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

“…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 deny the 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.

Rather than provide information to Judicial Watch and the court under oath about the missing records, the IRS intends for Judicial Watch to wait indefinitely for its production of the records. Judicial Watch argues the IRS’ continuing “failure to provide complete information highlights the need for limited discovery. Neither Judicial Watch nor the court should have to rely on incomplete transcripts, out-of-court conversations, or the other, limited information Judicial Watch’s attorneys have been able to glean from congressional correspondence, media reports, and the internet to determine what system of records the IRS should reasonably search to recover the missing emails. As in all FOIA litigation, an “asymmetrical distribution of knowledge” exists between the IRS on the one hand, and Judicial Watch and the court on the other. It is precisely because the IRS has refused to provide pertinent, complete information that limited discovery is necessary.”

“The Obama IRS couldn’t care less about the federal court’s orders to provide full information about the ‘missing’ Lois Lerner emails,” said Judicial Watch President Tom Fitton. “Instead, the IRS, with the help of a compromised Justice Department, has engaged in a series of transparently evasive distractions. The IRS would have Judicial Watch wait for years before we can ask questions about the cover-up that is going on now. The IRS thinks it can game a federal court, Congress, and the American people. Having delayed accountability for over two years, the Obama administration is prepared to stonewall on the IRS targeting of Obama’s ‘enemies list’ until after the 2016 presidential election. Judicial Watch’s lawsuit can continue to break through this obstruction of justice, especially if the court approves our effort to put select Obama officials under oath.”