,” said Daniel Bernstein, executive director of Cause of Action.
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.”
Berman concluded that the answer to that question is no “because it is not at all clear that all executive branch requests for ‘return information’ can be characterized as ‘return information’ that is factual in nature and shielded from disclosure by the taxpayer confidentiality statute.”
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.
For reasons never made public, however, TIGTA did not make the report of its investigation public.
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.