The IRS failed to adequately store, backup, and search official records for use in Freedom of Information requests and other litigation, according to a new report released by the Treasury Inspector General of Tax Administration. Performing an independent audit, TIGTA found:
The IRS’s current e-mail system and record retention policies do not ensure that e-mail records are saved and can be searched and retrieved for as long as needed. Additionally, repeated changes in electronic media storage policies, combined with a reliance on employees to maintain records on computer hard drives, has resulted in cases in which Federal records were lost or unintentionally destroyed.
In particular, the IRS destroyed laptops containing critical records – even when those records were requested for use in pending litigation. In one instance, TIGTA notes:
We found that when an employee separated from the IRS in August 2014, the employee left his laptop with his secretary. That employee was under a litigation hold to ensure that relevant evidence was preserved for use in litigation. However, without a policy in place to ensure that laptops of separating employees under litigation holds were maintained, that laptop was sent to the IT organization for standard sanitization and disposal.
After Lois Lerner’s hard drive crashed in 2011, the hard drive was shredded into quarter-size pieces and sold for scrap. In the process, 24,000 Lerner emails – which may have shed light on the IRS conservative targeting scandal – were lost.
Even when the IRS updated its policies and began saving employee hard drives, it failed to record who had used which hard drives. “Without this correlation,” reports TIGTA, “successfully completing a search for specific e-mail or other electronic information residing on a disposed hard drive would be highly unlikely and could result in destroyed records.”
Although the IRS stores 32,000 laptops and hard drives, it does not keep a detailed inventory. “This condition makes it difficult for the IRS to locate the electronic records of separated employees if needed to respond to FOIA requests or other official inquiries,” writes TIGTA.
This lack of an inventory reduces government transparency by making it impossible for taxpayers to exercise their rights guaranteed by the Freedom of Information Act. Nonetheless, the IRS continues to store thousands of laptops full of inaccessible information – even as it purchases new laptops that will eventually end up in the same place. Not only does the IRS violate taxpayer rights, but it does so in a way that wastes taxpayer dollars.
Upon publication of the TIGTA report, Rep. Kevin Brady, Sen. Orrin Hatch, and Rep. Vern Buchanan sent a letter urging IRS Commissioner John Koskinen to remedy the agency’s failed electronic recordkeeping procedures. The legislators write:
The lack of an electronic mail system that is compliant with Federal records management requirements and could allow the IRS to retain and search the records of current and separated employees is unacceptable. Failure to retain and produce records reduces transparency, inhibits Congressional oversight, and opens the IRS to judicial sanctions during litigation. TIGTA’s findings are also symptomatic of the IRS’s shambolic information technology modernization efforts.
In addition to losing and destroying employee hard drives, the IRS also fails to back up sensitive emails to a shared network drive. “Although interim policy requires that e-mail be archived for IRS executives,” TIGTA notes, “we found four executives from our sample of 20 who were not archiving e-mails as instructed. All four were members of the IRS Senior Executive Team.” TIGTA also cites a 2016 report by User and Network Services identifying “23 executives whose e-mail accounts were not configured to archive their e-mail when they assumed their executive position.”
Although federal law requires government agencies to honor FOIA requests within 20 days, the report says that some FOIA cases at the IRS took as long as 2.5 years to close. Reviewing a sample of 35 FOIA cases, TIGTA found that 30 cases took longer than the required 20-day limit, and the average case took 212 days to close.
Even when the IRS closes an FOIA case, there is no certainty that they attempted to search for all relevant records. Examining a sample of 30 closed FOIA cases, TIGTA found:
The IRS did not follow its own policies that require it to document which employees searched for responsive records and what criteria were used in the search. Without this information, the PGLD [Privacy, Governmental Liaison, and Disclosure] office was unable to document that an adequate search was performed.
In addition, our case review found four instances in which the IRS did not search for all responsive records.
It is particularly unlikely that the IRS will search the computer of a separated employee – even if that computer contains information that pertains to a FOIA request. TIGTA says:
IRS efforts in response to requests for records do not consistently search records of separated employees. For example, in one of the litigation cases we examined, the IRS did not search for records associated with one of 11 employees who had separated. In October 2014, the Department of Justice, on behalf of the IRS, filed a document with the court stating that 11 former IRS employees’ laptop hard drives were “likely unavailable” for electronic discovery of evidence. However, in our search, we found that, according to the IRS inventory system, one hard drive was listed as in-stock at the time the court document was filed and thus could have been searched to determine if records were still available.
Previous testimony from TIGTA revealed that the IRS failed to search five of six possible sources for Lois Lerner’s emails. If anything, the TIGTA report reveals that the loss of the Lerner emails was not a unique incident. The IRS has consistently failed to store, backup, and search employee hard drives and email exchanges, and taxpayers have consequently been prevented from accessing critical federal records.
Photo Credit: Brookings Institution