Obama Administration’s Claim that Lois Lerner’s Emails Are “Lost” Is Ludicrous

The Obama administration’s claim that the IRS has “lost” two years of Lois Lerner’s emails is implausible to anyone who understands how email systems work. This is what the administration said:

The IRS told congressional investigators Friday it cannot locate many of Lois Lerner’s emails prior to 2011 because her computer crashed that year.

This statement, on its face, is silly. Emails are collected on email servers. Each user (e.g., Lois Lerner) has an account on an email server, where that person’s emails are collected. It is common for emails to be deleted from the user’s own desktop or laptop computer, but no one worries about that. When it is time to collect emails–something I do all the time in my law practice–you go to the email server and pull out the user’s entire account. A crash of the user’s computer is irrelevant and will not cause emails to be “lost.”

Further, emails are universally backed up in some other medium, often electronic tape, for long-term storage. Thus, even if an email server is destroyed, or all emails are deleted from a server after a specified length of time, the emails are still recoverable from back-up storage media. The DOJ lawyer whom Scott quoted this morning was correct about this. The IRS, like virtually every other business or government entity, uses such a system. The Agency’s manual on “Managing Electronic Records” has been made public; you can read it here. A few relevant excerpts:

1.15.6.10  (03-27-2014)

Transfer Media and Formats for Permanent Records

1. The legal requirements for the transfer of permanent records to NARA [the National Archives and Records Administration] are documented in 36 CFR 1235 and set forth in general form in the paragraphs below. Consult the IRS RIM Program Office for more detailed instructions and guidance on the transfer for permanent IRS records.

1.15.6.10.1  (06-01-2010)

Magnetic Tape

1. IRS offices may transfer electronic records to NARA on magnetic tape using either open-reel magnetic tape or tape cartridges. Open-reel tape should be on 1/2 inch 9-track tape reels recorded at 1600 or 6250 bytes per inch and blocked no higher than 32,760 bytes per block. Tape cartridges should be 18-track 3480-class cartridges recorded at 37,871 bpi and blocked at no more than 32,760 bytes per block.

Other methods of permanent storage are also approved. What the IRS describes in its manual is a standard document retention system. More:

1.15.6.8  (06-01-2010)

Security of Electronic Records

1. IRS offices will implement and maintain an effective records security program that incorporates the following:

A. Ensures that only authorized personnel have access to electronic records.
B. Provides for backup and recovery of records to protect against information loss or corruption.
C. Ensures that appropriate agency personnel are trained to safeguard sensitive or classified electronic records.
D. Minimizes the risk of unauthorized alteration or erasure of electronic records.
E. Ensures that electronic records security is included in computer systems security plans prepared pursuant to the Computer Security Act of 1987.

***
At the direction of a management official as to what is considered a record, the E-mail/Systems Administrators will establish procedures for regular recopying, reformatting, and other necessary maintenance to ensure the retention and usability of electronic records throughout their authorized life cycle.

There is more, but this is sufficient to demonstrate what was already obvious to those who know anything about standard records management systems: a “crash” of Lois Lerner’s computer would not cause any emails to be “lost.” The Obama administration is lying, and lying in a remarkably transparent way.

One more thing: if it were true that the only copies of many thousands of emails existed on Lois Lerner’s desktop computer–which is certainly not true–and that computer’s hard drive crashed in 2011, the emails would in all probability be recoverable. Even if Lerner threw her computer into a lake, which has been known to happen. One of the world’s most famous data recovery firms is located here in the Twin Cities, and I would be happy to send Barack Obama the name and phone number of a person who, in all likelihood, could recover Lerner’s “lost” emails from her supposedly crashed hard drive. Even if the computer has been lying at the bottom of a lake since 2011.

The IRS says that it has been able to produce a substantial number of Lerner emails because they were directed or copied to someone else in the IRS. Thus, the agency got those emails from those employees’ email accounts, stored on servers. (They certainly would not have relied on going from employee to employee, collecting emails from individual computers.) The IRS says that the “lost” emails are the ones directed to, or received from, third parties–other government agencies, the White House, and so on. The IRS defends itself by pointing out how many emails it has produced:

The IRS said in a statement that it has gone to great lengths cooperating with congressional investigations, spending nearly $10 million to produce more than 750,000 documents.

Overall, the IRS said it is producing a total of 67,000 emails to and from Lerner, covering the period from 2009 to 2013.

750,000 documents probably sounds like a lot to a casual observer, but in fact it is a small number. I have produced more documents than that in numerous civil cases that had nowhere near the importance of the IRS scandal. Likewise with 67,000 emails. If a party produces 67,000 emails–a small number for a senior executive who is copied on large numbers of routine communications–but hides or deletes ten emails, there is probably more relevant information in the ten that were concealed than in the 67,000 that were produced.

We have already seen some highly damaging emails that were produced by the IRS. One can only imagine how devastating the ones they are now hiding must be to the Obama administration.

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