The Treasury Inspector General for Tax Administration (“TIGTA”) released an important report yesterday that detailed the Internal Revenue Service’s (“IRS”) inconsistent and inadequate records retention policies over recent years. The audit had been requested in March 2016 by the House Committee on Ways and Means. TIGTA, the IRS’s watchdog, concluded that the agency had failed to “comply with certain Federal requirements that agencies must ensure that all records are retrievable and usable for as long as needed.” In other words, TIGTA took the IRS to task for having ignored the requirements of the Federal Records Act (“FRA”) and the Freedom of Information Act (“FOIA”).
Consider some highlights from the report:
- “The IRS’s current e-mail system and record retention policies do not ensure that e-mail records are saved and can be searched[.]”
- “[R]epeated changes in electronic media storage policies, combined with a reliance on employees to maintain records on computer hard drives, has resulted in cases in which Federal records were lost or unintentionally destroyed.”
- “Interim actions taken by the IRS while developing an upgraded e-mail solution do not prevent loss of e-mail records.”
- The IRS’s “interim e-mail archiving policy for executives” was “not implemented effectively because some executives”—including four members of the Senior Executive Team—did not properly configure their e-mail accounts . . . and the IRS did not have an authoritative list of all executives required to comply with the interim policy.”
- “Policies requiring the IRS to document search efforts [under the FOIA] were not followed for some cases.”
- “The IRS does not have a consistent policy to search for records from separated employees.”
TIGTA’s report offers countless examples of how not to comply with federal law. Yet none of the details are terribly unexpected. Ever since the Lois Lerner Tea Party targeting scandal broke in 2013, the IRS has been grilled for its shoddy records management. Cause of Action Institute’s oversight of the agency revealed, for example, that the IRS used to delete BlackBerry messages after only fourteen (14) days because of “routine system housekeeping” and “spacing constraints.” More egregiously, the IRS intentionally failed to capture, preserve, or retain instant messages created on its Microsoft Office Communications Server (“OCS”) platform because of a contractual agreement with the National Treasury Employees Union. That “memorandum of understanding” sought to “enhance employee work environments and allow employees to more effectively and efficiently collaborate with their colleagues.” In other words, the IRS had no systemic means of assuring that employees’ communications on OCS were not records subject to the FRA or the FOIA and, if they were, that they were appropriately retained and retrievable. Our lawsuit against the IRS helped push the agency to implement a new records management system for text and instant messages in line with the requirements of the law. Unfortunately, as the TIGTA report demonstrates, the agency still falls short with respect to its management of email records.
It is also unsurprising—but still deeply troubling—that TIGTA concluded the IRS “did not consistently ensure that potentially responsive records” were identified, searched, and produced in response to FOIA requests. CoA Institute frequently litigates with the IRS over requests that go unanswered for months. The fight usually boils down to a disagreement over the adequacy of the agency’s search. Regrettably, courts give agencies a great deal of deference in justifying the reasonableness of their searches, even when a declarant fails to provide sufficiently specific information about how a search was conducted. In some of our cases, IRS FOIA officers have merely asked senior employees whether potentially responsive records exist and then called it a day. That’s unacceptable. The onus is now on the IRS to make improvements, and it is for Congress and taxpayers to ensure those improvements are made.
Ryan P. Mulvey is Counsel at Cause of Action Institute
