On the Missing IRS Emails, Two Observations

As Scott noted earlier today, IRS Commissioner John Koskinen testified before the House and Ways and Means Committee this morning. Koskinen was grilled about Lois Lerner’s lost emails, and was unapologetic. It is clear that the IRS made no systematic effort to retain emails beyond six months, and Koskinen testified that this is OK because emails are not necessarily “records.” Documents that are not “records” can be deleted at will. Koskinen’s position is tenuous, however, in light of the broad definition of “record” under federal law. This is from the Internal Revenue Service Manual:

1.15.2.2 (08-30-2013)
Definition of Records

According to 44 United States Code (USC) Section 3301, the term “record” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the U.S. Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the informational value of data in them.

Lerner’s emails certainly were “made or received” “in connection with the transaction of public business.” So they were “records” if they were “appropriate for preservation” as evidence of the “policies, decisions, procedures, operations, or other activities” of the IRS, and if they had “informational value.” Which they certainly were, and had.

I don’t expect anyone at today’s hearing had the IRS’s Manual on Managing Electronic Records close at hand, but as it happens, the Manual specifically addresses the question of when an email constitutes a “record:”

Exhibit 1.15.6-1
Common Questions about E-Mail

When are e-mail messages records?

An e-mail message is a record if:

a. it documents the IRS mission or provides evidence of an IRS business transaction,

b. it can be retrieved if you, or anyone else, need to find out what had been done, or

c. it can be used in other official actions.

Treat e-mail messages the same way you would treat paper correspondence.
***
What if the message does not qualify as a record?

Delete e-mail that is not a record when no longer of use.

Example:

An e-mail message advising section employees of a staff meeting or a training opportunity can be destroyed after it has been read, or the meeting/training period has passed.

Note, in particular, point b. If emails “can be retrieved if you, or anyone else, need to find out what had been done,” they are “records.” In this case, it is undeniable, as we are seeing in the current controversy, that Lerner’s emails were materials that could be retrieved if anyone–say, a Congressional committee–needed “to find out what had been done.” So in my view, it is clear that Koskinen’s position is untenable. The Lerner emails were “records” under the IRS’s own guidelines.

The IRS has told us that after six months, backup tapes are erased and emails will survive, in all likelihood, only on an individual’s desktop computer (and that, only if the employee took the trouble to archive the email locally). Was such a policy even legal under the Code of Federal Regulations? I have not yet been able to figure that out. But it clearly was contrary to the guidance on document retention from the National Archives and Records Administration, which has broad oversight over the handling and retention of records by federal agencies.

In its Agency Recordkeeping Requirements: a Management Guide, NARA addresses the inadequate system that the IRS says that it used until last year. NARA says it is improper:

Agency files and record keeping systems must be available to all authorized staff members. Consequently, Federal records in electronic form should not be maintained solely on a staff member’s computer hard disk, diskettes, or directories assigned only for an individual’s use. This would be the electronic equivalent of maintaining agency paper records in an individual’s locked desk drawer.

As the IRS investigation continues, Koskinen and others at the Agency should not be allowed to get away with the facile suggestion that Lerner’s emails–all of them!–were not “records” and therefore could be destroyed with impunity. It would be interesting to know what documents the IRS did preserve as “records” during the relevant time period. Unless the IRS was simply thumbing its nose at its statutory duty to maintain records of its actions and deliberations, a large number of emails should have been preserved in some fashion.

A final point: the IRS whines that it has 90,000 employees and that managing its internal documents is therefore difficult. But take a look at the IRS’s budget. In fiscal years 2012 and 2013, the IRS’s budget for “Information Services” was in excess of $1.8 billion annually! Nearly two billion dollars in “information services,” and the agency can’t keep track of emails? And that doesn’t count another $330 million, annually, for “Business Systems Modernization.”

If the IRS can’t preserve its senior managers’ email accounts on an information systems budget of $1.8 billion a year, the federal government is even more inefficient and incompetent than we thought.

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