IRS regulations require e-mails that are “federal records” to be stored in separate, permanent system
posted at 4:41 pm on June 17, 2014 by Allahpundit
A little something extra on The Mysterious Case of Lois Lerner’s Hard Drive. There seem to be two different IRS regs governing e-mails. The Daily Caller already flagged one of them, “Emails as Possible Federal Records,” section 126.96.36.199.3. Subsection 3 states in part:
If you create or receive email messages during the course of your daily work, you are responsible for ensuring that you manage them properly. The Treasury Department’s current email policy requires emails and attachments that meet the definition of a federal record be added to the organization’s files by printing them (including the essential transmission data) and filing them with related paper records. If transmission and receipt data are not printed by the email system, annotate the paper copy.
If your e-mail’s a federal record, you’re supposed to print it and add it to the file. What’s a “federal record”? The same section defines it, and does so broadly: Any e-mail “created or received in the transaction of agency business” qualifies, which means, in theory, any message sent or received by Lois Lerner about scrutinizing tea-party groups should have been printed by her at some point and the hard copy sent for storage in the relevant file. Think she bothered to do that?
But wait. Morgen Richmond tweeted to me that there’s another section of IRS regulations that’s relevant, “Standards for Managing Electronic Mail Records,” section 188.8.131.52. Why this section is necessary when the one above already makes clear that “federal records” must be printed, I’m not sure. Here’s the key bit, though:
IRS offices will not store the official recordkeeping copy of e-mail messages that are federal records ONLY on the electronic mail system, unless the system has all of the features of an electronic recordkeeping system, some of which are specified in paragraph 2 above. If the electronic mail system is not designed to be a recordkeeping system, ask an E-Mail/System Administrator to instruct you on how to copy the information from the electronic mail system to a recordkeeping system or produce a hard copy for recordkeeping purposes.
IRS offices that maintain their e-mail records electronically will move or copy them to a separate electronic recordkeeping system unless their system has the features specified in IRM 184.108.40.206.2 above. Backup tapes are not to be used for recordkeeping purposes.
The boldface there actually appears in the regs themselves, apparently to stress that e-mails that qualify as “federal records” must be copied and preserved in a separate system. The fear, obviously, is that if the only copy is the e-mail itself, it might end up being deleted (accidentally or deliberately). In order to preserve it permanently, an extra copy needs to be made and sent to the permanent digital record repository. How that squares with the regs about printing a hard copy, I’m not sure. Do you print a copy, send that to the file, and send an electronic copy to the digital records file, or does doing one or the other suffice? It’s unclear, but what is clear is that, according to the agency’s own regulations, it’s important to make sure that business e-mails are preserved somewhere outside the normal e-mail channels.
Which brings us to this passage from the letter the IRS sent to Congress last week about why they lost Lerner’s e-mails. Read pages 2-3. Money quote:
Why would an agency that emphasizes redundancy in record-keeping rely on a process this half-assed? Not only is there no automatic permanent storage of all e-mail, the simple act of archiving a message would remove it from the IRS’s system entirely, including the “back-up system” that preserves messages for six months before deleting them. That’s a ridiculously decentralized system for an age when storage is cheaper than it’s ever been. In fact, the former IRS IT expert whom Bryan Preston interviewed claimed that the IRS has plenty of “back-up tapes” that could be used to preserve e-mails for much longer than six months if need be. What you’ve got here, in other words, is an agency stressing record-keeping in its own regulations and then doing everything it can to undermine that redundancy, first by trusting employees to diligently file “federal records” that might incriminate them and then allowing them to remove evidence from the system altogether, which naturally led to a spate of mysterious “computer crashes” in this case. It’s goofy. But it sure came in handy, didn’t it?
Exit question: Where are the hard copies of the e-mails that Lerner and her colleagues were required to print of their official communications?