IRS Admits to Court it Hasn’t Searched for Missing Lerner Emails

Judicial Watch:

“…it has become apparent that the IRS did not undertake any significant efforts to obtain the emails from alternative sources following the discovery that the emails were missing”

(Washington, DC) – Judicial Watch announced today that the Internal Revenue Service (IRS) admitted to the court that it failed to search any of the IRS standard computer systems for the “missing” emails of Lois Lerner and other IRS officials. The admission appears in an IRS legal brief opposing the Judicial Watch request that a federal court judge allow discovery into how “lost and/or destroyed” IRS records relating to the targeting of conservative groups may be retrieved. The IRS is fighting Judicial Watch’s efforts to force testimony and document production about the IRS’ loss of records in Judicial Watch’s Freedom of Information Act (FOIA) litigation about the IRS targeting of Tea Party and other opponents of President Obama(Judicial Watch v. IRS (No. 1:13-cv-1559)).  The lawsuit is before U.S. District Court Judge Emmett G. Sullivan.

In its September 17 Motion for Limited Discovery, Judicial Watch argues that, despite two orders, the IRS had consistently failed to provide information detailing how “the missing emails could be retrieved from other sources and produced to Judicial Watch.” On October 17, IRS attorneys asked the court to denythe Judicial Watch request, even while admitting that additional Congressional requests “could result in additional documents being located ….”

In its October 27 Reply in Support of Motion for Limited Discovery, Judicial Watch argued that declarations submitted by the IRS in response to the Judge Sullivan’s orders “fail to answer important questions about the missing emails:”

[I]t has become apparent that the IRS did not undertake any significant efforts to obtain the emails from alternative sources following the discovery that the emails were missing. The emails are potentially responsive to Plaintiff’s FOIA requests, and the IRS’s failure to search for them in other recordkeeping systems raises material questions of fact about whether the agency has conducted a reasonable search.

Judicial Watch lawyers reviewed the IRS court filings and concluded that the agency “did not undertake any significant efforts to obtain the emails.”

IRS attorneys conceded that they had failed to search the agency’s servers for missing emails because they decided that “the servers would not result in the recovery of any information.” They admitted they had failed to search the agency’s disaster recovery tapes because they had “no reason to believe that the tapes are a potential source of recovering” the missing emails.  And they conceded that they had not searched the government-wide back-up system because they had “no reason to believe such a system … even exists.”

The IRS admitted to Judge Sullivan that the agency failed to “submit declarations about any of the foregoing items because it had no reason to believe that they were sources from which to recover information lost as a result of Lerner’s hard drive failure.” [Emphasis added]  Department of Justice attorneys for the IRS had previously told Judicial Watch that Lois Lerner’s emails, indeed all government computer records, are backed up by the federal government in case of a government-wide catastrophe. The Obama administration attorneys said that this back-up system would be too onerous to search. In the October federal court filing, the IRS does not deny that the government-wide back-up system exists, and acknowledges to the court that 760 other email “servers” have been discovered but had not been searched.  The IRS also refuses to disclose the names of the IRS officials who may have information about the IRS scandal, citing unspecified threats.  The IRS says it pulled documents about the scandal from various employees into a “Congressional database” and that it has only searched this one “database” for missing records.  Incredibly, the IRS has not searched any of the IRS’s regular computer systems for any missing records and admits that it has only searched a “database” that it knows does not contain the missing records being sought by the court, Judicial Watch, and Congress.

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