Melanie Sloan
By Melanie Sloan & Anne Weisman
Washington sure does love a political scandal, and no one more than House oversight committee Chairman Darrell Issa. The story of the missing IRS email provides all the necessary ingredients: an agency accused of abusing its authority, outstanding congressional document requests and email messages from a key IRS employee gone missing. That was all Issa needed to launch a vicious attack on the credibility and integrity of IRS Commissioner John Koskinen, who appeared before the committee last Monday night to explain what happened to the missing email and why. But between Issa’s outrage and Koskinen’s effort to avoid responsibility, not much was revealed.
The real scandal here lies well beyond the provocative details of the missing email. From a recordkeeping perspective, federal agencies have no idea how to manage their email. Agency employees do not understand that many of their email messages qualify as records that must be preserved for archival purposes, a requirement imposed by the Federal Records Act. And agencies are unwilling to invest in the electronic recordkeeping infrastructure that would ensure email is properly managed and preserved. As a result, many, including the IRS, have a “print to paper” policy, meaning email is preserved only if individual agency employees print them out and place them in paper files. When that doesn’t happen — as is frequently the case — email may be lost forever as backup tapes routinely are overwritten and older messages often are automatically deleted to save space.
Significantly, this is far from a new problem, as the oversight committee knows. Our organisation has brought lawsuits over the years challenging the Bush White House’s destruction of millions of email messages as well as the destruction of pre-investigative files by the Securities and Exchange Commission, including files pertaining to Bernie Madoff and Goldman Sachs. Congress had no reaction. In testimony before Issa’s committee, we have pointed out the systemic problems presented by agency noncompliance with recordkeeping responsibilities, to no avail. Congress has neither appropriated sufficient funds for agencies to implement electronic recordkeeping nor added oversight and penalties to the Federal Records Act that would ensure compliance.
Other scandals have bubbled up where missing emails have hampered investigations, including the Bush administration’s firing of nine US attorneys and the missing emails from John Yoo that impeded a Justice Department investigation into the memos he wrote on torture. These events in isolation, like the missing IRS email, triggered congressional outrage and allegations of purposeful destruction but not follow-through to fix the systemic problems.
Instead of looking for a conspiracy when the facts suggest agency incompetence and mismanagement, Issa and his similarly indignant colleagues should use their legislative authority to fix the problem.
As US Archivist David Ferriero testified, the IRS did not follow the law when it failed to report the missing email to the National Archives and Records Administration. Without this information, Ferriero’s hands were tied; with no additional oversight authority, there is nothing more he can do. Courts have the authority to order agencies to comply with their statutory duties and take corrective actions, but the Federal Records Act has been interpreted as granting only a very limited role to outside parties to challenge document destruction.
WP-BLOOMBERG
By Melanie Sloan & Anne Weisman
Washington sure does love a political scandal, and no one more than House oversight committee Chairman Darrell Issa. The story of the missing IRS email provides all the necessary ingredients: an agency accused of abusing its authority, outstanding congressional document requests and email messages from a key IRS employee gone missing. That was all Issa needed to launch a vicious attack on the credibility and integrity of IRS Commissioner John Koskinen, who appeared before the committee last Monday night to explain what happened to the missing email and why. But between Issa’s outrage and Koskinen’s effort to avoid responsibility, not much was revealed.
The real scandal here lies well beyond the provocative details of the missing email. From a recordkeeping perspective, federal agencies have no idea how to manage their email. Agency employees do not understand that many of their email messages qualify as records that must be preserved for archival purposes, a requirement imposed by the Federal Records Act. And agencies are unwilling to invest in the electronic recordkeeping infrastructure that would ensure email is properly managed and preserved. As a result, many, including the IRS, have a “print to paper” policy, meaning email is preserved only if individual agency employees print them out and place them in paper files. When that doesn’t happen — as is frequently the case — email may be lost forever as backup tapes routinely are overwritten and older messages often are automatically deleted to save space.
Significantly, this is far from a new problem, as the oversight committee knows. Our organisation has brought lawsuits over the years challenging the Bush White House’s destruction of millions of email messages as well as the destruction of pre-investigative files by the Securities and Exchange Commission, including files pertaining to Bernie Madoff and Goldman Sachs. Congress had no reaction. In testimony before Issa’s committee, we have pointed out the systemic problems presented by agency noncompliance with recordkeeping responsibilities, to no avail. Congress has neither appropriated sufficient funds for agencies to implement electronic recordkeeping nor added oversight and penalties to the Federal Records Act that would ensure compliance.
Other scandals have bubbled up where missing emails have hampered investigations, including the Bush administration’s firing of nine US attorneys and the missing emails from John Yoo that impeded a Justice Department investigation into the memos he wrote on torture. These events in isolation, like the missing IRS email, triggered congressional outrage and allegations of purposeful destruction but not follow-through to fix the systemic problems.
Instead of looking for a conspiracy when the facts suggest agency incompetence and mismanagement, Issa and his similarly indignant colleagues should use their legislative authority to fix the problem.
As US Archivist David Ferriero testified, the IRS did not follow the law when it failed to report the missing email to the National Archives and Records Administration. Without this information, Ferriero’s hands were tied; with no additional oversight authority, there is nothing more he can do. Courts have the authority to order agencies to comply with their statutory duties and take corrective actions, but the Federal Records Act has been interpreted as granting only a very limited role to outside parties to challenge document destruction.
WP-BLOOMBERG
