One of the most startling, even shocking, revelations in the rapidly escalating IRS scandal (or “pseudo-scandal” if you’re a Democrat or mainstream journalist) is that, as IRS Commissioner John Koskinen revealed in his recent testimony and in a letter sent to Sens. Ron Wyden and Orrin Hatch, the IRS routinely recycled backup tapes of its employees’ email after six months. Those electronic files do not qualify as agency “records,” Koskinen claimed, because any messages that do qualify are supposed to be printed.
On Powerline, John Hinderaker, quoting extensively from the Internal Revenue Service Manual, points out that the IRS’s routine recycling (that is, record destruction) policy conflicts with the agency’s own definition of what qualifies as a “record.” He then asks:
Was such a policy even legal under the Code of Federal Regulations? I have not yet been able to figure that out. But it clearly was contrary to the guidance on document retention from the National Archives and Records Administration, which has broad oversight over the handling and retention of records by federal agencies.
In its Agency Recordkeeping Requirements: a Management Guide, NARA addresses the inadequate system that the IRS says that it used until last year. NARA says it is improper:
Agency files and record keeping systems must be available to all authorized staff members. Consequently, Federal records in electronic form should not be maintained solely on a staff member’s computer hard disk, diskettes, or directories assigned only for an individual’s use. This would be the electronic equivalent of maintaining agency paper records in an individual’s locked desk drawer.
I wonder, based on my experience in a former life when I was one of several plaintiffs in a lawsuit suit that succeeded in halting “routine” record destruction by FBI field offices, whether the role of the National Archives and Records Service may be more substantial than simply offering “guidance.” Take a look at U.S. District Judge Harold Greene’s sweeping opinion in American Friends Service Committee v. Webster, 485 F. Supp. 222 (1980), and see what you think.
I got involved — in fact, may have been the first to be involved — when I discovered, as I described in an article in The Nation (I already said this was in a former life), that an FBI field office had destroyed files after it had received and acknowledged receipt of my FOIA request for them. In any event, before it went to trial in Judge Greene’s courtroom the case had attracted a number of more noteworthy plaintiffs.
This case, of course, was far different from the current controversy, in large part because the plaintiffs were private citizens seeking the records for historical, journalistic, or personal reasons. Nevertheless, Judge Greene’s opinion might provide some support for efforts to put a stop to the IRS record destruction that obviously is still in progress. (Answering questions like this is presumably why God made lawyers.)
Here, for example, is one tantalizing excerpt from the opinion:
Maintenance and disposal of the records of the United States government is governed by a series of laws codified in title 44 of the United States Code….
These statutes contemplate and require the preservation inter alia of the following categories of records: (1) those which contain “documentation of the organization, functions, policies, decisions, procedures, operations, and essential transactions of an agency” (sections 3101, 3301); (2) those having “sufficient historical or other value to warrant their continued preservation” (section 2103); (3) those which are necessary to protect the financial and legal rights of persons directly affected by an agency’s activities (section 3101); and (4) those which have sufficient “administrative, legal, research, or other value to warrant their further preservation” (section 3303).
Pursuant to these general substantive guidelines, the Archivist is charged by law with the duty to establish records management standards, procedures, and guidelines, as well as the more specific responsibility to set standards for the selective retention of records of continuing value (sections 2901, 2902, 2904). He must also promulgate procedures for the disposal of records authorized to be destroyed (section 3302). The various agencies, in turn, are required to cooperate with the Archivist in applying these standards, procedures, and techniques (section 3102) and to submit to him lists and schedules of records proposed for disposal. The Archivist examines these schedules and lists in order to determine whether the documents have such value as to warrant their preservation under the law (sections 3302, 3303a).
Judge Greene held, among other things, that NARA had not met its obligations. Has it done so with regard to the IRS’s “routine” policy of recycling its email backup tapes after six months?
UPDATE: 23 June
Thanks to Prof. Paul Caron for listing this post today on his widely read daily IRS Scandal Day 41o post.
