Archivist David Ferriero testified on Capitol Hill, Tuesday, June 24, that the IRS “did not follow the law” when they failed to report Lois Lerner’s lost e-mails to the National Archives and Records Administration (NARA), whether the loss was purposeful or accidental.
During an exchange with Congressman Tim Walberg (R-MI), Ferriero testified that the IRS had violated the Federal Records Act which requires any agency “to notify us when they realize they have a problem that could be destruction or disposal, unauthorized disposal.”
The NARA sent a letter to the IRS last week stating that they had just “learned of an alleged unauthorized disposal of Federal records” by the agency.
Ferreiro testified today that the NARA was not made aware of Lois Lerner’s lost e-mails, or the subsequent destruction of her hard drive.
When asked if by Walberg if it was safe to say the law had been broken, Ferriero responded “They did not follow the law.”
The video of the exchange can be seen below…
A transcript of the relevant Q&A 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, did the IRS report any loss of records related to Lois Lerner?
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.
The Justice Department lists a set of risks for the poor management of records through the Federal Records Act which include “Criminal or civil penalties, fines and/or imprisonment.”
Earlier testimony by IRS Commissioner John Koskinen indicates the IRS did not try to recover Lerner’s e-mails from the backup tapes that existed at the time. The following exchange was between Koskinen and Rep. Jason Chaffetz (R-UT):
Chaffetz: But it’s backed up on tape.
Koskinen: For six months, yes.
Chaffetz: And that was within the six month window, so why didn’t you get them off the backup?
Koskinen: All I know about that is that the backup tapes are disaster recovery tapes that put everything in one lump and extracting individual emails out of that is very costly and difficult. And that was not the policy at the time.
Chaffetz: Did anybody try?
Koskinen: I have no idea or indication that they did.
Lois Lerner’s computer crashed in 2011, just two weeks after an initial inquiry into possible targeting in the agency had been made. Still, nobody in the IRS made an effort to recover her e-mails from the archived disaster recovery tapes. Additionally, no officials in the department attempted to alert the NARA of the computer crash which led to her hard drive being recycled – a criminal violation.