IRS commissioner: You know, e-mail isn’t necessarily an “official record”; Update: IRS Manual says it is

posted at 9:21 am on June 20, 2014 by Ed Morrissey

Two House committees plan to get more aggressive in the next few days in the IRS targeting scandal after finding out a week ago that the IRS only keeps six months of server backups, and that an epidemic of hard-drive failures oddly kept itself quarantined to suspects in the targeting scheme. Current IRS Commissioner John Koskinen will testify this morning at the Ways and Means Committee, as well as on Monday at Oversight, on why he testified in March that the records would be retrievable, only to change course last Friday. Koskinen offered up his opening statement in writing, in part to suggest that e-mail should not be considered an “official record” anyway:

In discussing document retention at the IRS, it is important to point out that our email system is not being used as an electronic record keeping system. Furthermore, it should be remembered that not all emails on IRS servers or backup tapes qualify as an “official record,” which is defined (in 44 U.S.C. 3301) as any documentary material made or received by an agency under federal law or in connection with the transaction of public business and appropriate for preservation. Accordingly, our agency’s email system is not designed to preserve email. Rather, email that qualifies as “records” are printed and retained in compliance with relevant records control schedules. Individual employees are responsible for ensuring that any email in their possession that qualifies as a “record” is retained in accordance with the requirements in the Internal Revenue Manual and Document 12990 (Record Control Schedules).

That’s an odd argument to make, since federal law on record retention in other contexts explicitly require others to retain e-mail data as a record-keeping device. Earlier, I wrote about that at The Week:

The claim that the IRS recycles its backup tapes every six months is equally ludicrous. The federal government has more strict expectations for publicly held corporations. Sarbanes-Oxley regulations passed more than a decade ago specifically require retention of email data for five years, and make the kind of destruction claimed by the IRS in this instance a crime punishable by 20 years in prison.

The IRS claim raised eyebrows at the National Archives and Records Administration, which is tasked with preserving important federal records, calling itself “concerned” that a hard drive failure would wipe out two years’ worth of what should be permanent records. The IRS’s own manual made it clear that the storage of email was important enough to have permanent backups of their data. “IRS offices will not store the official recordkeeping copy of email messages that are federal records ONLY on the electronic mail system,” and even went so far as to require hard copies “for record-keeping purposes.”

The issue isn’t that some things should be kept in hard copy; it’s that the electronic copy of all e-mail is supposed to be retained for a much longer period, as well as storing important records by hard copy. That’s certainly the expectation that the federal government has of us.

Darrell Issa will have another witness testifying on Monday as well. Jennifer O’Connor, currently a White House counsel but an IRS counsel at the time of the original request for records in May 2013, will get grilled on what the IRS knew about the e-mails and when they knew it:

House Oversight Chairman Darrell Issa is hauling in a former IRS counsel-turned-White House attorney to testify on the disappeared Lois Lerner emails.

The California Republican on Thursday evening requested Jennifer O’Connor of the White House Counsel’s office to testify on Tuesday morning about her knowledge of the crashed hard drive of ex-IRS tax exempt chief Lerner. The IRS says the crash erased two years’ worth of Lerner’s emails just when the IRS was beginning to pull conservative social welfare groups for additional scrutiny.

O’Connor was hired on at the IRS from May 2013 to November 2013 to serve as counselor to Acting IRS Commissioner Danny Werfel. One of her primary duties was to help the IRS respond to congressional inquiries after the tea party-targeting controversy came to light. And IRS chief counsel William Wilkins told the panel during its IRS probe that O’Connor was one of two people supervising the collection of “documents relating to the committee’s requests for material.”

Issa gave the New York Times a preview of the questioning both can expect at Oversight:

“If you want them all, we’ll give them all to you,” Mr. Koskinen told the House Oversight Committee in March, though he added that doing so might take years.

Over the last week, however, the I.R.S. has said that thousands of emails associated with Ms. Lerner and six other agency employees had been destroyed because of computer crashes. Republican lawmakers responded incredulously, questioning whether the emails were truly unrecoverable and accusing the agency of a Nixonian cover-up.

They have also suggested that the disappearance of the emails violated federal record-keeping laws, setting up the likelihood of political fireworks at Friday’s hearing.

“If the I.R.S. truly got rid of evidence in a way that violated the Federal Records Act and ensured the F.B.I. never got a crack at recovering files from officials claiming a Fifth Amendment protection against self-incrimination, this is proof their whole line about ‘losing’ emails in the targeting scandal was just one more attempted deception,” Representative Darrell Issa, chairman of the House Oversight Committee, said in a written statement on Thursday.

Today’s hearing, which is already underway, should provide a few fireworks. We’ll see if it produces yet more shifting stories from the IRS about its adherence to the law.

Update: Thanks to one reader on Twitter, we can judge Koskinen’s argument as categorically false:

The manual reference is clear, emphases mine:

1.10.3.2  (08-30-2012)
Security/Privacy

  1. Email messages are official documents and should reflect this perspective. Email communications can be offered as evidence in court and can be legally binding. Before sending an email, you must consider how it reflects on the Service’s image and take into account privacy, records management, and security factors. …

1.10.3.2.3  (07-08-2011)
Emails as Possible Federal Records 

  1. All federal employees and federal contractors are required by law to preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency. Records must be properly stored and preserved, available for retrieval and subject to appropriate approved disposition schedules.
  2. The Federal Records Act applies to email records just as it does to records you create using other media. Emails are records when they are:
    • Created or received in the transaction of agency business
    • Appropriate for preservation as evidence of the government’s function and activities, or
    • Valuable because of the information they contain
  3. 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. More information on IRS records management requirements is available at http://erc.web.irs.gov/Displayanswers/Question.asp?FolderID=4&CategoryID=5 or see the Records Management Handbook, IRM 1.15.1 http://publish.no.irs.gov/IRM/P01/PDF/31421A03.PDF).
  4. An email determined to be a federal record may eventually be considered as having historical value by the National Archivist prior to disposal. Therefore, ensure that all your communications are professional in tone.
  5. Please note that maintaining a copy of an email or its attachments within the IRS email MS Outlook application does not meet the requirements of maintaining an official record. Therefore, print and file email and its attachments if they are either permanent records or if they relate to a specific case.

Maybe Koskinen should read his own manual.


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Maybe Koskinen should read his own manual.

They know full well they are lying. They’re just confident in their ability to get away with it, what with the MSM, Justice, the White House, and all on their side.

And they’re right. They WILL get away with it. Nixon on steroids.

xNavigator on June 20, 2014 at 12:38 PM

It’s hopeless, then. We can’t touch this administration and should just stop trying. Give up, everybody.

Here are your cyanide tablets.

Bat Chain Puller on June 20, 2014 at 12:35 PM

I want to take the blue pill now, if all we are trying to do is arrest Lois Lerner.

I care nothing about her.

What is your plan, Bat?

faraway on June 20, 2014 at 12:38 PM

ExpressoBold on June 20, 2014 at 12:35 PM

LOL! Sorry, I feel strongly about this.

Cindy Munford on June 20, 2014 at 12:39 PM

Does the GOP really care…?

d1carter on June 20, 2014 at 12:40 PM

d1carter on June 20, 2014 at 12:40 PM

No. Your choices are complicit or stupid.

Cindy Munford on June 20, 2014 at 12:42 PM

Nixon on steroids.

xNavigator on June 20, 2014 at 12:38 PM

well there goes your argument. he got his big time

gracie on June 20, 2014 at 12:42 PM

Why are these people not in jail already? And why isn’t Barack impeached already?

SouthernGent on June 20, 2014 at 12:51 PM

well there goes your argument. he got his big time

gracie on June 20, 2014 at 12:42 PM

:-) The steroids are the “do better than Nixon at being Nixon and get away with it” bit.

xNavigator on June 20, 2014 at 12:52 PM

someone really needs to get to lerner with a blowtorch. that’s going to be about our only recourse to get any answers.

crrr6 on June 20, 2014 at 12:55 PM

This guy is a blatantly dumb stooge and attempting to extract anything from his pea sized brain is a futile task.

rplat on June 20, 2014 at 12:57 PM

The Dims keep whining about how this “bogus” investigation is wasting the IRS valuable money and time … The wasted time and money is a direct result of the civil “servant”, Lois Lerner, pleading the 5th in providing testimony related to her official actions in the IRS.

“Hypocrite: The man who murdered his parents, and then pleaded for mercy on the grounds that he was an orphan.”– Abraham Lincoln

Strike_Eagle on June 20, 2014 at 12:58 PM

What is your plan, Bat?

faraway on June 20, 2014 at 12:38 PM

-Discredit any and everyone in the Obama administration in every way possible.
-Keep driving down their favorables.
-Paralyze Obama politically.
-Implement gridlock.
-Maximize R gains in November.

When you can’t do it all, you do what you can.

Bat Chain Puller on June 20, 2014 at 1:04 PM

Maybe Koskinen should read his own manual.

He has.

He’s counting on the cooperation of the media and public.

So far he has it from the media generally, as they have been complicit with this administration.

As for the public, it seems the only thing that interests the public are their comforts and entitlements.

I should add that he’s also counting on Issa tossing a bit of kabuki out there for the ones paying attention, but then like everything else (hi F&F!!) will just fade off.

If a dead ambassador means nothing, then don’t count on this getting anywhere.

kim roy on June 20, 2014 at 1:08 PM

That smug look on his face…

It just makes me want to pay more taxes or something.

Key West Reader on June 20, 2014 at 1:09 PM

IRS – Obama’s brownshirts

FULL PUSHBACK needs to start NOW……

If the IRS is not totally deflated by the time Obama leaves office, then we know where the problems really lay.

redguy on June 20, 2014 at 1:09 PM

If we outlawed the income tax and replaced it with a sales tax there would be no need for individuals to prepare tax returns, nor any reason for audits. It would be a much fairer and more transparent system. Which is of course why the Democrats will never stand for it.

ConstantineXI on June 20, 2014 at 10:20 AM

As I said somewhere on HA today, there’s never been a better time to buy furniture contact your Senators and ask them for their position on simplified tax. And lean into it.

Tsar of Earth on June 20, 2014 at 1:09 PM

When you can’t do it all, you do what you can.

Bat Chain Puller on June 20, 2014 at 1:04 PM

Yeah. Like batton down your hatches.

Key West Reader on June 20, 2014 at 1:10 PM

Why are these people not in jail already? And why isn’t Barack impeached already?

SouthernGent on June 20, 2014 at 12:51 PM

Because morons keep getting elected for lying the best and there are no consequences.

Until there are real consequences like being elected out of office or mass demonstrations and shutting down production, then nothing will happen.

Until WE THE PEOPLE wise up and do something besides b!tch and moan, then nothing will change.

kim roy on June 20, 2014 at 1:11 PM

As of 12:00 noon Chicago time, there is not one link to this on CNN.com homepage.

Sheerq on June 20, 2014 at 1:11 PM

This guy is a blatantly dumb stooge and attempting to extract anything from his pea sized brain is a futile task.

rplat on June 20, 2014 at 12:57 PM

No, these guys are full-blown communists and they KNOW Obama will give them all full pardons on his way out the door. All they have to do is lie and stonewall until Jan. 2017…..

I would do all I could to get them in jail cells and strip them of a way to make a living and make damn sure these scumbags don’t get any tax payer provided pensions.

redguy on June 20, 2014 at 1:12 PM

As of 12:00 noon Chicago time, there is not one link to this on CNN.com homepage.

Sheerq on June 20, 2014 at 1:11 PM

If any of the non-Fox, non-conservative media outlets cover this at all, it will consist of cherry picking comments from the GOP questioners cutting off Koskinen’s efforts to respond….along with analysis that this remains a partisan witch hunt, that 67,000+ emails were provided along with XXXXXXX documents clearly demonstrating that the IRS / Administration is forthcoming and cooperative despite the disrespect shown by Congressional Republicans.

Athos on June 20, 2014 at 1:15 PM

Athos on June 20, 2014 at 1:15 PM

CNN is dying, and this is why. There is absolutely no standard by which this is not an incredible news story to cover.

Sheerq on June 20, 2014 at 1:18 PM

As of 12:00 noon Chicago time, there is not one link to this on CNN.com homepage.

Sheerq on June 20, 2014 at 1:11 PM

You’ll be happy to know that the headline story on usnews.com is “How Schools Deal with Climate Change”.

They do report the IRS story half way down the page, with the headline, “Paul Ryan Goes After IRS Commissioner in Hearing”, which tells you nothing. Not – “Paul Ryan Accuses IRS of Destroying Missing E-Mails”

crrr6 on June 20, 2014 at 1:24 PM

The GOP needs to bite the bullet, turn November into a national election and run against the Obama administration and stop letting the U.S.A be taken over by democratic thugs. Plaster the Interstate system with billboards listing the IRS’ transgressions, document all the taxes the Abominable Care Act imposed on American, e.g. reducing the HSA maximum, raising the Medical Deduction limit etc. Put pictures of American troops landing on Normandy beaches on billboards and ask the U.S. citizenry what type of sleazeball would deny those men access to a memorial built in their honor. The MSM isn’t going to report any of this stuff, print up fact sheets and hand them out at the National Mall. We have got to recognize we are at war and take the battle to them.

Muscarella on June 20, 2014 at 1:37 PM

“What difference, at this point, does it make”?

pastorjim67 on June 20, 2014 at 2:06 PM

Please note that maintaining a copy of an email or its attachments within the IRS email MS Outlook application does not meet the requirements of maintaining an official record. Therefore, print and file email and its attachments if they are either permanent records or if they relate to a specific case.

So, when will we hear about the fire?

corona79 on June 20, 2014 at 2:25 PM

Perhaps the IRS would like to purchase one of the many email archiving and search software products on the market (for many years now- mainly so that large companies can answer subpenas for emails).

Proofpoint Archive is one of many available:
http://www.proofpoint.com/products/archive-governance/enterprise-archive/index.php

Sackett on June 20, 2014 at 2:44 PM

Populace to IRS:

“You know, income isn’t necessarily taxable”

BobMbx on June 20, 2014 at 2:48 PM

CNN is dying, and this is why. There is absolutely no standard by which this is not an incredible news story to cover.

Sheerq on June 20, 2014 at 1:18 PM

CNN’s marathon-man investigative reporter, Wolf Blitzer, is still recovering from the lack of things to say about Flight 370.

BobMbx on June 20, 2014 at 2:51 PM

They know full well they are lying. They’re just confident in their ability to get away with it, what with the MSM, Justice, the White House, and all on their side.

And they’re right. They WILL get away with it. Nixon on steroids.

xNavigator on June 20, 2014 at 12:38 PM

Koskinen is probably sitting in a bar getting high fives from his commie buddies…..
They are probably working on their bonus plans now.

redguy on June 20, 2014 at 3:00 PM

The GOP needs to bite the bullet, turn November into a national election and run against the Obama administration and stop letting the U.S.A be taken over by democratic thugs. Plaster the Interstate system with billboards listing the IRS’ transgressions, document all the taxes the Abominable Care Act imposed on American, e.g. reducing the HSA maximum, raising the Medical Deduction limit etc. Put pictures of American troops landing on Normandy beaches on billboards and ask the U.S. citizenry what type of sleazeball would deny those men access to a memorial built in their honor. The MSM isn’t going to report any of this stuff, print up fact sheets and hand them out at the National Mall. We have got to recognize we are at war and take the battle to them.

Muscarella on June 20, 2014 at 1:37 PM

Sounds great but the GOP are Communist Lite…..

Only people like Ted Cruz and Mike Lee and really against the democrats and Obama.
And now real conservatives have to fight their own party…..
This is a war and we have to understand the politicians won’t fight for us and they won’t save us.

redguy on June 20, 2014 at 3:03 PM

All this chest pounding and threats of law breaking is so meaningless. Ryan if you have a problem with the guy take him to court or shut up your rino mug. You and the rest of the rinos in congress haven’t enough combined backbone to take on the the kids in the Handicap Olympics. You are all sissies with big voices and no guts.
You can take these people to court or impeachment but talking tough is all you do. I have next to no respect for IRS Commissioner John Koskinen, he is such a lying piece of human excrement. But you trying to act tough gives me less respect for you. Either do something or shut your pie hole

pwb on June 20, 2014 at 3:20 PM

Hopefully you’re not fishing, I hate getting fished.

Bishop on June 20, 2014 at 10:27 AM

Goose/gander

cptacek on June 20, 2014 at 3:30 PM

Abolishing the IRS has been considered to be a fringe idea.

However… there can be no other way to save the IRS. Its culture is far too corrupt and the power it wields is frightening.

If you want comprehensive reform then do so with taxes not immigration. THE IRS MUST BE ABOLISHED!

Flat tax or fair tax in its place.

islandman78 on June 20, 2014 at 3:35 PM

Shorter IRS:

…And thirdly, the code is more what you’d call “guidelines” than actual rules…
~Barbossa

socalcon on June 20, 2014 at 3:40 PM

Flat tax or fair tax in its place.

islandman78 on June 20, 2014 at 3:35 PM

No. Abolish the national income tax. You don’t have to pass an amendment to do so – the 17th merely *allows* it. Return taxation to the states, where it belongs. Get the “federal” gov’t’s money from the states (and things like duties and fees), as was intended. THEN there will be some pushback to $3trillion budgets.

GWB on June 20, 2014 at 3:56 PM

The IRS Manual takes up wall space of eight by ten FEET.

HiJack on June 20, 2014 at 5:14 PM

The only way to get that stupid, idiotic smirk of his face is for Congress to pass a law denying a President the ability to pardon a person of any wrongdoing while in the employment of the federal government.

HiJack on June 20, 2014 at 5:18 PM

They are working their way to prosecution, but these things are ridiculously slow, especially since the congressional Democrats are corrupt. During Nixon, moral Republicans couldn’t live with themselves and let a crime slide. Today’s Democrats are more than happy to do so.

Perspicacious on June 20, 2014 at 5:51 PM

John Hinderaker at Power Line:

…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.

Del Dolemonte on June 20, 2014 at 6:16 PM

His picture reminds me of the lizards in V.

Hmmmmm!

Now that you mention it . . . is he human?

How do we know?

EdmundBurke247 on June 20, 2014 at 9:33 PM

Thats Stewie Griffin!

dmann on June 20, 2014 at 10:30 PM

Do we know who the other 6 employees are who also suffered the unfortunate data loss? Is it likely that the drive crash (if it happened at all) affected these 6?

Let’s get all 6 of them to explain their story of selective data-loss.

And if they did not in fact suffer this misfortune, let’s get all of their emails from Lois Lerner.

It’s interesting that these 6 should be mentioned at all – it may be a signal to the committee of potential witnesses or co-conspirators.

virgo on June 20, 2014 at 11:38 PM

I wanna see the emails Lerner sent under dummy accounts, too, because they undoubtedly exist. No wonder they’re discussing amnesty for Snowden. He’s got the goods on this corrupt administration.

ezspirit on June 21, 2014 at 9:09 AM

1.10.3.2.3 (07-08-2011)
Emails as Possible Federal Records

Dude, thats like…3 years ago.

BobMbx on June 21, 2014 at 12:59 PM

Oh, what happens to the IRS argument when a single email dated prior to the crash is located?

Hmmm?

BobMbx on June 21, 2014 at 1:00 PM

5.Please note that maintaining a copy of an email or its attachments within the IRS email MS Outlook application does not meet the requirements of maintaining an official record. Therefore, print and file email and its attachments if they are either permanent records or if they relate to a specific case. Taken from the IRS regulation/ruler Ed has listed above.
My comment:
Ahhhh, I think I see their, what they think is an out, is that little word (if) this is the qualifier. Or as in ” it depends what the definition of is, is.” If it’s a permanent record or related to a specific case, well that is easy, they will just testify that such and such email wasn’t specific to case, not a permanent record etc. you know they will parse this line of BS every time should any of the ” lost” emails be found.
I think it’s time to put Lerner, Koskinen in a jail cell until emails are produced.

Bakokitty on June 21, 2014 at 6:32 PM

Bombshell: IRS cancelled email backup contract just weeks after Lois Lerner’s computer ‘crashed’

http://www.americanthinker.com/blog/2014/06/bombshell_irs_cancelled_email_backup_contract_just_weeks_after_lois_lerners_computer_crashed_.html

The Lost IRS E-mails Exist!

http://www.americanthinker.com/blog/2014/06/the_lost_irs_emails_exist.html

IRS Official Whose Emails Are “Lost” Met Repeatedly In WH With Top Assistant To Obama

http://weaselzippers.us/190764-smoking-gun-irs-official-whose-emails-are-lost-met-repeatedly-in-wh-with-top-assistant-to-obama/

Star Bird on June 22, 2014 at 11:51 AM

JACKASS!

ANY email from ANY government entity in ANY jurisdiction in ANY state of the union is PUBLICLY AVAILABLE under FOIA and is not ‘PROTECTED’ !

TX-96 on June 23, 2014 at 8:30 PM

Comment pages: 1 2 3