Republican members of the House Oversight and Government Reform Committee chastised IRS leaders Wednesday for the agency’s inability to preserve its employees’ emails and track those records down when needed. The IRS says it will have a system that complies with federal recordkeeping standards by December, but critics said the promised changes are years overdue.
The latest dustup over document retention surrounds a pending Freedom of Information Act lawsuit between Microsoft and the IRS.
Last month, the agency told a federal judge that it couldn’t comply with a court order to save emails from former IRS official Samuel Maruca because it had already tagged his computer’s hard drive for destruction shortly after he left the agency in 2014; the hard drive was likely erased later that year or early in 2015.
Although the IRS now says it can cobble together most of the relevant emails from other backup sources, GOP members of the House Oversight and Government Reform Committee who have held dozens of IRS hearings dating back to 2013 said record destruction was an “ongoing problem” that validated their calls to impeach Commissioner John Koskinen.
“Data storage is cheap,” said Rep. Mark Meadows (R-N.C.). “It would have been so much easier if the IRS had decided back when we held our first hearing to preserve everything. What precluded the agency from doing that? When Lois Lerner first came in and invoked the Fifth Amendment, you should have said, ‘You know what, we have a problem, let’s just preserve everything we have’ instead of talking about this at our 24th hearing.”
As of last month, the IRS has done just that, said Jeff Tribiano, the deputy commissioner for operations.
“We recognized the [Maruca] situation reflected a shortcoming in our document controls,” he said. “Therefore, we will halt the recycling and erasure of all departing employees’ hard drives and mobile devices. We will copy that information into a digital format in addition to retaining the physical hard drive. We will also broaden our litigation hold procedures so that those hold instructions are sent not only to the employees in charge of those systems, but also to their supervisors.”
But the department had already instituted a “don’t erase” policy 2 1/2 years ago.
Following allegations that the IRS had been improperly singling out conservative groups for scrutiny of their nonprofit status, Terence Milholland, the agency’s chief technology officer issued a memo ordering that all backup tapes containing emails be saved indefinitely rather than just six months.
“Further, do not reuse or refresh or wipe information from any personal computer that is being reclaimed/returned/refreshed/liquidated from any employee or contractor. … In other words, retain everything to do with email or information that may have been stored locally on a personal computer,” he wrote in May 2013.
That policy was violated when the IRS, due to what officials say was an employee error, destroyed hundreds of backup tapes that may have contained emails sent or received by Lois Lerner, long a target of the committee’s investigation
“I was literally blown away by the fact that those tapes were destroyed,” Milholland said Wednesday. “I thought the instructions were remarkably clear.”
IRS officials said the 2013 policy remained in effect, but they seemed to suggest Thursday that it didn’t apply to the Maruca case because the policy was only meant to apply to archival tapes, not individual computers, and because the policy had since been amended to relax the data retention rules for the hard drives of IRS workers who were not part of the Tax Exempt and Government Entities division.
“Because of budgetary problems two years ago while we were doing our Windows 7 implementation, we asked, ‘If we make copies of the data on the physical hard drives we’ve been saving, can we erase them and reuse them?’ We got permission to do that. And in that sense, the policy was rescinded,” Milholland said.
Rep. Jason Chaffetz (R-Utah), the committee’s chairman, was unpersuaded by that explanation.
“You can dance around this all you want, but you’ve had preservation orders and do-not-destroy orders in place and you’ve continued to destroy data,” he said. “This issue has never been fixed, and that’s why we continue to have these hearings.”
IRS officials said many of their document archival challenges had do with the sheer scope of managing the email records of one of the government’s largest agencies and a massive upsurge in records requests since the allegations of improper targeting first surfaced, all during the course of five consecutive years of budget cuts.
Adjusted for inflation, the IRS budget is 17 percent smaller than in 2010.
In the technology arena, that’s meant the agency has not been able to replace applications and technology architecture that were first designed and implemented in the 1960s and 1970s. Those systems’ massive maintenance costs tend to crowd out spending on new IT infrastructure.
Milholland said many of the applications are written in Cobol and assembly language, and only a handful of aging IT staffers understand how they work — let alone how to modify them.
“The budget affects people, processes and technology,” he said. “In the people area, we have 67 individuals who are single points of failure for particular systems. If they left the IRS, we would not have any knowledge to deal with the systems they’re running. That’s how thin we’ve become.”
NARA has determined the IRS is “generally compliant” with the guidelines, because it’s now storing the email records of all of its senior executives — the officials most likely to generate federal records of interest to Congress and the public — in a dedicated, permanent database.
An Office of Management and Budget directive in August 2012 ordered all agencies to store all of their emails in searchable databases “to the fullest extent possible” by the end of 2016.
Milholland said IRS will at least partially comply with that deadline by storing all of its workers’ records in a separate archiving system instead of relying on individual employee computers’ hard drives and warehoused tape backups by the end of this year.
“We have an investment plan to build out the entire process of record retention, and the first elements will be in place by the end of December or the beginning of January,” he said. “But in terms of the long-term records retention initiative, a system that can search for anything and do it instantly, that’s not been completely planned out, nor staffed, nor resourced.”