Washington sure does love a political scandal, and no one more than House oversight committee Chairman Darrell Issa. The story of the missing IRS emails provides all the necessary ingredients: an agency accused of abusing its authority, outstanding congressional document requests and email messages from a key IRS employee gone missing. That was all Issa needed to launch a vicious attack on the credibility and integrity of IRS Commissioner John Koskinen, who appeared before the committee to explain what happened and why. But between Issa’s outrage and Koskinen’s effort to avoid responsibility, not much was revealed.
The real scandal lies well beyond the provocative details of the missing email. Quite simply, from a recordkeeping perspective, federal agencies have no idea how to manage their email. Agency employees do not understand that many of their emails qualify as records that must be preserved for archival purposes. And agencies are unwilling to invest in the electronic recordkeeping infrastructure that would ensure email is properly managed and preserved. As a result, many, including the IRS, have a print to paper policy, meaning email is preserved only if individual agency employees go to the time and trouble of printing them out and placing them in the appropriate paper files. When that doesn’t happen - as is frequently the case - email may be lost forever as backup tapes routinely are overwritten and older messages often are automatically deleted to save space.
This is far from a new problem, as the committee knows. Our organization has brought lawsuits over the years challenging the Bush White House’s destruction of millions of emails as well as the destruction of pre-investigative files by the Securities and Exchange Commission. Congress has neither appropriated sufficient funds for agencies to implement electronic recordkeeping nor added oversight and penalties to the Federal Records Act that would ensure compliance.
Instead of looking for a conspiracy when the facts suggest agency incompetence and mismanagement, Issa and his similarly indignant colleagues should use their legislative authority to fix the problem. As U.S. Archivist David Ferriero testified, the IRS did not follow the law when it failed to report the missing emails to the National Archives and Records Administration. Without this information, Ferriero’s hands were tied; with no additional oversight authority, there is nothing more he can do. Courts possess the authority to order agencies to comply with their statutory duties and take corrective actions, but the Federal Records Act has been interpreted as granting only a very limited role to outside parties to challenge document destruction. Expanding the right of third parties to file lawsuits enforcing the provisions of the Federal Records Act would lead to greater oversight and enforcement.
Preferring instead to harass and bully agency officials to score political points, Congress rarely takes responsibility for its own role in fomenting agency failures. The missing IRS emails are a case in point. Will things be any different in the wake of the latest e-scandal? Probably not.