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National Archives Chief: IRS 'Did Not Follow the Law' by Failing to Report Lost Emails


"If it was a permanent record, then it is not best practice."

WASHINGTON, DC - MAY 19: IRS Commissioner John Koskinen speaks during a news conference at the Justice Department May 19, 2014 in Washington, DC. Swiss financial services holding company Credit Suisse AG has pleaded guilty to conspiracy to aid and assist U.S. taxpayers in filing false income tax returns and other documents with the IRS and has agreed to pay $2.6 billion in fine. Alex Wong/Getty Images

The government's top record-keeper said Tuesday that the IRS "did not follow the law" when it discovered it lost two years' worth of Lois Lerner emails, but did not report that loss to the National Archives and Records Administration.

As reported last week, U.S law on records management by federal agencies says the head of all federal agencies must strive to maintain their records. It also says they must 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."

In a House hearing Tuesday, Rep. Tim Walberg (R-Mich.) asked Archivist of the United States David Ferriero whether the IRS ever reported the lost Lerner emails to his office.

"No," Ferriero replied.

Walberg then asked if it was fair to say the IRS broke the Federal Records Act by not reporting the loss. After avoiding the question directly for a bit, Ferriero admitted, "They did not follow the law."

Earlier in the hearing, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) raised the question of whether Lerner's emails should be considered as "records." IRS regulations appear to require all IRS employees to print out all emails and maintain them as records.

To be a "record," an email just has to be created or received in the course of IRS business, seen as appropriate to keep as evidence, or must otherwise be valuable.

When asked by Issa whether Lerner's emails should be seen as "records," Ferriero said they should, but said he is not sure if they should be seen as temporary or permanent records. Issa then asked whether it makes any sense of the IRS to routinely destroy emails after six months, and Ferriero said this practice makes no sense.

"If it was a permanent record, then it is not best practice," he said.

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