Lerner emails re­veal open-records loop­hole

In­stant mes­sages of­ten not on file

The Washington Times Weekly - - Politics - BY STEPHEN DINAN AND S.A. MILLER

The Lois G. Lerner emails re­leased this month re­vealed a po­ten­tially huge loop­hole in fed­eral open-records prac­tices when an IRS tech staffer ac­knowl­edged that the agency doesn’t reg­u­larly store — and never checks — in­stant mes­sage chats as of­fi­cial govern­ment records.

An­a­lysts say there is no ques­tion that the In­ter­nal Rev­enue Ser­vice and all other fed­eral agen­cies should be stor­ing chats and even cell­phone text mes­sages that may con­sti­tute of­fi­cial govern­ment doc­u­ments, but a check by The Wash­ing­ton Times sug­gests that hardly any agency is do­ing so.

Of 17 agen­cies sur­veyed by The Times, just two said they had poli­cies re­quir­ing in­stant mes­sages to be stored as of­fi­cial, search­able records.

One agency said it doesn’t al­low use of text or chat, six agen­cies said they didn’t have spe­cific poli­cies or were work­ing on lan­guage to cover mod­ern tech­nol­ogy, and another eight agen­cies did not pro­vide any an­swers about their poli­cies de­spite mul­ti­ple re­quests.

“We are dis­ap­pointed, though not sur­prised, to hear that fed­eral agen­cies don’t have poli­cies in place to pro­tect this type of in­for­ma­tion from be­ing de­stroyed,” said Emily Gran­nis, a le­gal fel­low at the Re­porters Com­mit­tee for Free­dom of the Press.

“Texts, in­stant mes­sages, voice mails and other quick, in­for­mal types of com­mu­ni­ca­tions have long been con­sid­ered pub­lic records un­der state and fed­eral free­dom of in­for­ma­tion laws, and have be­come so ubiq­ui­tous that of­ten those are the only records we have of how de­ci­sions are made,” Ms. Gran­nis said. “The govern­ment should take ex­tra care to en­sure those records are pre­served in­stead of ca­su­ally al­low­ing them to dis­ap­pear.”

Open-records laws re­quire fed­eral de­part­ments and agen­cies to store key doc­u­ments that show of­fi­cial de­ci­sion-mak­ing. The prac­tice pre­serves the records for con­tem­po­ra­ne­ous and fu­ture re­search on how the govern­ment works. The laws were drawn up when all records were put on pa­per, but have been up­dated to in­clude

“I was cau­tion­ing folks about email and how we have had sev­eral oc­ca­sions where Congress has asked for emails and there has been an elec­tronic search for re­spon­sive emails — so we need to be cau­tious about what we say in emails.” — Lois Lerner, For­mer In­ter­nal Rev­enue Ser­vice of­fi­cial

elec­tronic com­mu­ni­ca­tions.

Agen­cies ap­pear to have adopted rules for han­dling email, but even that tech­nol­ogy is be­ing sup­planted. Govern­ment officials are scram­bling to keep up.

The Na­tional Ar­chives and Records Ad­min­is­tra­tion, which is re­spon­si­ble for pre­serv­ing fed­eral records, rec­om­mends that doc­u­ments that aren’t stored au­to­mat­i­cally, such as text mes­sages, be for­warded, pasted into emails or oth­er­wise memo­ri­al­ized.

The same rules ap­ply to phone con­ver­sa­tions and voice mail mes­sages, though it’s un­clear how many govern­ment em­ploy­ees are tak­ing and stor­ing notes of those com­mu­ni­ca­tions, ei­ther.

The is­sue of whether in­stant mes­sages and texts from mo­bile de­vices are be­ing stored has been per­co­lat­ing for years among those charged with think­ing about govern­ment trans­parency and open­records re­quests.

Last week, how­ever, a re­lease of emails showed that Ms. Lerner asked whether in­stant-mes­sage chats were stored. The for­mer IRS em­ployee at the cen­ter of the tea party tar­get­ing scandal raised the ques­tion in the mid­dle of what ap­peared to be a dis­cus­sion about how to hide in­for­ma­tion from Congress.

A tech staffer replied that each person could change set­tings to de­ter­mine whether con­ver­sa­tions on the IRS chat sys­tem, the Of­fice Com­mu­ni­ca­tions Server, were stored au­to­mat­i­cally, though the de­fault was not to store chats. He also said the doc­u­ment search tool didn’t in­clude chats that were stored, so those mes­sages wouldn’t come up in open-records re­quests.

“I was cau­tion­ing folks about email and how we have had sev­eral oc­ca­sions where Congress has asked for emails and there has been an elec­tronic search for re­spon­sive emails — so we need to be cau­tious about what we say in emails,” Ms. Lerner wrote. “Some­one asked if OCS con­ver­sa­tions were also search­able — I don’t know, but told them I would get back to them. Do you know?”

The staffer replied: “OCS mes­sages are not set to au­to­mat­i­cally save as the stan­dard; how­ever the func­tion­al­ity ex­ists within the soft­ware. That be­ing said the par­ties in­volved in an OCS con­ver­sa­tion can copy and save the con­tents of the con­ver­sa­tions to an email or file.”

She went on to say: “To date OCS con­ver­sa­tions are not specif­i­cally iden­ti­fied as part of the Elec­tronic Data Re­quest (EDR) for in­for­ma­tion, how­ever, if one of the par­ties save the con­ver­sa­tion as an email or file they would be­come part of the elec­tronic search.”

The IRS didn’t re­spond to re­peated re­quests for com­ment on its han­dling of those elec­tronic records.

The is­sue also has popped up in re­la­tion to the En­vi­ron­men­tal Pro­tec­tion Agency, where a con­ser­va­tive re­searcher is try­ing to ob­tain com­puter chat and cell­phone text mes­sages from EPA Ad­min­is­tra­tor Gina McCarthy, ar­gu­ing that they con­sti­tute of­fi­cial records.

Christo­pher Horner, the re­searcher bat­tling the EPA, said some em­ploy­ees are us­ing in­stant mes­sage chats in­stead of email as a way to avoid scru­tiny.

“The fail­ure to search for text or other in­stant mes­sages, in sys­tems pro­vided by the tax­payer specif­i­cally for work-re­lated cor­re­spon­dence, is en­demic to ap­pointees and ca­reer bu­reau­crats alike,” Mr. Horner said.

He said the open-records process has a fun­da­men­tal flaw: It re­lies on govern­ment em­ploy­ees to po­lice them­selves, and re­quests for doc­u­ments usu­ally in­volve those who have the most to hide.

“FOIA, as well as con­gres­sional over­sight re­quests, op­er­ate on an honor sys­tem. Which re­quires peo­ple of honor. So you see the trou­ble this begs,” he said.

Of the 16 agen­cies sur­veyed by The Times, only two ap­peared to be mostly in com­pli­ance. The Health and Hu­man Ser­vices De­part­ment said its com­puter sys­tems don’t have in­stant chat func­tions, but its pol­icy in­di­cates that in­stant mes­sages and text mes­sages should be treated the same as email.

Like­wise, the CIA said it stores in­stant mes­sages and fol­lows ap­pli­ca­ble laws when re­spond­ing to records re­quests from the pub­lic or Congress.

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