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FOIA Requests Are Piling Up at the IRS

By: Lauren Loricchio

 

Freedom of Information Act requests have been accumulating at the IRS during the COVID-19 pandemic in addition to its giant backlog of paper returns.

 

The IRS had 369 backlogged FOIA requests in fiscal 2019, a number that rose to 831 in fiscal 2021 and to 1,135 by the third quarter of fiscal 2022, according to data from FOIA.gov.

 

The IRS received 8,128 FOIA requests in fiscal 2019; 8,156 in fiscal 2020; and 7,700 in fiscal 2021. The number of FOIA requests processed declined from 8,006 in fiscal 2019 to 7,526 in fiscal 2021, according to the data. The number of requests pending at the end of each fiscal year went up — from 846 in fiscal 2019 to 1,388 in fiscal 2021.

 

FOIA requests at Treasury have also been accumulating, the data show. In fiscal 2019 Treasury had 1,495 backlogged requests, which grew to 2,280 in fiscal 2021.

 

The requests are considered backlogged when at the end of the fiscal year, they have been pending at an agency for longer than the statutorily imposed limit, which is typically 20 working days.

 

A spokesperson for the IRS declined to comment on whether the agency will prioritize addressing the FOIA backlog, and pointed to a page on the IRS website that says requests for records are taking longer to process because of COVID-19.

 

Out of Office

John Koskinen, who was IRS commissioner during the Obama administration, told Tax Notes it’s not surprising that FOIA requests are backed up at the IRS along with the paper filings.

 

“Employees working at home during the pandemic has meant that paper filings were not opened,” Koskinen said, adding that “the new responsibility for issuing three different sets of stimulus payments over the last couple of years added to the challenges for employees.”

 

Koskinen also explained that “the requirement to set up, for the first time, a program to send out monthly benefits for the child tax credit has meant that keeping up with everything taxpayers request has been more complicated than ever.”

 

Pete Sepp of the National Taxpayers Union said the union is “among organizations with a direct interest in relatively speedy and complete information” and that addressing the FOIA “backlog while ensuring that other backlogs like tax returns are addressed is important.”

 

The IRS FOIA backlog is similar to what other agencies experienced during the pandemic, according to a summary of fiscal 2021 FOIA reports from the Justice Department.

 

The number of backlogged requests across the government at the end of fiscal 2021 was 153,227, up from 141,762 the previous year and from 120,436 in fiscal 2019, according to the summary.

 

 

House and Senate lawmakers sent a letter to the Government Accountability Office in March asking it to study “systemic issues faced by federal agencies in fulfilling their obligations under” FOIA, after the GAO reported that the backlog of FOIA requests increased by 97 percent from fiscal 2012 to fiscal 2020.

 

“FOIA is crucial for ensuring transparency and accountability in government, but persistent challenges continue to limit citizens’ ability to access information under the statute,” the lawmakers said.

 

In March 2021 the GAO found that high staff turnover, competing priorities, and lack of awareness about reporting requirements contributed to challenges with administering FOIA at the Department of Housing and Urban Development, Federal Aviation Administration, and Veterans Health Administration.

 

“FOIA backlogs have grown across the federal government, but some have been able to work around them better than others,” Sepp told Tax Notes.

 

“I imagine one of the challenges at IRS is having to be physically present in some cases to draw data that might be sensitive and then redact whatever has to be withheld for privacy reasons. You may not necessarily find quite as much of that at other agencies,” Sepp said.

 

Making Progress

Observing that the IRS is addressing the backlog of paper returns, Koskinen said he assumes that also includes the FOIA backlog.

 

IRS Commissioner Charles Rettig promised to have the mail backlog cleared by the end of the year. An IRS update on September 23 said the agency still had 6.9 million unprocessed individual tax returns received this year, 5.6 million of which are paper returns awaiting review. That shows that substantial progress has been made since August 19, when the IRS reported 8.7 million unprocessed individual returns, 7 million of which were paper returns awaiting review and processing.

 

“The IRS takes FOIA requests seriously, but they often raise complicated legal and privacy issues that slow the process down, even when you have enough employees, which the IRS does not have at this time,” Koskinen said.

 

The Inflation Reduction Act (P.L. 117-169), enacted August 16, authorizes nearly $80 billion in additional funding for the IRS over the next 10 years.

 

“The new funding for the IRS will allow the agency to refill many vacant positions so that these backlogs become a thing of the past,” Koskinen said.

Company Tax Notes
Category FREE CONTENT;ARTICLE / WHITEPAPER
Intended Audience CPA - small firm
CPA - medium firm
CPA - large firm
Published Date 09/29/2022

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