Congress isn’t alone in trying to wrest answers out of the embattled Internal Revenue Service. The courts, public-interest groups and the media are all struggling with uneven transparency and cooperation from the agency.
News that the IRS cannot produce long-sought emails is rekindling complaints that the agency has been slow to make public both policy documents regarding the special scrutiny of conservative groups and the emails of IRS decision-makers involved at the time.
Lawmakers are furious that the IRS failed to publicly disclose earlier that the woman at the center of the scandal, Lois Lerner, lost emails when her computer hard drive crashed in 2009.
That was news, too, for those involved in a lawsuit to force the release of Lerner’s emails. A federal judge Thursday will hear from the IRS as to why the U.S. District Court for the District of Columbia was not immediately informed about potentially missing emails.
The conservative organization Judicial Watch sued the IRS in May 2013 for access to Lerner’s emails, but it only learned of the missing emails after IRS Commissioner John Koskinen appeared before Congress last month.
“They’ve never once communicated to the court that that’s the case,” said Chris Farrell, research director for the group. “You have an ongoing lawsuit and no notification, that’s not generally how it’s done.”
The IRS has been ham-handed at best ever since the scandal erupted in May 2013. Anticipating an inspector general’s report, Lerner took a planted question at a legal conference so she could admit the agency had inappropriately targeted conservatives. Later, before Congress, she refused to answer any questions from lawmakers, citing her constitutional protection against self-incrimination.
As Congress more aggressively sought answers, the IRS simply stopped responding to media questions and information requests from public-interest groups.
“I think they are in a greater bunker mentality as this (scandal) progresses,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington. “I don’t see the ‘new broom sweeping it clean’ . . . approach. I see just the opposite.”
She added that “all too often we have to file lawsuits in order to get anything in response to our requests.”
Judicial Watch’s suit against the IRS was filed under the Freedom of Information Act. Under the law, public-interest groups and the media can seek non-public information from the government.
On his first day in office in 2009, President Barack Obama called on federal agencies to “adopt a presumption in favor of disclosure” when dealing with FOIA requests. But at the IRS and elsewhere in government, little has changed.
In fact, analysts say, it’s become harder to get information as agencies such as the IRS hide behind a widening array of exemptions written into the Freedom of Information Act.
“This has nothing to do with party politics. This is a systemic trend that’s been happening in this country for 30 or 40 years,” said David Cuillien, interim director of the School of Journalism at the University of Arizona. “It’s the professionalization of PR and message control. It’s infiltrated the bureaucracy and the president can’t stop it.”
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., recently introduced a bill to force greater disclosure and simplify the FOIA process; he was joined by Texas Republican Sen. John Cornyn. Cuillien welcomed the bipartisan proposal but wasn’t hopeful.
“About every 10 years, we put a little duct tape on FOIA . . . but there are just so many forces against it. It’s like building a sandcastle on the beach,” he said. “It’s been whittled to pieces over the years. I frankly think we have to scrap it and start over.”
McClatchy filed a FOIA request with the IRS on June 13, 2013, seeking all email communication over a four-year period between members of Congress and the IRS Exempt Organizations Division, headed by Lerner.
A separate request sought email traffic between that IRS division and members of Congress who sit on committees with jurisdiction over the IRS.
More than a year later, the only IRS responses have been requests for more time. The latest came May 1, when tax law specialist Robert Thomas asked for “additional time to collect, process and review such responsive documents.” The agency, he said, would contact McClatchy by Aug. 1 if more time were needed.
Many of the emails sought by McClatchy have been made public on a smaller scale through the FOIA requests of others, some of them obtained and published by Citizens for Responsibility and Ethics in Washington.
CREW obtained through the FOIA process emails showing then-Sen. Max Baucus, D-Mont., now the U.S. ambassador to China, leaning on the IRS to ensure that political groups weren’t funneling money illegally into campaigns. Baucus made no reference to conservatives or liberals in the Sept. 28, 2010, letter.
Weeks later, the top Republican on his committee, Sen. Orrin Hatch of Utah, wrote to then-IRS Commissioner Doug Shulman, a Republican appointee. The letter was signed also by then-Sen. Jon Kyl, R-Ariz.
“We are worried that the sole purpose of any such effort is to chill the legitimate exercise of First Amendment rights and intimidate Americans,” the pair said, more than two years before that became the narrative of the IRS scandal.
IRS emails also are an issue in November congressional campaigns. Republican Senate candidate Scott Brown is demanding that incumbent Sen. Jeanne Shaheen, D-N.H., release all emails sent to the IRS during the period of Lerner’s lost email. One of her emails pressuring the IRS over groups abusing their tax-exempt status had been made public through the FOIA process.
Brown has not been forthcoming himself.
Brown campaign spokeswoman Elizabeth Guyton never followed up on a McClatchy request for Brown’s emails to the IRS when he was a senator representing Massachusetts.
IRS secrecy extends beyond the Lerner scandal.
McClatchy in March filed a Freedom of Information Act request for documents relating to more than 200 cases investigated by the Treasury Inspector General for Tax Administration on a different pattern of apparent wrongdoing by IRS employees.
The inspector general’s FOIA office sought months of delays. At one point, specialist Monica Fyre took the unusual step of asking where McClatchy learned of these IRS investigations.
On June 13, the inspector general’s FOIA office sent a letter denying McClatchy’s request for disclosure. It cited three exemptions under the Freedom of Information Act, including one that allows the agency to keep private information about taxpayers or information collected about them. McClatchy was asking for information about IRS employees, not taxpayers.
The inspector general’s FOIA office also cited another provision protecting the privacy of IRS employees, even though McClatchy asked that employee names be blacked out precisely in order to protect privacy, and instead sought to look at patterns of behavior in the agency.
“That’s absolutely outrageous,” said Weismann, the general counsel for CREW
This sort of information is routinely made public by other agencies.
“Agencies continue to overuse the FOIA’s exemptions, and all too often we have to file lawsuits in order to get anything in response to our requests,” said Weismann of CREW. “Thus, in many cases, the promise of transparency is unfulfilled.”
That’s a point the group Open the Government had made repeatedly, including before the Senate Judiciary Committee in March. The group is calling for a number of steps to strengthen and make more independent the FOIA offices of various agencies.
“It is something a presidential memo is not fixing,” Amy Bennett, the group’s assistant director, told McClatchy. “If you are going to put the president’s directives and words into practice, it’s going to take more oversight from someone in the government. There is no real enforcement agency.”