Did Lois Lerner Violate IRS Policy on Email Preservation?

Lois Lerner told the IT technician who was unable to recover the data from her crashed hard drive, "Sometimes stuff just happens."

A lot is being made of both the alleged crash of Lois Lerner's hard drive and the lack of backup tapes for the missing time period in the congressional investigation into the IRS's targeting of conservative groups. The IRS told congressional investigators last week that two years’ worth of emails sent and received by Lerner, the former IRS official at the center of the investigation, have been destroyed because of a computer crash in mid-2011. And now, we learn, the hard drives of six other IRS employees also crashed and the emails have gone missing. But some of the "stuff" that happened to Lois Lerner's email may be the direct result of her failure to follow IRS policy.

The IRS had policies in place in 2011 to prevent destruction of federal records, including emails. At the time, they also had a policy that limited employee mailboxes to 500 MB, so when employees approached their limit they were required to delete emails from the server to make room.

The Secure Enterprise Messaging system (SEMS) establishes a standard size of 500 MB (500 megabytes) for individual mailboxes. The system mails you daily warning messages that the limit is being approached when your mailbox reaches a size of 475 MB. When it exceeds the 500 MB limit, you will receive the following warning each time you attempt to send a message:

  • "You have exceeded your storage limit on your mailbox " .
  • Delete some mail from your mailbox or contact your system administrator to adjust your storage limit. (Consider whether any of the items you want to delete may be a federal record. IRM above.)

When an email is sent or received it goes to the email server, called an exchange. From there, the email client (Microsoft Outlook, your phone, your home computer) can access the email. It is then stored on the server, sometimes remaining there well beyond the moment the user actually deletes the email from the client. (There are also multiple logs that record all of the actions related to the emails and the servers.) Emails can also be saved in a file on a local computer, so if they're deleted from the server, the individual still has a record of the correspondence.

The IRS is apparently alleging two things:  that Lerner's personal computer crashed, rendering emails stored on her computer unrecoverable and also that there is no backup of what was on the email servers in 2011 because the backup tapes are overwritten every six months. Many IT professionals, including a former IRS employee, have called into question the IRS's assertion that the agency has no backup of data stored on the servers for the time period in question. In fact, IRS commissioner Koskinen testified in March that IRS emails, including Lois Lerner's, "get taken off and stored in servers." The IRS also says it was able to recover 24,000 emails that related to Lerner, some of them from an "earlier 2011 data collection of Ms. Lerner's email." This would seem to confirm Commissioner Koskinen's statement that the emails are "stored in servers" since the IRS says they were unable to recover any emails from Lerner's hard drive.

In a letter explaining the missing emails to Congress the IRS said, "Any of Ms. Lerner's email that was only stored on that computer's hard drive would have been lost when the computer crashed and could not be recovered." IT professionals are also scoffing at the notion that the data was not recoverable.

But before we even get to the problem of a possible backup failure or the computer crash, we must consider how Lerner got to the point of having "email that was only stored on the computer's hard drive."