It was so brazen. Right there, over email, Lois Lerner warned her colleagues “Congress has asked for emails ... so we need to be cautious about what we say in emails.” Then she asked whether the IRS’s instant messaging application was being archived, and was told that — contrary to law — archiving had been disabled. She responded: “Perfect.”
Specifically, IRS staffer Maria Hooke told Lerner “messages are not set to automatically save as the standard; however the functionality exists within the software.”
I asked the leading force for government transparency in the country, Chris Horner of the Competitive Enterprise Institute, whether it was legal for the IRS to disable the archiving function. “It’s unlawful to not enable it, and if it is default-enabled, it is unlawful to disable it,” he told me.
For support, he pointed me to a 2008 letter from EPA confessing to the National Archivist of “possible unauthorized destruction of computer files,” after discovering that former Administrator Carol Browner had her little-known secondary email account set on auto-delete.
So far, IRS has apparently made no such disclosure regarding Lerner’s instant messages, despite it being required under the Federal Records Act. They have offered no explanation for why the archiving function was disabled, deliberately and automatically destroying an entire class of records.
Even worse, this appears to be a standard practice across government agencies, especially at the EPA, who Horner is suing in CEI v. EPA, a Federal Records case seeking to compel EPA to stop destroying current Administrator Gina McCarthy’s text messages. Horner has obtained metadata showing texting was increasingly her medium of choice for conducting agency business, which she then illegally destroyed wholesale.
EPA replied to the court that Horner’s request is “intrusive,” and that if they choose to disregard the law, nobody should be able to force them to comply.