Public.Resource.org v. United States Internal Revenue Service

Filing 56

RESPONSE (re 46 MOTION for Summary Judgment , 47 MOTION for Summary Judgment Plaintiff Public.Resource.Org's Consolidated Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment ) (Opposition and Reply) filed byUnited States Internal Revenue Service. (Attachments: # 1 Proposed Order, # 2 Affidavit Second Declaration of D. Ross, # 3 Affidavit Second Declaration of L. Rosenmerkel)(Gelblum, Yonatan) (Filed on 10/29/2014)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
________________________________
PUBLIC RESOURCE.ORG
)
)
Plaintiff
)
)
v.
)
)
INTERNAL REVENUE SERVICE,
)
)
Defendant.
)

Case No: 3:13-cv-2789

SECOND DECLARATION OF LISA ROSENMERKEL
I, Lisa Rosenmerkel, pursuant to the provisions of 28 U.S.C. § 1746, declare as follows:
1. I have previously submitted a declaration in this action, which is incorporated
herein by reference.
2. As described in my prior declaration, I prepared an estimate for the costs of
responding to the Plaintiff’s request.
3. The framework I used for making the estimates was developed by the IRS CFO
to cost reimbursable products.
4. It is a regular part of my job responsibilities to make such estimates for various
tasks that my component is asked to perform, generally in the context of costing
proposed reimbursable projects.
5. The framework is routinely used by the IRS for estimating costs of staff and other
resources used on projects for purposes of reimbursement.
6. I have supervisory responsibility for IT specialists in my branch, and am familiar
with their abilities and typical knowledge base.
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7. I spent 12 years regularly working with statisticians and economists in the
Statistics of Income Division of RAS and am familiar with their abilities and typical
knowledge base; I have also previously worked as an economist.
8. I am generally familiar with the structure of XML files as part of my duties
overseeing the IT specialists who prepare XML data for internal IRS functions.
9. I am familiar with the contents of Form 990, as well as common variations in the
practices of e-filers and the redaction requirements, as part of my duties
overseeing the administration of the SOI Exempt Image Network (SEIN) system.
10. During the course of development of this estimate, I relied on the expertise of
those who would be most intimately involved in this process should it occur. I
relied on the knowledge of the subject matter experts and IT specialists and their
management to determine the steps that would need to be taken as well as their
estimated duration.
11. In developing an estimate, I drew on my knowledge of the typical abilities of
statisticians and economists within the Statistics of Income Division to conclude
that they would have the necessary general skills and abilities to be able to learn
how to edit an XML file, because they are generally proficient with computers as
part of their job requirements.
12. As the subject matter experts of the Form 990 series for the Statistics of Income
Division, I concluded that they would be familiar with the typical contents of a
Form 990, its schedules, and its attachments, since they routinely work with

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Forms 990’s. This familiarity would extend to common deviations by some filers
from the Form’s instructions on what information to include (or omit) on different
parts of the Form, its schedules, or attachments.
13. I also concluded that they would be more familiar with restrictions on disclosure
of certain information that normally or occasionally appears on Forms 990 and
their attachments, since they routinely prepare materials for disclosure to the
public.
14. In contrast, the IT specialists, while already knowing how to edit an XML file,
would not be familiar with the redaction requirements in place for Form 990 or the
common practices of Form 990 filers.
15. I concluded that given the risk of releasing personally identifiable information, the
statistician and economist would be better equipped to isolate and redact
personally identifiable information from the XML data given their broad range of
experience with the Form and attachments.
16. Additionally, it would be more cost effective to use a statistician and economist to
perform the redactions rather than an IT specialist because it would take far less
time to train the statistician and economist in the Statistics of Income Division on
how to redact information from an XML file than it would to train a IT specialist
familiar with editing XML files on all the large variety of circumstances in which
information must be redacted from a Form 990. Knowing what to redact from a
Form 990 requires an ability to account for a large number of situations where

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redaction requires more than merely removing the portion tagged as being the
official IRS Form 990 Schedule B on an electronically filed return.
17. Most of these permutations are described at length in I.R.M. 3.20.12 "Imaging
and Perfecting Exempt Organization Returns for Public and Internal Viewing,"
previously filed in this proceeding as Exhibit 103.
18. While it would be relatively simple to remove the portion of XML that is tagged as
the official IRS Form 990 Schedule B, other personally identifiable information
may be present elsewhere on the return and would require redaction.
19. First, there are many elements included in an XML file that do not have a
companion field on the official Form 990, and are automatically excluded by the
rendering process that converts the XML file to an image file.
20. One of these elements is the portion of the electronic filing referred to as “general
dependencies” which allows filers to include any information they wish, without
any restriction on its transmittal to the IRS.
21. These fields may include filing information such as personal information on the
filer, electronic filing PINs account logon information, and preparer information.
22. Consequently, the potential release of the raw XML files requires an extensive
review of the XML file to ensure it does not contain information unsuitable for
public disclosure which was not viewable on the rendered image and therefore
could not be anticipated.

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23. Secondly, the XML tags which delineate the official Form 990 Schedule B do not
necessarily encompass all Schedule B information (i.e. contributor data) that the
filer provided.
24. In my experience, filers have included some or all Schedule B information
elsewhere on the Form 990, either by inserting this information into other pages
of the Form 990 or other schedules, or including them as a separately-attached
file that is transmitted together with the Form 990.
25. For example, filers have been known to prepare a list of contributors in a
program such as Excel and attach it to the return rather than inputting this
information in the official Schedule B field, or to list donors on portions of the
return other than Schedule B.
26. In addition, filers sometimes include information not suitable for public release on
various other portions of the form, its schedules, or attachments, which the
protocols require be redacted.
27. Since only a portion of another schedule might need to be redacted, it would take
more than simply deleting a field tag to make the redaction, as in the case of
Schedule B, and increases the likelihood of error, thus requiring that once the
redaction is done, the file be saved and checked to ensure it renders properly.
28. These items would not be clearly marked and would require the manual review of
a subject matter expert to locate and remove them.

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29. Furthermore, many of the redaction guidelines for forms or schedules which may
be included with Form 990s require dependences (e.g. if checkbox 1 and
checkbox 3 are selected, redact Form X. Otherwise do not redact Form X).
30. Some of these dependencies change from year to year as different versions of
the Form 990 are published.
31. These variations are described in detail in the protocols for manual redaction.
32. Because of these nuances, I concluded that it would not be a simple or efficient
task for the IT specialists in my branch to learn what must redacted from a Form
990, much less for them to apply this knowledge by writing and vetting a program
that would perform the redactions automatically.
33. Therefore, I concluded that for nine Form 990 returns, it is more efficient and
effective to have a statistician and economist complete the redactions manually.
34. In order to estimate how long it would take to perform the redactions, I relied on
estimates by the staff members who would be making the redactions after
explaining to each what the task would involve.
35. It is customary, when making estimates for smaller-scale projects under the
CFO’s guidelines, to obtain such estimates from the staff involved or other staff
familiar with the skills required for the incumbent of the position involved.
36. My estimate of 4.5 hours for "manual redaction of XML" reflects the complexity
associated with locating the various types of data that might be subject to
redaction, including both entire fields, like Schedule B, that must be redacted and

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discrete content subject to redaction contained in fields that may also include
releasable matter. On average, this amounts to 30 minutes per return, although
the duration for each return will vary significantly with the length and number of
the schedules and attachments provided by the filer.
37. My estimate of 2.25 hours for "creation of redacted XML files" reflects the act of
saving changes made as well as an initial review completed by the junior subject
matter expert (SME) of their changes prior to submitting it to the senior SME for
their review. On average, this amounts to approximately 15 minutes per return,
although, as with the redaction, this time will vary depending on the size of the
return.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge and belief.
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Executed this ______ day October, 2014.

___________________________
Lisa S. Rosenmerkel
Chief, Imaging & Technical Support Branch
Office of Research, Analysis & Statistics
Internal Revenue Service
Washington, D.C. 20002

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