Did the IRS Break the Law by Failing to Safeguard Those ‘Lost’ Emails?

The IRS may have violated U.S. law by failing to properly protect its emails, a possibility that could further frustrate lawmakers as they continue to investigate the agency.

Late last week, the IRS surprised Congress by saying it cannot find more than two years’ worth of emails between former IRS employee Lois Lerner and people outside the IRS, because of a computer crash. Congress had been searching for those emails to look for evidence that the IRS purposefully tried to slow or prevent conservative groups from gaining tax-exempt status.

The IRS says it lost emails to and from Lois Lerner — if so, the IRS may have violated laws requiring safeguards to ensure emails are properly archived. (AP Photo/J. Scott Applewhite, File)

The IRS’s own internal rules say employees are supposed to keep paper records of most emails they receive. That indicates that Lerner may have violated IRS rules, since presumably the IRS cannot find any paper copies of Lerner’s emails.

But the agency itself may have also broken U.S. law by not taking steps to avoid this situation.

A section of the law titled Records Management by Federal Agencies says the head of every federal agency must take steps to preserve pertinent records. And it specifically says the leader of an agency must “establish safeguards against the removal or loss of records he determines to be necessary.”

Those safeguards must include telling the government employees that records cannot be destroyed except under certain circumstances, and that there are penalties for removing or destroying records.

That section of law also says the head of a federal agency must also notify the National Archives and Records Administration of “any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency.”

Agency leaders must then work with the Archivist to “initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency.

“In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made,” the law states.

Aside from burying the news of the “lost” emails in a letter to Congress last week, the IRS has not made any public statement about the incident.  The IRS not put out any formal press release since June 10, and has no information on the issue under its “what’s hot” news section.