U.S. Archivist on IRS Not Reporting Lost Emails: ‘They Did Not Follow the Law’

By Lauretta Brown | June 24, 2014 | 4:21 PM EDT

Former IRS official Lois Lerner, at the center of the IRS-Tea Party investigation. Her computer reportedly crashed in early 2011 and her e-mails from January 2009 to April 2011 were lost.  (AP Photo/Carolyn Kaster)

(CNSNews.com) – Because the IRS did not notify the National Archives of Lois Lerner’s computer crash, hard drive destruction, and loss of e-mails, the IRS “did not follow the law,” said David Ferriero, archivist of the United States, in testimony before the House Oversight and Government Reform Committee on Tuesday.

The law in question is the Federal Records Act. Ferriero, whose full title is archivist of the United States for the National Archives and Records Administration (NARA), made his statement in response to questions from committee member Rep. Tim Walberg (R-Mich.).

Lois Lerner is the former director of the IRS’s Office of Exempt Organizations Unit, which is under investigation for delaying approval of the tax-exemption applications of Tea Party groups in 2010 and 2011.

Last week, it was discovered that Lerner’s computer apparently had crashed in early 2011 and her e-mails (January 2009-April 2011) allegedly were lost. The Oversight Committee has been requesting, for the last year, that the IRS turn over Lerner’s e-mails, other documents and other communications related to the investigation.

“Today, Mr. Ferriero testified that NARA was not made aware of Ms. Lerner’s computer crashing, the IRS’ inability to recover her emails, nor were they aware that her hard drive was later recycled,” said the Oversight Committee in a statement.

The committee further reported, “On June 17, 2014, the National Archives and Records Administration (NARA) sent a letter to the IRS requesting an investigation into the potentially illegal disposal of Ms. Lerner’s emails.” (See NARA Letter to IRS.pdf)

The exchange between Rep. Walberg and Archivist David Ferriero occurred as follows:

Walberg: “Thank you Mr. Chairman, Mr. Ferriero, just to review a bit in your testimony, you state that when agencies become aware of unauthorized destruction of federal records that they are required to report the incidents to the Archives. At any time in 2011, through last Monday [June 16], did the IRS report any loss of records related to Lois Lerner?”

Ferriero:  “No.”

Walberg: “Is it fair to say that the IRS broke the Federal Records Act?”

Ferriero: “They are required, any agency is required to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal.”

Walberg: “But they didn’t do that?”

Ferriero: “That’s right.”

Walberg: “Did they break the law?”

Ferrerio: “I’m not a lawyer.”

Walberg: “But you administer the Federal Records Act.”

Ferriero: “I do.”

Walberg: “If they didn’t follow it, can we safely assume they broke the law?”

Ferriero: “They did not follow the law.”

In the June 17 letter to the IRS, the NARA states that the archives “learned of an alleged unauthorized disposal of Federal records by the Internal Revenue Service (IRS)” only “last week.”

The letter also “requests that the IRS investigate the alleged disposal of the items in question and whether the alleged disposal was broader than what was reported” last week, and directs the agency to report on this matter within 30 days.

The IRS, according to the NARA, must provide a “complete description of the records” lost “with volume and dates if known”; “a statement of the exact circumstances surrounding the removal, defacing, alteration, or destruction of records”;  and “when appropriate, details of the actions taken to salvage, retrieve, or reconstruct the records.”   (See NARA Letter to IRS.pdf)

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