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

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:  (08-30-2012)

  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. …  (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 or see the Records Management Handbook, IRM 1.15.1
  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.