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You Can't Use FOIA to Get Someone's Tax Returns

A court rejects a clever effort to obtain President Trump's tax records

Yesterday, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit rejected an ingenious attempt by the Electronic Privacy Information Center (EPIC) to obtain President Trump's tax records through the Freedom of Information Act (FOIA). Judge Henderson's opinion for the panel in EPIC v. IRS begins:

The Internal Revenue Service (IRS) collects more than money. It acquires and maintains a reservoir of sensitive information about taxpayers. And time was, the President could—for any reason or no reason at all—order the IRS to make that sensitive information public. The arrangement worked out fine for decades. Then the Nixon administration compiled a list of political enemies and ordered the IRS to harass them. The resulting scandal prompted the Congress to enact sweeping legislation to protect taxpayer privacy. The Internal Revenue Code (IRC) now mandates that tax "[r]eturns and return information shall be confidential" unless they fall within one of the statute's narrowly drawn exceptions. I.R.C. § 6103(a).

At first blush, the IRC stands in tension with the Freedom of Information Act (FOIA), which vests the public with a broad right to access government records. 5 U.S.C. § 552(a)(3)(A). One statute demands openness; the other privacy. But as we explain infra, the statutes work well together. Not all records are subject to FOIA requests. An agency need not disclose records "specifically exempted from disclosure by statute." Id. § 552(b)(3). Because the IRC is such a statute, records that fall within its confidentiality mandate are exempt from FOIA.

This case presents the question whether a member of the public—here, a nonprofit organization—can use a FOIA request to obtain an unrelated individual's tax records without his consent. With certain limited exceptions—all inapplicable here—the answer is no. No one can demand to inspect another's tax records. And the IRC's confidentiality protections extend to the ordinary taxpayer and the President alike. Accordingly, we affirm the dismissal of the Electronic Privacy Information Center (EPIC)'s lawsuit seeking President Donald J. Trump's income tax records.

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  • C. S. P. Schofield||

    Can you imagine the hullabaloo if somebody had tried to use FOIA to get Obama's tax records?

  • bernard11||

    Since we are imagining hullabaloos, can you imagine the hullabaloo if a judge had rejected the request?

    Fox, Limbaugh, Breitbart, etc. would have had enough material to feed their marks for months.

  • JesseAz||

    Bernard, do you have citations for your imaginings or are you just dead set on your imagined windmills?

  • bernard11||

    It's your buddy Schofield who started the imagining.

    Meanwhile, do you have something to say, or do you just shout brainless insults?

  • apedad||

    Or Obama's birth certificate.

    Oh wait...

  • Rossami||

    I didn't remember that birth certificates were exempted from disclosure under the Internal Revenue Code.

    Oh wait...

  • ILK||

    No, because the IRS doesn't issue birth certificates. But they would be prohibited from FOIA disclosure under Exemption 6.

    Oh wait ... ?

  • MatthewSlyfield||

    No federal agency issues birth certificates, so exemptions to the Federal FOIA are inapplicable.

    Oh wait...?

  • Sebastian Cremmington||

    In many states it is public information. Obama refused to make it public because it made his opponents look nutty—and it blew up in his face as Trump used it as a springboard.

  • MJBinAL||

    Actually, Obama and the birth certificate is pretty interesting.

    In the first edition of Obama's book, "Dreams of my Father", the foreword actually stated that he was born in Kenya. This was the original point that cast doubt on where Obama was born.

    It is a moot point where he was born at this point, but Obama provided a certificate of live birth from Hawaii after a absurd delay, then refused to let Hawaii release it directly. It was quite a run around, and since he acted like he had something to hide, many people believed he did.

    The scrutiny that certificate received from the media was curiously much less than the National Guard records of Bush certainly got. Then of course the fake National Guard records of Bush that ABC got were accepted at face value despite being obvious forgeries.

    As I said, the Certificate of Live Birth is not important now, but the obvious bias provided to Obama on this topic by the media was clear.

  • David Nieporent||

    In the first edition of Obama's book, "Dreams of my Father", the foreword actually stated that he was born in Kenya.

    No. There was a marketing brochure written by some intern that said it. Nothing in the book.

    This was the original point that cast doubt on where Obama was born.

    No. A bunch of nuts made it up, and then like all conspiracy loons, cast about for anything they could seize on to make them look less nutty.

    but Obama provided a certificate of live birth from Hawaii after a absurd delay,

    Nope again. He provided it right away. Then the aforementioned nuts came up with the idea that they needed a "long form" version. Then after that was ultimately produced, they refused to believe it was genuine.

  • Brett Bellmore||

    They didn't make it up before the marketing brochure, so I really don't see why you're claiming they made it up at all. It was apparently Obama's publicist who made it up.

    I personally thought it rather unlikely he was born abroad, after I saw the birth announcement in the local paper; Sure, you could have faked that, with sufficient effort, but why would you bother?

    OTOH, the question of where he was born was legally relevant to whether he was qualified to be President, and the people who mistakenly though it wasn't in Hawaii were entitled to the the best evidence, not just the evidence he felt like providing.

    Really, he's the one who kept the contraversy going all that time, apparently to keep his foes obsessed with something he knew in advance would never amount to anything. Imagine what might have happened if equal effort had been devoted to uncovering his college records...

  • Sebastian Cremmington||

    Actually a Hillary supporter went to Hawaii on her own dime to research his birth. A few months later journalists booked every seat to Wasilla but none wanted a free trip to Hawaii. Lol.

    I know Obama's HLS grades. Shhhhhh.

  • bernard11||

    It was apparently Obama's publicist who made it up.

    Some intern in a publishing company does not qualify as "Obama's publicist."

    the people who mistakenly though it wasn't in Hawaii were entitled to the the best evidence, not just the evidence he felt like providing.

    Who? Jerome Corsi? Donald Trump? Rush Limbaugh? Orly Taitz? Some other gang of nutballs?

    Besides, they went to court, repeatedly, and lost.

  • Sebastian Cremmington||

    Nope, he had it for a year. Like most viable candidates for president the campaign manager requests a birth certificate when one announces.

  • Hunting Guy||

    A U. S. Embassy will issue a "Certificate of Live Birth" for U. S. citizens born abroad.

  • JeffreyL||

    Not necessarily.

    see People for the Am. Way Found., 503 F.Supp.2d at 304 (quoting Alliance for the Wild Rockies v. Dep't of the Interior, 53 F.Supp.2d 32, 36 (D.D.C. 1999))

  • wreckinball||

    Difference is someone could challenge his eligibility to be president based on the BC, but not his tax returns

  • Last of the Shitlords||

    Or Obama's college application, or Obama's college transcripts.

  • bernard11||

    I heard he got caught throwing spitballs in the third grade.

    How come the media never reported that?

  • Per Son||

    Obama publicly disclosed his returns--hullabaloo avoided.

  • MJBinAL||

    Yes, since he did not run any large business' (hell, he never really had a job) his return should have been simple and uncontroversial and probably had never even been audited.

    Trump on the other had, although would have hundreds of things that were perfectly legal that could be used out of context to attack him in the press. This, despite being audited every year. (as everyone at his income level is)

    I would not have released my tax returns either.

  • JesseAz||

    How many fake accounts do you need Hihn?

  • bernard11||

    Would you have promised repeatedly to release them and then reneged?

  • OtisAH||

    I can! It would be something like this...

    "Why did you submit a FOIA request for the president's tax returns when he releases them publicly every year?"

  • 3rd Batt Ranger||

    They would have suddenly been up for an audit of their past 23 years of tax returns.

  • DjDiverDan||

    "an ingenous [sic] attempt"? I assume that you meant an ingenious attempt. But since when does "ingenious" mean frivolous and insanely overreaching?

    So far as I know, every bar association in the country has rules of professional conduct which prohibit the filing of frivolous claims - claims which are neither supported by existing law nor a good faith argument for the extension of existing law. The assertion that, just because he was elected President, Donald Trump forfeited any rights of privacy or confidentiality in tax return information otherwise protected by Federal law. EPIC's claim was neither clever nor original, and it certainly wasn't "ingenious". It was legally frivolous, and unless EPIC's counsel is sanctioned for that kind of misconduct, this kind of asinine claim will proliferate.

  • Bob from Ohio||

    Sanctions are 100% appropriate.

    "An agency need not disclose records "specifically exempted from disclosure by statute." Id. § 552(b)(3). Because the IRC is such a statute, records that fall within its confidentiality mandate are exempt from FOIA."

    This is about as clear as the law gets.

  • Per Son||

    Bob from Ohio,

    I agree 100% with you. This was a dumb case to file and waste money and time.

  • OldCurmudgeon||

    The sad part is that this was an appellate decision(!) They doubled down on frivolous.

  • OtisAH||

    Until Larry Klayman faces sanctions, no one will.

  • SKofNJ||

    You're absolutely right.

  • SKofNJ||

    Right about the IPEC, that os.

  • SKofNJ||

    That is, not "that os."

  • a ab abc abcd abcde abcdef ahf||

    I'd assume everyone's personal information would be exempt from FOIA disclosure.

    Then we get into police disciplinary records. Because police have so much power, it seems perfectly cromulent to know the disciplinary records of police who arrest you or testify against you. Does the same apply to the disciplinary records of the IRS examiner who audits you? What about the county clerk who rejects your permit application?

    Seems reasonable to me. They are public servants, they represent a monopoly which you have no choice but to deal with. If I have a problem with a cashier at K-mart, I don't need to know their disciplinary record; the manager is much more likely to try to correct the problem than any police or IRS boss, and I almost certainly have alternatives to do business with.

  • KevinP||

    Electronic Privacy Information Center claims to be interested in protecting privacy, LOL!

    Here is the list of EPIC board members: http://epic.org/epic/staff_and_board.html

    Anyone interested in obtaining the tax returns of the board members may refer to this IRS guide: http://www.irs.gov/privacy-dis.....guidelines

  • bevis the lumberjack||

    Your screen name and your post are remarkably conflicting.

  • Sarcastr0||

    I mean, I think he's a bit over the top as well, but thinking Trump is a corrupt plutocrat (rightly or wrongly) doesn't have a lot to do with your general take on liberty.

  • bevis the lumberjack||

    "but thinking Trump is a corrupt plutocrat (rightly or wrongly) doesn't have a lot to do with your general take on liberty."

    You're right. My response was due to my interpretation that his post was critical of the decision, since it was posted in response to an article about the decision. It's possible I misinterpreted his intent and that instead he's just using the article as a chance to rant. On the internet, all things are possible.

  • 3rd Batt Ranger||

    What's even more stupid is your implied notion that the millionaires and billionaires with a D beside their name don't pay the exact same tax rate as Trump. Demanding higher taxes on the 'rich', as in themselves, and believing this will happen is an example of extreme ficking stupidity. WTF is your argument, the D's lie about taxing themselves so that makes it all better?

  • VinniUSMC||

    Oh look, the Hihnfection has a new moronic pseudonym.

    Go drink some bleach fuckwad.

  • Last of the Shitlords||

    Hihn, no one is interested in anything you have to say.

    And it doesn't have to be bleach. You're perfectly welcome to drink Drano too.

  • 3rd Batt Ranger||

    or, better yet, you're so totally stupid enough to believe all those progressive rich folks, like say Pelosi, are actually going to tax their own arses at 90%. Do you suffer from TDS Butt Hurt, yes seems to be the correct answer.

  • DjDiverDan||

    Hey, discoverLIBERTY, as long as you are out looking for something, why don't you search for a bit of sanity. Maybe some psychoactive meds would help. It is precisely for people like you that Obama insisted that health insurance cover mental illness.

  • TwelveInchPianist||

    "I mean, I think he's a bit over the top as well, but thinking Trump is a corrupt plutocrat (rightly or wrongly) doesn't have a lot to do with your general take on liberty."

    I'm so old I remember when you thought it was bad to call for locking up your political opponents.

  • Social Justice is neither||

    Thanks Hinh. good to know this is another sock to scroll.

  • gormadoc||

    If you're on Chrome there's an extension called "reasonable" that allows you to filter posts. Hihn is especially good to filter out because of the excessive number of lines he posts.

  • tkamenick||

    Gorma, thanks! That's awesome.

  • 3rd Batt Ranger||

    Just like Obama's desperate attempts to destroy the fossil fuel industry is actually why he claims credit for the wonderfully low energy prices, he drilled his way to success, eh? You have TDS don't you, you know you do.

  • MJBinAL||

    You are so full of shit you must squish as you walk.

    i was going to start refuting all the stupid points you posted, but then I realized that they have all been refuted dozens of times on here that I have seen, and probably hundreds more I missed.

    Think up something new will ya?

  • wreckinball||

    Dumb fuck comment of the day. The IRS can audit him if they wish. They probably do on a regular basis.

    But your tax records are personal not public records, duh

  • MJBinAL||

    During the campaign, Trump said that he gets audited every year. Everyone at that income level gets audited every year.

  • gormadoc||

    It's Hihn again. There's no need to engage him.

  • ||

    It's flat tax time.

  • VinniUSMC||

    Poor Hihnfection. It must suck to go through life being you.

  • bevis the lumberjack||

    Even from the standpoint of someone who can't stand Trump, this decision seems like a no-brainer.

    And what the fuck is an entity with "Privacy" in it's name (and purported mission) doing filing something like this? Do words no longer mean what they plainly mean?

  • tkamenick||

    Yeah that struck me immediately as well. Talk about defeating your own purpose.

  • Last of the Shitlords||

    "Irony" should also be in their name.

  • ||

    No different than the Democrat Party pretending to be about democracy.

  • DjDiverDan||

    Congratulations to ARWP, finally a comment which isn't stupid. But understand that Democrats think that democracy is important only for those elections which they win. When Democrats lose an election, they take is as axiomatic that the voters who would have voted for them had their votes suppressed, and thus it wasn't "real" democracy.

  • Kibitzer||

    In an otherwise very sound opinion, there is one jarring note. The opinion suggests that use of the IRS to harass political opponents began with Nixon. ("The arrangement worked out fine for decades. Then the Nixon administration complied a list of political enemies and ordered the IRS to harass them.") By all accounts this is far from the truth, with FDR particularly prominent as an offender.

  • MJBinAL||

    True

  • Brett Bellmore||

    And it's always worth mentioning that, when Nixon ordered the IRS to audit his enemies, they refused, and audited him instead. The bureaucracy is a weapon with ego, it will turn in your hand if it doesn't like you.

  • wreckinball||

    No kidding. I mean Captain Obvious revelation of the day

  • ||

    Regardless of your position on any of these cases, none of the requests or demands for Trump's tax returns are in good faith. No one is actually interested in looking at any of his tax returns because they care about any supposed corruption in his business dealings. They're looking for any loophole he exploited or minor mistakes so that they can scream "Gotcha!"

  • wreckinball||

    I think its great precedent to not release his taxes.

  • ||

    I don't care if Presidents do or not.

  • gormadoc||

    Great "President"? Ey? Ey??

  • Sarcastr0||

    Oy.

  • Sebastian Cremmington||

    Is there a dumber law than the FOIA?? Why hasn't Congress reformed the law to exclude digital text communication that is now similar to phone calls?

  • jph12||

    1. Thousands of them.

    2. Because they are more similar to emails than phone calls.

  • Sebastian Cremmington||

    2. Strozk texts were like email work product??

  • E Blackadder||

    Putting aside anyone's opinion of Trump, my quick read of the Court opinion revealed that EPIC was not making an argument for disclosure based on Trump being President or holding federal office. EPIC was making arguments that, if accepted, could be used to mandate release of anyone's tax returns. It is good that EPIC was thrown out of court.

    I guess EPIC now "supports" privacy rights to the same extent that the ACLU now "supports" civil liberties.

  • gormadoc||

    I disagree with the idea that it's clever. It's fairly simplistic: FOIA gives the power to get government records, why not try to get personal records kept by the government? The ignorance involved certainly points to "not clever."

  • bernard11||

    I agree.

    Some have a tendency to describe unorthodox arguments as clever, even when the reason they are unorthodox is that they are stupid.

  • SKofNJ||

    Seems to me that the plaintiff organization ought to change its name, perhaps to the Anti-Electronic Privacy Information Center.

  • santamonica811||

    Question: Could Congress pass a law, modifying this. Something like, "Due to the special nature of the president (and VP, I guess), their tax returns for [let's say] the 5 years preceding their presidency, and all years during their presidency, are now specifically eligible for disclosure under FOIA."

    And make the law take effect 5 years from now, to avoid politicization. My question is: Would this sort of modification be constitutional? If not, why not?

  • MJBinAL||

    A better question would be why would this be beneficial? The only time anyone could get anything out of them is if the guy running is a businessman.

    Hillary released her's, BUT all of the dubious transactions for the Clinton's when through the Clinton Foundation. They just got paid for "services" by the Foundation.

    And this is widely true for professional politicians. All the income that might lead you to ask questions is nicely laundered in one way or another.

    The truth is that there is no benefit to releasing the tax returns.

  • Alpheus W Drinkwater||

    The Maryland House of Delegates considered a bill that would have required a US presidential candidate to release his/her tax returns to appear on a ballot in the state.

  • ||

    Exactly.
    Narrowing the field is suppressing the vote from the other side.

  • ||

    It seems that the requirements for being President are already spelled out.

  • gormadoc||

    Please stop talking to him. Let him go away.

  • ThePersuader0809||

    Is it possible for discoverLIBERTY! to post something that does not include one of the following?

    Ad hominem attacks
    Foul language
    Insults towards other posters
    Attention-getting techniques like all caps, bolded font

    From many years of reading posts and comments on this blog, I've grown to expect much more than trolling/attention-getting/flaming from both posters and readers.

    CIVIL discourse is all too rare, and I hope that it does not disappear altogether because of trolls like this.

  • Last of the Shitlords||

    Are you talking about another Michael Hihn sock?

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