Among the many sideshows in the year-old dispute over alleged politicization of the Internal Revenue Service was the June 24 testimony at a House hearing that the embattled tax agency “did not follow the law” in reporting a computer crash and lost emails.
During contentious questioning over the lost emails of former IRS official Lois Lerner, Archivist of the United States David Ferriero told Rep. Tim Walberg, R-Mich., that “any agency is required to notify us when they realize they have a problem” with the destruction or unauthorized disposal of email.
Did the IRS break the law? That’s what Walberg, a member of the House Oversight and Government Reform Committee, wanted to know.
“I’m not a lawyer,” replied Ferriero.
“But you administer the Federal Records Act,” the lawmaker said. “If they didn’t follow it, can we safely assume they broke the law?”
Ferriero’s conclusion: “They did not follow the law.”
While Congress and various investigators continue to probe the IRS’s handling of its missing emails, the problem of agencies failing to back up and preserve emails reaches far beyond the IRS, according to transparency advocates and the National Archives and Records Administration.
“The loss of Ms. Lerner’s emails is just another example of deficient government record-keeping, said Melanie Sloan, executive director of Citizens for Responsible Ethics in Washington, in releasing a compilation of other examples in a letter to lawmakers. Emails by former Justice Department official John Yoo on the use of torture during the George W. Bush administration, Securities and Exchange Commission records regarding the Bernie Madoff Ponzi scheme investigation, and millions of emails from the George W. Bush White House all have gone missing, Sloan noted.
“Where was the outrage in those cases?” she asked, citing a 2008 CREW report titled “Record Chaos: The Deplorable State of Electronic Recordkeeping in the Federal Government.”
As recently as June 25, Environmental Protection Agency Administrator Gina McCarthy acknowledged to the House Oversight and Government Reform Committee that her team had alerted the National Archives that it was having trouble finding emails from the crashed hard drive of a since-departed employee involved in a controversy over a proposed metals mine in Bristol Bay, Alaska.
CREW Chief Counsel Anne Weismann provided Government Executive with two samples of letters it has written to the National Archives general counsel alerting that agency to potential violations of the Federal Records Act. In February 2010, CREW asked for a probe of the Veterans Affairs Department’s destruction of emails relating to an investigation of post-traumatic stress disorder diagnoses. “The VA was apparently working to see that the most incriminating records did not see the light of day,” the letter said.
And in October 2009, CREW wrote to NARA complaining the Labor Department had a general policy of “sanitization of records” without regard to preservation of emails under the recordkeeping act.
“At the end of the day, there are not many teeth in the Federal Records Act,” Weismann said. “Typically what Archives will do is write to the agency to say that an investigation is happening, please tell us what happened and that the law would have required notification.” That notification “has a purpose,” she stressed, which is to “find the root of the problem, whether it is systemic or a one-time event. There might have been things that could have been done around the time” Lerner’s IRS hard-drive reportedly crashed in 2011.
“Don’t think it’s an empty exercise,” Weismann added. “The archivists have a lot of expertise.”