Courts Should End Lerner’s Illegal Instant Message Trick
By Phil Kerpen It was so brazen. Right there, over email, Lois Lerner warned her colleagues “Congress has asked for emails… so we need to be cautious about what we say in emails.” Then she asked whether the IRS’s instant messaging application was being archived, and was told that – contrary to law – archiving had been disabled. She responded: “Perfect.” Specifically, IRS staffer Maria Hooke told Lerner “messages are not set to automatically save as the standard; however the functionality exists within the software.” I asked the leading force for government transparency in the country, Chris Horner of the Competitive Enterprise Institute, whether it was legal for the IRS to disable the archiving function. “It's unlawful to not enable it, and if it is default-enabled, it is unlawful to disable it,” he told me. For support, he pointed me to a 2008 letter from EPA confessing to the National Archivist of “possible unauthorized destruction of computer files,” after discovering that former Administrator Carol Browner had her little-known secondary email account set on auto-delete. So far, IRS has apparently made no such disclosure regarding Lerner’s instant messages, despite it being required under the Federal Records Act. They have offered no explanation for why the archiving function was disabled, deliberately and automatically destroying an entire class of records. Even worse, this appears to be a standard practice across government agencies, especially at the EPA, who Horner is suing in CEI v. EPA, a Federal Records case seeking to compel EPA to stop destroying current Administrator Gina McCarthy’s text messages. Horner has obtained metadata showing texting was increasingly her medium of choice for conducting agency business, which she then illegally destroyed wholesale. EPA replied to the court that Horner’s request is “intrusive,” and that if they choose to disregard the law, nobody should be able to force them to comply. “These agencies have shown they are aware of and know how to perform the law’s requirement to notify the Archivist, which triggers remedial steps to reconstruct these records,” Horner says. “Yet the EPA is insisting it cannot be compelled to do so when it doesn’t want to.” Besides stopping EPA’s cyber-bonfire, Horner hopes a court will ultimately put all of the regulations McCarthy was responsible for — the ‘war on coal’ — on hold until McCarthy’s delated correspondence is reconstructed. If, on the other hand, the court accepts the EPA’s argument, not only will that agency be free to conduct its business in willful violation of the Federal Records Act and, by extension, the Freedom of Information Act (since there will never be any responsive documents), but so will every other agency. Including the IRS, which obviously already has a head start. So CEI v. EPA is really the test case for whether illegal behavior like Lois Lerner’s and Gina McCarthy’s will be given the implicit sanction of federal courts, an effective death blow for accountability and transparency across the federal bureaucracy. The wrong outcome would allow liberal activists in the government to conduct their official business in the dark. Congress would then have to step in and enact a law reaffirming that this is intolerable. What Lerner has already reminded us is that the creation and archiving of all public records should be automatic, permanent, and not subject to unilateral destruction by public officials. “The Federal Records Act and the Freedom of Information Act,” Horner says, “operate on an honor system, contingent upon the honor of those covered by them. So you see the problem.” As the dishonorable Lois Lerner might say: “Perfect.” Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.