Upon Defendants compliance with the April 12 Order, Plaintiff will be able rationally to present, and this Court will be able to dispose of, legal argument with respect to the exemption issues with which Defendants have thus far avoided dealing. upon atorney for Defendants by first class mail postage prepaid. Senator KENNEDY. Fine. The subcommittee stands in recess. [Whereupon, at 12:35 p.m., the subcommittee recessed, subject to call of the Chair.] [The following material was received by the subcommittee relating to matters discussed in the hearings:] DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Washington, D.C., October 23, 1974. Hon. EDWARD M. KENNEDY, Chairman, Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: In view of your interest in the manner in which the Internal Revenue Service is making materials available to the public, I am enclosing a copy of a recent news release announcing a reduction in charges for copies of various documents. I would like to call your particular attention to the statement of our practice of not charging for requests from low-income or hardship cases, or those from disaster areas. We believe that these new, lower charges will make it much easier for interested persons to obtain documentary materials. These charges do not apply, of course, to those materials necessary, or helpful, for the preparation of tax returns. Such materials will continue to be available free of charge. Although these changes will mean that the IRS will have increased unreimbursed costs in this general area, we believe that this is an acceptable cost of informing the interested public about IRS operations. With kind regards, WASHINGTON, D.C.-The Internal Revenue Service today announced reduction of the $1 per page charge for taxpayers wishing to obtain copies of their own tax returns. The charge has been lowered to $1 for the first page and 10 cents for each additional page. The IRS also announced a reduction in charges for copies of other returns and related documents that may be made public under the law. For example, copies of applications and returns of tax exempt organizations, are lowered from $1 per page to $1 for the first page and 10 cents for each additional page. Copies of documents available in IRS Freedom of Information Reading Rooms will continue to be 10 cents per page. However, the $1 minimum charge for copies of documents available under the Freedom of Information Act has been eliminated. There are no charges for merely inspecting documents in IRS offices. Other charges, which remain unchanged are as follows: Copies of documents not located in FOI Reading Rooms are 10 cents per page plus $3.50 per hour or fraction of an hour search charge for locating and assembling the material. If IRS certification of copies of returns or other documents is needed, each certification is $1. The charge for each 25 pages or less of unpriced, printed material is 25 cents. The IRS will continue its no-charge practice on requests for copies of tax returns from individuals in low income brackets or hardship circumstances, or from those who reside in disaster areas. This practice will now also apply to requests under the Freedom of Information Act. Applicable provisions in Revenue Procedures, Regulations and the Statement of Procedural Rules will be revised or amended to reflect changes in user fees. (176) DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Hon. EDWARD M. KENNEDY, Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate, Washington, D.C. DEAR SENATOR KENNEDY: We have carefully reviewed our files of Freedom of Information Act correspondence in order to provide an accurate response to your inquiry of June 28, 1974. We trust that the enclosed materials will be satisfactory. Please inform us if we may be of further assistance. (a) The number of determinations made by the Service not to comply with requests for records made under the FOIA, and the reasons for such determination. During the six-month period involved, the Service denied sixty-five requests for records. As some requests involved more than one type of record and some records are subject to more than one exemption, a total of one hundred and sixtyfive exemptions were cited, as follows: (b) (1) specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy-not used. (b) (2) related solely to the internal personnel rules and practices of an agency-14 instances. (b) (3) specifically exempted from disclosure by statute-37 instances. (b) (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential-33 instances. (b) (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency-48 instances. (b) (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy— 3 instances. (b) (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency-30 instances. (b) (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions-not used. (b) (9) geological and geophysical information and data, including maps, concerning wells-not used. Fifty-seven per cent of the denials involved information which we are prohibited by law from disclosing, including other taxpayers' returns, Technical Advice Memorandums, Letter Rulings, and intra-agency memorandums identifying and relating to the tax affairs of specific taxpayers. All of the uses of Exemption (b) (4), half of the uses of Exemption (b) (5), all of the uses of Exemption (b) (6), and two-thirds of the uses of Exemption (b) (7) applied to requests which were also denied under Exemption (b) (3) as specifically prohibited from disclosure by statute. The balance of the denials used various combinations of Exemptions (b) (2), (b) (5), and (b) (7) to deny requests for exempt information whose release would have significantly impeded tax administration and hindered law enforcement. Eleven per cent of all denials involved individuals under investigation requesting workpapers, conference reports or investigatory files pertaining to themselves. Eighteen per cent of all denials involved law enforcement techniques, tolerances, and criteria whose usefulness would be destroyed if they became known to the public. The majority of these requests pertained to criminal, rather than civil, law enforcement procedures. Fourteen per cent of all denials involved requests for inter- or intra-agency memorandums containing expressions of opinion or making recommendations, attorneys' work products, drafts, or background files whose release would inhibit internal communication. Our records indicate that in ten denials the Service made available a part of the information requested or provided alternative information which was believed to be helpful to the requester. (b) The number of appeals . . . and the reason for the action upon each appeal that resulted in a denial of information. During the six-month period involved, the Service responded to fifteen appeals. Two were granted. Thirteen were denied. Thirty-four exemptions were applicable to the thirteen denials, as follows: (b) (1)—Not used. (b) (2)-Not used. (b) (9)-Not used. Sixty-two per cent of the denials on appeal involved information which we are prohibited by law from disclosing, including Technical Advice Memorandums, Letter Rulings, and other items specifically identifying taxpayers and relating to their tax affairs. All of the uses of Exemption (b)(4), half of the uses of Exemption (b) (5), and slightly over half of the uses of Exemption (b) (7) applied to requests which were also denied under Exemption (b)(3) as specifically prohibited from disclosure by statute. Thirty-one per cent of the denials on appeal involved individuals under investigation requesting workpapers or investigation files pertaining to themselves, and exempt under (b) (5) and (b) (7). Seven per cent (a single case) involved advisory intra-agency memorandums exempt under (b) (5). Our records indicate that in one denial on appeal, the Service made available a part of the information requested or provided alternative information which was believed to be helpful to the requester. (c) The time that elapsed between receipt of each initial FOIA request and the transmittal of a substantive reply. . . . In analyzing the time elapsed for response we employed the five categories suggested by Mr. Susman, Counsel for the Senate Subcommittee on Administrative Practice and Procedure. These were: 1 to 10 days, 11 to 20 days, 21 to 40 days, 41 to 60 days, and over 60 days. Readers of this report should keep in mind that these are consecutive calendar days and should not be confused with workdays. The 1 to 10 days category can never include more than eight workdays (requests received on a Monday, Tuesday or Wednesday). The period would contain only seven workdays for any request received on a Thursday and six workdays for a request received on a Friday. This would have to be further reduced for periods which contained one or more holidays: for instance, for a request received on December 21, 1973. the 1 to 10 day category would only have contained four workdays (the period included two weekends, Christmas and New Year Holidays, and two energy crisis non-work days). This circumstance resulted in delays affecting a large number of routine cases received in the latter part of 1973. Similarly, the 11 to 20 days category would contain a maximum of fifteen workdays for any request received on a Monday and fourteen workdays for any request received on Tuesday through Friday, less any holidays which might fall in the period. The importance of this distinction between calendar days and workdays is that if the Fifteen Day (excepting Saturdays, Sundays, and legal public holidays) requirement proposed in S. 2543, were to be applied to the performance statistics here being reported, all the responses in the 1 to 10 day category, all the responses in the 11 to 20 day category and many of the responses in the 21 to 40 day category would have been timely. During the January 1 through June 30, 1974 period, the Internal Revenue Service issued 637 responses to Freedom of Information requests, as follows: We are able, however, to break down these figures to several categories, which we believe provide greater insight: Reading Room Grants are the simplest Freedom of Information requests. These cases are characterized as involving specific requests for clearly identified materials which have already been deposited in our Freedom of Information Reading Room, as available to the public. They involve less than fifty dollars in charges, do not require any evaluation or records search, and do not require any correspondence. As a result, these requests can be filled by the Reading Room Manager, using a simple Freedom of Information Invoice, and no review or clearance. All Reading Room Grants were processed within the 1 to 10 day period; in fact most are mailed on the same day received. However, Reading Room Grants account for less than one-sixth of the responses processed. Routine Grants involve materials which have previously been made available or which are otherwise recognized as being public records without requiring an initial determination. Routine Grants accounted for more than half of our responses during this period. These cases differ from the Reading Room Grants in that they are more complicated, the requests may not be specific, materials requested may not be clearly identified, they may involve extensive materials, require considerable research, or require correspondence in addition to a simple transmittal. The delays in such cases are usually related to the effort involved in working the request or other circumstances, rather than to the need for making a determination of availability. A majority of the Routine Grants were processed within the 1 to 10 day period; however, some spillover to later periods is evident, reflecting the more difficult nature of these cases. Unable to Identify cases are those requests in which no material can be furnished because we are unable to determine from the request what is wanted, the requested record does not exist, or the record is not required to be compiled in the form requested. These cases represented about one tenth of our responses during the period considered. Inasmuch as the Service maintains a considerable variety of records and no one person can be familiar with them all, considerable coordination and review are required before we can conclude that a requested record does not exist. Consequently, an extensive time framework is involved and the bulk of these cases are clustered in the 11 to 20 day and 21 to 40 day categories. Initial Grants are cases in which the materials requested have not been published, deposited in the Reading Room, or customarily furnished to requesters, or which have some other unique aspect. About one-tenth of the cases processed during the six month period fall into this category. These cases involve all the complexities mentioned as causes for delay applicable to Routine Grants, except that since they involve materials not previously considered by our Freedom of Information technicians they are likely to encounter more difficulty in locating these materials and the materials are less familiar when located than those in |