TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, November 6, 2018

NY Times: Tax Prep Companies Use FOIA Requests To Thwart Dennis Ventry's Criticism Of Free File Program

New York Times, Industries Turn Freedom of Information Requests on Their Critics:

Dennis J. Ventry Jr., a law professor at the University of California, Davis, drew the ire of tax preparation companies like Intuit and H&R Block this summer by criticizing a deal they have to provide a free tax filing service through the Internal Revenue Service.

The companies promptly hit back with a tactic that corporations, lobbyists and interest groups are increasingly using against academic researchers: Their trade coalition filed a public records request with the university in July seeking everything Mr. Ventry had written or said about the companies this year, including emails, text messages, voice mail messages and hand-jotted notes.

The university estimated that it spent 80 to 100 hours complying with the request, filed under the California Public Records Act, which requires employees of any state agency or institution to produce, upon request from any member of the public, any record that relates to “the conduct of the public’s business” that is “prepared, owned, used or retained” by the university.

The request generated 1,189 pages of documents, university officials said. And it was just one example of how both state-level public records laws and the federal Freedom of Information Act, written to ensure transparency and accountability in government, have morphed into potent weapons in legal and business disputes, raising questions about the chilling effects — and costs — they impose on targets who are doing research in controversial or sensitive fields.

A 2017 analysis of requests filed under the Freedom of Information Act found that “public-oriented inquiries by concerned citizens and their advocates” account for “only a small fraction of the 700,000-plus FOIA requests submitted each year,” wrote David Pozen, a law professor at Columbia University, whose paper reviewed studies on the issue. “The bulk of requests come from businesses seeking to further their own commercial interests by learning about competitors, litigation opponents or the regulatory environment.” ...

In Mr. Ventry’s case, he said he did not have anything to hide — he has been a critic of the tax preparation program, Free File, and an outspoken advocate for no-cost, simplified, government-provided tax preparation for years. But he said that the request had made collaborators in his research wary of communicating with him and amounted to intimidation by the industry.

“They are trying to bully me,” Mr. Ventry said of the industry group. “More importantly, they are trying to chill my research and scholarship, whether it has to do with tax law reform or not.”

The industry group, the Free File Alliance, whose legal name is Free File Inc., defended the request as a proper use of public records law. ... Freedom of information requests “are a legitimate, legal method to determine what public officials are doing and saying in their official capacity,” the alliance said in an emailed statement. “Professor Ventry holds a strong preconceived bias against the I.R.S. Free File program.” ...

Mr. Ventry; Joseph Bankman, a tax law professor at Stanford University; and others have worked over the years to create a model for free tax-filing programs administered by a half-dozen states, while advocating a free, streamlined federal e-filing system. ...

Stanford is a private institution not subject to public records requests under the California law, but the alliance’s lawyers used the University of California request to obtain Mr. Ventry’s communications with Mr. Bankman, too.

“There’s nothing really that interesting in my emails,” Mr. Bankman said in an interview. But worries about such requests, he said, stifle the peer review process, a freewheeling exchange of views, often by email, in which academics around the world evaluate one another’s work.

Companies often request such emails “to intimidate people like us, because it really raises the ante and makes it very scary just to email stuff,” he added. For the industry, “it’s a freebie,” he said. “But imagine you’re some young professor somewhere — you don’t know what hit you.”

Mr. Ventry said he was more worried that Mr. Bankman and other colleagues would shy away from collaborating with him.

“We went from emailing multiple times a day over the course of a couple months to not emailing at all,” he said. The request “stifled not just academic freedom but the deliberative and beneficial process of thinking through problems with others.”

If that constitutes winning for the tax industry, he said, “they won.”

https://taxprof.typepad.com/taxprof_blog/2018/11/ny-times-tax-prep-companies-use-foia-requests-to-thwart-dennis-ventrys-criticism-of-free-file-progra.html

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Comments

Sunlight is the best disinfectant. Transparency cuts both ways.

Posted by: ruralcounsel | Nov 6, 2018 4:40:46 AM

I don't see any evil intent. For profit companies fighting back against government employees who threaten their legal business model seems reasonable to me. If you can't take the heat...

Posted by: Dale Spradling | Nov 7, 2018 6:14:26 AM

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