Internal Revenue Service Commissioner John Koskinen on Wednesday responded for the first time to assertions by a legal nonprofit that missing emails relating to the political targeting controversy at the tax agency exist on a governmentwide backup system.
His conclusion: There is no such governmentwide email trove, and confusing media accounts were based on a misunderstanding.
In a hearing marking his seventh appearance before Congress this year, the commissioner sought to shoot down the email allegations by Judicial Watch, which is suing the IRS over perceived discrimination against conservative organizations. According to Judicial Watch, the group’s attorneys were told by a Justice Department lawyer that the missing emails being sought from former Exempt Organizations Division chief Lois Lerner were backed up, but too difficult to retrieve for congressional investigators. “All government computer records are backed up by the federal government in case of a governmentwide catastrophe,” Judicial Watch president Tom Fitton said in an August statement. “Obama administration attorneys said the backup system would be too onerous to search.”
Neither the Justice Department nor the IRS responded to August inquiries from Government Executive.
In his testimony on Wednesday, Koskinen said: “There have been some confusing press reports that the IRS backs up information by sending it to a governmentwide database containing electronic communications. It appears these reports are based on a misunderstanding of an informal conversation by a litigant with an employee of the Department of Justice. There is no system outside the IRS—government or otherwise—that the IRS uses to store emails. Even if such a system existed, the IRS would be prohibited under [tax code privacy protections] section 6103 from using such a database for email storage.”
During the House Oversight and Government Reform Committee hearing, which was titled “The IRS Targeting Scandal: Changing Stories of Missing E-Mails,” Rep. Jim Jordan, R-Ohio, blasted the “constant flood of false and misleading statements from IRS” before and during Koskinen’s tenure. Renewing his calls for a special prosecutor, Jordan said the thousands of emails IRS has turned over omit recent discoveries that 760 server drivers went unchecked, the emails of eight employees involved were not included and that a BlackBerry used by Lois Lerner was wiped clean. “Each time you’ve testified, you’ve said something wasn’t right,” Jordan said. “If the purpose of IRS is truly trying to ensure no emails are missing, it did a pretty bad job.”
With frequent references to the movie Groundhog Day, Rep. Matt Cartwright, D-Pa., ranking member of the panel’s subcommittee on Economic Growth, Job Creation and Regulatory Affairs, accused the majority members of “badgering the witness in an abuse of authority and dereliction of duty.” Cartwright added: “The purpose of the committee seems to be to harass responsible agency heads, not to conduct oversight.”
Jordan criticized Koskinen’s fiscal 2015 budget request for new funding to hire a narrow cadre of highly paid senior information technology people and “giving them bonuses after they lost all those emails.”
Koskinen said a failure to fix IT problems “runs a real risk of crippling the agency—some of our equipment is from when John F. Kennedy was president.”
In prepared testimony, Koskinen summarized steps the IRS has taken both to screen and deliver documents demanded by Congress and to improve internal email management. The agency has handed over more than 1 million pages of unredacted documents to the tax-writing committees and more than 810,000 pages of redacted documents to the House Oversight panel and Senate Permanent Subcommittee on Investigations, including 67,000 related to Lerner, he said.
“More than 250 IRS employees have spent more than 138,000 hours working directly on complying with the investigations, at a cost of approximately $18 million,” Koskinen said. “The IRS identified and collected information from the custodial accounts of 156 employees who were deemed potentially relevant to the exempt organizations determinations investigation.”
Lerner’s BlackBerry, he explained, “was replaced in February 2012 with a newer model as part of an ongoing BlackBerry update involving approximately 5,000 IRS employees. Because Ms. Lerner’s old BlackBerry was obsolete, it was disposed of under standard IRS recycling procedures. As for the replacement BlackBerry that was issued to Ms. Lerner in February 2012, it currently is in possession” of the Treasury Inspector General for Tax Administration.
While awaiting a long-term policy on retaining employee emails to comply with the Federal Records Act, the IRS has issued an interim policy, according to Koskinen. “We will be providing new instructions to IRS executives for protecting the electronic records they create through emails and calendar invitations,” he said. “Emails that are sent and received by these senior officials and that are federal records will be captured and stored on a secure server.”
Top management emails will be turned over to the National Archives and Records Administration as permanent records. Senior executive emails will be preserved for 15 years, and those of other employees seven years. Employees have also been given guidance on avoiding the use of personal email accounts for official business.
Judicial Watch, meanwhile, on Sept. 17 filed a motion for a right to discovery and an oral argument in its case seeking documents from the IRS on how lost or destroyed records relating to the targeting of conservative groups can be retrieved.