Did IRS Violate the Law on Lerner’s Email?
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The Fiscal Times
June 16, 2014

The Internal Revenue Service advises taxpayers to hang on to their personal records for seven years or more. But it turns out the tax collection agency only holds on to much of its own data for six months.

The agency’s recent admission that it lost two years’ worth of emails to and from a key figure in ongoing Congressional investigations raises serious questions about the agency’s compliance with federal law.

Several Congressional Committees as well as the Justice Department are looking into allegations that in the years prior to the 2012 election, the IRS purposefully delayed applications for tax exempt status coming from groups that appeared to be politically conservative.

Related: IRS Loses Lerner’s Email, Capping Obama’s Awful Week

The investigations have required the agency to turn over massive amounts of information, including the emails to and from Lois Lerner, the former head of the agency’s Exempt Organizations Division. Last week, in communication with members of Congress, IRS officials claimed that some emails sent and received by Lerner between 2009 and 2011 were lost because her computer crashed in mid-2011.

In a document delivered to lawmakers, the agency revealed that it only retains back-up tapes of its email servers for six months before they are recycled. Further, it reported, individual employees are in charge of determining which of their own emails ought to be preserved as part of the public record.

Naturally that raises the question of whether an employee engaged in wrongdoing would have the incentive to delete incriminating emails. But the policy also raises other concerns. Even when an employee does designate an email as an official record, the electronic copy is stored only on the individual employee’s computer hard drive.

That means, according to the agency, “An electronic copy of the archived email would not be retained if an employee’s hard drive is recycled, or if the hard drive crashes and cannot be recovered.” To protect against this loss, the agency relies on employees to print every one of the archived emails and place them in a designated file.

Related: Budget Cuts and Mismanagement Boost IRS Tax Cheats

It also means that the agency has no means of searching across its entire system for archived material. According to the document delivered to Congress, the only way to find archived material is to individually examine each employee’s computer. The IRS has 90,000 employees.

The agency was able to reproduce thousands of the lost emails by locating them on the computers of other IRS employees who had either sent or received them. However, that collection is necessarily incomplete, as the agency has no way of knowing how much email Lerner exchanged during the time in question with recipients outside the IRS.

The news that the agency had lost emails sent and received by one of its executives raised eyebrows in other sections of the government – specifically the National Archives and Records Administration, which is in charge of preserving and protecting federal records.

“The National Archives and Records Administration was concerned to learn that the IRS has lost email due to a hard drive failure,” a NARA spokesperson said via email. “The Office of the Chief Records Officer for the U.S. Government has contacted the IRS to explore specifics of the situation…Managing records effectively ensures that permanently valuable records become part of the National Archives.”

Federal regulations require the heads of all government departments to “establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” that provides “effective controls over the creation and over the maintenance and use of records in the conduct of current business.”

Related: Why the Cash-Strapped IRS Isn’t Ready for Obamacare

In fact, the IRS’s own Internal Revenue Manual has a section on Managing Electronic Records, which specifically states that “IRS offices will not store the official recordkeeping copy of e-mail messages that are federal records ONLY on the electronic mail system” unless it is specifically designed as a records retention device. Instead, employees must copy emails “to recordkeeping system or produce a hard copy for recordkeeping purposes.”

(The IRS Manual was updated in March of this year, so it is impossible to tell from the web-based version what the specific rules were when Lerner’s computer crashed in 2011. The IRS had not responded to a request for comment at the time this story was posted.)

The agency’s letter to lawmakers noted that the IRS incurred direct costs of $10 million and other costs of between $6 and $8 million in its efforts to comply with the requests for Lerner’s emails. Ironically, in an attachment to the letter outlining the agency’s document retention policies, it says upgrading the agency’s system to one that would “save and store all email ever sent or received” would cost “well over ten million dollars.”

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A longtime reporter on the intersection of the federal government and the private sector, Rob Garver is National Correspondent, based in Washington, D.C. He has written for ProPublica, The New York Times and other publications.