The Internal Revenue Service claims to have lost two years’ worth of email messages between Lois Lerner, the former director of the Exempt Organizations unit who is facing contempt of Congress charges, and correspondents outside the agency.

Lerner has been under investigation since she revealed last year that the IRS Exempt Organizations unit had been using terms such as “Tea Party” and “Patriot” to screen applications from organizations applying for tax-exempt status. She asserted her Fifth Amendment rights in a pair of congressional hearings but gave a statement defending herself during the first hearing, and Republican lawmakers have filed contempt charges against her (see House Committee Refers Ex-IRS Official Lois Lerner to DOJ for Prosecution and House Holds Lerner in Contempt as IRS Probe Nears One-Year Mark).

Lawmakers have demanded all of Lerner’s emails from the IRS, and the agency agreed last month to turn over any of the remaining emails that had not already been given to the various congressional committees investigating the scandal (see IRS Agrees to Turn Over Remaining Lois Lerner Emails to Congress). However, the IRS has informed Congress that due to a computer crash, the IRS only has Lerner emails to and from other IRS employees during the period between January 2009 and April 2011. The IRS told lawmakers that it cannot produce emails written only to or from Lerner and outside agencies or groups, such as the White House, the Treasury, the Department of Justice, the Federal Election Commission, or lawmakers’ offices.

“The fact that I am just learning about this, over a year into the investigation, is completely unacceptable and now calls into question the credibility of the IRS’s response to Congressional inquiries,” said House Ways and Means Committee chairman Dave Camp, R-Mich., in a statement. “There needs to be an immediate investigation and forensic audit by Department of Justice as well as the Inspector General. 

“Just a short time ago, Commissioner [John] Koskinen promised to produce all Lerner documents,” Camp added. “It appears now that was an empty promise. Frankly, these are the critical years of the targeting of conservative groups that could explain who knew what when, and what, if any, coordination there was between agencies. Instead, because of this loss of documents, we are conveniently left to believe that Lois Lerner acted alone. This failure of the IRS requires the White House, which promised to get to the bottom of this, to do an Administration-wide search and production of any emails to or from Lois Lerner. The Administration has repeatedly referred us back to the IRS for production of materials. It is clear that is wholly insufficient when it comes to determining the full scope of the violation of taxpayer rights.”

Senate Finance Committee chairman Ron Wyden, D-Ore., indicated his committee is wrapping up its investigation of the matter. “We’re working to finalize the Committee’s bipartisan investigation of the IRS’s review and processing of applications for tax exempt status,” Wyden said in a statement. “To date, our effort has included a review of hundreds of thousands of related pages of documents and over 30 interviews. We are now working with the IRS to determine if any relevant documents were not provided and will continue to work toward a release of our bipartisan report.”

The IRS explained the technical glitches it had encountered and how many emails it has retrieved to date.

“At the request of the Senate Finance Committee, the IRS today provided a summary of its production of email and materials to the Committee related to the processing and review of applications for tax-exempt status, as described in the May 2013 report by the Treasury Inspector General for Tax Administration,” said a statement from the agency. “The IRS has made unprecedented efforts in connection with this effort, producing more than 750,000 pages of documents to help complete the investigations. In total, the IRS's efforts to respond to Congress have involved more than 250 IRS employees working more than 120,000 hours at a direct cost of nearly $10 million.

“As we advised the committee three months ago, we have completed the production of materials related to the investigation, including 11,000 emails sent or received by Lois Lerner,” the IRS statement continued. “Since then, at the request of other Congressional committees, the IRS has been working on the identification and production of other Lois Lerner emails. The additional emails do not relate to the Finance Committee's investigation. As part of this additional search, the IRS collected emails from 83 individuals. Congressional investigators have—or will soon have—a total of 67,000 emails sent or received by Ms. Lerner. In the course of collecting and producing Ms. Lerner's additional emails, the IRS determined her hard drive crashed in 2011. At the time, Ms. Lerner asked IRS IT professionals to restore her hard drive, but they were unable to do so. Nonetheless, the IRS has or will produce 24,000 Lerner emails from this 2009-2011 time period, largely from the files of the other 82 individuals. The IRS's production to Congress of the 67,000 Lerner emails is nearly complete.

“The IRS is committed to working with Congress,” said the agency. “The IRS has remained focused on being thorough and responding as quickly as possible to the wide-ranging requests from Congress while taking steps to protect underlying taxpayer information.”

In a letter to Wyden, Camp and other lawmakers in Congress, the IRS elaborated on some of the technical glitches. It noted that it has approximately 90,000 employees, but due to financial and practical considerations it has limited the total amount of email stored on its server by restricting the amount of email an individual user can keep in their inbox. The IRS began producing emails from its Microsoft Outlook system in response to the six congressional investigations last year, initially searching for relevant emails, but then providing them in totality to the committees after they complained about the length of time it was taking. In all, it managed to locate more than 67,000 of Lerner’s email messages and has either turned them over or plans to do so.

However, Lerner’s computer crashed in mid-2011 and at the time IT professionals at the IRS tried to recover her files multiple times, but ultimately deemed the files to be unrecoverable. In response to the committee request, the IRS said it had searched through other sources where the email could be stored and produced much of it, although backup tapes from 2011 no longer exist because they have been recycled.

The IRS noted that it has been unable to interview Lerner herself to learn more, but it said it has retraced the collection process for her computer and determined that all the materials available in May 2013, when the scandal first erupted, were collected.

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