Archives Reminds IRS that Instant Messages Must be Retained

The emergence this week of a failure of the Internal Revenue Service to back up communications sent by employees on its internal instant message program has added new pressure on the tax agency to revamp its information technology procedures.

At a Wednesday hearing on improper payments, Commissioner John Koskinen was grilled by Rep. Jim Jordan, R-Ohio, on what Republicans view as delayed delivery of emails from former IRS official Lois Lerner, the figure at the center of the controversy over political targeting.

Koskinen said his team was working as quickly as possible to screen and deliver requested documents that now number nearly 1 million, promising 27,000 more next week.

Republicans cited emails from Lerner in early 2013 -- right before release of the Treasury Inspector General for Tax Administration report that triggered the dispute -- saying “we have to be cautious what we say in emails” because Congress may request them. She asked the IRS technology staff about the handling of the OCS messages, and was assured that the instant messages can be backed up and searched, and to treat them as if they are.

When asked about the so-called OCS system of internal messaging used by some within IRS, Koskinen said he was unfamiliar with OCS, but that his IT team was communicating with the National Archives and Records Administration on the issue of how such communications should be handled under the Federal Records Act.

An Archives spokeswoman, in a statement to Government Executive, said, “The definition of a federal record includes all machine-readable materials made or received by an agency under federal law or in connection with the transaction of public business. Agencies that allow instant messaging traffic on their networks must recognize that such content may be a federal record and must be managed accordingly. NARA has issued an FAQ on Instant Messaging that provides general information about these potential records.”

In a separate development, a U.S. district court on Thursday ruled that the IRS must explain how it lost Lerner emails from 2011, and appointed a federal magistrate to probe ways of obtaining the lost emails from other sources. That ruling was a victory for the nonprofit conservative Judicial Watch.