The PJ Tatler

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 1.10.3.3.2 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.”

With every email correspondence Lerner had three choices:
1. Keep the emails in her mailbox (which would keep them on the server).
1. Delete the emails permanently from her mailbox and store them locally on her computer’s hard drive.
2. Delete the emails permanently from her mailbox and don’t save them in a local file on her computer’s hard drive.
Treasury Department policy at the time prohibited deletion of emails that were federal records, instructing employees to routinely purge their mailboxes of old and unnecessary messages but warning, “do not delete email that could be federal records.” The policy required that “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.” Any and all of the following were required to have a hard copy record because they met the definition of a federal record:
  • Emails created or received in the transaction of agency business
  • Emails appropriate for preservation as evidence of the government’s function and activities, or
  • Emails that are valuable because of the information they contain

The Treasury Department further states 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 “email that was only stored on the computer’s hard drive” would not have been sufficient to fulfill the federal records requirements.

Therefore there were two basic requirements for emails that “may be” considered federal records. First, employees were not permitted to delete them. Second, they were required to make hard copies.

If Lerner followed the first requirement, IT professionals at the IRS would have been able grab any emails not yet deleted from the servers immediately upon learning of the hard drive crash. We can reasonably assume that the IRS learned of the hard drive crash within the six month time period they say they maintain backup tapes, so it seems that all emails that would be considered federal records should have been restored from servers. Unless someone had taken action to delete them.

If Lois Lerner followed the second IRS policy, we would expect to find hard copies of all emails that fall under the federal records law, even during the time the IRS says the hard drive crash occurred (presumably no emails were sent or received during the crash itself, but everything before and after should have had a paper trail).

Lerner’s computer crash and whether or not the IRS has a backup of emails that were on the servers years later should, in theory, be irrelevant unless Lerner (or someone who had access to her email) did not treat them like federal records and thereby either deleted them and/or didn’t create hard copies. If that’s the case, as John Fund noted at National Review, “It is well known in legal and IT circles that failure to preserve e-mails can lead to a court ruling of “spoliation of evidence,'” meaning that the missing emails are treated as if they were a deliberate destruction of incriminating evidence. Mark Steyn speculated that “whoever made the decision to claim that over two years of emails have been vaporized did so because an eventual “spoliation” finding is way less damaging than whatever is actually in those emails.”

The questions Congress should be asking is whether Lerner (or someone who had access to her email) deleted emails that were federal records and/or failed to make hard copies of them in the process. Of course, as we’ve seen from the outset, we won’t have a serious investigation of the IRS scandal on Eric Holder’s watch unless the House appoints a Select Committee that will thoroughly examine the facts of the case without the Department of Justice standing in the way.