CREW citizens for responsibility and ethics in washington December 7, 2010 IRS FOIA Request HQ FOIA Stop 211 2385 Chamblee Tucker Road Chamblee, GA 30341 Re: Freedom of Information Act Request Dear Sir or Madam: Citizens for Responsibility and Ethies in Washington (“CREW”) makes this request for records, regardless of format, medium, or physical characteristics, and including electronic records and information, audiotapes, videotapes, and photographs, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § $52, ef seq, and Internal Revenue Service (“IRS”) FOIA regulation 26 C.F.R. § 601.702, CREW seeks records, from January 1, 2001 to the present, related to the IRS"s efforts to ascertain policy positions of tax exempt organizations or organizations seeking tax exempt status, Specifically, CREW requests: (1) All records that describe, explain, or provide guidance regarding any IRS policy or practice of determinating whether the activities of a tax exempt organization or an organization seeking tax exempt status complies with or contradicts publie policy. (2) All records that summarize instances of the IRS asking a tax exempt organization or an organization seeking tax exempt status to state its position on a publie policy issue. This request secks records that include, but are not limited to, the number of times the IRS has asked a tax exempt organization or an organization seeking tax exempt status to state a policy position, the name of the organization to which the request was made, and/or the subject matter of each request. In this regard, CREW notes that letters and other documents issued by the IRS with respect to approved applications for tax exempt status, including correspondence sent by the IRS to an organization relating to the determination of exempt status, are open for public inspection. See 26 U.S.C § 6104; 26 CFR. § 301.6104(a)-1(b); Internal Revenue Manual 7.20.2.6.2(1) (“Case File Information Open for Public Inspection”). In this request, CREW does not seek each individual letter in which the IRS asked a tax exempt organization or an organization seeking tax exempt status to state its position on a public policy issue, but rather seeks any summaries or compilations of such requests. (3) All letters, correspondence, and other documents sent by IRS Exempt Organizations 1400 Eye Steet, NW, Suite 450, Washington, D.C. 20005 | 202.408.5565 phone | 202.588.5020fax | wnwicitzenstorethcs.org =Freedom of Information Act Request December 7, 2010 Page 2 Specialist Tracy Dornette asking a tax exempt organization or an organization seeking tax exempt status to state its position on a publie policy issue. (4) Any records related to any unit (formal or informal) within the IRS that determines if the activities of a tax exempt organization or an organization seeking tax exempt status complies with or contradicts public policy. Please search for responsive records regardless of format, medium, or physical characteristics. Where possible, please produce records electronically, in PDF ot TIF format on a CD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs. Our request includes any letters, emails, facsimiles, telephone messages, voice mail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, or discussions. Our request also includes any attachments to these records. If't is your position that any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir, 1973), cert. denied, 415 U.S. 977 (1972), As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir, 1979). Moreover, the Vaughn index must “describe cach document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information.” King v US. Dep't of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added), Further, “the withholding agency must supply “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Zd. at 224 (citing Mead Data Central v. US. Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) In the event that some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document, Mead Data Central, 566 F.2d at 261, Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If'a request is denied in whole, please state specifically that itis not reasonable to segregate portions of the record for release. Finally, CREW welcomes the opportunity to discuss with you whether and to what extent this request can be narrowed or modified to better enable the IRS to process it within the FOIA’s deadlines. Adam J. Rappaport, the CREW attorney handling this matter, can be reached at (202)Freedom of Information Act Request December 7, 2010 Page 3 408-5565 or arappaport@citizensforethics.org, Fee Waiver Request In accordance with 5 U.S.C. § $52(a)(4)(A)(ii) and 26 C.F.R. § 601.702(f)(2), CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government and expenditures, and the disclosures will likely contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way, Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4(A)(ii). See, e.g., McClellan Ecological v, Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). ‘These records are likely to contribute to the public’s understanding of the basis for and the legality of the IRS's efforts to obtain information regarding the policy positions of tax exempt organizations and organizations seeking tax exempt status. For instance, the IRS earlier this year asked a Jewish religious organization seeking tax exempt status for its policy views regarding Israel. Specifically, IRS Exempt Organizations Specialist Tracy Dornette wrote to an unidentified organization as part of the IRS’s efforts to determine its tax exempt status and asked: “Does your organization support the existence of the land of Israel?” See Z Street v. Schulman, Civ. No. 2:10-ev-04307-CMR (E.D. Pa.), Declaration of Jerome M. Marcus, Esq., Exhibit A (attached hereto as Exhibit A).! Ms. Domette further asked the organization to describe its “religious belief system toward the land of Israel.” Id; see also Ben Smith, IRS to Jewish group: ‘Does your organization support the existence of the land of Israel?", Politico, Nov. 24, 2010 (attached as Exhibit B). It is unclear the extent to which the IRS is trying to ascertain the policy positions of other organizations, or which policy positions are of interest to the IRS The records also are likely to shed light on whether the IRS has any special units, committed to determining the tax exempt status of organizations connected to particular issues. According to Z Street, which applied in December 2009 for tax exempt status, IRS agent Diane Gentry asserted in a July 19, 2010 telephone conversation with Z Street’s counsel the IRS is carefully scrutinizing organizations that are in any way connected with Israel, and that “these cases are being sent to a special unit in the D.C. office to determine whether the organization's activities contradict the Administration's public policies.” See Z Street v. Shulman, Complaint (attached as Exhibit C); see also Josh Nathan-Kazis, Lawsuit Accuses IRS of Screening [srael- ' Ms. Domette’s letter was submitted fo a court in the Eastern District of Pennsylvania in a Jawsuit brought by an organization named Z Street against IRS Commissioner Douglas Schulman. According to Z Street's counsel, a representative of the organization that received the letter provided it to Z Street but refused to reveal the name of the organization. See Z Sireet v Schulman, Declaration of Jerome M. Marcus, Esq,Freedom of Information Act Request, December 7, 2010 Page 4 Related Charities, Forward com, Aug. 25, 2010 (attached as Exhibit D). The IRS also reportedly told the officer of a pro-Palestinian group that the IRS has a similar special unit to scrutinize pro- Arab groups, Ben Smith, Z Street. cont'd, Politico, Aug. 27, 2010 (attached as Exhibit F). ‘The requested records will shed light on the extent to which the IRS considers an organization's policy views in deciding whether to grant or maintain the organization’ tax exempt status. Accordingly, the requested records concern the IRS’s operations, and disclosure would contribute significantly to the public's understanding of these operations because information contained in the records is not otherwise available to the general public. CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public’s right to be aware of the activities of government officials and to ensuring the integrity of those officials. CREW uses a combination of research, litigation, and advocacy to advance its mission. The release of information garnered through this request is not in CREW’s financial interest. CREW will analyze the information responsive to this request, and will share its analysis with the public, either through memoranda, reports, or press releases. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www citizensforethies.org, which also includes links to thousands of pages of documents CREW acquired through its multiple FOIA requests as well as documents related to CREW’s litigation and agency complaints, and through www, Under these circumstances, CREW satisfies fully the criteria for a fee waiver, News Media Fee Waiver Request CREW also asks that it not be charged search or review fees for this request because CREW qualifies as a “representative of the news media” pursuant to the FOIA and IRS FOIA regulation 26 C.F.R. § 601.702(83). In Nat'l Sec. Archive v, U.S. Dep't of Defense, $80 F.2d 1381, 1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Cireuit found the National Security Archive was a representative of the news media under the FOIA, relying on the FOIA’s legislative history, which indicates the phrase “representative of the news media” is to be interpreted broadly; “itis critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected. .. . In fact, any person or organization which regularly publishes or disseminates information to the public... should qualify for waivers as a ‘representative of the news media.”” 132 Cong. Rec. $14298 (daily ed, Sept. 30, 1986) (emphasis added), cited in id. CREW routinely and systematically disseminates information to the public in several ways. First, CREW maintains a frequently visited website, www.citizensforethies.org, that received 63,578 visits in November 2010. In addition, CREW posts all of the documents itFreedom of Information Act Request December 7, 2010 Page 5 receives under the FOIA on www.seribd.com, and that site has received $04,100 visits to CREW’s documents since April 14, 2010. Second, since May 2007 CREW has published an online newsletter, CREWCuts, that currently has 17,116 subscribers. CREWCuts provides subscribers with regular updates regarding CREW'’s activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at hutp:/Avww.citizensforethies.ore/newsle! Third, CREW publishes a blog, Citizens blogging for responsibility and ethics in Washington, that reports on and analyzes newsworthy developments regarding government ethies and corruption. The blog, located at htip://www.citiznesforethics.org/blog, also provides links that direct readers to other news articles and commentary on these issues. CREW’s blog had 1,203 hits in November. Finally, CREW has published numerous reports to educate the public about government ethics and corruption, including agencies’ failure to comply with their record keeping responsibilities. See Record Chaos, which examines agency compliance with electronic record keeping responsibilities; The Revolving Door, a comprehensive look into the post-government activities of 24 former members of President Bush’s cabinet; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW’s reports are available at http/Avww.citizensforethics.org/reports, Based on these extensive publication activities, CREW qualifies for a fee waiver as a “representative of the news media” under the FOIA and ageney regulations. Conclusion Please respond to this request in writing within 20 days as requested under 5 U.S.C. §552(a)(6)(A)(0). If.all of the requested documents are not available within that time period, CREW requests that you provide it with all requested documents or portions of documents that are available within that time period. Ifyou have any questions about this request or foresee problems in releasing fully the requested records within the 20-day period, please call me within that time period. Tan be reached at (202) 408-5565. Also, if CREW’s request for a fee waiver is not granted in full, please contact me immediately upon making such a determination, Please send the requested documents to Adam J. Rappaport, Citizens for Responsibility and Ethies in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005.Freedom of Information Act Request December 7, 2010 Page 6 ‘Thank you for your attention to this matter, Sincerely, / At WA 7 ‘Adam J. Rappaport Senior Counsel Enclosures