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FOIA Update: Congress Approves FOIA-Tax Action

FOIA Update
Vol. II, No. 4

Congress Approves FOIA-Tax Action

While oversight and legislative hearings on the FOIA are under way on Capitol Hill, several new bills amending and broadening the Freedom of Information Act have been introduced on both sides of the Congress.

In addition, the Economic Recovery Tax Act of 1981 includes the first major new Freedom of Information-related legislation to pass the 97th Congress.

It is a provision stating that nothing in the tax law or any other federal law will be read to require the disclosure of material related to determining audit standards, if the Secretary of the Treasury. "determines that disclosure will seriously impair assessment, collection or enforcement of the infernal revenue laws."

The amendment reverses the decisions in the Long tax cases. See Long v. IRS, No. C-75-228S (W.D. Wash. 1976), vacated and remanded, 596 F.2d 362 (9th Cir. 1979), rehearing and rehearing en banc denied, No. 76-3734 (9th Cir. 1979) cert. denied, 446 U.S. 917 (1980), Long v. Dept. of Commerce, 646 F.2d 1310 (9th Cir. 1981), stay denied, 101 S. Ct. 1073 (1981).

Taxpayer Long and her husband sought access to information which indicated how the IRS determines when to audit returns.

Congress also passed H.R. 3982, the budget reconciliation bill, which includes reauthorization for the Consumer Product Safety Commission and provisions barring the commission from releasing information to the public about potentially dangerous products without evaluating questions of accuracy. The bill also provides further protection for business information found to be confidential under the Trade Secrets Act, 18 U.S.C. § 1905, or subject to Exemption 4 of the Freedom of Information Act.

Senator Patrick Leahy has a new bill, S. 1467, which would subject the legislative branch to the Freedom of Information Act. Rep. Charles Wilson has a similar bill, H.R. 1220.

One of the most far reaching of the new proposals is Senator Robert Dole's. Originally introduced as an amendment to the Justice Department authorization bill, the Dole proposal would make felons and foreign citizens, without permanent resident status, ineligible to use the FOIA.

The Dole proposal also tightens Exemption 7 by placing a 10-year "hold" on records and by establishing conditions under which disclosure could be made.

Other bills before the Senate include Senator Dennis DeConcini's proposal to exempt the Secret Service from the FOIA, and Senator Sam Nunn's bill S. 814 to make it easier for the FBI to withhold information that might tend to disclose confidential sources.

Among new introductions in the House is H.R. 3928, the Erlenborn-Horton bill, a reverse FOIA bill which would mandate substantial changes in administrative and judicial procedures.

Hearings Set Sept. 23-24

The Senate Subcommittee on the Constitution, headed by Senator Orrin Hatch, will hold additional days of hearings on the Freedom of Information Act in September. Senator Hatch is the prime sponsor of the comprehensive FOIA bill, S. 587.

It is hoped that the Justice Department's formal legislative package will be presented to the House and Senate during September. Accordingly, the Constitution Subcommittee has scheduled a hearing Sept. 23 on the Department proposal and S. 587.

Witnesses will discuss the national security problems and relevant portions of S. 587 at the Sept. 24 hearing.

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Updated August 13, 2014