Elec. Privacy Info. Ctr. v. IRS, 910 F.3d 1232 (D.C. Cir. 2018) (Henderson, J.)

Elec. Privacy Info. Ctr. v. IRS, 910 F.3d 1232 (D.C. Cir. 2018) (Henderson, J.)

Re:  Request for President Donald J. Trump's income tax records

Disposition:  Affirming district court's grant of government's motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the District of Columbia Circuit holds that, "[a]lthough [it] agree[s] with the district court's bottom-line determination that [the requester] is not entitled to relief, [the court] take[s] a different path to get there," finding that "exhaustion does not bar review of [the requester's] FOIA claims."  The court explains that "[n]one of the purposes of exhaustion supports barring judicial review of [the requester's] claims."  The court finds that "[the requester] followed the administrative appeal process to the limited extent the IRS allowed and was repeatedly met with a closed door."  Additionally, the court finds that "IRS cannot disregard the plain statutory text and apply its regulations in a way that forces a requester . . . to establish that records are not subject to section 6103(a)'s disclosure bar."
   
• Exemption 3:  The court relates that, "[i]n its request, as noted earlier, [the requester] 'sought Donald J. Trump's tax returns for tax years 2010 forward and any other indications of financial relations with the Russian government or Russian businesses.'"  The court finds that "[t]he first half of the request seeks tax returns and thus is plainly covered by section 6103(a)'s bar."  Next, the court finds that, "IRS correctly points out, '[the requester] has framed its FOIA request in such a way that acknowledging the existence of any responsive documents would itself violate section 6103 by disclosing whether the President has filed income tax returns for the years in question; whether the President has Russian income, assets, expenses, etc.; and/or whether the IRS was, is, or may be investigating the foregoing.'"  "Because any response to [the requester's] requests would reveal '[r]eturns [or] return information,' we agree with the IRS that section 6103(a) prevented the IRS from complying with the requests unless an exception to the disclosure bar applied."
  
  The court also addresses the requester's focus on section 6103(k)(3), and finds that that section "grants the IRS discretion to disclose certain information if [certain] preconditions are met."  "Even if the preconditions are met, however, the IRS may nonetheless choose not to disclose information."  The court notes that "[t]here is scant history of the IRS's use of section 6103(k)(3)."  The court "presume[s] that the Congress's omission of any public right to 'request' disclosure under section 6103(k)(3) is intentional" and, therefore, finds that "the (k)(3) exception may be sui generis in that it affords a FOIA requester no disclosure right."