Lachlan Markay at The Daily Beast recently uncovered the names of “35 individuals and organizations that provided at least $5,000 to Project Veritas from 2011 to 2013.” The immediate reaction in some corners was, there goes the IRS leaking confidential tax information of conservatives again.
That reaction is understandable. Under the IRS office once headed by the infamous Lois Lerner, the donor information of the National Organization for Marriage was leaked to “pro-gay marriage group Human Rights Campaign,” which “then posted the data on its website during the 2012 presidential campaign,” wrote Investor’s Business Daily.
That leak was illegal. While the IRS ended up settling a lawsuit and paying $50,000 for this leak, more severe criminal penalties available were never pursued by the Eric Holder Justice Department.
In response to assumptions made on the Internet that this was yet another leak from the unrepentant IRS, Markay issued a jubilant tweet about his source, which may yet implicate someone in the office of Oklahoma’s Republican Secretary of State for a civil violation of law:
hahaha no, @gatewaypundit, these unredacted 990s were discovered on the website of Oklahoma’s secretary of state. You can find them all here: (link: https://www.sos.ok.gov/corp/charity…
In their charitable solicitation filings with Oklahoma, organizations are required to provide their nonprofit tax return, Form 990, but James O’Keefe’s Project Veritas did not redact the names of donors listed on Schedule B of its return. Instead of notifying Project Veritas to give it the opportunity to redact those names, the Oklahoma Secretary of State carelessly (and I assume not willfully) posted those names online.
Under post-Watergate law, the Internal Revenue Code treats tax returns and tax return information as confidential, while providing a maze of authorizations of use for law enforcement purposes. Both federal and state officials are subject to civil penalties for negligent unauthorized disclosure or inspection, and criminal penalties for willful unauthorized disclosure or inspection of confidential tax return information.
An exception to the confidentiality rules was made for tax returns of nonprofit organizations, which are in fact open to public inspection. The exception to that exception is the list of high-dollar donors reported on what’s called Schedule B of the organizations’ Form 990 return filed with the IRS.
Many states require nonprofit organizations to file with them the public part of Form 990 as a condition to solicit charitable contributions in those states. Despite the public portion of Form 990 being available from sources such as Guidestar, some states have taken to publishing online the Form 990s filed with them. It’s duplicative, needless work for state bureaucrats.
It helps to understand the severity of the law that was not used to prosecute the leaks under Lois Lerner’s reign of terror for conservatives. Willful unauthorized disclosure may be punished by five years in jail. The $50,000 settlement paid by taxpayer dollars may have bought some government lawbreaker’s freedom.
In this consequence-free environment for government lawbreakers, the office of former California Attorney General, now U.S. Senator Kamala Harris was exposed as posting over 1,400 unredacted Schedule B forms filed with her office. This lawbreaking by doxxing confidential tax return information was uncovered in a lawsuit filed by Americans for Prosperity Foundation against Harris. Once exposed, California bureaucrats under Harris scrambled quickly to remove this unredacted confidential tax return information from their website.
The court decision recognized the underlying reason for the confidentiality of donor information, stating that “AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”
There is no legal authorization for charity regulators to post unredacted Schedule B donor information online. Given the known prohibition on unauthorized disclosure of confidential tax return information, such online publication seems not only negligent, but reckless.
One of the most effective fights against government doxxing of confidential information was led by a Virginia citizen and privacy advocate, Betty Ostergren. Concerned that Social Security Numbers were so readily available online from various government sources, and frustrated by the lack of willingness of the Virginia legislature to fix the problem, she cleverly took matters into her own hands.
Ms. Ostergen created her own website and began posting the SSNs of prominent figures and government officials obtained from these public government sources. She was sued by Virginia for this, but the Fourth Circuit Court of Appeals ruled that she was protected by the First Amendment. The Virginia legislature got the message better than any paid lobbyist could deliver, then got busy and expressly forbade government posting of social security numbers.
The negligence of the Oklahoma Secretary of State in doxxing confidential tax return information is encouraged in the consequence-free environment for government lawbreaking. A perp walk and prosecution at the IRS would have focused the minds of government officials who handle confidential information.
Mark J. Fitzgibbons is a fundraising law expert and the co-author with Richard Viguerie of ‘The Law That Governs Government.’
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.