June 30, 2014
Washington sure does love a political scandal, and no one more than House oversight committee Chairman Darrell Issa. The story of the missing IRS e-mail provides all the necessary ingredients: an agency accused of abusing its authority, outstanding congressional document requests and e-mail 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 Monday night to explain what happened to the missing e-mail 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 e-mail. Quite simply, from a recordkeeping perspective, federal agencies have no idea how to manage their e-mail. Agency employees do not understand that many of their e-mail 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 e-mail is properly managed and preserved. As a result, many, including the IRS, have a “print to paper” policy, meaning e-mail is preserved only if individual agency employees go to the time and trouble of printing them out and placing them in the appropriate paper files. When that doesn’t happen — as is frequently the case — e-mail 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 organization has brought lawsuits over the years challenging the Bush White House’s destruction of millions of e-mail 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 e-mails have hampered investigations, including the Bush administration’s firing of nine U.S. attorneys and the missing e-mails from John Yoo that impeded a Justice Department investigation into the memos he authored on torture. These events in isolation, like the missing IRS e-mail, 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 U.S. Archivist David Ferriero testified, the IRS did not follow the law when it failed to report the missing e-mail 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 possess 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. Expanding the right of third parties to file lawsuits enforcing the provisions of the Federal Records Act would lead to greater oversight and enforcement.
Preferring instead to harass and bully agency officials to score political points, Congress rarely takes responsibility for its own role in fomenting agency failures. The missing IRS e-mail is a case in point. Long aware that agencies have not been preserving their records, Congress has done nothing. Will things be any different in the wake of the latest e-scandal? Probably not.